Digital Alchemy Terms of Service
DIGITAL ALCHEMY TERMS OF SERVICE
Date: 20 July 2019
These Terms of Service (Terms) govern your access to and use of our services, including our consultancy services, software and hosting (collectively, the “Services”). By using the Services you agree to be bound by these Terms.
1,1 Digital Alchemy will provide the Services in accordance with these Terms.
1.2 Digital Alchemy will perform all Services:
(a) in accordance with the Statement of Work or Service Order for that particular engagement, including any applicable timelines and/or any such timelines as may be subsequently agreed in writing between Digital Alchemy and the Client;
(b) with all reasonable care, skill and diligence, in a proper, professional and timely manner; and
(c) in compliance with all applicable Laws.
1.3 Digital Alchemy makes no representation or warranty that:
(a) the Services will be defect or error free;
(b) Client’s use of the Services will be error-free, uninterrupted or compatible with Client’s equipment and software configurations;
(c) any Services will be fit for the Client’s purpose; or
(d) use of any Service will improve the financial performance or profitability of Client or any other party
- Client Responsibilities
2.1 Client agrees that it will:
(a) ensure all information provided by it to Digital Alchemy is to the best of its knowledge, accurate and complete;
(b) not withhold any information or material in its possession or control the absence of which might materially and adversely affect the supply of the Services;
(c) not direct Digital Alchemy to do, or omit to do, anything which may cause Digital Alchemy or its personnel to breach any Laws;
(d) hold all authorisations, permits and licences required to be held by Client under applicable Laws to receive and utilise the Services; and
(e) comply with the requirements of all Laws of any kind applying to Client and the receipt and utilisation of the Services.
2.2 Where the Client is to supply Digital Alchemy with data, information or documents to allow Digital Alchemy to facilitate the provision of the Services, Client must provide data, information or documents that are accurate and provide the data, information or documents in the manner and form specified by Digital Alchemy. If Client fails to comply with this clause, Digital Alchemy may, at its election, either delay performance of the Services, not perform the Services at all or charge additional fees at its then prevailing rates to reflect the additional the cost and/or effort of performing the Services.
2.3 Client will be responsible for providing and maintaining its own internal facilities and equipment (including terminal, software, modem and telecommunication facilities) necessary for Client to access any part of the Services.
2.4 Client acknowledges and agrees that Digital Alchemy’s ability to provide the Services is dependent on Client’s compliance with this clause 2 and Digital Alchemy will not be liable for any delay or failure in providing the Services that is caused or contributed to by:
(a) the late or inadequate supply of information or other documentation by Client’
(b) the non-performance of Client’s obligations under clause 2; or
(c) Client change in its requirements for the Service.
2.5 Client acknowledges and agrees that if it requires access to the Software as part of the Services, each Authorised User will be required to accept and abide by the Digital Alchemy End User Licence Agreement for that Software, and that Client remains liable to Digital Alchemy for any breach by an Authorised User of an End User Licence Agreement.
- Fees and payment
3.1 Client agrees to pay Digital Alchemy the fees and any expenses (if applicable) in the manner set out in the applicable Statement of Work or Service Order (Fee).
3.2 Unless otherwise provided in an invoice or agreed by Digital Alchemy in writing, invoices must be paid within thirty (30) days after the date of invoice, time being of the essence.
3.3 Invoices for any pre-paid hours subscription plan will be issued at the beginning of each calendar quarter.
3.4 In respect of each Statement of Work and Service Order, on and from 1 July of each year:
(a) if there is an increase in the CPI over the twelve (12) month period ending 31 March of that year, the fees and hourly rates may be increased by an amount equivalent to the increase in the CPI over that twelve (12) month period; and
(b) if there is a decrease in the CPI over the twelve (12) month period ending 31 March of that year, the fees and hourly rates will stay the same.
3.5 If any invoice is disputed in good faith by Client, Client must give written notice to Digital Alchemy of the dispute, which must include the reasons for the dispute (Dispute Notice), no less than seven (7) days before the due date of the invoice. After this date, all invoices will be final.
3.6 If Client has issued a Dispute Notice by the due date for payment, Client may withhold only those amounts that are directly related to disputed elements of the invoice.
