Dataweavers — Legal | Terms of Service

Updated 1 September 2023

1. Structure and Operation

These Dataweavers Terms of Service set out certain elements of the relationship between Dataweavers and the Customer.
Dataweavers does not supply any goods or services under these Terms of Service as such. The agreement between Dataweavers and the Customer is comprised of these Dataweavers Terms of Service, the Hosting Services Module, the As a Service Modules, the Data Processing Addendum, the Service Level Agreement, the Service Catalogue, and the relevant Order Form (together, the “Agreement”).
Each Order Form, when executed, creates a separate Agreement comprising the following elements, that relates to the service(s) identified in that Order Form:
If the individual accepting the Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting the Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept the Agreement and neither it nor the entity on behalf of which it purports to act is permitted to use the Services.
Where Dataweavers makes any changes to the Agreement, those changes will be notified to the Customer in writing and where relevant, posted on the Dataweavers website at https://www.dataweavers.com/legal/terms-of-service and will only take effect:
1. for existing Agreements, upon the expiry of the then-current Agreement Term outlined in the Order Form and in circumstances where Dataweavers agrees to the Customer’s request to extend the Agreement in accordance with its terms; and
2. for new Agreements entered into on or after the date of publication, from the Agreement Date.

2. Services

Dataweavers will provide the As a Service Subscription, and any Additional Services, to the Customer for the Fees during the Agreement Term.
The Fee must be paid in the manner and at the time as provided for in the Order Form or applicable invoice.
Dataweavers will provide the As a Service Subscription, and any Additional Services (as applicable) with due care, skill and diligence and in a professional manner.
The Customer must also ensure that Dataweavers' support personnel are provided with all information, facilities, assistance and accessories reasonably required by Dataweavers to enable Dataweavers to comply with its obligations under the Agreement.
If reasonably requested by Dataweavers, the Customer must provide a suitably qualified or informed representative to Dataweavers' personnel and to provide such advice or assistance to those personnel as may be necessary in order to enable Dataweavers to access the relevant equipment and to otherwise effectively perform the As a Service Subscription and Additional Services.
The Customer must ensure Dataweavers is provided with full and safe access to any and all equipment necessary in order to provide the As a Service Subscription and Additional Services, and that such equipment is provided free of charge with all information, facilities and services reasonably required to enable the relevant services to be performed effectively. This includes allowing Dataweavers to access through telecommunications infrastructure any equipment or hardware from a remote location.

2.1 Availability

Dataweavers will provide access, and ensure that the As a Service Subscription and Additional Services are available, to the Customer in accordance with the relevant parts of the Service Level Agreement, provided however that Dataweavers may, without notice, suspend access to the As a Service Subscription and Additional Services immediately where and to the extent reasonably necessary to address any of the following:
1. there is a malfunction or breakdown of any of Dataweavers’ equipment or systems or if Dataweavers is required to undertake the repair, maintenance or service of any part of the relevant As a Service Subscription and Additional Services;
2. it is reasonably required to reduce or prevent fraud, interference or misuse of the As a Service Subscription and Additional Services;
3. Dataweavers is required to comply with an order, instruction or request of a Government Authority, or other such competent body; or
4. any Fees that are due and payable to Dataweavers in accordance with the terms of the Agreement have not been paid as and when they fall due.
The Customer acknowledges that the Service Level Agreement is based upon and subject to the service level agreements provided by the third party providers that the Customer engages (including but not limited to the Hosting Service Subscription (if applicable)) in order to utilise the As a Service Subscription and Additional Services.
The Customer acknowledges that if a third party with whom the Customer is dealing with in regard to the As a Service Subscription or Additional Services fails to satisfy its obligations under any relevant agreement with the Customer, this will affect the ability of Dataweavers to meet its obligations under the Service Level Agreement. The Customer hereby releases and holds harmless Dataweavers from any Loss suffered or incurred by the Customer in the circumstances contemplated by this clause 1(c).

2.2 Downtime

The Customer acknowledges and agrees that access to the As a Service Subscription and the Additional Services is reliant upon various factors outside the control of Dataweavers, including, without limitation, the Customer’s internet service provider, telecommunications provider or equipment used to access the As a Service Subscription and the Additional Services, third-party hosting and web servers and other factors which may impact upon the availability of the As a Service Subscription and the Additional Services to the Customer via the internet.
While Dataweavers must use all reasonable endeavours to ensure the Customer has access to the As a Service Subscription and the Additional Services in accordance with the applicable levels set out in the Service Level Agreement, Dataweavers will not be liable to the Customer or any other person for any Claim or to any other extent for Loss or damage caused by such factors as contemplated in 2(a).

2.3 Notice of Maintenance

Dataweavers will use its reasonable endeavours to, except in emergency situations, provide the Customer with 72 hours’ notice of any scheduled maintenance of the As a Service Subscription and the Additional Services, or with such notice as otherwise provided for in the applicable Service Level Agreement.

