Terms of Service
Updated February 2023
Welcome to Digital Impact Assessment
Thank you for visiting the websites and associated domains of www.impactassessment.digital and/or using Digital Impact Assessment’s software-as-a-service platform and the products, services, and features we make available to you as part of the platform (the “Platform”). PLEASE READ THESE TERMS AND CONDITIONS YOU HAVE SELECTED ON THE DIGITAL IMPACT ASSESSMENT'S PLATFORM (THE PLATFORM), THESE TERMS AND CONDITIONS CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE PLATFORM AND THE PROVISION BY DIGITAL IMPACT ASSESSMENT OF ASSOCIATED SERVICES. BY ACCESSING THE PLATFORM OR USING DIGITAL IMPACT ASSESSMENT'S SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCESS THE PLATFORM OR ACCESS AND USE THE DIGITAL IMPACT ASSESSMENT'S SERVICES.
This Agreement is entered into by and between Digital Impact Assessment and the customer using the Platform and that is purchasing a Subscription and/or services hereunder (the “Customer”), and is effective from the date you access the Platform and/or receive the Digital Impact Assessment's Services hereunder, whichever comes first (the “Effective Date”). If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You,” “Your” and “Customer” shall refer to such entity.
This Agreement permits Customer to access the Platform and/or receive the Digital Impact Assessment's Services hereunder according to the terms and conditions contained herein.
1. Applicable Terms
The following capitalised terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth elsewhere in this Agreement. "Content" or "Customer Data" means all applications, data, data files, and software provided by Customer or any third party at the direction or on behalf or for the benefit of Customer that resides on, or runs on or through, the Platform and/or services hereunder.
- "Platform" means the web-based user interface of the Digital Impact Assessment offering for which Customer has purchased a Subscription or accessing the Platform as a trial or read-only access, hereunder, as indicated by Customer's election within the Platform.
- "Digital Impact Assessment's Services" means the online services operated by Digital Impact Assessment, including the Platform, which is powered by Digital Impact Assessment technology and provides a web-based interface, which a person may access features and functions of the Platform.
- “Documentation” means the user manuals or documentation regarding the use of the Platform and/or Digital Impact Assessment's Services published by Digital Impact Assessment.
- “License” means a license granted under Section 2.
- "Subscription" means the Customer's right to use the Platform, subject to the restrictions for which such right has been purchased.
- "Subscription Term" means the period indicated within the Platform for which Customer obtains the right to access the Platform on a subscription basis.
- "Account" means you need to log in using an account that is established through a registration process to use the Platform.
2. License Restrictions
- License. Subject to the terms and conditions of this Agreement, including the payment of all applicable fees, Digital Impact Assessment hereby grants to Customer, solely for Customer’s internal business operations, a limited, non-exclusive, non-transferable right and license to: (i)access the Platform during the Subscription Term; (ii) use, reproduce and distribute internally a reasonable number of copies of the Documentation; and (iii)permit third party contractors performing services on Customer's behalf to use the Platform and Documentation per the terms and conditions of this Agreement provided that (A) such use must be solely for the benefit of Customer; and (B) Customer shall be responsible for all acts and omissions of such third parties.
- Restrictions. Customer may not, and may not cause or permit others to: (i) remove or modify any program or services markings or any notice of Digital Impact Assessment's or its licensors’ proprietary rights; (ii) make the Digital Impact Assessment's Services hereunder, including any Digital Impact Assessment programs or materials to which Customer is provided access, available in any manner to any third party without a subscription; (iii) attempt to circumvent, disable or defeat any limitations on Customer’s use of the Platform; (iv) use the Digital Impact Assessment's Services hereunder other than for licensed purposes; (v) modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish or download any part of the Digital Impact Assessment's Services hereunder; (vi) disclose results of any benchmark tests or performance tests of the Digital Impact Assessment's Services hereunder without Digital Impact Assessment's prior written consent; (vii) sublicense, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Digital Impact Assessment's Services hereunder or materials available, to any third party, except as expressly provided under this Agreement; or (viii) alter or remove any proprietary notices in the Platform.
- Availability. Digital Impact Assessment will use commercially reasonable efforts but cannot guarantee to make the Platform available 24 hours a day, 7 days a week, except for: (i) scheduled downtime or (ii) any unavailability caused by circumstances beyond Digital Impact Assessment's reasonable control, including without limitation, acts of hosting providers, acts of God, acts of government, floods, fires, earthquakes, civil unrest, traditional custom holiday periods, acts of terror, strikes or other labour problems, or internet service provider failures or delays.
