illion Open Data Solutions Services Agreement (Institutions)

SERVICES AGREEMENT

Last Update: April 2019

 

ILLION SERVICES AGREEMENT (INSTITUTIONS) You are bound by all terms and conditions of this illion Services Agreement from the date you click "I Accept".

 

ILLION ("illion", "we" or "us")
If you are in Australia, the contracting party is illion Australia Pty Ltd (ABN 95 006 399 677).
If you are in New Zealand, the contracting party is illion New Zealand Limited (Co. No. 361901) for all services except for Sales and Marketing Services, where the contracting party is illion New Zealand Marketing Services Limited (Co. No. 6398759).
  1. TERMS
    1. Each Work Order will be governed by the terms of this Agreement and the relevant Product Schedule.
    2. To the extent there are any existing work orders or statements of work currently in force between illion and the Customer in respect of a Product contemplated by this Agreement, this Agreement will apply to those Products in place of any existing terms and conditions (but subject to the terms of the relevant work order or statement of work and any special conditions set out therein) with effect from the Start Date.
  2. SERVICES
    1. We will perform the Services as described in each Work Order for the duration of that Work Order (Service Term).
    2. The Service Term of each Work Order will automatically renew (each a "Further Term"), unless either party provides written notice of non-renewal at least 30 days prior to expiry of the Service Term (and each relevant Further Term).
    3. You acknowledge and agree that, where appropriate, we may nominate in a Work Order for one of our Related Bodies Corporate to perform the Services on our behalf (e.g. our credit reporting entity may provide credit services) and references to "illion", "us" or "we" will be references to that entity.
  3. YOUR LICENSE TO THE PRODUCTS
    1. We grant you a non-exclusive, non-transferable, revocable licence to use the relevant Products for the Service Term in the Territory solely for your internal business purposes and subject to the conditions and any Permitted Purposes set out in a Work Order or Product Schedule. You must not sub-licence or resell the Products to a Related Body Corporate or any other third party without our prior written consent.
    2. For the avoidance of doubt, you acknowledge and agree that:
      • the licence granted under clause 3.1 does not extend to any Group Member except as expressly identified in the relevant Work Order, or otherwise agreed to us in writing; and
      • where use of a Product is extended to a Group Member in accordance with clause 3.2(a) you agree and warrant that:
        • the Group Member has been notified of the terms of use for the Product and any use by the Group Member will be in accordance with this Agreement; and
        • any breach of this Agreement by the Group Member will be deemed a breach by you, including for the purposes of clause 10.
    3. You acknowledge that our Products also incorporate data that is provided to us by third parties (including ASX, NZX, ASIC, FMA, other government agencies, and publicly available information sources) ("Third Party Data"). You must comply with any Third Party Data provider's conditions relating to the Third Party Data, including (if applicable) the ASX Market Data Products & Services Guide (a copy of which can be accessed at www.asxonline.com) or equivalent conditions required by NZX (see https://www.nzx.com/services) and requirements nominated by ASIC or FMA.
  4. USAGE RESTRICTION
    1. You must not:
      • permit anyone other than an authorised User to access or use all or part of any Product;
      • on supply, on sell, reproduce, copy, download, upload, modify, translate, adapt, or make any improvement to all or part of any Product;
      • reverse engineer, derive the source code of, or tamper with, any Software, or circumvent any technological measures contained in any Products that are designed to prevent unauthorised use or access to any part of a Product (except to the extent expressly permitted under the Copyright Act 1968 (Cth) for Australian Customers, or the Copyright Act 1994 (NZ) for New Zealand Customers);
      • engage in any form of systematic extraction of all or part of any Product including the use of "screen-scraping", "bots" and "spiders"; or
      • merge any part of any Information with any other database;
      • use all or part of any Product to generate any statistical or other information, or to prepare any comparison to other information databases, to provide to third parties; or
      • attempt to do, or permit anyone else to do or attempt to do, any of the acts described above.