2.4 Loss of access

The Customer will have no Claim against Dataweavers in respect of loss of access or functionality to the As a Service Subscription and the Additional Services as a result of any of the matters contemplated in clause 2.2 and 2.3.

2.5 Malfunctions

Dataweavers does not warrant that the As a Service Subscription and the Additional Services are or will be completely error free or free of Defects.

2.6 Third party inputs

The Customer acknowledges that the As a Service Subscription and Additional Services incorporate products and services provided by third parties. To the extent that there is a major feature depreciation from a third party service provider that affects the ability of Dataweavers to provide the As a Service Subscription or Additional Services, or otherwise comply with its obligations under the Agreement, the Customer acknowledges that it must upgrade such third party products and services, in a manner that enables the continuing use of the As a Service Subscription and Additional Services, and in accordance with the reasonable directions of Dataweavers.

2.7 Subscription Tiers

The Customer may request to change Subscription Tiers from time to time where available for the applicable As a Service Subscription or Additional Services. If Dataweavers agrees to the change, then Dataweavers will implement the arrangements for the new Subscription Tier from an agreed date, and will pro-rate charges accordingly.

3. Customer Obligations

The Customer must not (unless otherwise agreed with Dataweavers in writing):
1. use the As a Service Subscription or the Additional Services in any way that could damage the reputation of Dataweavers or the goodwill or other rights associated with those services;
2. permit any third party to use or access the As a Service Subscription or the Additional Services other than as set out in the Agreement;
3. reproduce any part of the As a Service Subscription or the Additional Services for sale or incorporation in any product or service intended for sale or supply to third parties;
4. except as expressly permitted by the Agreement, and except to the extent that applicable laws prevent Dataweavers restraining the Customer from doing so:
  1. reproduce, make error corrections to or otherwise modify or adapt the Product, As a Service Subscription or the Additional Services or any part of them, or create any derivative works based upon the As a Service Subscription or the Additional Services or any part of them;
  2. de-compile, disassemble or otherwise reverse engineer the Product, As a Service Subscription or the Additional Services or permit any third party to do so.
The Customer must ensure that all End Users keep their account credentials secure and confidential. The Customer must immediately notify Dataweavers of any unauthorised use of the Customer’s user credentials or any other breach of security to enable Dataweavers to reset the Customer’s user credentials and the Customer must take all other actions that Dataweavers reasonably deems necessary to maintain or enhance the security of Dataweavers’ computing systems and networks and the Customer’s access to the As a Service Subscription or the Additional Services.
When accessing and using the As a Service Subscription or the Additional Services, the Customer must not:
1. attempt to undermine the security or integrity of Dataweavers’ computing systems or networks or, where the As a Service Subscription or the Additional Services are hosted by a third party (in whole or in part), that third party’s computing systems and networks;
2. use, or misuse, the As a Service Subscription or the Additional Services in any way which may impair the functionality of the Services, or other systems used to deliver those services, or impair the ability of any other user to use those services;
3. attempt to gain unauthorised access to any materials other than those to which the Customer has been given express permission to access;
4. transmit or input any files that may damage any other party’s computing devices or software, that may be offensive, or that might violate any law;
5. attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs or systems used to deliver the As a Service Subscription or the Additional Services except as strictly necessary to use the Services for their normal operation;
6. remove or modify any program markings or any notice of proprietary rights, or rebadge the As a Service Subscription or the Additional Services or any part of them in any way, irrespective of whether such markings or notices are those of Dataweavers or a third party; or
7. make any part of the As a Service Subscription or the Additional Services available in any manner to any third party for use in that third party’s business operations, or otherwise sublicense, rent, assign, communicate to the public or otherwise deal (wholly or in part) with those services without the express permission of Dataweavers.
The Customer acknowledges that the As a Service Subscription or the Additional Services can only be used with the Approved Applications and Version Matrix as set out in the Order Form (and as updated by Dataweavers from time to time).
Upon the reasonable request of Dataweavers, the Customer will provide Dataweavers with all information and co-operation reasonably necessary to enable Dataweavers to perform its obligations under the Agreement.
The Customer agrees that it must not provide access to any third party at the Service Principal level without the prior written consent of Dataweavers.
Dataweavers is unable provide the As a Service Subscription or the Additional Services if Service Principal access to the Hosting Services Subscription is revoked at any time. If for any reason Service Principal access is revoked, the Customer must immediately notify Dataweavers and must do all things necessary to restore that access (and Dataweavers is excused from performing its obligations under the Agreement until such access is restored).

