Terms and Conditions
Data Squirrels ("DS") shall provide to the party identified in the Project Specification (the "Client") the services listed in such Project Specification (the "Services"). In the event of a conflict between these terms and conditions and the terms and conditions contained in a Project Specification, these terms and conditions shall govern and control. DS and Client acknowledge and agree that the Project Specification and these terms and conditions shall collectively be referred to hereinafter as this "Agreement." Either party may, in writing, request a change in the scope of the Services; upon such request the parties shall execute a new Project Specification, which shall be governed by, and subject to, these terms and conditions.
2.1. As applicable, all services will be provided by DS in accordance with the requirements of ISO 20252.
2.2. The Client is responsible for ensuring that correct metadata, macrodata and microdata is delivered to DS for production, as agreed and required for the Services to be conducted.
2.3. DS do provide Personally Identifiable Information ("PII") and adheres to the ethical standards of the Australian Market and Social Research Society. Any data files that require work containing PII, including but not limited to individuals name, address, phone number, and e-mail address, must be delivered in an encrypted format, with a password or key to follow in a separate e-mail. DS will send deliverables containing PII to Client encrypted with the password or key sent in a separate e-mail.
2.4. If Client procures the product "Crosstabulations" ("Tables"), then Client is required to provide microdata, metadata and a copy of the instrument used to generate the data which includes all programming instructions and which instrument is the latest and most up-to-date version of the instrument. Client is also required to provide a specification of the Tables required prior to any work commencing on the project. Amendments, changes or alterations to the specification, including but not limited to additional banners, down-breaks (stubs), filters, statistics, table sets and weights may delay delivery of Tables and may incur additional cost. Delivery of erroneous micro- or metadata or an inaccurate or outdated version of the questionnaire to DS will impact delivery timings and may require amendments to the Project Specification and costs.
2.5. If Client procures the product "Coding", then Client is required to provide microdata, metadata and a copy of any stimuli used in the generation of the microdata. Client may also optionally provide codeframes. Any provided micro- and metadata, stimuli and codeframes shall be accurate and final at the time of delivery to DS. Delivery of erroneous micro- or metadata or the wrong stimuli and codeframes to DS will impact delivery timings and may require amendments to the Project Specification and costs.
2.6. If Client procures the product "Data Entry", then Client is required to provide any and all questionnairs or completed instruments from which the data shall be entered. If Client does not also provide a data entry script accessible on-line, then the data will be entered into SPSS. Additional charges will be made to cover the cost of entering metadata if a data entry template is not provided. Delivery of erroneous instruments or data entry scripts or templates may require amendments to the Project Specification and costs.
2.7. If Client procures the product "Weighting", then Client is required to provide microdata and metadata to be weighted. Client will also be required to provide target proportions. If Client does not have target proportions, DS may source such proportions from the relevant statistical on-line databases and confirm with Client prior to undertaking the task that Client agrees to the targets suggested. Client agrees that all liability for the accuracy of targets remains with Client. Delivery of erroneous micro- or metadata will impact delivery timings and may require amendments to the Project Specification and costs.
2.8. If Client procures the product "Postcoding", then Client agrees to provide microdata to be validated or coded in the form of Australia Post standard postcodes. Client agrees to provide microdata corresponding to Australia Post postcodes, Australian Bureau of Statistics ("ABS") Statistical Local Area ("SLA"), ABS Local Government Area ("LGA"), ABS Statistical District ("SD"), or ABS State ("ST"). Client agrees and understands that a larger area cannot be coded into several smaller areas, and only smaller areas can be coded into larger areas. Consequently, postcodes can be coded to SLA, LGA, SD or ST. SLA can be coded to LGA, SD or ST. LGA can be coded to SD or ST, and SD can be coded to ST. Delivery of erroneous microdata will impact delivery timings and may require amendments to the Project Specification and costs.