- Account Access & Data. The customer will nominate a unique username and password to access the Digital Impact Assessment's Services hereunder. Customer shall be responsible for identifying and authenticating all end users, for approving access by such end users to the Digital Impact Assessment's Services hereunder, for controlling against unauthorised access by such end users, and for maintaining the confidentiality of usernames, passwords and account information. Digital Impact Assessment is not liable for any harm caused by Customer end users, including individuals who were not authorised to have access to the Digital Impact Assessment's Services hereunder. Customer shall be responsible for all activities that occur under Customer’s and Customer’s end users’ passwords or accounts or because of Customer’s or Customer’s End Users’ access to the Digital Impact Assessment's Services hereunder. Furthermore, Customer agrees not to transmit or store infringing, obscene, threatening, libellous, or otherwise unlawful or offensive Content, materials or information that violates the privacy rights of any person or to transmit or store material containing software viruses, worms, trojan horses or other harmful computer code when using the Digital Impact Assessment's Services hereunder. Customer agrees that Customer shall abide by all applicable local, state, national and international laws and regulations in connection with Customer's use of the Digital Impact Assessment's Services hereunder, including those related to taxes, data privacy and the transmission of technical or personal data. Digital Impact Assessment does not own or accept any responsibility for any Content, data or material that Customer processes or submits to the Digital Impact Assessment's Services hereunder in the course of Customer's use of such services. Digital Impact Assessment shall not be liable or responsible for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. The customer shall be fully responsible for all internet access and connectivity issues to the Digital Impact Assessment's Services hereunder.
- Protection Against Unauthorised Use. Customer shall promptly notify Digital Impact Assessment of any unauthorised use, reproduction or distribution of the Platform, Digital Impact Assessment's Services or Documentation of which it becomes aware. In the event of any unauthorised use, reproduction or distribution by any of Customer’s end users, employees, agents or representatives, Customer shall use commercially reasonable efforts to terminate any such unauthorised use and to retrieve any unauthorised copy of the Platform, Digital Impact Assessment's Services or Documentation in the possession or control of the person or entity engaging in such unauthorised use. Digital Impact Assessment may, at its option and expense, participate in any such proceeding and, in such an event, Customer shall provide such authority, information and assistance related to such proceeding as Digital Impact Assessment may reasonably request.
- Customer Cooperation. The customer agrees to provide Digital Impact Assessment with such cooperation, materials, information, access and support that Digital Impact Assessment deems to be reasonably required to allow Digital Impact Assessment to successfully provide services hereunder. Customer understands and agrees that Digital Impact Assessment's obligations to provide services hereunder are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.
- Subcontractors. Digital Impact Assessment reserves the right to use subcontractors to perform services on Digital Impact Assessment's behalf, and Customer hereby consents to such use, provided that Digital Impact Assessment shall remain solely responsible to Customer for the provision of all applicable services.
- Ownership. Digital Impact Assessment retains ownership of all Content/Customer Data, materials or information used or processed through the Platform and/or Digital Impact Assessment's Services hereunder. Digital Impact Assessment retain all ownership and intellectual property rights to the Platform and services hereunder. In the course of performing services hereunder, Digital Impact Assessment may create derivative works of the Platform, new software or other works of authorship (collectively "Work Product"). Digital Impact Assessment shall own all rights titles and interests in and to all Work Products, including all intellectual property rights therein and thereto.
4. Fees, Payment and Taxes
- Fees. The customer agrees to pay Digital Impact Assessment the fees for the Subscription to the Platform and/or otherwise for Digital Impact Assessment's Services as elected by the Customer within the Platform.
- Invoicing. Unless otherwise specified in the Platform, the fees for services hereunder shall be invoiced upon subscription or renewal.
- Payment. Unless otherwise specified in the Platform, all invoices will be paid in Australian Dollars and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without the right of set-off or chargeback. The customer shall pay all amounts due under this Agreement to Digital Impact Assessment via the payment method outlined in any invoices or as otherwise specified within the Platform.
5. Term and Termination
- Term. This Agreement shall commence on the Effective Date and shall unless earlier terminated under Section 5.b below, continue in force until the expiration of the applicable Subscription Term.
- Termination; Post Termination. Either party may, upon written notice to the other party, terminate this Agreement in the event of a material breach by the other party, which such other party fails to cure within thirty (30) days of receiving written notice thereof from the non-breaching party. Notwithstanding the foregoing, Digital Impact Assessment shall have the right to terminate this Agreement immediately upon written notice (email to suffice) in the event of any breach by Customer of the license granted in Section 2 of this Agreement. Upon termination of this Agreement, for any reason, Customer shall promptly cease the use of the Platform, the Digital Impact Assessment's Services and Documentation and destroy (and certify to Digital Impact Assessment in writing the fact of such destruction), or return to Digital Impact Assessment, all Materials then in Customer’s possession or under Customer’s control.
