DataSauce Australia Pty Ltd Services Agreement
DEFINED TERMS
(a)  This clause defines terms used in this agreement.
(b)  Other terms are defined elsewhere in this agreement.

1.1 Materials
(a)  Client Data means raw information supplied to DataSauce Australia Pty Ltd by Client. (b)  DataSauce Australia Pty Ltd Materials means all subject-matter authored, created, produced or licensed by DataSauce Australia Pty Ltd in or to which Intellectual Property or other rights subsist or relate, including presentations, analyses, advice, data, compilations of data, software and source code, but excluding New Client Materials.
(c)  New Client Materials means subject-matter authored, created or produced by DataSauce Australia Pty Ltd in or to which Intellectual Property or other rights subsist or relate and that the parties agree in writing, on a case-by-case basis, is not or will not be DataSauce Australia Pty Ltd Materials. (d)  Original Client Materials means all subject-matter authored, created or produced by Client in or to which Intellectual Property or other rights subsist or relate, including Client Data and other compilations of data.

1.2 Other definitions
(a)  Client means the individual or entity specified in the Proposal and or Agreement. (b)  Confidential Information means any discovery, fact, data, idea, plan, strategy, method, principle, technique, routine, practice, knowledge, formula, specification, design, recipe, trade secret, know-how, business proposal, software, source code, dashboard, Client Data, information, business information, financial information, product information or marketing plan that is not presently widely known or available to the public and that is:  held by DataSauce Australia Pty Ltd or Client; or  generated by DataSauce Australia Pty Ltd or Client in the course of the performance of this agreement. (c)  DataSauce Australia Pty Ltd means the entity specified in the Proposal. (d)  Deliverable means subject-matter authored, created, produced or licensed by DataSauce Australia Pty Ltd and provided or made available to Client as an object of and pursuant to this agreement and, insofar as specified in the Proposal, as specified. (f)  Expenses means reasonable expenses (such as travel expenses) that DataSauce Australia Pty Ltd incurs specifically in order to provide Client with the Services.
(g)  Intellectual Property means existing and future copyright, trade marks, designs, patents or circuit layouts, whether registered or not. (h)  Loss includes any loss, damage, cost, expense or liability, including legal costs, but excludes special (indirect, consequential, incidental) loss. (i)  Media Buying Components means media placements purchased on behalf of Client, such as paid search advertisements on Google. (j)  Project Fee means the project fee specified in the Proposal.
(k)  Proposal means the Proposal or quote supplied by DataSauce Australia Pty Ltd and approved by Client, describing the project, fees and charges and term.
(l)  Related Body Corporate has the same meaning as in the Corporations Act 2001 (Cth). (m)  Services means the services specified in the Proposal.

2 SERVICES, DELIVERABLES & PRODUCTS
(a)  DataSauce Australia Pty Ltd must provide the Services and Deliverables to Client in accordance with the Proposal. (b)  DataSauce Australia Pty Ltd warrants that it will supply the Services with due care and skill and in a professional manner. (c)  Client must provide such reasonable co-operation as required to enable DataSauce Australia Pty Ltd to supply the Services in a professional manner.
(d)  DataSauce Australia Pty Ltd warrants that the Deliverables will be of merchantable quality and that each Deliverable will function or perform as supplied until Client accepts the Deliverables pursuant to clause 4.
(e)  Client acknowledges that a Deliverables does not fail to be of merchantable quality merely because the Deliverable does not continue to function or perform as supplied. If Client modifies a Deliverables without DataSauce Australia Pty Ltd’ authorization in writing, the warranty given in paragraph (d) becomes void.
(f)  If the Proposal specifies that DataSauce Australia Pty Ltd will supply products, such as software, manufactured by a third party (Third Party Products), then DataSauce Australia Pty Ltd must supply those products.