2.9. If Client procures the product "Hatch Maps", then Client agrees to provide microdata to be plotted in the form of either AP postcodes, SLA, LGA, SD or ST. Client agrees and understands that data not delivered in any of these formats cannot be plotted graphically by DS. Client also agrees to provide indications of preferred colour schemes. Alternatively, DS are able to provide colour schemes to client for approval prior to production of the charts. Colours cannot be changed after delivery of the charts. Delivery of erroneous microdata will impact delivery timings and may require amendments to the Project Specification and costs.
2.10. If Client procures the product "Charting" or "Standardised Data Visualisations", then Client agrees to provide microdata and metadata to be charted or visualised and a detailed specification of the chart(s) or visualisation(s) required, including which variables should be charted in the case of one-dimensional charts or visualisations, which variables should be charted against which other variables in the case of two-dimensional charts or visualisations, and which variables should be charted against which other two variables in the case of three-dimensional charts or visualisations. Client also agrees to provide indications of preferred colour schemes. Alternatively, DS are able to provide colour schemes to client for approval prior to production of the charts. Colours cannot be changed after delivery of the charts. Client also agrees and understands that any logo or graphic to be used in any chart or visualisation is to be provided by the client, unless otherwise agreed. If DS agree to source the graphic, then Client agrees and understands that their approval of the graphic will be required before work can continue. Delivery of erroneous micro- or metadata, colour information or imagery will impact delivery timings and may require amendments to the Project Specifications and costs.
2.11. If Client procures the product "Custom Data Visualisation" ("CDV"), then Client agrees to provide microdata and metadata to be visualised, and a detailed specification of which variables they wish to see visualised. Client agrees and understands that CDV is a creative process and that Client will be required to provide input during the creative process to ensure that the outcome meets Clients expectations. Delays in approvals when sought will impact the delivery timings. Client agrees and understands that CDV cannot be produced at short notice and will require a minimum of two weeks lead-time prior to delivery. Client also agrees to provide indications of preferred colour schemes. Alternatively, DS are able to provide colour schemes to client for approval prior to production of the CDV. Colours cannot be changed after delivery of the CDV. Client also agrees and understands that any logo or graphic to be used in any chart or visualisation is to be provided by the client, unless otherwise agreed. If DS agree to source the graphic, then Client agrees and understands that their approval of the graphic will be required before work can continue. Delivery of erroneous micro- or metadata, colour information or imagery will impact delivery timings and may require amendments to the Project Specifications and costs.
2.12. DS shall not be held liable for any deliverable produced using erroneous materials supplied by client of any type, including but not limited to microdata, macrodata, metadata, graphics, logos, colour schemes, instruments, data entry scripts or templates, Australia Post postcodes, SLA, LGA, SD or ST data. Further, DS shall not be liable for impact on timelines caused by delivery of such erroneous materials and commits to informing Client when delays caused by delivery of such erroneous materials are likely to occur.
3. Terms of Service
3.1. The Client shall pay all invoices within thirty (30) days from the date of invoice. In the event of a dispute, the Client shall provide DS with written notice within thirty (30) days from the date of invoice. Interest shall accrue on all unpaid, undisputed amounts at the rate of the maximum interest rate permitted by applicable law. DS shall have the option of suspending all Services if any undisputed amount due hereunder is not paid when due. Additionally, the Client shall reimburse DS for all pass-through expenses actually incurred by DS in the performance of the Services; provided that DS obtains the Client's prior approval for such expenses and submits receipts evidencing such expenses. In the event of a good-faith dispute concerning any invoice, the Client shall pay all undisputed amounts when due and the Parties shall work together in good-faith to resolve any such dispute.
3.2. DS shall perform the Services: (i) in material conformance with the terms, obligations, representations, warranties, and agreements set forth in this Agreement and each applicable Project Specification; and (ii) in accordance with generally acceptable industry practices and standards applicable to DS's industry, including, without limitation, the AMSRS Code of Conduct.
3.3. Neither Party shall be liable for a failure to perform caused by causes outside of such Party's reasonable control, including, without limitation, fire, riot, war, civil disturbance, strike, labor dispute, act of God, and epidemic.