3.7 Digital Alchemy and Client will use reasonable endeavours to resolve any invoice dispute within thirty (30) days after a Dispute Notice is issued. Any payment to be made following resolution is to be paid within seven (7) days after such resolution.
3.8 If Digital Alchemy and Client are unable to resolve the dispute under clause 3.7 within thirty (30) days, the dispute is to be resolved in accordance with the procedure set out in clause 14.
- Late payment
If Client fails to pay Digital Alchemy any amount payable when due, then:
(a) all money owing to Digital Alchemy by Client becomes immediately payable;
(b) Digital Alchemy may suspend the performance of all Services;
(c) Client must pay, in addition to the amount outstanding, interest at the rate equal to the cash rate target published by the Reserve Bank of Australia plus an additional 5% pa on the amount outstanding for each day during which the default continues; and
(d) Client must pay all reasonable expenses incurred by Digital Alchemy in recovering any money owing, including, but not limited to, all expenses of any legal proceeding and all reasonable attorneys’ fees incurred in connection with such action.
5.1 Client must reimburse Digital Alchemy for all sales, use, transfer, privilege, excise or other taxes and all duties (Value Added Tax), whether international, national, state or local, however designated, which are levied or imposed by reason of the transactions contemplated under these Terms, a Statement of Work or a Service Order, excluding income taxes on profits which may be levied against Digital Alchemy.
5.2 Without limiting clause 5.1, all consideration provided for any taxable supply under a Statement of Work or Service Order is exclusive of Value Added Tax unless the contrary is clear. The amount of that consideration must be increased by an additional amount equal to the Value Added Tax on that taxable supply, and Digital Alchemy must supply Client with a tax invoice that complies with the legal requirements relating to invoices and that Value Added Tax.
5.3 If an amount of consideration under any Statement of Work or Service Order is calculated as specific compensation or reimbursement for an expense, loss or liability of a supplier the consideration must be calculated after excluding any amount for which the supplier is entitled to an input tax credit as recipient of the item to which the expense loss or liability relates.
5.4 If at any time an adjustment is made or required to be made between a party and the relevant taxing authority on account of any amount paid as any form of taxation under any Statement of Work or Service Order:
(a) a corresponding adjustment must be made;
(b) adjustment notes must be issued; and
(c) any payment must be made between Digital Alchemy and Client as may be necessary to give effect to the adjustment.
6.1 In the course of performing their responsibilities under these Terms, and any Statement of Work or Service Order, both Digital Alchemy and Client acknowledge that they may be exposed to or acquire Confidential Information of each other. Both Digital Alchemy and Client agree:
(a) to hold such information in strictest confidence;
(b) not to copy, reproduce, sell, assign, license, market, transfer, give or otherwise disclose such information to third parties;
(c) not to use such information for any purpose whatsoever, without the express written permission of the other, except for the performance of obligations under these Terms or any Statement of Work or Service Order, or as otherwise agreed; and
(d) to advise each of their employees, agents and representatives of their obligations to keep such information confidential and to procure compliance by such parties in respect of the same.
6.2 Each party must use reasonable efforts to assist the other party in identifying and preventing any unauthorised use or disclosure of the other party’s Confidential Information.
6.3 Each party agrees to notify the other immediately if it learns or has reason to believe that any person who has had access to the other party’s Confidential Information has violated or intends to violate these Terms or any Statement of Work or Service Order, and to reasonably cooperate with the other party in seeking injunctive relief and/or other available remedies against any such person.
6.4 The confidentiality obligations set out in this clause 6 do not extend to information that:
(a) is, as of the time of its disclosure or which after its disclosure becomes, part of the public domain through a source other than the receiving party and in a manner not in violation of the disclosing party’s proprietary rights;
(b) was known to the receiving party as at the time of its disclosure and was not stated to be or noted as confidential;
(c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information;
(d) is subsequently learned from a third party not under a confidentiality obligation to the disclosing party and was not stated to be or noted as confidential; or
(e) is required to be disclosed under a duly authorised subpoena, court order or government authority, provided that the receiving party (insofar as it is able by law) gives prompt written notice to the disclosing party prior to such disclosure, so that the disclosing party may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, the receiving party agrees to disclose only that portion of the Confidential Information which is required by law or order.