3 CHANGE REQUESTS
(a)  Client may request a change to the Services or Deliverable (Change Request). (b)  Upon receiving a Change Request, DataSauce Australia Pty Ltd may accept or reject the Change Request. DataSauce Australia Pty Ltd’ acceptance of a Change Request may be conditional on changing the Project Fee. (c)  If DataSauce Australia Pty Ltd accepts a Change Request that involves a changed Project Fee, Client may accept or reject the changed Project Fee.
(d)  If: DataSauce Australia Pty Ltd accepts a Change Request that does not involve a changed Project Fee; or Client accepts a changed Project Fee relating to a Change Request, DataSauce Australia Pty Ltd must perform the changes requested in the Change Request.
(e)  If: DataSauce Australia Pty Ltd rejects a Change Request; or Client rejects a changed Project Fee relating to a Change Request, DataSauce Australia Pty Ltd is under no obligation to perform the changes requested in the Change Request and the project will continue as though the Change Request had not been made. (f)  All communications contemplated by this clause 3 must be in writing.

4 ACCEPTANCE
Client accepts a Deliverable when the earlier of the following occurs: Client notifies DataSauce Australia Pty Ltd in writing that Client accepts the Deliverable; Client modifies the Deliverable; or 14 days elapse from the date the Deliverable is delivered to Client and Client has not notified DataSauce Australia Pty Ltd in writing that Client does not accept the Deliverable.

5 FEES
(a)  Client must pay to DataSauce Australia Pty Ltd: the Project Fee; any Expenses; charges for Third Party Products; and applicable GST on each of the above fees and charges. (b)  DataSauce Australia Pty Ltd must not incur any Expense exceeding $200 without Client's prior approval in writing. However, DataSauce Australia Pty Ltd’ failure to obtain prior approval does not, of itself, relieve Client of an obligation to pay the Expense.

6 PAYMENT
(a) Unless specified otherwise in the Proposal, DataSauce Australia Pty Ltd may invoice Client progress payments of all fees and charges monthly in arrears until completion.
(b)  Client must pay to DataSauce Australia Pty Ltd all invoiced amounts within 7 days of the date of each invoice, without any set-off. (c)  Client must pay all amounts in accordance with the payment method set out in the invoice. (d)  DataSauce Australia Pty Ltd may charge simple interest on unpaid invoices at the rate of the Cash Rate Target set by the Reserve Bank of Australia, plus 2 percentage points. DataSauce Australia Pty Ltd may charge the interest on a daily basis from the date an invoice becomes overdue. (e) Client must pay to DataSauce Australia Pty Ltd all interest charged pursuant to paragraph
(d), as though the interest had been invoiced pursuant to this clause on the day the payment of the unpaid invoice is paid.

7 INTELLECTUAL PROPERTY

7.1 Ownership
(a)  Except as expressly provided in this agreement, Client acknowledges that, as between it and DataSauce Australia Pty Ltd: Client does not own any Intellectual Property in DataSauce Australia Pty Ltd Materials; Client does not own, nor is entitled to exercise, any other rights in DataSauce Australia Pty Ltd Materials. (b)  Except as expressly provided in this agreement, DataSauce Australia Pty Ltd acknowledges that, as between it and Client: DataSauce Australia Pty Ltd does not own any Intellectual Property in New Client Materials or Original Client Materials; DataSauce Australia Pty Ltd does not own, nor is entitled to exercise, any other rights in New Client Materials or Original Client Materials. (c)  To the extent that DataSauce Australia Pty Ltd owns any Intellectual Property in New Client Materials, DataSauce Australia Pty Ltd hereby assigns that Intellectual Property to Client.