    2. You must only use the Products on hardware and software that meets the minimum specifications published by us.
    3. You must:
      • ensure that Users keep Product security and access credentials confidential and secure, and not use Products for any unlawful purpose or in a manner that contravenes any applicable laws (including applicable Privacy Laws);
      • must ensure your Users and Personnel comply with the terms of this Agreement, and relevant Work Order and Product Schedule; and
      • implement and maintain security measures that: (i) effectively restrict access to Products only to authorised Users; and (ii) protect Products from unauthorised use, alteration, access, publication and distribution.
    4. A Named User ID is intended only for a specified User's individual use and must not be shared with other persons.
    5. Except where required by Privacy Laws, you must not identify us, a Product, or our confidential publications as a source of reference, or voluntarily produce any Information in legal proceedings unless you obtain our prior written permission.
    6. (D-U-N-S® Numbers) D-U-N-S® Numbers are unique numeric serial numbers which identify a company and which are proprietary to and controlled by us. We grant you a non-exclusive, perpetual licence to use D-U-N-S® Numbers (excluding linkage D-U-N-S® Numbers) solely for identification purposes and only for your internal use. Where practicable, you must refer to the number as a "D-U-N-S® Number" and state that "D-U-N-S®" is a registered trademark of Dun & Bradstreet.
  5. FEES, INVOICING & PAYMENT
    1. (Fees) We will charge you the Fees specified in the relevant Work Order. All Fees are in Australian or New Zealand dollars, depending on the Territory, unless otherwise specified.
    2. (Invoices) We will invoice you as set out in a Work Order (e.g. annually in advance, monthly in advance etc). Each invoice will be a valid tax invoice for GST purposes.
    3. (Payment) You must pay each invoice in 30 days from date of invoice.
    4. (Late Payment) If any Fees remain unpaid for more than 10 days beyond their due date, provided we have notified you in writing of this default and allowed you a further 2 days to pay, we may (without limiting our rights or remedies):
      • immediately suspend the supply to you of any or all Products;
      • charge interest at the Interest Rate on those outstanding Fees from the date on the invoice becomes overdue; and/or
      • terminate this Agreement and/or any Work Order under it.
      • treat all incurred amounts as due and payable immediately (even where we have previously agreed that you may defer payment);
      • take action to recover those outstanding Fees or other amounts owing to us (including any interest), and all costs and expenses incurred in recovering them including all legal costs on a solicitor and own client basis; and
      • if you are receiving debt collection services from us, we reserve the right to recover outstanding Fees from any debts that were collected on your behalf.
    5. (Fee Increases) You acknowledge and agree that:
      • We may increase the Fees which apply to a Further Term of any Work Order by giving you at least 60 days' written notice prior to the renewal date; and
      • Notwithstanding clause 5.5(a) above:
        • where a Service incorporates a third party product or service (e.g. a third party data supplier to illion); an
        • during the Service Term, that third party increases the cost of their product or service to illion;
        we may increase the Fees for that Service to incorporate that increase by 30 days' written notice to you.
    6. (GST) If the supply of Services is a taxable supply then, at the same time as you pay the Fees, you will pay any GST payable for the taxable supply. All rebates, discounts or other reductions in price will be calculated on the GST exclusive price. Expressions above in italics have the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  6. DATA QUALITY
    1. Given we obtain data from various sources, you acknowledge and agree that:
      • all Products, Information, Software and Services are supplied on an "as is" and "as available" basis; and
      • to the maximum extent permitted by law, we and each Third Party Data provider exclude all liability for inaccurate, incomplete, out of date or unavailable Information or Third Party Data;
      • you are solely responsible for any decision made or not made in relation to any Information or Product.
    2. (Implied Warranties) To the maximum extent permitted by law, and subject to clause 6.3, any representation, warranty, condition, guarantee or undertaking that would be implied into this Agreement (or relevant Work Order or Product Schedule) by legislation or otherwise is excluded.
    3. Nothing in this Agreement (or relevant Work Order or Product Schedule) excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Consumer Law or any other applicable law that cannot be excluded, restricted or modified ('Non-Excludable Obligation'). However to the fullest extent permitted by law, our liability for a breach of a Non-Excludable Obligation is limited, at our option, to the cost of supplying the Services again or payment of the cost of having the Services supplied again.