6.5 Each of Digital Alchemy and Client acknowledge that any breach of a party’s obligations arising under this clause 6, may give rise to irreparable damage to the other party and that such breach may be inadequately compensable in damages. Accordingly, either party, reasonably believing the other party to be in breach of its obligations under this clause 6 may seek and obtain injunctive relief or other equitable remedies against such breach or threatened breach, in addition to any other legal remedies which may be available. Each of Digital Alchemy and Client agree that the covenants contained in this clause are necessary for the protection of legitimate business interests of owners of the Confidential Information and are reasonable in scope and content
7.1 Both Digital Alchemy and Client must comply with the Privacy Laws.
7.2 Client warrant that:
(a) any Personal Information that it discloses to Digital Alchemy under these Terms, a Statement of Work or a Service Order has been collected in accordance with the Privacy Laws;
(b) the individual to whom the information relates has been made aware of the recipient’s identity, of how to contact the recipient, and of the other matters of which the recipient is required to inform a person about whom it collects information under the Privacy Laws; and
(c) Digital Alchemy is authorised to collect the information for the disclosure and use the information for the purpose of these Terms, a Statement of Work or a Service Order.
7.3 In relation to any Personal Information disclosed by a party under these Terms, a Statement of Work or a Service Order, the recipient must:
(a) not use, disclose, store, transfer or handle the information except in accordance with the Privacy Laws;
(b) only use or disclose the information for a purpose connected with these Terms, a Statement of Work or a Service Order, or as required by law;
(c) co-operate with any reasonable request or direction of the discloser which relates to the protection of the information or the exercise of the functions of any privacy regulator under the Privacy Laws; and
(d) ensure that access by its personnel is limited to people required to access that information for the purposes of these Terms, a Statement of Work or a Service Order, and that they comply with the requirements of this clause 7 and the Privacy Laws.
7.4 Each party must promptly inform the other in writing of any complaint that it receives concerning the use, disclosure, storage, transfer or handling of Personal Information and comply with any reasonable direction of the other in relation to a complaint concerning the use, disclosure, storage, transfer or handling of Personal Information.
- Intellectual Property Rights
8.1 The Client acknowledges and agrees that Digital Alchemy and/or its licensors own all Intellectual Property Rights to any of the Software and Services, including any developments, changes, modifications and updates. Client must not claim any right or title to use the Services except as permitted under these Terms or a Service Order. Client must not dispute or challenge the entitlement of Digital Alchemy to the Software or join any third parties to challenge or contest the validity of the Software.
8.2 The Client must not do, omit to do, attempt to do, or allow anyone to do anything that infringes Digital Alchemy’s Intellectual Property Rights, including:
(a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute any part or all of the Software in any form or media or by any means; or
(b) decompile disassemble, reverse engineer or otherwise reduce to human-perceivable form any part or all of the Software, except with Digital Alchemy’s prior written consent, or as expressly permitted by non-excludable laws.
8.3 If there is any Claim by a third party against the Client that the use of the Software will infringe any Intellectual Property Rights of the third party, then Digital Alchemy will indemnify the Client in respect of the Claim, subject to:
(a) the Client notifying Digital Alchemy as soon as reasonably possible of the Claim and no later than 10 Business Days of being notified of the Claim by the third party;
(b) Digital Alchemy, Digital Alchemy’s third party supplier, or their chosen representative being given full control to direct the defence and settlement of the Claim;
(c) the Client making reasonable efforts to mitigate the Losses associated with the Claim; and
(d) the Client providing Digital Alchemy will all reasonable assistance and information required by Digital Alchemy or the third party supplier in relation to the defence and settlement of the Claim.
8.4 In the event of a Claim for Intellectual Property Rights infringement against Digital Alchemy which affects the provision of the Services, Digital Alchemy may modify, limit, suspend or cancel the provision of any Services or materials, if required, in response to the Claim.
8.5 The indemnity in clause 8.3 does not apply to the extent that the Claim arises:
(a) as a result of any modifications to the Services not made by Digital Alchemy or its licensors;
(b) through Digital Alchemy’s compliance with the Client’s specifications and instructions;
(c) as a result of the Client or Authorised User’s use of any version of the Services other than the most recent unaltered version made available by Digital Alchemy, if such infringement would have been avoided by the use of such most recent unaltered version; or
(d) is caused or contributed to by the Client, their employees, agents, representatives, other personnel or Authorised Users.
