Data Product and Services Agreement

Term
1. Term of the Agreement

This Agreement commences on the date it is last executed by a party and continues for 2 years or until terminated in accordance with the terms of this Agreement.

The Customer requests, and the Service Provider agrees to provide, the Data Services and Data Products on the terms of this Agreement and any applicable Statement of Work.

Term of Statement of Work

Each Statement of Work commences on the date it is executed by the parties and, unless extended or terminated earlier in accordance with the terms of this Agreement, will terminate on:

the expiry of the term specified in the Statement of Work; or
if the Statement of Work does not specify any term, the date when all Data Services and Data Products and have been supplied to the Customer.

The expiry of this Agreement does not affect any Statement of Work still in force. All provisions of this Agreement will survive and remain in force for the term of any applicable Statement of Work.

Performance
1. Service Provider Performance

Subject to the Customer:

complying with the Connection Requirements (if any); and/or
providing the Customer Materials set out in an applicable Statement of Work (if required),

the Service Provider will provide all Data Services and Data Products in accordance with the requirements of this Agreement and any applicable Statement of Work.

Connection Requirements
1. If the Customer has purchases any Data Services, the Customer must:
  1. meet and maintain the Connection Requirements before accessing the Data Service;
  2. notify the Service Provider in writing when the Customer considers that it has met the Connection Requirements;
  3. provide the Service Provider with any reasonably requested information we to assist the Service Provider confirm the Customer has met the Connection Requirements; and
  4. assist the Service Provider conduct any testing it considers reasonably necessary to establish whether the Customer has met the Connection Requirements.
2. Once the Service Provider is satisfied that the Customer has met the Connection Requirements, the Service Provider will notify the Customer in writing and grant the Customer access to the Data Services.

Fees and payment
1. Fees

The Customer will pay the Service Provider the Fees within 30 days of the invoice date.

Invoices

The Service Provider will issue invoices to the Customer for the Fees as set out in a Statement of Work.

GST
1. Expressions in this clause which are not defined in this Agreement but which are defined in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning as in the Act.
2. Unless otherwise expressly stated, all amounts, prices, values or other sums payable or to be provided under this Agreement are exclusive of GST.
3. If GST is payable on any supply made under this Agreement, the recipient of the taxable supply must pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as payment for the taxable supply is required to be made under this Agreement.

Third party applications
1. If the Customer is required to use any Third Party Applications to access the Data Services (as set out in an applicable Statement of Work), the Customer agrees it is solely responsible for acquiring the license and rights to use the Third Party Applications and accepting and complying with the applicable terms and conditions of the Third-Party Applications.
2. The Customer agrees that the Service Provider has no responsibility or liability for any claims, losses or damages arising out of or in connection with Customer’s use of any Third-Party Applications.
Information Technology Security Requirements
1. Security of Connection Requirements

If the Customer is required to comply with Connection Requirements the Customer must:

ensure that the Customer Systems use:
1. up to date anti-virus coverage;
2. (if data exchange is permitted) encrypted and authenticated communications protocols for data exchange; and
3. Intrusion Prevention Systems; and
notify the Service Provider immediately and comply with all reasonable directions and requests for information of the Service Provider if the Customer becomes aware of any actual or suspected:
1. loss of access credentials to Service Provider Systems;
2. unauthorised access to Service Provider Systems through Customer Systems; or
3. unauthorised access to or the presence of a virus or malware on Customer Systems.