  7. YOUR DATA
    1. In relation to all information you provide to us (the "Customer Data"), you represent and warrant that (i) you hold all necessary legal rights, title, consents and authority to provide that Customer Data to us; (ii) the Customer Data is accurate, up to date and complete at the time it is provided; and (iii) you will supply Us with all relevant information to correct or update Customer Data.
    2. You must supply us with such Customer Data, being particulars of Individuals or organisations, required to supply or maintain the Services as we may reasonably specify from time to time.
    3. You grant us (and our Related Bodies Corporate) a non-exclusive, perpetual, irrevocable, royalty-free licence to use that Customer Data to fulfil our obligations under this Agreement and the relevant Work Order or Product Schedule, to validate and/or enhance our products and for any other purpose permitted by law.
  8. COMPLIANCE WITH LAWS
    1. Each party must comply with all applicable laws including AML/CTF Laws and all Privacy Laws in the Territory and all privacy laws of each other country in which Personal Information is received, collected, held, used or disclosed by that party in connection with a Work Order. If you are excluded from the operation of all or part of any Privacy Laws, you agree to comply with those Privacy Laws (including any applicable credit reporting provisions) as if you were bound.
    2. Each party warrants that it has in place:
      • a system to detect and report when an event has occurred that may give rise to reasonable grounds to suspect an Eligible Data Breach has occurred; and
      • a system to investigate and assess a suspected Eligible Data Breach within 30 days of becoming aware of a suspected breach, including a documented procedure for making an evaluation of each investigation.
    3. In the event that a party becomes aware of a suspected Eligible Data Breach relating to this Agreement and/or a relevant Work Order:
      • that party must notify the other party and cooperate to minimise the loss of goodwill of the other party, including liaising with the other party regarding client communications; and
      • each party must cooperate with the other party to the extent reasonably necessary to ensure compliance with Privacy Laws.
    4. For the purposes of this clause 8, Eligible Data Breach has the meaning set out in section 26WE of the Privacy Act.
  9. INTELLECTUAL PROPERTY
    1. Each party continues to own all of its Intellectual Property Rights that existed at the start of each Work Order. You acknowledge that we continue to own all right, title and interest (including Intellectual Property Rights) in our Products at all times.
    2. You agree that all right, title and interest (including Intellectual Property Rights) in any enhancements, improvements or modifications to our Products ("Enhancements") vest in us on creation. To the extent you acquire any Intellectual Property Rights in any Enhancements, you hereby assign those Rights to us with effect from acquisition, and agree to do all things reasonably required by us to give effect to this assignment.
  10. INDEMNITY
    1. (Indemnity from us) We indemnify you from Loss you suffer or incur as a direct result of a Third Party Claim against you which arises due to:
      • the Services, Products, Information or Software violating a third party's Intellectual Property Rights; or
      • our breach of clause 8 (Compliance with Laws), including where this has resulted in an Eligible Data Breach.
    2. (Indemnity from you) You indemnify us for Loss which we suffer or incur as a direct result of a Third Party Claim against us which arises due to:
      • your Customer Data violating a third party's Intellectual Property Rights;
      • your breach of clauses 3.3 (Third Party Data), 7 (Your Data) or 8 (Compliance with Laws); or
      • any breach of this Agreement by you which has resulted in an Eligible Data Breach.
    3. Each party's liability under an indemnity is reduced to the extent that liability was caused or contributed by the other.
    4. An indemnified party must: (i) promptly give written notice to the indemnifying party of the Third Party Claim; and (ii) allow the indemnifying party to conduct the defence and settlement of that claim (provided the indemnified party is not detrimentally impacted).
  11. LIMITATION OF LIABILITY
    1. Subject to clause 11.2, and to the extent permitted by law:
      • each party's total aggregate liability to the other party for all Loss arising under or in connection with a Work Order (including any breach of the Agreement related to the Work Order) is limited to an amount not exceeding the lesser of (i) $100,000 or (ii) the total of all amounts paid by you under the relevant Work Order during the 12 month period immediately preceding the date on which the first cause of action giving rise to such claims arose; and
      • neither party shall be liable to the other for loss of profits, loss of revenue, loss of goodwill, loss of customers, loss of or damage to reputation, loss of use of data or any other economic, special, indirect or consequential loss or damage incurred by the other party, except where this arises due to your violation of our Intellectual Property Rights as described in clause 11.2(c) below, or either party's breach of clause 12 (Confidentiality).