8.6 If required by Digital Alchemy, the Client agrees to execute, or cause any Authorised Users to execute, all documentation necessary in order for Digital Alchemy to perfect or protect its Intellectual Property Rights in relation to any of the Services.
8.7 Client retains all Intellectual Property Rights held by Client in any information, content and documentation provided by Client to Digital Alchemy. However, Client irrevocably grants Digital Alchemy a royalty free licence to use, reproduce and create derivative works based on that information, content and documentation as needed to perform the Services.
8.8 Unless otherwise agreed to in a Service Order, upon payment in full of all Fees pursuant to a Service Order, Digital Alchemy grants Client a non-transferable, irrevocable, perpetual licence to use the Deliverables for the Client’s own business purposes.
The Client indemnifies Digital Alchemy against all Claims or Losses suffered or incurred by Digital Alchemy that are caused by, or arise from:
(a) any breach of these Terms, a Statement of Work or a Service Order by the Client or its agent(s);
(b) any negligent or unlawful act or omission by the Client, its agent(s) or any Authorised Users; or
(c) any unauthorised access to, or use of, the Software or Services by a third party that is not authorised to access or use, the Software or Services.
- Limitation on liability
10.1 Nothing in these Terms or any Statement of Work or Service Order is or should be interpreted as an attempt to modify, limit or exclude terms, guarantees or warranties which are imposed by statute and which cannot be modified, limited or excluded.
10.2 Digital Alchemy excludes to the extent permitted by law all other terms, guarantees conditions and warranties which might be implied into these Terms, any Statement of Work or Service Order, including but not limited to any warranties arising from a course of dealing, usage or trade practice.
10.3 Subject to clause 10.1, if Digital Alchemy is liable to Client for a breach of a term, condition, guarantee or warranty implied into these Terms or any Statement of Work or Service Order by statute, that liability is limited to the supplying of the Services again or the payment of the cost of having the Services supplied again.
10.4 Client does not rely on any representation, warranty, guarantee or other provision made by Digital Alchemy or on its behalf which is not expressly stated in these Terms or a Statement of Work or Service Order.
10.5 Subject to clauses 10.1, 10.3 and 10.6, the maximum aggregate liability of Digital Alchemy to Client in respect of any one claim or series of connected claims under these Terms or any Statement of Work or Service Order whether arising in or for breach of contract, negligence or other tort, breach of statutory duty, breach of warranty, under an indemnity or otherwise is limited to the Fees paid to Digital Alchemy by the Client under the Statement of Work or Service Order which is the subject of the claim or claims.
10.6 Digital Alchemy is not liable for any economic loss, loss of revenue, loss of saving on overheads, loss arising from business interruption, loss of data, loss of business opportunities, loss of goodwill or loss of profits whether direct, indirect, general, special or consequential from any cause, even if Digital Alchemy has been advised of the possibility of such damages or loss.
10.7 Any claims for loss or damage by Client against Digital Alchemy must be made within two (2) years after the occurrence of the event giving rise to the loss or damage.
10.8 Digital Alchemy and Client must each use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to the Services.
- Client Premises and Facilities
11.1 If Digital Alchemy is given access to any of Client’s facilities or systems to enable it to provide the Services, Digital Alchemy:
(a) will take reasonable care in accessing those facilities and systems, including all hardware, software and applications and will observe all reasonable security procedures and work practices as notified by Client to Digital Alchemy; and
(b) will not unreasonably interfere with or disrupt those facilities or systems.
11.2 If Services are to be provided at the Client premises, Client must:
(a) provide, at its own expense, the level of power, heating and air-conditioning necessary to maintain the environment at the Client premises for the provision and utilisation of the Services;
(b) provide a safe place of work and comply with all Laws and regulations relating to working conditions at the Client premises; and
(c) ensure that full insurance is in place to cover any death, personal injury or loss incurred by any Digital Alchemy personnel.
11.3 If the performance of the Services requires access to any Client premises, Client must allow Digital Alchemy’s personnel continuous and reasonable access to the Client premises to the extent reasonably determined by Digital Alchemy to be appropriate to perform the Services.