Ownership and Intellectual Property Rights
1. Ownership of Pre-existing Materials
  1. Nothing in this Agreement or any Statement of Work affects the ownership of any Intellectual Property Rights subsisting in any Materials which were already in existence as at the date of this Agreement, or which are created by either party independently of this Agreement or any Statement of Work.
  2. Without limiting clause 7.1(a), nothing in this Agreement or any Statement of Work affects the ownership of any Service Provider Material or Third Party Material provided to or made accessible by the Service Provider to the Customer under this Agreement or any Statement of Work.
2. Ownership and licence of Data Products and Services
  1. Subject to any Customer Material licensed to the Service Provider under clause 7.3, the Service Provider will own all Intellectual Property Rights in the Data Products immediately from creation.
  2. The Service Provider grants the Customer a non-exclusive, royalty free, non-transferable, licence to use the Data Products and Data Services during the term of each relevant Statement of Work (if any) solely for the Purpose.
  3. The Customer must not do anything, or cause or authorise the doing of anything, which may adversely affect or jeopardise the Service Provider’s right, title or interest to the Data Products (including right to register or maintain registration of any Intellectual Property Rights in Data Products, Service Provider Materials or Service Provider Data), including:
    1. sell, lease, transfer, assign, sub-license, license or otherwise part with possession of the Data Products, Service Provider Materials or Service Provider Data, or any part of them, except as expressly permitted in this Agreement or a Statement of Work; or
    2. create or allow to be created or subsist any security interests over any of the Data Products, Service Provider Materials or Service Provider Data or any part of them.
  4. The Customer must not delete, amend or remove any copyright notices, acknowledgments or other notices regarding Intellectual Property Rights, within or relating to Service Provider Material or Third Party Material provided by the Service Provider to the Customer.
  5. The Customer must not use or exploit (for itself or for any other person) any Service Provider Data at any time, including after termination or expiration of the Agreement, except as expressly permitted under this Agreement.
3. Licensor Data
  1. The Customer acknowledges and agrees that:
    1. the Service Provider’s Data may include, be derived from or based on data from third party providers (“Licensor Data”);
    2. except as expressly required by law, the third-party providers of Licensor Data (“Data Providers”) provide the Licensor Data “as-is” with no representations, warranties or conditions of any kind concerning the Licensor Data and are not and will not be liable to the Customer for any loss or damage of any kind in connection with the Customer’s use the Licensor Data; and
    3. the Data Providers may rely on the disclaimers and exclusions set out in clause 7 to the extent that they relate to the Licensor Data.
  2. The Service Provider acknowledges that:
    1. some Licensor Data may provide the Customer licence rights that cannot be restricted under this Agreement; and
    2. despite any other clause in this Agreement, nothing in this Agreement excludes or restricts those rights.
4. Licensing Materials provided by the Customer

The Customer grants to the Service Provider a non-exclusive, royalty free, non-transferable licence during the term of each relevant Statement of Work to use any Customer Material supplied to the Service Provider by the Customer under that Statement of Work, solely for the purpose of performing the Service Provider’s obligations under this Agreement and the relevant Statement of Work.

IP Indemnity
1. Each party agrees to indemnify the other (in this clause 7.6 referred to as Those Indemnified) from and against any claims, liabilities, expenses, damages and costs incurred by any of Those Indemnified arising out of a third party claim of infringement, or alleged infringement, of the Intellectual Property Rights, which occurs by reason of the assignment, or grant or exercise of any licence by the other party of, any Intellectual Property Rights under this Agreement or any Statement of Work (Indemnified Claim).
2. A party’s liability under clause 7.6(a) is reduced to the extent that the infringement is caused by:
  1. modification to the Material by the other party that is not authorised by this Agreement or any Statement of Work; or
  2. use of the Material in a manner that is not in accordance with this Agreement or the relevant Statement of Work.
Pre-conditions to indemnity
1. Those Indemnified seeking to rely on an indemnity under this clause 7 must:
  1. immediately notify the other party of an actual or suspected Indemnified Claim;
  2. at the other party’s expense, do all things necessary to assign to the other party the absolute right to conduct the defence of the Indemnified Claim;
  3. at the other party’s expense, provide the other party with such assistance as it requires in conducting the defence of the Indemnified Claim;
  4. at the other party’s expense, allow the other party to:
    1. modify the infringing material(s) in order to avoid continuing infringement;
    2. procure for party the right to continue the use or possession of the infringing material(s); or
    3. if the solutions in either subclauses (A) or (B) above cannot be achieved, remove the infringing material(s).
2. If the Service Provider
3. The indemnity set out in clause 7.6 is conditional on Those Indemnified complying with its obligations under paragraph (a).
4. A party is not liable to Those Indemnified for an Indemnified Claim to the extent that the Indemnified Claim is caused or contributed to by either:
  1. any failure to perform; or
  2. any unreasonable delay in the performance of,

the obligations set out in paragraph (a).

This clause 7.6 states the entire and sole remedy in connection with an Indemnified Claim.

