Datapel Terms and Conditions

1. Introduction

These Terms and Conditions (“Terms”) govern your use of the services provided by Datapel Systems Pty Ltd (ABN 104 399 466) (“Datapel”, “we”, “us”, “our”) through our website and cloud-based applications.

By accessing or using our services, you (“the Customer”, “you”, “your”) agree to be bound by these Terms. If you do not agree with any part of these Terms, you must not use our services.

2. Grant of License to Access and Use Service

Datapel grants you a non-exclusive, non-sublicensable, non-assignable, royalty-free, worldwide license to access and use the services described on our website (“the Service”) solely for your internal business operations, in accordance with these Terms.

The license is granted for an initial term of 12 months (“Initial Term”) and will automatically renew on a month-to-month basis thereafter unless terminated by either party in accordance with these Terms.

3. Support Services

• Initial Support: Datapel provides customers with access to support via telephone and/or email during our business hours to assist with any issues related to the Service. Additionally, an internet-based knowledge base support system is available 24/7 to offer guidance and resources.
• Ongoing Support: After the initial support period, customers may continue to receive support services on a rolling monthly basis, subject to the terms outlined on our website or as agreed in a separate service order.
• Service Levels: Support services are provided in accordance with Datapel’s standard service levels, which may include response times based on the severity of the issue. Datapel categorises issues into the following severity levels:
  • Severity 1 (Critical): The production system or application is down, significantly impacted, and there is no reasonable workaround. Datapel will provide continuous efforts to resolve the issue within 24 hours of confirmation.
  • Severity 2 (High): The system or application is seriously affected but remains operational. No reasonable workaround is available, or the workaround is difficult to use. Datapel will aim to resolve the issue or provide a workaround within 7 business days.
  • Severity 3 (Moderate): The system or application is moderately affected, with some disruption but no complete failure. A workaround may be available. Datapel will work to resolve the issue within 10 business days.
  • Severity 4 (Low): Non-critical issues that do not significantly affect system performance. Datapel will aim to resolve these issues in a future update or release.
• Additional Support Services: Datapel may offer additional support services, including, but not limited to, training, customisation, and consulting. These additional services are available for an extra fee and are subject to availability.

4. Fees and Payments

• Subscription Fee: You shall pay Datapel a monthly subscription fee (“Subscription Fee”) for the use of the Service as detailed on our website or in a separate service order.
• Payment Terms: The Subscription Fee is due within fourteen (14) days from the date you receive a correct and undisputed invoice from Datapel. Unless specified otherwise, Datapel will issue invoices on a monthly basis for services delivered.
• Taxes: The Subscription Fee and any other payments under these Terms are exclusive of any applicable taxes. You are responsible for paying all applicable taxes and duties associated with your use of the Service.
• Interest on Late Payments: Datapel reserves the right to charge interest on any overdue payments at a rate of 14% per annum or the maximum rate permitted by law, whichever is lower. Interest will accrue daily from the due date until payment is made in full.
• Currency: All fees and payments will be made in Australian dollars (AUD) unless otherwise specified.
• Payment Method: Payments must be made via direct debit from your bank account or by credit card, as accepted by Datapel. Details on the available payment methods are provided on our website or in the relevant service order.

5. Service Levels and Availability

• System Availability: Datapel aims to provide the Service with a system availability of at least 99% during business hours each calendar month. “System Availability” refers to the percentage of time during which the key components of the Service are operational and accessible.
• Scheduled Maintenance: Datapel may take the Service offline for scheduled maintenance. Scheduled maintenance periods will not be counted as part of the system availability. Whenever possible, Datapel will conduct scheduled maintenance outside of business hours to minimise any disruption to the Service.
• Definition of System Availability: System availability is calculated as the percentage of total minutes in a calendar month that the key components of the Service are fully operational, excluding any downtime resulting from scheduled maintenance, force majeure events, malicious attacks, issues caused by the Customer’s data or equipment, or any actions or omissions by the Customer that affect service delivery.
• Exclusions from System Availability: The calculation of system availability excludes downtime due to scheduled maintenance, force majeure events, malicious attacks, data or database corruption related to Customer actions, issues with Customer’s computing devices or internet service provider connections, or Datapel’s inability to deliver services due to Customer’s actions or omissions.
• Service Performance: Datapel is committed to providing a high level of service performance and will work diligently to address any issues impacting the Service as quickly as possible, in line with our standard service level commitments.