4. Additional Services

The Customer may request at any time throughout the Agreement Term that Dataweavers provide services additional to the As a Service Subscription (Additional Services). If Dataweavers agrees to provide any Additional Services, Dataweavers will provide the Additional Services at the rates as specified for the specific Additional Service(s) set out in the Service Catalogue, or where a rate is not specified in the Service Catalogue, at the rate advised by Dataweavers to the Customer at the time the relevant Additional Service is requested.
The provision of Additional Services to the Customer by Dataweavers is at the discretion of Dataweavers and subject to the availability of Dataweavers to provide the requested services.
Without limiting paragraph (b), Dataweavers may also refuse to provide the Additional Services from the Service Catalogue to the Customer where Dataweavers reasonably considers that the Customer is making an unreasonably high number of requests for Additional Services.
The Customer acknowledges that Dataweavers may add or remove services from the Service Catalogue, or amend or alter the rates specified for the Additional Services in the Service Catalogue, at its discretion from time to time. Any such changes will only apply to Additional Services ordered after the effective date of the applicable change (that is, not during the existing term for an Additional Service).

5. Intellectual Property

5.1 Licence

In consideration of the payment of the Fees, and subject to the terms of the Agreement, Dataweavers grants to the Customer a non-exclusive, non-transferrable licence for the Agreement Term to use and access the As a Service Subscription and the Additional Services.

5.2 Ownership

Dataweavers warrants that, at the commencement of the Agreement, it is entitled to grant the rights and licenses in respect of the Product and the As a Service Subscription subject to the terms and conditions of the Agreement.
The Customer acknowledges that all Intellectual Property Rights subsisting in the Product and the As a Service Subscription and Additional Services are either owned by Dataweavers or licensed from third parties by Dataweavers (as the case may be) and that nothing in the Agreement has the effect of or should be construed as passing ownership of such Intellectual Property Rights to any person, including the Customer.
The Customer acknowledges that Dataweavers retains ownership of all Intellectual Property Rights in the Product, As a Service Subscription and Additional Services (including any Product) created by or for Dataweavers whether before or after the date of the Agreement.

5.3 Continued Development

The Customer consents to Dataweavers soliciting comments, information, requests, data, ideas, enhancement requests, recommendations, description of processes, or other information concerning the Product and/or the As a Service Subscription and Additional Services from End Users or the Customer (Feedback).
Dataweavers owns all Intellectual Property Rights in any Feedback and may use such Feedback for purpose related to the Product and/or the As a Service Subscription and Additional Services or the carrying out of services generally in its business activities without further approval or acknowledgement, and the Customer hereby assigns to Dataweavers any Intellectual Property Rights in any such Feedback.
The Customer grants to Dataweavers the Marketing Rights and acknowledges that the grant of the Marketing Rights to Dataweavers survives the termination of the Agreement.

5.4 Customer materials

Dataweavers acknowledges that all Intellectual Property Rights subsisting in the Customer Materials are either owned or licensed from third parties by the Customer (as the case may be) and that nothing in the Agreement has the effect of or should be construed as passing ownership of any Intellectual Property Rights in the Customer Material to any person.
The Customer hereby grants to Dataweavers a perpetual, royalty free, non-exclusive, non-transferable licence to use, operate, modify, support and maintain the Customer Materials in order to perform its obligations and exercise its rights under or in connection with the Agreement.

5.5 Licence to third party products

If set out in the applicable Order Form, Dataweavers will provide the Customer with licences to third party product(s). The third party products are licensed by the applicable third party vendor in accordance with the EULA, and the Customer must accept and comply with the EULA as a condition of using the third party product(s).

5.6 No exclusivity

The Customer acknowledges and agrees that Dataweavers may supply products or services similar to or the same as the As a Service Subscription and Additional Services to its customers or other third parties and the Customer may not restrict Dataweavers in the supply of other services of any nature.

6. Customer Data

6.1 Provision of information

Through the usage of the As a Service Subscription or the Additional Services, the Customer and End Users will provide Customer Data to Dataweavers. The Customer acknowledges and agrees that Customer Data is handled in accordance with the Data Protection Addendum, which is incorporated into and expressly forms part of the Agreement.

7. Term

7.1 Agreement Term

Subject to clause 1(b), the Agreement will commence on the Agreement Date and will remain in force, unless terminated earlier in accordance with the Agreement, until the expiry of the Initial Term.
The Customer may request an extension to the Agreement for a Further Period commencing on the expiry of the Initial Term (or then-current Further Period), by giving Dataweavers at least 30 days’ written notice before the expiry of the then-current term. Together, the Initial Term and any Further Period or Further Periods are the ‘Agreement Term’. Dataweavers may agree to any such extension request, and may agree subject to amendments to the then-current terms of the Agreement (including changes to the Fees). No extension will take effect until agreed in writing by both parties.

7.2 Termination by Dataweavers

Dataweavers may terminate the Agreement in whole or in part as it applies to the Customer if:

the Customer fails to pay any amount of Fees due and owing to Dataweavers as and when such Fees are due and owing to Dataweavers as prescribed in the Agreement, and fails to remedy the non-payment within 10 days of receiving notice to do so;
the Customer commits a material breach of the Agreement (other than a payment breach covered by paragraph (a)) which is capable of being remedied and which is not remedied within 14 days after receiving written notice of the breach from Dataweavers;
the Customer commits a material breach of the Agreement which is not capable of being remedied;
the Customer becomes Insolvent (subject to applicable law); or
the Customer infringes Dataweavers Intellectual Property Rights.