Confidentiality
1. Obligation to maintain confidentiality
  1. Each party (a Recipient for the purposes of this clause 8) acknowledges that the Confidential Information of the other party (a Discloser for the purposes of this clause 8) is confidential to the Discloser. The Recipient must keep the Discloser’s Confidential Information strictly confidential and not disclose it or allow it to become available to any third party, except as provided for in this Agreement. This clause 8 survives the termination of this Agreement and will continue to apply until the information no longer constitutes Confidential Information of the Discloser.
  2. The Recipient must not, without the Discloser’s prior consent, access or use the Discloser's Confidential Information other than to the extent required to perform its obligations or exercise its rights under this Agreement or the relevant Statement of Work.
  3. The Recipient must take, and ensure its authorised recipient of the Discloser's Confidential Information take, all reasonable precautions to maintain confidentiality of that information and protect it from unauthorised access, use and disclosure.
  4. The Recipient must not directly or indirectly disclose, divulge or communicate any Confidential Information of the Discloser to other person without the prior written approval of the Discloser except:
    1. to the Recipient’s professional advisors on a strictly confidential and “need to know” basis; or
    2. to the extent required to comply with any court order, law, regulatory requirement or applicable rules of any securities exchange. However, to the extent permitted by law, the Recipient must minimise the extent of disclosure and as far as practicable.
  5. The Service Provider may disclose Confidential Information relating to the Customer or this Agreement or any Statement of Work to any third party contractor who provides business process outsourcing services to the Service Provider and requires access to the information to provide those services, provided that the Service Provider:
    1. discloses the information on a need to know basis only; and
    2. ensures that the relevant third party contractor is bound by confidentiality provisions substantially in accordance with those set out in this clause 8.
Privacy
1. The parties undertake to comply with the Privacy Laws in relation to the handling of Personal Information which comes into either party’s possession or control when providing or receiving the Data Services and Data Products or otherwise engaging in any practice pursuant to this Agreement or a Statement of Work.
2. Before providing any Personal Information to the other party, each party agrees that it must have first procured the consent of the relevant individual to whom the Personal Information relates to allow the other party to the use and disclosure of that Personal Information when engaging in any practice pursuant to this Agreement or a Statement of Work.
Termination
1. Termination by either party

Unless otherwise expressly agreed in a Statement of Work, a party may terminate this Agreement or any Statement of Work immediately by written notice to the other party if:

the other party:
1. breaches this Agreement or a Statement of Work; and
2. does not remedy the breach within 30 days upon receipt of a notice requiring the breach to be remedied;
the other party becomes or resolves to become subject to any form of insolvency administration; or
it becomes unlawful for the party to perform or comply with its material obligations under this Agreement.
Termination by the Service Provider

The Service Provider may terminate this Agreement or a relevant Statement of Work immediately by written notice to the Customer if the Service Provider’s right to licence the Data Products or any Service Provider Data to the Customer is terminated.

Consequences of termination
1. If this Agreement or a Statement of Work is terminated for any reason:
  1. the Customer must pay the Service Provider the Fees for, and only for, the Data Services and Data Products provided by the Service Provider up to the effective date of termination;
  2. the parties must delete all copies of the other’s Confidential Information; and
  3. The Customer must immediately delete copies of all access and security credentials that were issued to the Customer.
2. Termination, however caused, is without prejudice to any rights or liabilities of the parties accruing as at the date of termination.
Suspension
1. If the Service Provider reasonably suspects that the Customer:
  1. is not complying with the Connection Requirements or the Customer’s connection to the Service Provider Systems has been compromised in any manner; or
  2. has breached any licence, access or use restrictions under the Agreement,

the Service Provider may immediately suspend the Customer’s access to the Data Services.

The Service Provider will provide the Customer written notice of a suspension under clause 10.4(a).
The Service Provider will unsuspend access to the Data Services when the reason(s) for suspension have been resolved to the Service Provider’s reasonable satisfaction.

Warranties
1. Customer warranties
  1. The Customer warrants that it will comply with any Use Requirements applicable to its use of any Data Products.
  2. The Customer represents and warrants that it has all consents and rights to the Customer Materials necessary to allow the Services Provider to perform its obligations and exercise its rights under this Agreement.
2. Service Provider warranty

The Service Provider warrants that the Data Services and Data Products will comply with the requirements of this Agreement and any relevant Statement of Work.

No other warranties
1. To the extent permitted by law and subject to clause 11.3(b), the Service Provider excludes all warranties and representations other than those expressly stated in this Agreement.
2. If any guarantee, warranty, term, or condition is implied or imposed in relation to the Data Services or the Data Products under the Agreement or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and the Service Provider is able to limit the Customer’s remedy for a breach of the Non-Excludable Provision, then the liability of the Service Provider for breach of the Non-Excludable Provision is limited to one or more of the following at the Service Provider’s option:
  1. in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
  2. in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