6. Warranty

• Service Warranty: Datapel warrants that, for a period of ninety (90) days from the date you begin using the Service, the Service will perform substantially in accordance with the specifications provided by Datapel, when properly accessed and used from Datapel-approved devices and web browsers.
• Standard Service Warranty: Datapel further warrants that the standard (non-customised) Service will substantially conform to the specifications outlined on our website or in the relevant documentation.
• Exclusions: Datapel does not warrant that the Service will operate uninterrupted or error-free, or that all defects will be corrected. This warranty does not cover any issues caused by:
  1. Improper or inadequate maintenance by the Customer;
  2. Customer or third-party supplied software, interfacing or supplies;
  3. Unauthorised modification of the Service;
  4. Improper use or operation outside of the specifications for the Service;
  5. Abuse, negligence, accident, or external factors beyond Datapel’s control;
  6. Failure to attend or review training documentation provided by Datapel;
  7. Unauthorised maintenance or repair of the Service.
• Third-Party Products: Datapel does not warrant any third-party products or services that may be used in conjunction with the Service. Any such third-party products are provided “as is,” without any warranties from Datapel. Original manufacturers or suppliers may provide their own warranties as specified in their accompanying documentation.
• Disclaimer of Additional Warranties: Except for the express warranties provided herein, and to the fullest extent permitted by law, Datapel disclaims all other warranties, whether express, implied, statutory, or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, and non-infringement.

7. Data

• Data Protection: You are responsible for implementing and maintaining reasonable safeguards to prevent unauthorised access, use, or disclosure of your data. Datapel will also take reasonable steps to protect your data while it is stored or processed by our systems.
• Data Privacy: Datapel may collect, use, and process your data in accordance with our Privacy Policy, which is available on our website. By using the Service, you consent to such collection, use, and processing of your data as described in the Privacy Policy.
• Back-Up of Data: Upon your request, Datapel will provide a full back-up of your data in a mutually agreed format. It is your responsibility to ensure that you maintain adequate back-up copies of all your data. Datapel shall not be liable for any loss or corruption of your data.
• Statistical Information: Datapel may compile anonymous statistical information related to the performance and use of the Service to improve the Service. Such statistical information will not identify you or your data.
• Data Compliance: You agree to comply with all applicable data protection and privacy laws and regulations when using the Service. Datapel is not responsible for your compliance with such laws and regulations.
• Data Ownership: You retain ownership of all data you provide or generate through your use of the Service. Datapel does not claim ownership of your data.

8. Additional Services

• Professional Services: Datapel may offer additional services, such as training, customisation, and consulting, under separate agreements (“Professional Services”). These services can be provided remotely or on-site, depending on mutual agreement. Professional Services are subject to availability and may incur additional charges.
• Other Services: Datapel reserves the right to charge for services that fall outside the scope of standard support services. These services may include, but are not limited to, debugging application coding errors, resolving issues related to unsupported products and services, or performing data entry, modification, deletion, import, or extraction to assist with your business operations.
• Billable Services: When an issue or request is likely to incur additional charges, Datapel may, but is not obligated to, provide an estimate of costs before commencing work. It is your responsibility to request an estimate and provide approval for any additional services. If it is determined that the issue is covered by our standard support, no additional charges will apply.

9. Service Expiry, Reactivation, and Suspension

• Service Expiry: If you allow your subscription to the Service to expire, your access to the Service will be terminated. To regain access, you must purchase a new subscription and service agreement. Additional fees may apply for the reactivation of the Service, and Datapel does not guarantee that an expired subscription can be reactivated.
• Reactivation of Service: Should reactivation be possible, additional fees will be charged for reactivating an expired service. The reactivation process may require a complete assessment of your previous data and service configuration. Datapel provides no guarantee or warranty that any data associated with an expired service can be restored.
• Service Suspension: Datapel reserves the right to suspend your access to the Service if you fail to comply with these Terms, including failure to pay any outstanding fees. Prior notice of suspension will be provided, where possible. Suspension of the Service does not remove your obligation to pay any fees due during the suspension period.
• No Service Pausing or Hibernation: Datapel does not offer any option to pause, hibernate, archive, or hold your service. All services are either active or terminated according to the terms outlined in this agreement.