    2. (Exceptions) The liability cap in clause 11.1(a) does not apply to:
      • the indemnities in clause 10.1 or 10.2;
      • breach of clauses 8 (Compliance with Laws) or 12 (Confidentiality);
      • your violation of our Intellectual Property Rights (including your unauthorized distribution of the Information, Software or a Product in breach of the terms of this Agreement (or relevant Work Order or Product Schedule); or
      • any loss or corruption of our data resulting from an Eligible Data Breach caused by you.
    3. (Mitigation) A party must take all reasonable steps to avoid or mitigate any loss or liability which it might suffer or incur in relation to this Agreement or a Work Order (including under an indemnity).
  12. CONFIDENTIALITY
    1. Each party: (a) may use the other's Confidential Information only during the applicable Service Term and only for the purposes of the relevant Work Order; and (b) must keep confidential all Confidential Information and only disclose Confidential Information of the other party to its Personnel who need to know for the purposes of providing the services and who have expressly agreed to keep that information confidential. To avoid doubt, the confidentiality obligations on illion under this Agreement do not apply to Customer Data once that Customer Data forms part of any Product (as per the licence in clause 7.3).
    2. The confidentiality obligations in clause 12.1 do not apply to information that: (a) is or becomes legally in the public domain at the time of disclosure without a breach of clause 12.1; (b) is legally obtained from a third party; (c) was in already in the possession of a party at the time of disclosure without any associated obligation of confidentiality; (d) has been independently developed by a party; or (e) is required to be disclosed by law or the rules of a stock exchange.
  13. MONITORING & ACCESS
    1. You agree that we may electronically monitor (through your IP addresses, cookies, or otherwise) your access and use of the Products for such purposes as ensuring compliance with this Agreement, the relevant Work Order and Product Schedule and preventing fraudulent use. You must ensure that Users are made aware of and consent to such monitoring.
    2. During the Service Term and for one year thereafter, you agree to permit us (or our nominee), on reasonable notice, during business hours, to inspect any location where our Information is accessed or used by you to review your compliance with your obligations under this Agreement, the relevant Work Order and Product Schedule. We will not exercise this right more than once every 12 months unless you are in material breach of this Agreement, the relevant Work Order and Product Schedule. We will comply with your reasonable policies notified to us in advance in writing.
  14. CHANGES TO SERVICES & TERMS
    1. We reserve the right to withdraw, reconfigure, modify, and/or substitute (each a 'Change') all or part of any Product ('Modified Product') provided that such Change does not materially alter the performance or functionality of the Product provided to you ('Original Product').
    2. In addition to our rights under clause 14.1, we reserve the right to Change a Product as required due to new legislation, or new technologies, or where a third party changes the terms upon which that Original Product is supplied to us. If such Change materially alters the performance or functionality of an Original Product, we will notify you and allow you the option to terminate the relevant Work Order within 30 days from our notice.
    3. In addition to our rights to vary a Product or Fee as set out in other parts of this Agreement, we may vary the terms of this Agreement, a Product Schedule or Work Order by giving you at least 60 days prior notice. If you do not agree with such change, you may terminate the impacted Work Order within this 60 day period.
  15. TERMINATION
    1. (Termination for cause) A party may terminate a Work Order and/or this Agreement immediately by written notice if the other party:
      • breaches a term of the relevant Work Order or Agreement which is not capable of remedy or, where the breach is capable of remedy, fails to remedy the breach within 20 days of written notice of the breach;
      • become bankrupt or insolvent, unable to pay its debts as they fall due or enters into or becomes subject to any form of insolvency administration or arrangements with its creditors.