- Force Majeure
Except for any payment obligations, neither party is liable for any delay or failure to perform any of its obligations under these Terms, any Statement of Work or Service Order to the extent that the delay or failure is caused by reason of Force Majeure.
13.1 Digital Alchemy may suspend the supply or performance of any or all Services at any time without notice to the Client and has no obligation to allow Client to access and use of a System:
(a) if the Client becomes insolvent, is dissolved or liquidated, makes a general assignment for the benefit of its creditors, files or has filed against it, a petition in bankruptcy, or has a receiver appointed for a substantial part of its assets;
(b) has failed to pay any invoice issued by Digital Alchemy by its due date;
(c) in the event of a claim of Intellectual Property Rights infringement as referred to in clause 8.4; or
(d) if Digital Alchemy or a third party supplier reasonably suspects that the Client is in breach of any of their obligations under these Terms or a Statement of Work or Service Order.
13.2 To the maximum extent permitted by law, Digital Alchemy excludes all liability to the Client if the Services are suspended under this clause.
- Dispute Resolution
14.1 Where a party claims that a dispute has arisen under or in relation to these Terms, a Statement of Work or Service Order, it must give written notice to the Representative of the other party specifying the nature of the dispute. The Representatives of each party must then endeavour to resolve the dispute
14.2 If the Representatives cannot resolve the dispute within fourteen (14) days after receipt of the notice given under clause 14.1, the dispute must be referred to the managing director or chief executive officer of each party.
14.3 If the managing directors or chief executive officers cannot resolve the dispute within fourteen (14) days after the dispute is referred under clause 14.2, the dispute must be submitted to mediation administered by ACDC.
14.4 The mediator must be selected from a panel suggested by ACDC. Each of Digital Alchemy and Client must ask the ACDC to appoint the mediator if they cannot agree on who it should be. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation and must be held in Sydney, unless otherwise agreed by both Digital Alchemy and Client.
14.5 Nothing in this clause 14 prohibits a party from seeking injunctive relief from a court of competent jurisdiction if a breach or prospective breach of these Terms by the other party which would cause irreparable harm to the first party.
Digital Alchemy may subcontract some or all of its obligations under a Statement of Work or any Service Order to one or more third-parties. Digital Alchemy remains responsible to Client for the performance of its obligations despite any subcontract and is liable to Client for the acts, defaults and negligence of each of the subcontractors, or personnel of each subcontractor as if they were the acts, defaults or negligence of Digital Alchemy.
16.1 A Statement of Work or Service Order may not be assigned, sublicensed or otherwise transferred by Client, whether by operation of law or otherwise, without Digital Alchemy’s prior written consent, such consent not to be unreasonably withheld or delayed.
16.2 Digital Alchemy may, at any time, novate, assign or transfer part or all of its rights and obligations under these Terms, or any Statement of Work or Service Order to any third party and to the extent required Client consents to the novation, assignment or transfer. Client agrees to enter into a novation, assignment or transfer agreement on terms specified by Digital Alchemy.
17.1 These Terms together with each Statement of Work or Service Order (as applicable) constitutes the entire understanding between the Digital Alchemy and Client and supersedes all previous and contemporaneous communications, representations, or agreements with respect to Digital Alchemy’s supply, and Client’s access and use, of the Services.
17.2 Neither party is an agent, legal representative, partner, joint venturer, franchisee, employee, or servant of the other party hereto for any purpose. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, or to represent the other party in any capacity.
17.3 If any provision of these Terms, a Statement of Work or Service Order is held to be unenforceable, Digital Alchemy and Client agree to substitute the affected provision with an enforceable provision that approximates the intent and economic effect of the affected provision.
17.4 If any one or more of the provisions of these Terms or a Statement of Work or Service Order are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction or a panel of arbitrators, the remaining provisions of these Terms or Statement of Work or Service Order (as applicable) will be unimpaired and will remain in full force and effect. For purposes of resolving the matter before any such court or arbitral panel the invalid, illegal or unenforceable provision will be revised by such court or panel (ie, “blue pencilled”) as necessary to become a valid, legal and enforceable provision which comes closest to the intent of Digital Alchemy and Client underlying the invalid, illegal or unenforceable provision.