7.2 Licences
(a)  DataSauce Australia Pty Ltd hereby grants Client a licence to use DataSauce Australia Pty Ltd Materials as required to acquire and use the Services and any deliverables, including using applications and reproducing analyses and advice. (b)  The licence referred to in paragraph (a) is perpetual, non-exclusive, world-wide, royalty free,non-transferable and non-sublicensable other than to Related Bodies Corporate of Client.
(c)  Client hereby grants DataSauce Australia Pty Ltd a licence to use Original Client Material sand New Client Materials as required to supply the Services and any deliverables.
(d)  The licence referred to in paragraph (c) is for the term of this agreement, non-exclusive,world-wide, royalty free, non-transferable and non-sublicensable other than to Related Bodies Corporate and sub-contractors of DataSauce Australia Pty Ltd. (e)  If any licence is required to use a Third Party Product, Client must enter into a licence agreement directly with the thirty party manufacturer of the product.

7.3 Infringement (a)  Client must not do any act that infringes any Intellectual Property or other rights subsisting in or relating to any DataSauce Australia Pty Ltd Materials.
(b)  DataSauce Australia Pty Ltd must not do any act that infringes any Intellectual Property or other rights subsisting in or relating to any New Client Materials, Original Client Materials or Client Data.

7.4 Moral rights
DataSauce Australia Pty Ltd waives all right, title and interest it may have in any right, action or remedy against Client for infringement of any moral rights DataSauce Australia Pty Ltd may have in New Client Materials.

8 CONFIDENTIAL INFORMATION

8.1 Disclosure & use
(a)  The parties acknowledge that, in the course of performing this agreement, one party(Discloser) may disclose Confidential Information to the other (Recipient).
(b)  Subject to the express provisions of this agreement, a Recipient must not: disclose any of Discloser’s Confidential Information to any person; or  use any of Discloser’s Confidential Information for any purpose other than exercising its rights or performing its obligations under this agreement, without Discloser’s express written authorisation (c)  Each Recipient may disclose Discloser’s Confidential Information to its directors, officers,employees and agents as, and only as, reasonably necessary for the purposes of Recipient’s exercising its rights or performing its obligations under this agreement.

8.2 Return & destruction
Within 14 days of the termination of this agreement, Recipient must return to Discloser, permanently disable access to or destroy all copies of material embodying Discloser’s Confidential Information.

8.3 Rights in Confidential Information
Except to the extent that New Client Materials constitute Confidential Information, each Recipient acknowledges to the Discloser that Recipient has or acquires no right, title or interest in any of Discloser’s Confidential Information.

9 RESTRAINT

9.1 Non-solicitation
(a) Client must not solicit or entice any employee of DataSauce Australia Pty Ltd to leave their employment during the term of this agreement and for:
12 months after the termination of this agreement; or, if a Court finds this time period to be unreasonable, then 6 months after the termination of this agreement; or, if a Court finds this time period to be unreasonable, then 3 months after the termination of this agreement.
(b) The parties acknowledge that the restraint paragraph (a) is reasonable.

9.2 Consequences of breach
(a)  If Client breaches clause 9.1 and, as a direct or substantial consequence of that breach, the relevant employee leaves the employ of DataSauce Australia Pty Ltd (by whatever means), then Client becomes liable to pay DataSauce Australia Pty Ltd an amount equivalent to(100) per cent of the current annual salary package of that employee.
(b)  The sum referred to in paragraph (a) becomes due and payable to DataSauce Australia PtyLtd on the day the relevant employee leaves DataSauce Australia Pty Ltd’ employ.
(c)  This clause 9.2 is without prejudice to Client’s other obligations under this agreement,including the obligation to pay fees and charges, or any other right, action or remedy that DataSauce Australia Pty Ltd may have against Client for breach of this agreement.

10 ADDITIONAL WARRANTIES

10.1 Additional warranties Client gives
In addition to and without limiting any warranty Client gives elsewhere in this agreement, Client warrants that:  the instructions it intends to issue to DataSauce Australia Pty Ltd will not cause DataSauce Australia Pty Ltd to engage in any unlawful conduct by reason merely of DataSauce Australia Pty Ltd’ performance of those instructions;  Client does not rely on any representation from DataSauce Australia Pty Ltd that isnot expressly contained in this agreement.