7.3 Termination by Customer

The Customer may terminate the Agreement in whole or in part if:

Dataweavers commits a material breach of the Agreement which is capable of being remedied and does not remedy that breach within 14 days after receiving written notice of the breach from the Customer; or
Dataweavers commits a material breach of the Agreement which is not capable of being remedied; or
Dataweavers becomes Insolvent (subject to applicable law).

If the Customer terminates the Agreement within 24 months from the Agreement Date, it will be liable for an early termination fee, payable immediately consisting of:

If waived initially or not already paid, the Onboarding Fees; and
Any outstanding or unpaid Fees due for any services.

7.4 Preservation of rights

Termination of the Agreement for any reason (including but not limited to termination pursuant to any provision of this clause 7) will not extinguish or otherwise affect:

any rights of either party against the other which:
1. accrued prior to the time of the termination;
2. otherwise relate to or may arise at any future time from any breach or non-observance of obligations under the Agreement which arose prior to the time of the termination; or
the provisions of the Agreement which by their nature survive termination.

7.5 Effect of Termination

The termination of the Agreement will not affect any remedy of any party with respect to any breach of the Agreement. The parties agree that such rights and remedies will survive the termination of the Agreement.

7.6 Post-termination

Upon termination of the Agreement:

Dataweavers will remove the Product and DevOps Configuration from the Hosting Services Subscription and ensure the Customer Code and Digital Experience Platform are able to serve web pages and content;
Customer Data will remain in the Customer’s Hosting Services Environment and is not accessible by Dataweavers;
it is the Customer’s responsibility to transfer control, or migrate to another Provider:

1. the Customer Code;
2. the Digital Experience Platform; and
3. the Hosting Services Environment,

if it wishes to do so.

At the expiry of the Agreement Term, if the Customer would like Dataweavers to assist with the migration of the Customer Data from the Hosting Services Environment to another provider, it may request Dataweavers to provide a quote for that work in connection with the relevant Service Catalogue item. Dataweavers may choose whether or not to provide the quote, but in any case, Dataweavers will not be required to perform the work until the parties have agreed the quote (if any) in writing.

8. Fees, invoicing and payment

8.1 Fees

The Customer must pay the Fees in the amounts and at the frequencies set out in the Order Form.
The amount of Fees payable in respect of each extended period subsequent to the expiration of the Agreement Term outlined in the Order Form will be those fees specified from time to time by Dataweavers. Until determination by Dataweavers, the Fees will be those amounts set out in the Order Form and will be payable within 14 days of the commencement date of any further term and then periodically as they would otherwise fall due.
To the maximum extent permitted by law, any Fees paid are non-refundable and no credits or refunds will be provided in respect of partially used periods.

9. Customer Representations and Warranties

The Customer represents and warrants to Dataweavers each of the following statements insofar as they are applicable to the Customer is true and correct:

1. if it is a corporation or trust it has been duly incorporated or created as the case may be and is validly existing under the laws of the place of its incorporation or creation;
2. it has the power to enter into and perform its obligations under the Agreement, to carry out the transactions contemplated by the Agreement and to carry on its business as now conducted or contemplated;
3. it has taken all necessary action to authorise the entry into and performance of the Agreement and to carry out the transactions contemplated by the Agreement;
4. the Agreement creates valid and binding obligations enforceable in accordance with their terms, subject to any necessary stamping and registration;
5. the execution and performance by it of the Agreement and each transaction contemplated under the Agreement did not and will not violate in any respect a provision of:
  1. a law or treaty or a judgment, ruling, order or decree of a Government Authority;
  2. its constituent documents; or
  3. any other document or agreement which is binding on it or its assets; and
6. it has had sufficient opportunity to seek independent legal advice regarding the Agreement and all surrounding matters.

10. Suitability

10.1 Responsibility

The Customer is solely responsible for determining the suitability of the As a Service Subscription and Additional Services for its particular needs and for the results obtained.

10.2 Warranties

The Customer warrants to Dataweavers that it has (and will continue to):

determined its needs;
evaluated the Services capabilities; and
satisfied itself as to the suitability of the As a Service Subscription and Additional Services for the Customer’s purpose before entering into the Agreement.

11. Liability and Indemnity

11.1 Limit of Liability

Except as expressly provided by the Agreement, and to the maximum extent permitted by law, the Product, As a Service Subscription and Additional Services are provided on an "as is" basis without any representation, warranty or condition, whether express or implied, statutory, out of a course of dealing or usage, trade or otherwise including any implied warranty or condition of merchantability quality or fitness for any particular purpose or use.
To the maximum extent permitted by law, Dataweavers does not warrant that the Product, As a Service Subscription and Additional Services will be free of defect, uninterrupted, accurate, complete, current, stable, bug free, error free or available at any particular time in respect of its operation.