3.4. The Client acknowledges and agrees that DS is providing the services on a "best efforts" basis. DS shall not be responsible for any inability to provide services hereunder caused by, or arising out of, factors or causes outside of DS's reasonable control. Except as specifically set forth herein, DS hereby disclaims all warranties, express or implied with respect to the services to be performed hereunder and the work product (as defined herein) to be delivered hereunder, if any, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and any implied warranties arising out of a course of performance, dealing, or trade usage.
4. Deliverables; Restrictions on Use of Deliverables; Ownership; Copyright.
4.1. DS shall deliver any deliverable(s) required to be delivered to the Client in connection with the Services, if any, (the "Work Product") and the Client shall own all rights, titles, and interest in and to the Work Product. Notwithstanding the forgoing, any inventions, discoveries, innovations, documents, materials, software (including source code) or information related to methods, tools, designs, techniques, know-how or analysis used in DS's business, together with the concepts, inventions, suggestions, plans, drawings, computer software designs, models or systems, prototypes, methods of process, designs, CDVs, charts, tabulating cards, computer tapes, disks and any other data record formats, computer programs, information and materials, whether or not patentable or copyrightable, used by DS in connection with this Agreement (collectively, "Techniques"), shall not be considered as the Work Product and shall at all times remain the exclusive property of DS. DS hereby grants to the Client a non-exclusive right and license to use, and, in connection with such use, to copy and distribute within the Client, any Techniques as included in any Work Product produced for the Client by DS pursuant to this Agreement; provided, however, that the Client may not reverse engineer the Techniques in any manner, nor may the Client modify or reuse the Techniques in any manner outside of the Work Product.
4.2. In the event any data and/or reports contained within any Work Product is attributed to DS or references DS's name, such data and/or reports shall not be used publicly including without limitation in advertising, sales/marketing promotions, press releases, or press conferences without the prior express written consent of DS in order to ensure accuracy of data disclosure and that disclosures meet industry standards for the public disclosure of market and public opinion research. The Client acknowledges and agrees that neither the data nor the reports contained in any Work Product shall be used or presented in any misleading or illegal manner, or in a manner which would adversely impact upon the reputation or goodwill of DS.
5. Term; Termination.
5.1 The term of this Agreement shall commence on the date the order confirmation is sent to the Client and expire, unless sooner terminated as permitted herein, on the Finish Date (as set forth in the Project Specification). Either party shall have the right to terminate this Agreement, upon ten (10) days prior written notice to the other, if such other party breaches a material term or obligation hereunder and fails to remedy or cure such breach within said ten (10) day period. The foregoing shall be in addition to any and all other remedies available at law or in equity.
5.2 In addition to the termination rights set forth in Section 5.1, DS shall have the right to immediately terminate this Agreement without judicial intervention, through means of a non-judicial declaration and/or the withdrawal and/or annulment of a Project Specification, if: (i), in the event that the Client is an individual, Client dies; (ii) Client submits a legal request for debt restructuring; (iii) a bankruptcy or suspension of payment petition or request has been filed for or by the Client; or (iv) the Client is liquidated or ended for any reasons other than reconstruction or merger. In the event of a termination pursuant to this Section 5.2, all claims or payments will be immediately due.
6. Limitations of Liability.
Neither party shall be liable to the other for, and each party hereby waives and releases the other from any claim for, any indirect, incidental, special, punitive, or consequential damages (including, without limitation, lost profits, lost business, lost revenues, and any cost of replacement services) resulting from the performance or failure to perform under this Agreement, regardless of whether such party is informed of the possibility the same may exist. DS will not be liable for any damage, loss, or liability arising out of, or resulting from, the possession or use of the Services or Work Product, including, but not limited to, liability arising from reliance on the Services or Work Product, errors in its contents, and/or data loss or corruption, regardless of whether such liability is based in tort, contract or otherwise. With the exception of the parties' obligations under those sections of this Agreement dealing with: (i) protection of Confidential Information (as defined herein), (ii) ownership of intellectual property, (iii) indemnification for third party claims and (iv) violations of law, the total aggregate liability of each party shall be limited to the amount of any fees received by DS from the Client pursuant to this Agreement in connection with the Project Specification for which liability is asserted or indemnification is sought.
