1. Hopewiser, amongst other things, operates a bureau service processing customers’ existing address databases against a third party’s Managed Address File (MAF).
2. The Customer will provide the Input Data to Hopewiser, and Hopewiser will process that data, on the terms set out in the Order and these Terms of Service.
1. Operative Part
1. Defined words and phrases and Glossary
Uppercased words and phrases in this agreement are defined in the Dictionary.
Words and phrases in this agreement defined in legislation and referenced in a footnote to the clause where they appear have the meaning given to them in that legislation.The principles for interpreting this agreement set out in the Glossary apply unless the context requires another interpretation.
Hopewiser will provide the Services in accordance with the Order.
3. Delivery of Input Data
The Customer will deliver the Input Data to Hopewiser in accordance with the method and format specified in the Order. Hopewiser accepts no responsibility for loss of data prior to delivery or for delays or errors in processing or delivery of the output resulting from late delivery or from preparation which does not accord with the format specified in the Order.
4. Output Data
Hopewiser acknowledges the Customer's ownership of the Input Data.
Hopewiser will process the Input Data and deliver the Output Data to the Customer in accordance with the Order.
Hopewiser accepts responsibility for risk of loss of or damage to the Output Data prior to delivery to the Customer.
Hopewiser warrants that the Output Data will conform with the specifications set out in the Order. If the Output Data does not match the specifications,
Hopewiser will reprocess the Input Data and reproduce that data in accordance with the Order. If the defect in the Output Data is the result of inadequate preparation of the Input Data by the Customer or late delivery of the Input Data by the Customer Hopewiser will have no liability under this clause 5.
Hopewiser will take all reasonable precautions to prevent the access of third parties to the Input Data.
However, the Customer will provide access to any person authorised by law to gain access to that data.
The Customer will fully indemnify Hopewiser in respect of the direct or indirect costs of providing that access and in respect of the consequences of Hopewiser's possession of the data in those circumstances.
7. System failure
Hopewiser does not warrant that its System will be fully operative at all times or that its programs are error free.
The Customer will pay Hopewiser the charges specified in the Order on the due date set out in the invoice.
If any supply under this agreement is subject to GST, the fee payable by the recipient under this agreement is increased to account for that GST payment.
If the supplier of any supply under this agreement is or becomes liable to pay any tax under the GST Law in relation to the supply, the supplier may, by notice in writing to the recipient and subject to the provision of a valid tax invoice, recover that amount from the recipient.
Note The terms GST, GST Law, supply, tax invoice and recipient are defined in s 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
9. Limitation of liability
Hopewiser’s aggregate liability in respect of any act or omission in respect of the Services will not be greater than the charges specified in the Order.
Hopewiser will not be liable for any indirect special or consequential loss or damage, any loss of profits, business opportunities or goodwill, whether direct or indirect. This limitation applies even if the Customer has advised Hopewiser about the possibility of losses of these kinds being incurred. However, nothing in this clause 9 excludes any liability Hopewiser may have for personal injury or death.
10. General exclusions and operation of laws
The guarantees that the Australian Consumer Law implies into an agreement for the supply of services to a consumer, that the services will be rendered with due care and skill, and that the services will be reasonably fit for the purpose that the consumer has expressly or by implication made known to the supplier, are included in this agreement.
Hopewiser elects to exercise its right under the Australian Consumer Law to limit its liability to the Customer for breach of these guarantees to the cost of supplying the Services again, or paying the cost of having the Services supplied again, unless the Customer establishes that Hopewiser’s reliance on these limitations would not be fair and reasonable. Subject to that, any term in any present or future legislation which operates to imply any term into this agreement is excluded, except to the extent that this exclusion is prohibited or rendered ineffective by law.
Note The Australian Consumer Law is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
No party may, without the prior written approval of the other party, disclose the other party's Confidential Information.
A party who is legally compelled to disclose the other party’s Confidential Information does not breach the obligations under this clause 11.
Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party's Confidential Information.
Notwithstanding any other provision of this clause 11, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants. This clause will survive the termination of this agreement.
Hopewiser will not use or disclose any Personal Information for a purpose other than discharging its obligations under this agreement.
Hopewiser further agrees to comply at all times with the Australian Privacy Principles in the same way and to the same extent as the Customer would have been required to comply had it been directly responsible for performing the act or practice concerned.
Hopewiser will take all necessary steps to protect Personal Information in its possession against misuse or loss and it will return that information to the Customer (or if requested by the Customer, destroy or de-identify such information) on termination or expiry of this agreement. This clause 12 survives the termination or expiry of this agreement.