11.2 Implied terms, warranties and statutory guarantees excluded where permitted

The provisions of various laws, statutes, rules or regulations in force from time to time might imply certain conditions, warranties, statutory guarantees and obligations in the Agreement. All such conditions, warranties, statutory guarantees and obligations are hereby expressly excluded from having any application to the Agreement, except to the extent that it is not lawful to do so. To the extent such conditions, warranties, statutory guarantees and obligations cannot be excluded but liability in respect of them can be limited, Dataweavers’ liability is not governed by clause 11.4 and instead its liability is limited pursuant to this clause to the resupply or payment of the cost of the resupply of the applicable As a Service Subscription or Additional Service.

11.3 Indirect losses excluded

Subject to 2, in no event will any party be liable to another for: a loss of profits, business, business opportunity, loss of use, loss or corruption of data, revenue, goodwill or anticipated savings; or
indirect or consequential Loss or damage, being any loss or damage that does not flow naturally, that is, according to the usual course of things, from the relevant breach, act or omission,

and Dataweavers is not liable to the Customer for any losses to the extent caused or contributed to by elements of the Customer Environment not provided by Dataweavers.

11.4 Caps on Liability

Subject to 11.2 and 11.5, Dataweavers’ liability to another party for all Claims under or in connection with the Agreement is, in aggregate, capped at the amount paid by the Customer to Dataweavers under the Agreement in the 6 months prior to the event occurring which gives rise to the Claim.

11.5 Indemnity

Subject to clause 5(b), Dataweavers will:
1. defend the Customer and its employees and directors (in this clause referred to as ‘those indemnified’) against any Claim brought by a third party against any of those indemnified alleging the infringement of the Intellectual Property Rights of that third party, which infringement occurred by reason of the purchase, possession or use of the As a Service Subscription or Additional Services by the Customer in accordance with the Agreement; and
2. pay any agreed settlement amount, or final judgment awarded against those indemnified, in connection with such proceedings.
Dataweavers’ obligation under (a) will be reduced to the extent that the relevant third party claim relates to or is caused or contributed to by:
1. the breach of this agreement by the Customer;
2. the unlawful acts or omissions of the Customer;
3. the combination of the As a Service Subscription or Additional Services with third party products or services not supplied by Dataweavers, where the alleged infringement would not arise but for that combination; or
4. Customer Data.

12. Confidentiality

12.1 Treatment of Confidential Information

Each party acknowledges that the Confidential Information of the other party is valuable to the other party. Each party (a Discloser) undertakes to keep the Confidential Information of the other party (a Recipient) secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other party.

12.2 Use of Confidential Information

A Recipient may only use or reproduce the Confidential Information of the Discloser for the purposes of performing the Recipient’s obligations or exercising the Recipient’s rights under the Agreement.

12.3 Disclosure by Recipient

A Recipient disclosing information under the Agreement must use all reasonable endeavours to ensure that persons receiving Confidential Information from it do not disclose the information except in the circumstances permitted under the Agreement.

12.4 Return of Confidential Information

At the request of a Discloser and subject to clause 7.6, a Recipient must:

return to the Discloser all Confidential Information of the Discloser; or
destroy the Discloser’s Confidential Information and certify to the Discloser that it has been destroyed.

12.5 Exceptions

Nothing in the Agreement prohibits the use or disclosure of any Confidential Information to the extent that the Recipient can demonstrate that:

the information is received by the Recipient from a third party who is not under an obligation of confidence in relation to such information;
the information is generally and publicly available other than as a result of a breach of confidence by the person disclosing or receiving the information;
the information is independently developed by the Recipient’s Personnel who do not have access to any of the Discloser’s Confidential Information; or
the information was lawfully known to the Recipient prior to receipt of the information from the Discloser.

12.6 Damage and other remedies

Each party acknowledges that a breach of this clause 12 may cause the other party irreparable damage for which monetary damages may not be an adequate remedy. Accordingly, in addition to other remedies that may be available, each party may seek and obtain injunctive relief against such a breach or threatened breach.

13. Dispute Resolution

If a dispute (Dispute) arises between the parties to the Agreement (Participants) that arises out of or in connection with the Agreement (including any dispute as to the validity of the Agreement) which they cannot resolve, then the parties agree that before any court or arbitration proceedings (other than for urgent interlocutory relief) are commenced with respect to the Dispute, the following steps must be taken to attempt to resolve the Dispute.
The party claiming that a Dispute has arisen must deliver to the other parties a notice containing particulars of the Dispute (Dispute Notice).
During the period of 10 Business Days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), the Participants must use their reasonable endeavours and act in good faith in an attempt to resolve the Dispute.
If the Participants cannot resolve the Dispute within the Initial Period then unless they all agree otherwise, the Participants must refer the Dispute to the Resolution Institute for the facilitation of a mediation according to the Resolution Institute’s Mediation Rules.
If within 10 Business Days after the referral of the Dispute to the Resolution Institute the parties have not agreed upon the mediator or any other relevant particular, the mediator and the particular not agreed will be determined in accordance with the Resolution Institute’s Facilitation Rules.
All Participants must participate in the mediation in good faith and cooperate with the Resolution Institute as a facilitator.