Liability
1. To the full extent permitted at law, the liability of a party (and in the case of the Service Provider, the Service Provider and all Related Service Provider Entities) to the other party for all loss, damage, cost or expenses (including legal costs) suffered or incurred by the other for all claims, whether arising under contract or tort (including negligence), under statute or otherwise, in connection with or arising from this Agreement or any Statement of Work is limited to the amount paid to the Service Provider by the Customer under the Statement(s) of Work related to the claim.
2. Subject to clauses 7.6 and 7.5(b), the limitations of liability in clause 12.1 do not apply for any loss, damage, cost or expenses (including legal costs) suffered or incurred by the other party arising under:
  1. the IP indemnity under clause 7.5(a);
  2. a breach or either party’s security or privacy obligations;
  3. fraud or misconduct;
  4. breach by the Customer of clause 11.1; or
  5. breach of clause 4.2.
3. In no event shall either party be liable for any special, indirect, indirect, exemplary, punitive or other consequential or incidental damages (including but not limited to any loss of revenue, loss of profits or lost opportunity) arising from or in connection with this Agreement or any Statement of Work.
4. The Customer acknowledges and agrees that the Customer assumes the sole risk of making use of, and/or relying on, rgwa and that Land Insight subject to clauses 11.2 and 11.3 makes no warranties or representations about the suitability, completeness or accuracy of the Report or its contents, including in relation to the characteristics, state, condition, proposed use, saleability or value of a Property
General provisions
1. Notices
  1. The parties’ addresses for delivery of notices are set out in the Statement of Work.
  2. A party must promptly notify the other of any change to its address for delivery of notices.
  3. A notice by a party:
    1. is taken to be given if it is made in writing and issued by the sender, and delivered by hand, post or electronically.
    2. subject to clause (iii) is taken as being received:
      1. if it is delivered by hand or courier when actually delivered
      2. if it is posted on the 3rd business day after posting;
      3. if it is sent electronically when the device through which the notice is sent reports that the notice has been sent
    3. that is received or taken to be received under clause (ii) on a day that is not a business day or after 5.00pm on a business day in Sydney, is taken to be received on the next business day.
2. Entire agreement

In relation to its subject matter and to the full extent permitted by law, this Agreement (together with any Statement of Work) constitutes the entire agreement between the parties and supersedes any previous representations, understandings or agreements.

Survival

Clauses 5, 6, 7, 8, 9, 12, 13, 14 and any other clause intended to survive will survive the expiry or termination of this Agreement.

Amendment

This Agreement may only be amended, supplemented, replaced or novated by a document executed by both parties.

Counterparts

This Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same document.

Waiver

Unless specifically stated to the contrary in this Agreement, a party’s failure to enforce or a delay in enforcing any of its rights under this Agreement does not constitute a waiver of those rights and a party’s partial exercise of a right does not preclude any further exercise of that or any other right.

Severance

If any provision of this Agreement is held to be prohibited, invalid or unenforceable in any jurisdiction:

that provision is ineffective to the extent of the prohibition, invalidity or unenforceability in that jurisdiction;
the validity or enforceability of that provision is not affected in any other jurisdiction; and
the remaining provisions of this Agreement are not affected.
Signatories

Each person who signs this document on behalf of a party declares that that person has no notice of the revocation or suspension of the power under the authority by which the person signs this document.

Assignment
1. Subject to paragraph (b), a party may only assign any of its rights under this Agreement with the prior written consent of the other party.
2. The Service Provider may notify the Customer that, from a date specified in the notice, a Related Service Provider Entity will provide the Data Services or Data Products under this Agreement during the balance of the Term, in which case:
  1. the specified Related Service Provider Entity (and not the Service Provider) will have the rights and obligations of the Service Provider under this Agreement for the balance of the Term; and
  2. the parties acknowledge and agree that the Service Provider will have entered into this Agreement for the balance of the Term as agent for that Related Service Provider Entity.
Further Assurances

Each party must do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including the execution of documents.

The rule about “contra proferentem”

This Agreement is not to be interpreted against the interests of a party merely because that party proposed this Agreement or some provision of it or because that party relies upon a provision of this Agreement to protect itself.

No announcements

Neither party will make any statements or public announcements about this Agreement without the prior written consent of the other party.

Governing Law

This Agreement is governed by the law in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of or exercising jurisdiction in New South Wales.

Definitions and Interpretation
1. Definitions

In this Agreement, unless the context requires otherwise:

Confidential Information of a party (the Disclosing Party) means all technical, financial, commercial and other information (in any form) of or relating to it or its business affairs that is marked as ‘confidential’, 'sensitive', 'private' or any other similar description or a reasonable person would (given its nature) consider confidential, which information is disclosed by the Disclosing Party or otherwise comes to the knowledge of the other party in connection with this Agreement or a Statement of Work, and includes:

information relating to the employees, contractors, customers or suppliers of the Disclosing Party, and like information, including any Personal Information (or sensitive information) of individuals; and
in the case of the Service Provider, Service Provider Pre-Existing Material, the Data Products, Service Provider Material, Service Provider Data, and any information relating to policies, strategies, practices and procedures of the Service Provider,

but excluding information that:

is readily available in the public domain without breach of confidentiality; or
the receiving party can establish by written records is or has been legally known to, developed by, or acquired by, that receiving party, independently of this Agreement and any Statement of Work.

