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.