10. Representations

• Mutual Representations:
  • Existence: Each party represents that it is a company duly incorporated, validly existing, and in good standing under the laws of its respective jurisdiction.
  • Authority and Capacity: Each party has the full authority and capacity to enter into these Terms and perform its obligations under them.
  • Execution and Delivery: The execution, delivery, and performance of these Terms by each party have been duly authorised, and these Terms constitute a legal, valid, and binding obligation of each party, enforceable against it in accordance with their terms.
  • No Conflicts: Neither party is under any restriction, nor is there any agreement or understanding that could reasonably be expected to affect that party’s performance of its obligations under these Terms.
  • No Breach: The execution, delivery, and performance of these Terms by either party do not and will not breach or result in a default under its articles, bylaws, or any agreement to which it is a party, nor violate any law or court order to which it is subject.
  • Permits, Consents, and Other Authorisations: Each party holds all permits and other authorisations necessary to own, lease, and operate its properties and conduct its business as it is currently conducted.
  • No Disputes or Proceedings: There are no legal proceedings pending, threatened, or foreseeable against either party that would affect that party’s ability to fulfil its obligations under these Terms.
  • No Bankruptcy: Neither party has initiated or authorised any proceedings related to its bankruptcy, insolvency, liquidation, dissolution, or winding up.
• Datapel’s Representations:
  • Ownership: Datapel represents that it is the exclusive legal owner of the Service, including all intellectual property rights associated with the Service.
  • No Conflicting Grant: Datapel confirms that it has not granted, and is not obligated to grant, any licence to a third party that would conflict with the rights granted to the Customer under these Terms.
  • No Infringement: To Datapel’s knowledge, the Service does not infringe upon the intellectual property rights or other proprietary rights of any third party.
  • No Third-Party Infringement: To Datapel’s knowledge, no third party is infringing upon the Service.

11. User Obligations

You agree to comply with the following responsibilities when using the Service:

• Hardware and Software Obligations: You are responsible for obtaining and maintaining all necessary computer hardware, software, and communications equipment required to access and use the Service. All third-party access charges incurred while using the Service must be paid by you.
• Anti-Virus and Security Obligations: You must implement, maintain, and update appropriate procedures and software to safeguard against viruses, malware, or other harmful code that could impact your use of the Service. You are responsible for ensuring your systems are secure.
• Compliance with Laws: You must abide by all applicable local, national, and international laws and regulations in your use of the Service. The Service should be used solely for lawful purposes and in accordance with its intended use as outlined by Datapel.
• Reporting Issues Promptly: You are responsible for reporting any technical or security issues with the Service to Datapel in a timely manner. This report should include detailed information sufficient to reproduce the issue. Failure to provide adequate information may impact the resolution of the issue and does not constitute grounds for breach of service levels.
• Assistance with Issue Resolution: You agree to provide reasonable assistance in resolving any issues you report, such as supplying necessary logs, documentation, or access for troubleshooting. This may include your cooperation with Datapel’s support team.
• Restricted Uses: You are prohibited from engaging in the following activities:
  1. Uploading or distributing files that contain viruses, corrupted files, or any other harmful code that may damage or disrupt the operation of the Service;
  2. Modifying, disassembling, decompiling, or reverse-engineering the Service;
  3. Probing, scanning, or testing the vulnerability of the Service or bypassing any security mechanisms;
  4. Taking actions that impose an unreasonable or disproportionate load on the servers or networks connected to the Service;
  5. Copying, reproducing, or redistributing the Service except as permitted under these Terms;
  6. Accessing or using data belonging to other customers;
  7. Posting or transmitting any unlawful, harassing, defamatory, or otherwise objectionable material through the Service;
  8. Engaging in any activity that encourages conduct that constitutes a criminal offence or gives rise to civil liability.
• Responsibility for Misuse: You are liable for any damages or losses resulting from your failure to comply with these obligations, including any misuse of the Service or failure to safeguard your systems.

12. Export Compliance

• Compliance with Export Laws: You acknowledge that the Service, including any software and technical data provided by Datapel, may be subject to export control laws and regulations. You agree to comply with all applicable export and re-export restrictions and regulations, including, but not limited to, the export laws of Australia and any other jurisdiction in which you use the Service.
• Prohibited Destinations and Users: You represent that you are not located in, under the control of, or a national or resident of any country to which the export or re-export of goods, software, or technology from Australia is prohibited by law. Additionally, you warrant that you are not on any government-issued list of restricted parties or entities with which transactions are prohibited.
• Restrictions on Use: You agree not to export, re-export, or transfer, directly or indirectly, any part of the Service to any prohibited destination or user, or use the Service for any purpose prohibited by applicable export laws, including, but not limited to, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
• Responsibility for Compliance: It is your responsibility to ensure that your use of the Service complies with all applicable export laws and regulations, and you shall be responsible for any breach of these laws caused by your actions.