Connection Requirements means the:

Third Party Applications and other resources that the Customer is responsible for maintaining to receive the Data Services, including as set out in an SOW; and
the requirements under clause 3.2.

Customer means, the party defined as Customer in clause 1.

Customer Material means:

all Materials in which the Intellectual Property Rights are owned or licensed by the Customer;
all Materials created, written or otherwise brought into existence by or on behalf of the Customer independently of this Agreement or a Statement of Work; and/or
data provided by, or on behalf of, the Customer to the Service Provider for the purpose of receiving the Data Services or the Data Products under this Agreement or any Statement of Work.

Customer Systems means any software, equipment, networks, infrastructure or other assets used by Customer that connect or have the ability to connect with Service Provider Systems.

Data means all data and information (whether or not Confidential Information, and whether relating to a party, its customers or any person) in any form:

provided by, or on behalf of, a party for the provision or receipt of the Data Services or the Data Products under this Agreement or any Statement of Work; or
transmitted, received, stored, processed, generated, compiled or modified through use, or in connection with the provision, of the Data Services or the Data Products under this Agreement or any Statement of Work,

and includes:

any database in which such data or information is contained;
electronic and hardcopy documentation or records related to such data or information; and
products resulting from the use or manipulation of such data or information.

Data Products means any Materials to be completed, developed, supplied or made available by the Service Provider to the Customer under this Agreement or a Statement of Work.

Data Services means the services described in a Statement of Work.

Fee means the fees and other charges payable by the Customer in connection with this Agreement as set out in a Statement of Work.

Intrusion Prevention Systems means a firewall policy on servers and endpoint devices which secures the incoming and outgoing traffic, and monitors and alerts of breach attempts.

Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered or patentable.

Material includes equipment, hardware, computer software, data, electronic communications, documentation, designs, drawings, reports, notes, calculations, specifications, photographs, audio-visual materials, recordings, manuals, tools and anything else which is in a material form (which, for the avoidance of doubt, includes information stored in an electronic form).

Personal Information has the same meaning as set out in the Privacy Act 1988 (Cth).

Privacy Laws means the Privacy Act 1988 (Cth), the Australian Privacy Principles, and other applicable laws governing the collection, use, disclosure, storage or granting of access rights to Personal Information.

Purpose means the purpose specified in a relevant Statement of Work, and if no purpose is specified means the Customer’s internal business purposes.

Related Service Provider Entity means a related body corporate (as defined under section 50 of the Corporations Act 2001 (Cth)) of the Service Provider.

Service Provider means the party defined as Service Provider in clause 1.

Service Provider Data means all Data that is created by or on behalf of the Service Provider or the Service Provider’s licensors and provided to the Customer in connection with the Data Services or Data Products under this Agreement or any Statement of Work.

Service Provider Material means:

Material that is developed by or on behalf of the Service Provider as a result of, or in the course of, performing its obligations under this Agreement or a Statement of Work;
Service Provider Pre-Existing Material;
Service Provider Data; and
any modifications, enhancements, adaptations or derivative works of the Material described above in (a), (b), or (c), whether created by the Service Provider or the Customer,

but excludes Customer Material and Third Party Material.

Service Provider Pre-Existing Material means any Intellectual Property Rights owned or licensed by the Service Provider or Related Service Provider Entity.

Service Provider Systems means any software, equipment, networks, infrastructure or other assets used by us in connection with our obligations under this Agreement.

Third Party Applications means any software, application, API, driver, online portal or other type of program not owned or expressly licensed by the Service Provider to the Customer under the Agreement, including the third party applications the Customer must install, access and/or use as part of the Connection Requirements.

Third Party Material means any Material in which the Intellectual Property Rights are owned or licensed by a person other than the Customer or the Service Provider or the Service Provider’s licensors.

Use Requirements means any obligation, restriction or limitation described as ‘use requirements’ or similar and set out in a relevant Statement of Work.

Interpretation

In this Agreement, unless the contrary intention appears:

headings are for ease of reference only and do not affect the meaning of this Agreement;
the singular includes the plural and vice versa and words importing a gender include other genders;
other grammatical forms of defined words or expressions have corresponding meanings;
a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
a reference to a party includes its executors, administrators, successors and permitted assigns.
Priority

Unless otherwise expressly stated in the body of this Agreement, to the extent of any inconsistency between any of the following documents, the documents will be interpreted in the following descending order of priority:

the terms and conditions in the body of this Agreement; and
the terms and conditions of a Statement of Work.

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