- Unless earlier terminated per Section 5.b, upon the expiration of the Subscription Term, Customer's Subscription will automatically renew for a term equal to the Subscription Term. In such case, the terms and conditions of this Agreement shall remain in full force and effect throughout the duration of the extended Subscription Term.
- Suspension. In addition to its other rights under this Agreement, Digital Impact Assessment may suspend Customer’s access to the Platform and Digital Impact Assessment's Services hereunder upon written notice: (i) to comply with any law, regulation, court order, or other governmental request or order which requires immediate action; (ii) for Customer's non-payment of applicable fees or (iii) any reasonably suspected unauthorised use of the Platform or Digital Impact Assessment's Services hereunder by Customer or any of its end users. In the event of any such suspension, Digital Impact Assessment will promptly restore the use of the Digital Impact Assessment's Services hereunder to Customer as soon as the event giving rise to the suspension has been resolved to Digital Impact Assessment's satisfaction.
- Survival. The following sections will survive any termination or expiration of this Agreement: 1; 4; 5; 6; 7; 8, 9 and 10.
- Confidential Information. “Confidential Information” means information or materials provided by one party to the other which are in tangible form and labelled “confidential” or the like, or, information which a reasonable person would believe to be confidential, including but not limited to the Platform, Digital Impact Assessment's Services and Documentation.
- Non-Use and Non-Disclosure. Each party shall always, both during the term of this Agreement and thereafter, retain in confidence all Confidential Information of the other party and shall not use such Confidential Information other than as necessary to exercise such party’s rights or carry out its duties under this Agreement, nor shall either party disclose any Confidential Information to third parties without the other party’s prior written consent. Each party will only disclose Confidential Information to its employees, agents, representatives, and authorised contractors (collectively "Representatives") needing to know for this Agreement. Each party will notify and inform such Representatives of each party's limitations, duties, and obligations regarding the use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives' agreements to comply with such limitations, duties, and obligations concerning such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party's Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions outlined in this Section.
- Exclusions. The foregoing obligations of confidentiality shall not apply to information that: (i) has entered the public domain except where such entry is the result of a party's breach of this Agreement; (ii) before disclosure hereunder was already in the receiving party's possession without restriction; (iii) after disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; (iv) is independently developed by the receiving party without reference to the other party's Confidential Information; or (v) is required to be disclosed according to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the disclosing party). The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
- Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party's Confidential Information in compliance with that order if the such party: (i) unless prohibited by law, gives the other party prior notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is reasonably necessary to comply with an applicable order.
7. Data License Grant; Warranties and Remedies
- Concerning all Content or other data or information furnished for processing via the Platform, whether by or on behalf of Customer directly, or by Digital Impact Assessment or by any third party at the direction or on behalf of Customer (collectively, “Data”): (i) Customer grants to Digital Impact Assessment, both during and after the term of this Agreement, the non-exclusive, perpetual, irrevocable, worldwide, royalty-free right and license to use such Data in the manner indicated by Customer, as well as, on a non-identifiable basis (i.e., not identifiable with Customer, except as required by law), to improve Digital Impact Assessment's products and services and for any other lawful purpose; and (ii) any such use of Ingested Data by or on behalf of Digital Impact Assessment shall not violate any law, rule or regulation, or violate or infringe the rights of any third party.
- Digital Impact Assessment represents and warrants that it will provide the Platform and Digital Impact Assessment's Services hereunder in all material respects per the applicable Documentation therefor. The customer's exclusive remedy and Digital Impact Assessment's sole obligation for any failure of the Platform or Digital Impact Assessment's Services to perform in all material respects per its Documentation will be for Digital Impact Assessment to use its commercially reasonable efforts to correct such non-conformance. Such warranties do not apply to any defect resulting from: (i) misuse, (ii) casualty loss, (iii) use or combination of the Platform or Digital Impact Assessment's Services with any products, goods, services or other items furnished by anyone other than Digital Impact Assessment, or (iv) any modification not made by or for Digital Impact Assessment, or any use of the Platform or Digital Impact Assessment's Services by Customer in violation of the terms of this Agreement.