13. Term and Termination

• Term: These Terms are effective upon your use of the Service and will continue in effect for an initial term of 12 months (“Initial Term”) unless otherwise specified. After the Initial Term, the agreement will automatically renew on a rolling monthly basis unless terminated by either party in accordance with this section.
• Termination by Notice: Either party may terminate this agreement at any time after the expiry of the Initial Term by providing the other party with at least 60 business days’ written notice.
• Termination for Material Breach: Either party may terminate this agreement with immediate effect by giving written notice to the other party if the other party materially breaches any of its obligations under these Terms and fails to remedy such breach within 30 business days of receiving notice of the breach.
• Suspension and Termination for Non-Payment:
  1. If you fail to pay the Subscription Fee or any other amounts due under these Terms within 14 days of the due date for payment, Datapel may suspend your access to the Service until all outstanding amounts have been paid in full. Datapel will provide you with at least 7 days’ notice prior to the effective date of the suspension.
  2. If you fail to pay the Subscription Fee or any other amounts due under these Terms within 30 days of the due date for payment, Datapel may terminate this agreement with immediate effect by delivering notice of termination to you.
• Effect of Termination
  1. Termination for Insolvency: Either party may terminate this agreement with immediate effect if the other party becomes insolvent, enters into bankruptcy or liquidation, or is unable to pay its debts when due.
  2. Refund Amounts: Datapel shall, within 30 days, refund any prepaid Subscription Fees covering the remainder of the term after the effective date of termination.
  3. Pay Outstanding Amounts: You must immediately pay to Datapel all amounts outstanding as of the date of termination, as well as any additional amounts incurred up to the effective date of termination.
  4. Discontinuance of Use: You must cease all use of the Service upon the effective date of termination.
  5. Recovery of Data: You will have 14 days from the date of termination to retrieve any of your data stored within the Service. After this period, Datapel reserves the right to delete your data.

14. Indemnification

• Indemnification for Infringement Claims: Subject to the qualifications outlined below, Datapel shall indemnify you against all losses, liabilities, damages, and expenses (including reasonable legal fees) arising out of any third-party claim that the Services infringe upon their intellectual property rights.
• Qualifications for Indemnification: Datapel will only be required to indemnify you under the above clause if:
  1. Your use of the Services complies with these Terms and all associated documentation;
  2. The infringement was not caused by your modification or alteration of the Services, unless Datapel provided written consent to such modifications;
  3. The infringement was not caused by your combination or use of the Services with data, software, hardware, or materials not provided by Datapel, unless Datapel approved such combination in writing;
  4. The infringement was not caused by data or materials uploaded by you or on your behalf into any system provided as part of the Services.
• Mutual Indemnification: Each party agrees to indemnify and hold the other harmless from all claims, losses, liabilities, damages, and expenses (including reasonable legal fees) arising out of or in connection with:
  1. The indemnifying party’s wilful misconduct or gross negligence in performing its obligations under these Terms;
  2. Any legal proceedings brought by a third party as a result of the indemnifying party’s breach of these Terms.
• Notice Requirement: Before seeking indemnification, the party seeking indemnity must promptly notify the indemnifying party of any indemnifiable claim or legal proceeding. The indemnifying party must be given the opportunity to defend the claim and be provided with all necessary documents and information to do so.
• Failure to Notify: If the party seeking indemnity fails to notify the indemnifying party promptly and that failure prejudices the indemnifying party’s ability to defend the claim, the indemnifying party will be relieved of its obligation to indemnify to the extent of the prejudice caused by the delay.
• Exclusive Remedy: The parties’ rights to indemnification as described in this section are the exclusive remedy for any claims or legal proceedings covered by this section.

15. Limitation on Liability

• Consequential Loss: To the maximum extent permitted by law, neither party will be liable to the other for any indirect, incidental, consequential, special, punitive, or exemplary damages, including but not limited to any loss of profit, revenue, business, data, opportunity, or reputation, or any interruption to business, whether in contract, tort (including negligence), statute, or otherwise, even if the party has been advised of or is aware of the possibility of such loss or damage.
• Additional Limitations on Datapel’s Liability: To the maximum extent permitted by law, and except for any warranties expressly provided by Datapel under these Terms, Datapel will not be liable for:
  1. Any disruption, unavailability, or failure to provide the Service, or any damage to, or interference with, any software, hardware, or electronic systems and devices;
  2. Any software virus contracted by you through your use of the Service;
  3. Errors, omissions, or inaccuracies in any information published through the Service or supplied by Datapel via email or otherwise;
  4. Any fraudulent use, misuse, or misappropriation of the Service by you.
• Reduction of Liability: Datapel’s liability for any loss or damage arising out of or in connection with this agreement will be reduced to the extent that such loss or damage is caused or contributed to by your actions, omissions, or failure to comply with these Terms.
• Maximum Liability: Datapel’s total aggregate liability to you under these Terms for any loss or damage of any kind, however caused, and whether in contract, tort (including negligence), statute, or otherwise, will not exceed the total Subscription Fees paid by you to Datapel under these Terms in the 12 months immediately preceding the event giving rise to the claim.