The Client agrees to indemnify and hold harmless DS and its parents, subsidiaries and affiliates and each of their respective officers, agents, employees and subcontractors ("DS") against all claims, liabilities, losses, awards, judgments, and costs and expenses of any kind, including, without limitation, reasonable attorneys' fees and costs, asserted against or incurred by DS, arising out of, resulting from, or caused by, whether directly or indirectly,: (i) the manufacture, distribution, sale or use of any products or services supplied by the Client and/or its agents for the purpose of any product contemplated hereunder; (ii) the negligent acts or omissions of, or willful misconduct by, the Client; and/or (iii) the Client's breach or violation of this Agreement.
During the term of this Agreement each party may disclose ("Disclosing Party") certain written and/or oral information to the other party ("Receiving Party"), which Disclosing Party considers to be Confidential Information. For the purpose of this Agreement, "Confidential Information" shall include, but not be limited to, financial, business and/or accounting records, plans, and/or forecasts; Techniques; DS Property; PII; employee records and/or information; customer or client records and/or information, including but not limited to customer or client lists; non-public information on products and/or service lines; any confidential or proprietary information of third parties; and/or the terms of this Agreement. The term "Confidential Information" does not include information that: (i) was rightfully in the possession of Receiving Party, without obligation of secrecy, prior to the date of disclosure of such Confidential Information by the Disclosing Party to the Receiving Party; (ii) was publicly known on or prior to the date of disclosure to Receiving Party; (iii) becomes publicly known, except by a breach of this Agreement by Receiving Party; (iv) is subsequently disclosed to Receiving Party by a third party who to the knowledge of Receiving Party after reasonable inquiry did not receive it under any obligation of confidentiality to Disclosing Party; or (v) is developed by or for the Receiving Party independent of the disclosures made under this Agreement. The receiving party agrees that Disclosing Party's Confidential Information will be used exclusively in connection with performance under or compliance with this Agreement and that it will not disclose the Party's Confidential Information to any third party or third parties without the prior express written consent of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party's Confidential Information to its employees and/or agents on a "need-to-know" basis in connection with performance under, or compliance with, this Agreement; provided that the Receiving Party informs such employees and/or agents of the confidentiality obligations contained herein. The Receiving Party shall be liable for any breach or violation of this Agreement by its employees and agents. The parties acknowledge and agree that the Receiving Party is not granted and shall not receive any right, title, and interest in and/or to any of the Disclosing Party's Confidential Information and no such right, title, or interest shall be inferred or implied. Upon earlier expiration or termination of this Agreement, or upon written request from the Disclosing Party, the Receiving Party shall: (a) return all of the Disclosing Party's Confidential Information, including, without limitation, all originals, copies and/or derivative works created therefrom, in hardcopy form or format, and/or (b) delete and erase all of the Disclosing Party's Confidential Information, including, without limitation, all originals, copies and/or derivative works created in electronic or any other non-hardcopy form, format or media. The Receiving Party shall cause a duly authorised representative to certify in writing to the Disclosing Party that all of the Disclosing Party's Confidential Information has been returned and/or deleted and erased, as the case may be, and no copies retained. Notwithstanding anything contained herein to the contrary, the Disclosing Party acknowledges and agrees that the Receiving Party will use commercially reasonable efforts to delete and erase the Disclosing Party's Confidential Information contained within, or located in, electronic back-up, archival, disaster recovery or business continuity systems, or other similar types of data storage devices or systems; provided, however, that in the event such deletion and erasure is not possible, the Receiving Party shall provide the Disclosing Party with written details of its inability to delete and erase all Confidential Information and all such Confidential Information shall be kept, maintained, and protected in accordance with this Agreement, regardless of the expiration or termination of this Agreement.