    2. (Section 411 Corporations Act): Despite any other provision in this document, to the extent that section 415D, 434J or 451E of the Corporations Act applies to any right in this Agreement, the right must not be enforced to that extent only during the period prescribed by the section, any extended period ordered by a court and at any other time required by the section (except, for the avoidance of doubt, to the extent that the section does not apply to the right, contract, agreement or arrangement in this Agreement including (without limitation) as a result of any court order, any regulation or declaration that relates to the section or any other provision in Chapter 5 of the Corporations Act). This provision does not affect any other enforcement of the right or the enforcement of any other right.
    3. (Suspension) We may suspend all or part of any Work Order without prior notice if we reasonably suspect that you have breached a material term of the Work Order, Product Schedule or Agreement (until that material breach is resolved).
    4. Termination will not affect any rights accrued prior to termination.
    5. Termination of this Agreement will not impact an existing Work Order unless that Work Order is also expressly terminated under clause 15.1.
    6. On termination or expiry of a Work Order: (i) each licence granted by us in respect of that Product also terminates or expires; and (ii) you must immediately cease using the relevant Products and delete or destroy all originals and copies of the Information and/or Software comprised in the Products and our Confidential Information, and certify to us that you have done so if we require it.
  16. DISPUTE RESOLUTION
    • If any dispute arises in relation to a Work Order, neither party may commence any court proceedings, unless and until: (i) the party raising the dispute has given the other party written notice of the dispute (providing a reasonable description of the issue); and (ii) 30 days has elapsed from the giving of the written notice, and the parties have not resolved the issue, during which time each party causes an authorised representative to attend a meeting. Each party must act in good faith to resolve the issue identified in the notice. This clause will not apply where a party a party seeks urgent interlocutory relief.
  17. FORCE MAJEURE
    1. Neither party shall be liable for non-performance or delays (other than a failure to pay) caused by a Force Majeure Event, provided notice is given to the other party as soon as practicable. If the Force Majeure Event continues for a period of 60 days or more, the party not relying on the Force Majeure Event may terminate the affected Work Order.
  18. NON-SOLICITATION
    1. During the term of this Agreement and for a period of six (6) months after the expiry or termination of any Work Order, the Customer and its Related Bodies Corporate must not (whether directly or indirectly) poach, solicit for employment, employ, entice away or engage any person which is or was employed or contracted by illion or any of its Related Bodies Corporate ('illion Personnel') unless:
      • has responded to an advertisement for employment made to the public at large; or
      • the illion Personnel:
        • has responded to an advertisement for employment made to the public at large; or
        • had, at the time of accepting an offer of employment or engagement with you or your Related Bodies Corporate, ceased being an employee or contractor of illion for a continuous period of at least six (6) months.
  19. GENERAL
    1. (Entire Agreement) This Agreement and each Work Order and Product Schedule constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements and understandings.
    2. (Assignment) A party must not assign or novate this Agreement or a Work Order, except with the prior written permission of the other party (not to be unreasonably withheld). However we may assign our rights or novate this Agreement to any of our Related Bodies Corporate or in connection with a merger or consolidation involving us or the sale of substantially all of our assets.
    3. (Severability) If any part of these terms is illegal or unenforceable, it will be severed from these terms and the remaining terms will continue in full force and effect.
    4. (No adverse construction) To the extent permitted by law, nothing in this Agreement, or the relevant Work Order or Product Schedule is to be interpreted against a party solely on the ground that the party put forward or drafted that document.
    5. (Survival) Any provision of this Agreement which is by its nature a continuing obligation will survive termination of this Agreement, including but not limited to clauses 7, 8, 9, 10, 11, 12, 13 and 15.
    6. (Relationship) Our relationship is one of independent contractors. Nothing in this agreement creates any partnership, joint venture or employment relationship between the parties.
    7. (Priority) To the extent of any inconsistency between a term of (a) a Work Order, (b) a Product Schedule, or (c) this Agreement, the document earlier in the list prevails.
    8. (Jurisdiction) This Agreement and each Work Order is governed by the laws of Victoria, Australia (when the Territory is Australia), and the laws of New Zealand (when the Territory is New Zealand).
    9. (Notices) Any notice, demand or other communication to be served on a party must be in writing. Notices sent by post will be deemed received three Business Days after posting, and notices sent by email will be deemed received on the date and time that the email was sent (as evidenced in the sender's email sent history). Notices received after 5pm on a Business Day will be deemed received on the next Business Day.