16. General Provisions

• Entire Agreement: These Terms, together with any attachments, schedules, and other documents referenced herein, represent the entire agreement between you and Datapel regarding the subject matter of this agreement. These Terms replace all previous discussions, understandings, or agreements between the parties, whether oral or written.
• Amendment: Datapel reserves the right to amend these Terms at any time by providing reasonable notice, which may include posting the revised Terms on its website. Continued use of the Service following any such amendment constitutes acceptance of the revised Terms.
• Assignment: You may not assign, transfer, or delegate any of your rights or obligations under these Terms without Datapel’s prior written consent. Datapel may assign, transfer, or delegate its rights and obligations under these Terms at any time without your consent.
• Notices:
  • Method of Notice: All notices and communications between the parties must be in writing and may be delivered by (i) personal delivery, (ii) a nationally-recognised, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, or (iv) electronic mail to the addresses specified in this agreement or as updated by the parties.
  • Receipt of Notice: A notice will be deemed received on the earlier of the other party’s actual receipt or five business days after mailing it by first-class registered or certified mail.
• Governing Law: These Terms shall be governed by, and construed in accordance with, the laws of the State of Victoria, Australia, without regard to its conflict of laws provisions.
• Severability: If any provision of these Terms is found to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect. The invalid or unenforceable provision will be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable.
• Waiver:
  • Affirmative Waiver: The failure of either party to enforce any right or provision of these Terms will not constitute a waiver of that right or provision.
  • Written Waivers: Any waiver or extension of rights under these Terms is only effective if it is in writing and signed by the party granting it.
  • No General Waivers: A waiver of any right or remedy on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
• Force Majeure: Neither party will be liable for any failure or delay in performing its obligations under these Terms due to causes beyond its reasonable control, including acts of God, war, terrorism, natural disasters, strikes, or governmental orders.

17. Definitions

• “Authorised Users” means the individuals or entities authorised to use the Services under this agreement, as specified in any relevant documentation or order form.
• “Business Day” means any day other than a Saturday, Sunday, or a public holiday in Victoria, Australia.
• “Business Hours” means the hours between 9:00 AM and 5:00 PM on a Business Day.
• “Data” means all data, content, files, or information that you create, upload, or use in connection with the Service.
• “Effective Date” is the date on which you begin using the Service or the date specified in the relevant agreement.
• “Governmental Authority” refers to any national, state, local, or foreign government or political subdivision, and any agency, authority, or instrumentality of such entities, as well as any court or tribunal of competent jurisdiction.
• “Intellectual Property” includes all intellectual property rights in any jurisdiction, such as patents, trademarks, service marks, trade secrets, copyrights, and any other proprietary rights, whether registered or not.
• “Law” refers to any law, statute, rule, regulation, ordinance, decree, judgment, or order enacted by a Governmental Authority, including all amendments and replacements thereof.
• “Legal Proceeding” refers to any litigation, claim, arbitration, investigation, or similar proceeding, whether civil or criminal, initiated by any party before a court, tribunal, or other competent authority.
• “Order” means any decision, judgment, or order issued by a court, arbitration panel, or any other Governmental Authority.
• “Permits” means any licences, authorisations, permits, approvals, or certifications granted by a Governmental Authority necessary for you to own, operate, and manage your business.
• “Person” includes any individual, corporation, company, partnership, trust, association, joint venture, or other legal entity, whether incorporated or not.
• “Service” refers to the services provided by Datapel under these Terms, including any software, applications, or products offered through Datapel’s platform.
• “Specifications” refers to the documents, including technical descriptions and user guides, that outline the functionality of the Service.
• “Subscription Fee” means the fee payable by you for access to and use of the Service, as outlined in any service order or agreement.
• “Support Contact” means the person or persons designated by you to communicate with Datapel’s support team regarding support services.
• “System Availability” refers to the percentage of time during which the key components of the Service are operational and accessible as defined in the service level agreement.
• “Taxes” means any taxes, duties, levies, or other governmental charges, including without limitation, VAT, GST, sales, use, and withholding taxes, assessed or levied in connection with the provision of the Service.
• “Term” refers to the period during which these Terms are in effect, beginning on the Effective Date and continuing until terminated.
• “Viruses” refers to any code, script, or programme that can cause damage or interfere with the performance of the Service, including viruses, worms, Trojan horses, or other malware.