17.5 These Terms, a Statement of Work or Service Order will not be varied, except by agreement in writing signed by Digital Alchemy and Client.
17.6 No failure or delay of either party in exercising any right, power, or privilege under these Terms, a Statement of Work or Service Order (and no course of dealing between Digital Alchemy and Client) operates as a waiver or any such right, power of privilege. No waiver of any default on any one occasion constitutes a waiver of any subsequent default. No single or partial exercise of any right, power, or privilege precludes the further or full exercise of such right, power of privilege.
17.7 These Terms and each Statement of Work or Service Order may and all matters regarding the interpretation and/or enforcement of each of them, are governed exclusively by the laws in force in New South Wales, Australia. Digital Alchemy and Client submit to the non-exclusive jurisdiction of the courts of New South Wales.
- Defined Terms and Interpretation
In these Terms:
ACDC means the Australian Commercial Disputes Centre Limited.
Authorised User means an authorised user of any Services, authorised by the Client, and approved by Digital Alchemy, a list of whom is set out in the Service Order.
Business Day means:
(a) for the purposes of receiving a notice, a day which is not a Saturday, Sunday, public holiday or bank holiday in the city in which the notice is to be received; and
(b) for any other purpose, a day on which the banks are open for business in Sydney other than a Saturday, Sunday or public holiday.
Claim means any claim, action, proceeding or investigation of any nature or kind, and includes the allegation or threat of a claim.
Client means the party identified as Client in the Statement of Work or Service Order (as applicable).
Confidential Information is any non-public information of a party or its customers which the party identifies as confidential or which would reasonably be regarded as confidential and includes without limitation information relating to the party’s Intellectual Property Rights, organisational structure, financial position, personnel, policies and business strategies.
CPI means the Consumer Price Index published by the Australian Bureau of Statistics from time to time or the index officially substituted for it and if no such index is available, such published price index agreed by the parties acting reasonably.
Client Data means any data, information, content or other material which is uploaded by the Client or Authorised Users via the Software, but does not include any information, content or material that Digital Alchemy has provided to the Client or any Authorised User.
Deliverables means any items created, developed or generated by Digital Alchemy specifically for use by Client only and delivered to Client in connection with the Services.
Digital Alchemy means Digital Alchemy Limited and each subsidiary of Digital Alchemy Limited (being an entity in which Digital Alchemy Limited holds at least 50% of the ordinary shares or common stock).
Dispute Notice has the meaning given to it in clause 3.5.
Fees has the meaning given to it in clause 3.1.
Force Majeure means any event caused by occurrences beyond a party’s reasonable control, including, but not limited to, acts of God, fire or flood, war, terrorism, pandemic, system malfunction, governmental regulations, policies or actions enacted, or any labour, telecommunications or other utility shortage, outage or curtailment.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trade marks, know-how, confidential information, patents, inventions and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Laws means any laws, codes, guidelines and the like, including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, statutory rules of an industry body, statutory and mandatory codes of conduct, writs, orders, injunctions, judgments, generally accepted accounting principles and industry-wide non-statutory rules or obligations in force or as applicable from time to time.
Loss includes any loss, damage, cost, charge, liability (including tax liability) or expenses (including legal costs and expenses).
Personal Information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
Privacy Laws means any privacy, data security or data protection Laws applicable in the jurisdiction in which the Services are being provided or received.
Representative means any director, officer, employee or agent appointed by a party as its representative as set out in a Statement of Work or a Service Order.
Service Order means a service order agreed by the parties for provision of Services by Digital Alchemy to Client.
Services means the services provided by Digital Alchemy to Client.
Software means the software developed and owned by Digital Alchemy including Corebox, uDecide, uDiscover, uMedia and includes any other software developed by Digital Alchemy in the future.
Statement of Work means a statement of work agreed by the parties for provision of Services by Digital Alchemy to Client.
System means the interactive marketing campaign management system developed by Digital Alchemy for Client, which includes:
(a) the Software;
(b) the Client’s database of marketing information comprising Client Data; and
(c) the data output of the System.
In these Terms, the following rules of interpretation apply unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(c) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
(d) a reference to any party to these Terms or any other document or arrangement includes that party’s executors, administrators, substitutes, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect interpretation; and
(g) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these Terms or any Statement of Work or Service Order or any part of it.