10.2 Additional warranties DataSauce Australia Pty Ltd does not give
(a)  In addition to warranties expressly disclaimed elsewhere in this agreement, DataSauce Australia Pty Ltd gives no warranty that:  any Deliverable will continue to function or perform as supplied after Client accepts the Deliverable pursuant to clause 4;  the supply of the Services and Deliverables will confer on Client any particular commercial objective, outcome or benefit. (b)  DataSauce Australia Pty Ltd gives no warranty over Third Party Products.

11 INDEMNITY & LIMITATION OF LIABILITY

11.1 Indemnity
(a) Client indemnifies DataSauce Australia Pty Ltd against any Loss suffered by DataSauce Australia Pty Ltd:  as a result of any breach of this agreement (including its warranties) by Client or any other unlawful conduct engaged in by Client in relation to the acquisition or use of the Services;  
including where such loss arises from legal action brought against DataSauce Australia Pty Ltd by a third party or brought by DataSauce Australia Pty Ltd against a third party.
(b) DataSauce Australia Pty Ltd indemnifies Client against any Loss suffered by Client:  as a result of any breach of this agreement (including its warranties and clause 9) by DataSauce Australia Pty Ltd or any other unlawful conduct engaged in by DataSauce Australia Pty Ltd in relation to the performance of its obligations under this agreement;  including where such loss arises from legal action brought against Client by a third party or brought by Client against a third party.

11.2 Limitation of liability
The liability of each party to the other is limited to:
an amount limited to a maximum of the previous two (2) months of fees paid by the Client. General or direct losses to the exclusion of indirect, special or consequential loss.

12 TERM & TERMINATION OF AGREEMENT

12.1 Term
This agreement remains in effect until terminated the earlier of:  Client’s acceptance of all Deliverables pursuant to clause 4; or  termination pursuant to this clause 12.

12.2 Termination for convenience
The term of this agreement shall automatically be renewed on the same terms and conditions, unless Client gives 90 days notice in writing to Datasauce.

12.3 Termination for breach
Without prejudice to any other right, action or remedy, if a party (the first party) breaches this agreement and:  the breach is reasonably capable of being remedied by the first party and the first party does not remedy the breach within 14 days of the other party’s notifying the first party in writing about the breach; or
the breach is not reasonably capable of being remedied by the first party, then the other party may terminate this agreement with immediate effect by giving the first party notice in writing.

12.4 Consequences of termination
(a)  If:  
Client terminates this agreement pursuant to clause 12.2; or DataSauce Australia Pty Ltd terminates this agreement pursuant to clause 12.3, Client becomes liable to pay DataSauce Australia Pty Ltd 100% of the amount of the Fees that has not already been invoiced for the current term. If fees are variable in nature - the monthly fee shall be determined based on the average monthly billable during the term. (b)  The sum referred to in paragraph (a) becomes due and payable to DataSauce Australia Pty Ltd on the day that this agreement terminates pursuant
to clauses 12.2 or 12.3.
(c)  Paragraph (a) is without prejudice to Client’s other obligations under this agreement, including the obligation to pay fees and charges, or any other right, action or remedy that DataSauce Australia Pty Ltd may have against Client for breach of this agreement. Note: clause 8.2 is also relevant to the consequences of termination of this agreement.

12.5 Notice in advance
To be clear, any notice in writing given under this clause 12 is notice given in advance.

13 THIS AGREEMENT

13.1 Formation
By entering into this agreement, Client agrees to be bound and abide by the terms and conditions of this agreement.

13.2 Terms and conditions
(a)  This agreement includes the Proposal, all summaries, schedules and appendices to this agreement, but excludes and terms or conditions imposed by a manufacturer over Client's use of a Third Party Product. To the extent there is any irreconcilable inconsistency between the body of this agreement and:  
the Proposal, the terms and conditions of the Proposal prevail; or  its other parts, the terms and conditions of the body of this agreement prevail. (b)  Subject to paragraph (a) and clause 13.4, this agreement:  as a document, embodies all the express terms of the agreement; and  supersedes or excludes all other agreements, arrangements, understandings and representations, written or oral, in relation to Client’s engagement of DataSauce Australia Pty Ltd to provide the Services.