- EXCEPT AS OUTLINED IN SECTION 7.b ABOVE, THE PLATFORM, DOCUMENTATION, WORK PRODUCT, DELIVERABLES, MATERIALS, AND DIGITAL IMPACT ASSESSMENT'S SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, AND DIGITAL IMPACT ASSESSMENT MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO SAME. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DIGITAL IMPACT ASSESSMENT AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT CONCERNING THE PLATFORM, DOCUMENTATION, WORK PRODUCT, DELIVERABLES, MATERIALS AND DIGITAL IMPACT ASSESSMENT'S SERVICES PROVIDED BY DIGITAL IMPACT ASSESSMENT HEREUNDER, AND CONCERNING THE USE OF THE FOREGOING. FURTHER, DIGITAL IMPACT ASSESSMENT DOES NOT WARRANT RESULTS OF USE OR THAT THE PLATFORM OR SERVICES WILL BE ERROR-FREE OR THAT THE CUSTOMER'S USE OF THE PLATFORM, DOCUMENTATION, WORK PRODUCT, DELIVERABLES, MATERIALS, OR DIGITAL IMPACT ASSESSMENT'S SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. DIGITAL IMPACT ASSESSMENT USES A THIRD-PARTY DATA CENTER TO HOST THE PLATFORM AND SERVICES. THE CUSTOMER ACKNOWLEDGES THAT DIGITAL IMPACT ASSESSMENT DOES NOT CONTROL THE TRANSFER OF DATA OVER SUCH THIRD-PARTY FACILITIES, INCLUDING THE INTERNET, AND THAT THE PLATFORM AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH THIRD-PARTY FACILITIES. DIGITAL IMPACT ASSESSMENT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING THEREFROM.
8. Indemnification and Limitation of Liability
- Customer Indemnification. To the maximum extent allowed by applicable law, Customer shall indemnify and hold harmless Digital Impact Assessment, its licensors and its subsidiaries, affiliates, officers, directors, employees, and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with the claim of a third party or data subject alleging that the Customer Data or its use has infringed the rights of, defamed or otherwise caused harm to, a data subject or third party, or violated applicable law; provided in any such case that Digital Impact Assessment (i) gives written notice of the claim promptly to Customer; (ii) gives Customer sole control of the defence and settlement of the claim (provided that any settlement releases Digital Impact Assessment of all liability and such settlement does not affect Digital Impact Assessment's business); (iii) provides to Customer all available information and assistance reasonably requested; and (iv) has not compromised or settled such claim.
- Disclaimer of Certain Damages. EXCEPT IN CONNECTION WITH THE FULFILMENT OF INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL CUSTOMER OR DIGITAL IMPACT ASSESSMENT OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM OR THE DIGITAL IMPACT ASSESSMENTS SERVICES, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PLATFORM AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. DIGITAL IMPACT ASSESSMENT IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. THE CUSTOMER IS FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES.
- Damages Cap. IN NO EVENT SHALL DIGITAL IMPACT ASSESSMENT OR ITS LICENSORS' AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS THE CUSTOMER WAS REQUIRED TO PAY DIGITAL IMPACT ASSESSMENT UNDER THIS AGREEMENT FOR THE ACCESS TO THE PLATFORM AND/OR SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY BEFORE THE EVENT GIVING RISE TO LIABILITY.
- Exclusions. Digital Impact Assessment will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) the failure of Customer to use an update of the Platform and/or Digital Impact Assessment's Services hereunder that would avoid the infringement; (ii) a modification of the Platform that is not performed by Digital Impact Assessment; (iii) the combination, operation, or use of the Platform and/or Digital Impact Assessment's Services hereunder with any other products, services or equipment not provided by Digital Impact Assessment; (iv) any intellectual property right owned or licensed by Customer, excluding the Platform or Digital Impact Assessment's Services hereunder or (v) any third party open source software.
- Security measures. Digital Impact Assessment places great importance on the security of the Services, and we have adopted a variety of administrative, technical, physical, and organisational measures to protect the Services against accidental or unlawful destruction, loss, alteration, disclosure or access. Security Measures are subject to evolving risks, technical progress, and further development. We reserve the right to implement alternative Security Measures or make future replacements or updates to our Security Measures, provided such Security Measures do not materially lower the level of security or protection of the Services. While we take reasonable steps to protect the Services, no security system is impenetrable. We cannot and do not guarantee that the Services will be 100% secure, that a Security Incident will not occur, or that your communications with us will not be intercepted while being transmitted to us.
- Assignment. Customer shall not assign this Agreement, in whole or in part, or any or all of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Digital Impact Assessment. Any assignment in violation of this Section 9.a shall be void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.
- Force Majeure. Neither party will be liable for or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such party's reasonable control.
- Governing Law and Jurisdiction. This Agreement will be governed by International, Australian or Australian State/Territory laws, without regard to its conflicts of law principles.
- Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party's right to assert or rely upon the such provision, right or remedy in that or any other instance.
- Entire Agreement. This Agreement completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding the such subject matter. The terms of this Agreement shall supersede and control any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by Customer.