14. Standard Provisions

14.1 Assignment

Dataweavers may assign, novate or otherwise transfer any of its rights or obligations under the Agreement without further notice to the Customer provided the assignee has sufficient financial and operational capacity to perform the obligations of Dataweavers under the Agreement.
The Customer must not assign, novate or otherwise transfer any of its rights or obligations under the Agreement without first obtaining the express written consent of Dataweavers.

14.2 Costs

Each party will pay their respective costs and expenses of in connection with the negotiation, preparation, execution, and performance of the Agreement.

14.3 Force Majeure Event

Neither party is liable for any breach of its obligations under the Agreement to the extent that the breach resulted from any event that is outside the reasonable control of the affected party and could not have been prevented by that party taking reasonable steps or overcome by the exercise of reasonable diligence and at a reasonable cost (including lack of supply, industrial action, fire, riot, war, embargo, civil commotion for act of God) provided that the affected party:

promptly notifies the other party of the event (with appropriate details); and
takes all reasonable steps to work around or reduce the effects of the event.

14.4 Goods and Services Tax

Unless otherwise expressly stated, all amounts stated to be payable under the Agreement are exclusive of sales, services or value added taxes (VAT). If VAT is imposed on any supply made under or in accordance with the Agreement, then the VAT payable must be paid to the supplier as an additional amount by the recipient of the supply, provided the supplier provides a tax invoice in respect of the taxable supply.
If a party is entitled to be reimbursed or receive compensation for any of its costs, expenses or liabilities then the amount to be paid is to be reduced by the input tax credits to which that party is entitled to receive in relation to those amounts.

14.5 Notices

Any notice given under or in connection with the Agreement must be in legible writing, in English and signed by the party giving the notice or (on its behalf) by an authorised agent and be delivered personally to the addressee or sent by post, facsimile or email to the addressee at the addresses specified in the Agreement or such other address as is notified from time to time for the purpose of receiving notices.
notice will be deemed to be received by the addressee:
1. if delivered by hand, at the time of delivery;
2. if sent by prepaid post, on the third Business Day after the day on which it is posted, the first Business Day being the day of posting;
3. if sent by facsimile, on the Business Day on which the notice is received by the recipient’s facsimile receiving facility, and a completion transmission report is received; or
if sent by electronic mail, 2 hours after the time of sending recorded on the sender’s email logs (or if outside business hours in the location at which the recipient is located, the start of the next working day in that place), unless the sender has received a send failure receipt.

15. General Provisions

15.1 Definitions and Interpretation

In the Agreement the following definitions apply unless the context requires otherwise:

Additional Services has the meaning given in clause 4(a).
Agreement has the meaning given in clause 1(b).
Agreement Date means the date the Order Form is executed by the Customer or the Customer first accesses the As a Service Subscription, whichever occurs first.
Agreement Term means the number of consecutive Monthly Periods set out in the Order Form that the relevant services are to be provided by Dataweavers to the Customer as part of the Initial Term, and any one or more Further Period(s) agreed by the parties in writing.
Agreed Production Pricing Approach & Performance Criteria means the way Dataweavers will make operational decisions about the Customer’s production Environment when an unexpected incident such as high Traffic results in a degraded Page Load Time in accordance with the Agreed Production Pricing Approach & Performance Criteria, as set out in the Order Form.
As a Service Subscription means the solution delivered on an ‘as a service’ basis, further described in the As a Service Subscription Module and Order Form.
Azure and Microsoft Azure mean the cloud platform and associated services provided by Microsoft Ireland Operations Limited or its related companies (as the case may be).
Business Day means a day that is not a Saturday, Sunday or public holiday and on which banks are open for business generally in Brisbane, Australia.
Claim includes, in relation to a person, a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.
Confidential Information means all information (regardless of form) belonging to a party or any related entity of that party which:
can reasonably be inferred to be confidential from the circumstances in which it is disclosed;
is disclosed to or observed by another party for the purpose of the Agreement; and
includes all notes, compilations, analyses, extracts, summaries and other records prepared by or for the benefit of a party in connection with the performance of the Agreement,
1. but does not include information that is or becomes known or generally available to the public, except if this happens because of a breach of any obligation of confidence (in which case it remains confidential).
Customer means in the case of an individual accepting the Agreement on his or her own behalf, such individual, or in the case of an individual accepting the Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting the Agreement, as outlined in the Order Form.
Customer Code means code, libraries, modules, scripts or third-party software that the Customer has chosen to supply and use as part of their Services.
Customer Data means data owned or supplied by the Customer and stored on the systems of Dataweavers or a Hosting Service as a result of the Customer’s usage of the Services.
Customer Materials means any trade marks, images, content or other materials developed by the Customer prior to the Agreement Date or independently of the Agreement and includes any Customer Data.
Dataweavers means Dataweavers Pty Ltd ABN 57 630 717 494.
Dataweavers Infrastructure As Code IP means compiled and uncompiled code and scripts that connect securely to the Customer’s Hosting Services and provides the ability to:
1. create the Azure subscription(s);
2. create the Azure DevOps container(s);
3. configure and deploy the chosen Digital Experience Platform;
4. connect repositories and deploy the Customers Code; and
5. automate the ongoing ‘one-touch’ updating of Azure environments.
Dataweavers Insights Application IP means compiled and uncompiled code and scripts that connect securely to the Customer’s hosted infrastructure on Azure and provides them:
monitoring and insights for the Digital Experience Platform and associated DevOps and PaaS infrastructure;
ability to execute maintenance of the Digital Experience Platform and infrastructure environment;
structured change management documentation;
ongoing tasks to make sure effective licence usage and compliance on behalf of the Customer to make sure the Customer stays Licencing Compliant; and
ongoing and better ways to manage the Digital Experience Platform and infrastructure environment.
Data Processing Addendum means the data processing addendum made available on Dataweavers website at https://www.dataweavers.com/legal/data-processing-addendum, as amended from time to time.
Defect means a material failure of the As a Service Subscription to comply with the requirements of the Agreement.
DevOps Configuration means the minimum DevOps configuration outlined in the Order Form.
Digital Experience Platform means the application software version that is provided by the relevant third party platform provider to the Customer prior to Customer Code being implemented.
Digital Experience Platform Environment means the combination of the Product, the DevOps Configuration, the Digital Experience Platform and Customer Code running together in Minimum Hosting Service Environment Details for the purposes serving web pages and content.
End User means the Personnel of the Customer, or third party providers to the Customer, who are permitted to access the As a Service Subscription on behalf of the Customer, as identified as such in the Order Form, or as amended with Dataweavers’ approval from time to time.
Environment means the combination of the Customer’s hardware, software, telecommunication links, devices, equipment and other material (or any of its constituent parts) to be used to access and use the As a Service Subscription or Additional Services.
Fees means the amounts payable for goods and services provided by Dataweavers in accordance with the terms of the Agreement, including those set out in the Order Form.
Government Authority means any government or any governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Hosting Services means the Azure hosting services provided by Microsoft Ireland Operations Limited or its related companies (as the case may be).
Hosting Services Fees means the total fees that are paid by the Customer to the Provider for the Hosting Services Subscription outlined in the Order Form.
Hosting Services Subscription means the Azure hosting services subscription identifier provided by Microsoft Ireland Operations Limited or its related companies (as the case may be).
Included Website URLs means the websites, Top Level Domains and URLs that the Dataweavers contract is limited to as outlined in the Order Form. Any additions or changes to these may change the scope of the commercial agreement with Dataweavers.
Insolvent means if a person is insolvent or an insolvent under administration, or has a controller appointed (each as defined in applicable law, or their analogous definitions if not so defined), is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction whilst solvent) or otherwise unable to pay debts when they fall due. Insolvency and Insolvency Event have a comparable meaning.
Intellectual Property Rights means all intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including trade marks, designs, patents, inventions, circuit layouts, copyright and analogous rights, confidential information, know how and all other intellectual property rights as defined in Article 2 of the convention establishing the World Intellectual Property Organisation of 14 July 1967 as amended from time to time.
Jurisdiction means the jurisdiction set out in the Order Form.
Licence means the licence referred to in clause 5.1.
Licensed Organisation means the organisation identified as the licensed organisation under the Order Form that has an active subscription to the Digital Experience Platform with active maintenance agreement. The Licensed Organisation should match the Customer and has the appropriate licence to cover the recommended and agreed environment configuration. It is the sole responsibility of the Customer to ensure that the deployed Digital Experience Platformenvironment(s) managed by Dataweavers are licence compliant within the terms of the applicable license. Any changes to the Customer licence to the Digital Experience Platform must be notified to Dataweavers within 30 days and may incur additional Fees.
Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, fines and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.
Monthly Periods means the number of months in the Agreement Term.
Fees means the fees for performance of the As a Service Subscription and Additional Services by Dataweavers as set out in the Order Form.
Marketing Rights means the right of Dataweavers to use the Customer’s name, logo and a brief description of the solution provided to the Customer on the Dataweavers website, articles and promotional materials for the purposes of advertising Dataweavers’ products and services.
Minimum Hosting Service Environment Details means the configuration detail outlined in the Hosting Services Module and Order Form, and is intended to be the minimum specification of the Hosting Services Subscription. Should the Customer change or delegate control from Hosting Services Subscription this may initiate a review of commercial costing to account for new policies, procedures and processes introduced as a result of the change.
Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth) and includes a right of a similar nature that is conferrable by statute, and that exists or comes to exist anywhere in the world.
Onboarding Fees means the fees payable for solution design, audit deployment and go-live of a Customers environment.
Order Form means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Dataweavers including any addenda and supplements to such order form.
Page Load Time means the total load time of the Customer’s webpage including the Response Time and all HTML, CSS, JSON and JavaScript as rendered by the Customer Code.
Partner Admin Link connects the Customer subscription to Dataweavers as the nominated supporting Microsoft partner. This is required to provide Dataweavers support engineers access to log support tickets with Microsoft if required.
Personnel includes officers, employees, agents, contractors, consultants and representatives.
Product means the Dataweavers Infrastructure As Code IP and the Dataweavers Insights Application IP and includes:
1. any enhancements, upgrades or modifications thereto; and
2. any digital information, illustration, animation, flash file, audio, photographic images and/or other material, together with any other accompanying material made available by Dataweavers for the purposes of the Agreement.
Provider means the organisation that supplies the Hosting Services Subscription to the Customer.
Response Time means the server-side response time for a given request to the Digital Experience PlatformEnvironment as measured by Microsoft Azure application insights.
Scaling means Dataweavers making changes to increase the capacity of the Customer’s environment to meet the needs of its customers, in accordance with the Agreed Production Pricing Approach & Performance Criteria. Dataweavers reserves the right to scale the Customer Environment, either Scaling Horizontal or Scaling Vertical, or a combination of the two at our absolute discretion.
Scaling Horizontal means the number of azure app service instances, redis instances, sql servers / elastic pools and search units the Customer Digital Experience Platform solution is distributed across as per the Minimum Hosting Service Environment Details.
Scaling Vertical means the size of a given app service instance, number of DTUs / cores and search tier, redis instance size and/or tier and application insights storage (GB).
Service Level Agreement means the service level agreement made available on Dataweavers website at https://www.dataweavers.com/terms/sla, as amended from time to time.
Service Catalogue means the service catalogue made available on Dataweavers website at https://www.dataweavers.com/terms/service-catalogue, as amended from time to time.
Service Principal means the reference from Microsoft Azure documentation located at https://docs.microsoft.com/en-us/azure/active-directory/develop/app-objects-and-service-principals (or as updated by Microsoft from time to time).
Subscription Tiers means the features and service level that are available in respect of the As a Service Subscription and/or Additional Services, as set out in the Order Form.
Traffic means the total number of page views in a given time period.