9. Data Management.
9.1 Personal Information and Project Data. We collect personal and project related information from you when you communicate with us by any media. The personal information collected may include for example; your name, company, title, phone number and email address. Project data may include survey data, data tabulations, technical instructions and other project materials.
We do not disclose your personal information or project data to our clients or suppliers for marketing. If it is necessary to share such information with third parties to complete project requirements we will endeavour to seek your permission prior to such use. Any personal information or project data you send to us will be treated in the strictest confidence. We do not share, sell, rent or trade personally identifiable information with third parties for their promotional purposes.
9.2 How we protect your Personal Information and Project Data. DS takes reasonable steps to protect your personal information or project data from unauthorised access, use, disclosure or loss. Information and data held by us is kept on a secure server requiring individual password access. As with any transmission over the Internet; however, there is always some element of risk involved in sending personal information on-line.
9.3 Maintenance and Destruction of your Personal Information and Project Data. Electronic project data is retained on redundant, backed-up storage devices. Electronic project material for completed projects that has been unmodified for 24 months shall be deleted without consultation to the client. Physical records (such as questionnaires for Data Entry) shall be returned to clients 3 months after data entry of those materials is complete, or held or destroyed as agreed in writing with clients. Your personal information may be retained indefinitely by our management systems.
In the event that DS or any of its employees, agents or subcontractors is served with or becomes subject to any subpoena, order, or other legal process, in a legal proceeding to which DS is not a party, seeking disclosure of any materials or information related to the Services and/or Work Product that DS renders or delivers to Client hereunder; then the Client shall bear and/or reimburse DS for all costs and expenses, including but not limited to, document retrieval and reproduction costs and expenses, and reasonable attorney's fees and costs, related to DS's response, compliance with, or resistance thereto; except to the extent directly caused by the gross negligence, willful misconduct, or breach of this Agreement by DS.
11.1 This Agreement, including any Project Specification, and amendments hereto, constitute the entire agreement by and between the parties with regards to the subject matter contained in the Project Specification; and cancels and supersedes any prior or contemporaneous written or oral agreements concerning the same.
11.2 This Agreement shall not be modified, revised, altered, or otherwise amended, except in writing, signed by the duly authorised representative of each party.
11.3 The headings contained in this Agreement are for reference only.
11.4 Each party represents and warrants to the other party that the execution and delivery of this Agreement have been duly authorised by all requisite corporate action.
11.5 This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Connecticut without giving effect to that jurisdiction's principles of conflicts of laws. Each party hereby agrees that any disputes or claims arising out of or resulting from this Agreement shall be subject to the exclusive jurisdiction and venue of the state or Federal courts located in Sydney, New South Wales, Australia. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
11.6 Failure by either party, at any time, to enforce any obligation or breach by the other, shall not constitute a waiver of the particular breach or any subsequent breach or of either party's rights or remedies hereunder.
11.7 Neither party may assign this Agreement, in whole or in part, without the prior express written consent of the other, which consent shall not be unreasonably withheld. Notwithstanding anything contained herein to the contrary, either party may assign this Agreement to a parent, subsidiary or affiliate, or to a successor in business, provided, that such party agrees in writing to be bound by, and subject to, this Agreement. This Agreement shall be binding upon the parties, their successors, permitted assigns and transferees.
11.8 If any of the provisions of this Agreement are held invalid, illegal or unenforceable, the remaining provisions shall be unimpaired and remain in full force and effect.
11.9 The terms that by their nature should survive the expiration or termination of this Agreement, shall survive such expiration or termination.
11.10 Nothing in this Agreement shall be construed to place the parties in the relationship of employer-employee, joint ventures, or principal and agent. Neither party shall have the power to bind or obligate the other party nor shall either party hold itself out as having such authority.
11.11 This Agreement is made in the English language; any translations into other languages are unofficial and for convenience only.