13.3 Principles of interpretation of agreement
In this agreement, unless expressly to the contrary and as appropriate in the context:(a) an expression in the plural may be read in the singular, and vice versa; (b)  headings are for convenience only and do not affect the interpretation of this agreement; (c)  all references to currency or amounts of money are in Australian Dollars; (d)  an expression reflecting a present state of affairs presumes the indefinite continuation of that state of affairs; (e)  a reference to a thing or things includes a reference to any, some or all, or part or whole, of the thing or things; (f)  a reference to an act includes an omission and to the causing to be done of that act or omission, including the execution of legal documentation; (g)  a reference to a person doing an act includes a reference to the doing of the act on behalf of the person; (h)  a reference to one alternative does not, of itself, exclude any other alternative; (i)  an expression of the exercise of a right means the exercise of that right at the sole and absolute discretion of the relevant party; (j)  an expression prohibiting the doing of an act includes the prohibiting of:  offering, attempting or purporting to do the act; or  aiding, abetting, authorising, approving, contributing to, directing or materially being involved with the doing of the act. (k)  a list of rights is not to be read as an exhaustive list of rights;
(l)  an expression of ownership includes the legal or beneficial ownership; (m)  a reference to ‘this agreement’ includes a reference to the terms and conditions of this agreement, or this document, regardless of whether the terms and conditions of this agreement, or this document, are sometimes expressly referred to in this agreement; and (n)  a reference to a provision, clause or paragraph is a reference to a provision, clause or paragraph of this agreement; and (o)  a reference to an assignment or transfer of proprietary rights is a reference to the absolute and irrevocable assignment or transfer.

13.4 Variation
Without limiting clause 3, the parties may vary this agreement only by agreement in writing.

13.5 Waiver
Subject to this agreement, no waiver of rights, actions or remedies is effective unless in writing. To be clear, the failure of any party to exercise or enforce a right, action or remedy under this agreement, or otherwise, does not constitute a waiver of the relevant right, action or remedy.

13.6 Compulsory provisions and sever ability (a)  DataSauce Australia Pty Ltd acknowledges that, by operation of law:  certain agreements contain certain terms, conditions, warranties or liabilities
(Compulsory Terms), whether by implication or otherwise;  Compulsory Terms cannot or must not be excluded, modified or limited by agreement; and  to the extent that any provision of this agreement excludes, modifies or limits those Compulsory Terms, that provision may be unlawful, unenforceable or void. (b)  Notwithstanding anything else in this agreement, this agreement does not, nor purports to,exclude, modify or limit any Compulsory Terms. (c)  To the extent that any provision of this agreement would be unlawful, void or unenforceable for any reason (including by reason of the matters acknowledged in this clause 13.6) or is found to be so, the other provisions of this agreement are valid and enforceable.

13.7 Assignment and novation
(a)  Client may assign its rights under this agreement by giving written notice to DataSauce Australia Pty Ltd. (b)  Client may not novate its obligations under this agreement without DataSauce Australia Pty Ltd’ written consent, which consent will not be unreasonably refused.
(c)  DataSauce Australia Pty Ltd may not assign or novate its rights or obligations under this agreement without Client’s written consent, which consent will not be unreasonably refused.

13.8 Survival
Clauses 0, 2(d), 2(e), 6, 7, 8, 9, 10.2, 11, 12.4, 13.2, 13.3, 13.8 and 13.9 survive the termination of this agreement.

13.9 Governing law and jurisdiction
(a)  The laws of the state of Victoria, Australia, govern this agreement. (b)  Client acknowledges that the courts of VIC is an appropriate forum for the settlement of disputes arising under or in relation to this agreement. (c)  To the extent they come before any court, all disputes arising under or in relation to this agreement will be determined in the courts of VIC.