15.2 Interpretation

In interpreting the Agreement, unless the context provides otherwise:

the singular includes the plural and vice versa, and a gender includes other genders;
another grammatical form of a defined word or expression has a corresponding meaning;
a reference to a party means a party to the Agreement and includes the party’s executors, administrators, successors, and permitted assigns;
a reference to a person includes a firm, individual, corporation, association, government body or other corporate body;
an obligation or liability assumed by two or more persons binds them jointly and severally and a right conferred on two or more persons benefits them jointly and severally;
a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Agreement or any part of it;
if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
a reference to a law or statute includes regulations under it, re-enactments and replacements; and
headings and table of contents are for ease of reference only and do not affect interpretation.

15.3 Other

Subject to 1(e), the Agreement may only be varied by a written agreement signed by or on behalf of each of the parties.
Unless the Agreement expressly states otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under the Agreement. To be effective any consent under the Agreement must be in writing.
Each party agrees that the electronic signature of a party to the Order Form is intended to authenticate the Agreement and to have the same force and effect as a manual signature.
The Agreement, including the Order Form, the Data Processing Addendum, the Service Level Agreement and the Service Catalogue contains the entire agreement between the parties about its subject matter in respect of the Services. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the Order Form, (2) these Dataweavers Terms of Service; (3) the Modules; (4) the Data Processing Addendum; (5) the Service Level Agreement; and (6) the Service Catalogue.
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to the Agreement.
The Agreement is governed by the law in force in the Jurisdiction and each party submits to the non-exclusive jurisdiction of the courts of the Jurisdiction, in relation to any proceedings that may be brought at any time relating to the Agreement. Each party irrevocably waives any objection to proceedings being commenced in the Jurisdiction.
Where a party is a party in more than one capacity, it is only necessary that the party execute and deliver the Order Form once. The initial execution and delivery will bind the party in all capacities.
No right or obligation of any party will merge on completion of any transaction contemplated by the Agreement. Any indemnity given in the Agreement survives the expiry or termination of this document and a party may enforce a right of indemnity at any time, including before it has suffered loss.
Each party represents and warrants to each other party that it has the power to enter into and perform its obligations under the Agreement and the Agreement creates valid and binding obligations enforceable in accordance with its terms.
Any provision of the Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of the Agreement which remain in force.
If a party enters the Agreement as a trustee of a trust, it warrants that it enters into this document as sole trustee of the trust and it has full power under the relevant trust deed to enter into and perform the Agreement.
The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by written notice signed by the party to be bound by the waiver.

Terms of Service

ASIA PACIFIC

United Kingdom

United States