Note The term personal information is defined in s 6 of the Privacy Act 1988 (Cth).
All notices which are required to be given under this agreement must be in writing and sent to the address of the recipient set out in the Order or such other address as the recipient designates by notice given in accordance with this clause 13.
Any notice may be delivered by hand or by prepaid letter or email.
Any notice will be taken to have been served when delivered (if delivered by hand) or 48 hours after posting (by prepaid letter) or on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient’s mail server.
The Terminating Events are –
(a) the breach or threatened breach by either party of any of its material obligations under this agreement;
(b) the appointment of any type of insolvency administrator in respect of the property or affairs of either party; and
(c) the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors.
This agreement may be terminated immediately on the happening of a Terminating Event at the option of the affected party.
If a Terminating Event occurs, the affected party must give to the other party notice of the happening of that event and require the breach to be remedied or a written undertaking to be given that the breach will not occur, as the case may be.
If the breach is not remedied or the undertaking not given (as the case may be) within 14 days the affected party may agree to waive its rights under this clause if satisfied that the happening of the Terminating Event has not in any way prejudiced its position under this agreement. Neither party is liable for the consequences of an occurrence of any event beyond its reasonable control.
Nothing in this clause 14 affects the right of the terminating party to pursue any other remedy available to it at law arising out of the Terminating Event, subject where applicable to any cap on, or exclusion of, liability set out in this agreement.
This agreement may be amended only by an agreement in writing between the parties.
16. Approvals, consents and waivers
An approval, or consent or a waiver of a right must be in writing and signed by the party giving it.
A party may give or withhold an approval, consent or waiver, or impose conditions, in its discretion, unless this agreement expressly provides otherwise.
A party does not waive a right if it fails to exercise, or delays in exercising that right. A single or partial exercise of a right does not prevent another or further exercise of that or another right.
17. Entire agreement
This agreement sets out the entire agreement between the parties in respect of the matters it deals with and any prior agreement dealing with any of them has no effect, including any terms expressed to survive the termination of that agreement.
The parties acknowledge that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.
18. Governing law
This agreement is governed by the law of Victoria and each party submits irrevocably and unconditionally to the non-exclusive jurisdiction of the Victorian courts.
19. Inconsistent law
Where this agreement is inconsistent with any law this agreement prevails to the extent permitted by that law.
20. No merger
The rights and obligations of the parties under this agreement do not merge on completion of any transaction contemplated in it.
Any unenforceable or illegal term of this agreement may be severed in whole or in part while the remainder continue in effect.
22. Relationship between the parties
Hopewiser is an independent contractor appointed by the Customer to provide the Services.
Any provision expressed to survive the termination of this agreement does so.
2. Schedule 1 - Dictionary
Charges means the charges referred to in the Order.
Confidential Information means information that is by its nature confidential but does not include –
(a) information already known to the receiving party at the time of disclosure by the other party; or
(b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement.
Existing Address Database means a database of addresses that the Customer owns or provides to Hopewiser to be processed under this agreement.
Glossary means the glossary set out in schedule 2.
Input Data means the Customer's data which is to be processed on Hopewiser's System pursuant to this agreement.
Order means the Bureau Processing Order under which Hopewiser offers to provide the Services and the Customer accepts that offer.
Output Data means the data as processed on Hopewiser's System pursuant to this agreement.
Services means the services processing the Customer’s existing address data described in the Order.
System means Hopewiser's computer equipment used in conjunction with Hopewiser's programs or the Customer's programs as the case may be.
3. Schedule 2 - Glossary
An act which is to be done on or by a day which is not a Business Day will be done on the next Business Day.
An act which is done after 5 pm on any day is taken to have been done on the next Business Day.
References to currency are to the lawful currency of Australia.
The word will used in a term imposing an obligation on a party is construed as meaning that obligation must be performed.
The word may be used in a term conferring a right on a party is construed as meaning that right may be exercised, or not, at that party’s discretion.
A right includes a power or a remedy [benefit, remedy, discretion, authority or power].
The singular and the plural include the plural and the singular respectively.
A reference to this agreement includes the Order and these Terms of Service including any schedules to these terms.
A reference to a party means a party to this agreement.
The headings of parts, clauses and schedules are included in them.
No rule of construction operates to disadvantage the party responsible for preparing this agreement.
When a period of time dating from a given day, act or event is prescribed or allowed that time will be reckoned exclusive of the day of that act or event.