    10. (Counterparts) This agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument.
  20. DEFINED TERMS
    • Terms in this Agreement have, in order of priority, the meaning given (a) in this clause 20, (b) in the relevant Work Order (c) in the Product Schedule or (d) the Privacy Laws:
    • Agreement means this agreement, the relevant Work Order and the relevant Product Schedule.
    • AML/CTF Laws means laws in the Territory relating to financial transaction reports, anti-money laundering and counter-terrorism financing and their associated rules and regulations.
    • Business Day means Monday to Friday excluding: (i) when the Territory is Australia, public holidays in Melbourne metro, Victoria; and (ii) when the Territory is New Zealand, public holidays in Auckland, New Zealand.
    • Consumer Law, in Australia, is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth); and in New Zealand, is set out in the Fair Trading Act 1986 (NZ) and the Consumer Guarantees Act 1993 (NZ).
    • Customer Data has the meaning given in clause 7.1.
    • Force Majeure Event means an external event beyond the reasonable control of a party, including, without limitation, acts of war, terrorism, civil commotion, epidemic, natural disasters, blockades, embargoes, strikes and lockouts, any other acts of god or act of any government or governmental agency.
    • Further Term has the meaning given in clause 2.2.
    • Group Member means a Related Body Corporate of a party.
    • Confidential Information means all information that could be reasonably regarded in the circumstances as confidential and not part of the public domain, including, without limitation, information relating to the terms of this agreement or a party's business affairs.
    • Corporations Act means Corporations Act 2001 (Cth).
    • Information means any and all information supplied to you from time to time by us in connection with a Work Order.
    • Intellectual Property Rights means (a) all intellectual property rights, including current and future registered and unregistered rights, in respect of copyright, designs, circuit layouts, trade marks, trade secrets, patents, inventions, discoveries, know-how, confidential information; (b) applications for registration and the right to apply for registration, for any of the above; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
    • Interest Rate means interest at lesser of 1% per month or the maximum interest rate permitted by applicable law.
    • Loss means liabilities, losses, damages, costs and expenses.
    • Permitted Purpose has the meaning in the relevant Product Schedule.
    • Personal Information has the meaning in the Privacy Laws.
    • Personnel means officers, employees, agents and subcontractors.
    • Related Body Corporate has the meaning in the Corporations Act.
    • Privacy Laws means the Privacy Act 1988 (Cth) in Australia and the Privacy Act 1993 (NZ) and any other applicable privacy laws, including any determination, code or guideline issued under those laws in the relevant Territory.
    • Product means a product supplied by us as part of the Services.
    • Product Schedules contain terms specific to the Products you are ordering. The relevant Product Schedule will be referenced in your Work Order.
    • Services are described in the Work Orders executed by the parties from time to time. The Services will include access to the relevant Products set out in the Work Order.
    • Special Condition means any special condition specified in a Work Order which imposes Product/Service specific terms.
    • Start Date means the date specified in the Details.
    • Service Term means the duration of the Services specified in the applicable Work Order, and includes each Further Term.
    • Software means a computer program or application supplied (in object code only) to the Customer either by local installation or remote access from time to time by illion in connection with a Product, together with any associated documentation.
    • Territory means the country of origin of the Information (including Personal Information) comprised in a Product, being either Australia or New Zealand.
    • Third Party Claim is any claim, suit, action or demand by a third party (including by a government agency or industry regulator).
    • Third Party Data has the meaning in clause 3.2.
    • Work Order means each request for Services executed by both parties containing details of the Product or Services and the Fees.
    • Users means any Customer Personnel who accesses and/or uses a Product on Customer's behalf.
  21. INTERPRETATION
    • In this Agreement: (a) headings are for convenience only and do not affect interpretation; (b) a reference to a statute includes all regulations under and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated; (c) a word importing the singular includes the plural and vice versa; (d) a reference to a party to these Terms includes that party's successors and permitted assigns and substitutes; and (e) references to "including" shall be construed as "including, without limitation".

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