Services terms & conditions

These terms form part of any Ovato services agreement that refers to these terms by way of website link.

1 DEFINED TERMS

(a) Client excludes Related Bodies Corporate of Client unless and to the extent otherwise agreed in writing by the parties.

(b) Client Data means data supplied to Supplier by Client and relating to recipients of Communications.

(c) Client Materials means all subject-matter authored, created, produced or supplied by Client in or to which Intellectual Property or other rights subsist or relate, including Communications content.

(d) Communication means any outbound email, inbound or outbound SMS, or inbound data submission via the web received by (in the case of inbound Communications) or sent by (in the case of outbound Communications) the Ovato Services. Data submission via the web that constitutes a Communication includes a response to a survey question; a vote; a promotion entry; and a custom customer interaction. The development of additional functionality within Ovato may lead to the availability of additional Communication types in addition to those specified above. The Client may request that additional Communication types are included in the definition of a Communication in order to gain access to the additional functionality. The inclusion or exclusion of additional Communication types within the definition of a Communication will be defined in addenda to this Agreement

(e) Emergency means the existence of circumstances affecting the Technology that are causing serious disruption to the ability of Supplier to supply services to clients, being circumstances not planned, caused or directly controlled by Supplier.

(f) Intellectual Property means existing and future copyright, trademarks, designs, patents or circuit layouts, whether registered or not.

(g) Legal Compliance means compliance, consistency with and non-contravention of all laws.

(h) New Data means data:

  • generated by the Technology as a result of Client’s use of the Services;
  • that relates to the recipients of Communications; and
  • that is not Client Data.

(i) Personal Information has the same meaning as in the Privacy Act 1988 (Cth).

(j) Secure Access Information means unique confidential information supplied by Supplier to Client for the purpose of enabling Client to use the Services, including username and login.

(k) Services means:

  • Access to the TractionNext Platform web browser based user interface and its associated servers, hardware, software and technology in accordance with this Agreement to facilitate delivery of Communications to a Recipient and to receive and deliver an Incoming Recipient Communications to the Client;
  • the Technology’s performance of functions in response to Client’s use of the Technology.

(l) Services Hours are for chargeable events requiring the use of Ovato consultancy services team.

(m) Sub-Contractor Service Provider means a sub-contractor of Supplier who provides a service essential to Client’s access to and use of the Technology, such as an SMS messaging service provider.

(n) Supplier Materials means all subject-matter authored, created, produced or licensed by Supplier in or to which Intellectual Property or other rights subsist or relate, including all software underlying the Technology.

(o) Technology means the electronic communications software platform supplied by Ovato and accessed via the internet (or other agreed channel) that performs functions in response to Client inputs.

(p) Third Party Service Provider means a third party who provides a service essential to Client’s access to and use of the Technology, such as a telecommunications carrier.

2 SERVICES – SUPPLIER

2.1 Communications and Service Hours

(a) The Service Hours and Communications allowance per month is specified in the Summary.

(b) If there is a failure in the delivery of a Communication, Supplier must perform as many re-transmissions as reasonably practicable for at least 5 days after the day on which the first failed delivery occurred. Client acknowledges that the number of re-transmission attempts will vary depending on circumstances outside Supplier’s control.

2.2 Maintenance & modification

(a) Supplier must maintain the Technology in good order and repair.

(b) Supplier may upgrade the Technology or modify or substitute Services.

(c) Client acknowledges that:

  • Supplier’s maintaining or upgrading of the Technology or modifying or substituting Services may cause minor disruption to Client’s use of the Services; and
  • Supplier’s modifying or substituting Services may result in different (but equivalent and not fundamentally different) or superior Services.

2.3 Emergency

(a) Client acknowledges that the Services are reliant on Third Party Service Providers and that an Emergency may occur at any time.

(b) In the event of an Emergency, Supplier may suspend the supply of or disable Services for the duration of the Emergency.

(c) Supplier must suspend the Services for the shortest time practicable and must use its best endeavours to resolve the Emergency as quickly as possible.

(d) If it would be reasonably practicable for Supplier to give Client notice prior to suspending Services, Supplier must give Client that notice.

(e) Supplier excludes any liability to Client for loss suffered by Client as a result of an Emergency.

3 SERVICES – CLIENT

3.1 Services acquisition & use

(a) Subject to this clause 3, Client may access the Platform and Services.

(b) Client acknowledges that the capacity of Sub-Contractor and Third Party Service Provider’s services may be reached during peak times, such as New Year’s Eve, and that, during those peak times, the transmission of Communications may be delayed.

(c) Client may refer to Supplier and use the Supplier Trade Mark in the footer of a Communication, but only if such reference and use does not represent that Supplier is acting in any capacity other than to transmit the Communication on Client’s behalf.

3.2 Positive obligations

(a) To the extent that Client wishes to transmit Communications, Client must produce the content of the Communications.

(b) Client must ensure that all Communications (including their content) is consistent with Legal Compliance, including in relation to transmission, storage or dissemination..

(c) Client must ensure that all materials and information required to successfully transmit a Communication are accurate and complete.

(d) Client must notify Supplier as soon as practicable upon becoming aware that its Secure Access Information has been mislaid, compromised or stolen.

3.3 Negative obligations

(a) Client must not share Secure Access Information with any third party without Supplier’s prior approval in writing.

(b) Client must not modify, replace, copy, reverse-engineer, gain unauthorised access to restricted areas within or sabotage the Technology or otherwise do any act that is not contemplated under this agreement as a legitimate use of the Technology.

(c) Without limiting paragraphs (a)-(b), when using the Services Client must not do any act that is inconsistent with Legal Compliance or do any act that otherwise unreasonably interferes with, harasses, offends any person or is reasonably likely to bring Supplier or any of its Related Bodies Corporate into disrepute.

4 INTELLECTUAL PROPERTY

4.1 Ownership

(a) Except as expressly provided in this agreement, Supplier acknowledges that, as between it and Client:

  • Supplier does not own any Intellectual Property in Client Materials or Client Data;

(b) As between Client and Supplier and in relation to Supplier Materials, Client gives the same acknowledgement as Supplier gives to Client in paragraph (a).

4.2 Licences

(a) Supplier hereby grants Client a licence to use Supplier Materials as required to acquire the Services. The licence is:

  • for the term of this agreement;
  • revocable for so long as Supplier exercises its rights to suspend the Services pursuant to this agreement;
  • non-transferable and non-sublicensable, other than to Client’s Related Bodies Corporate by agreement in writing between the parties.

(b) Client hereby grants Supplier a licence to use Client Materials and Client Data as required to supply the Services. The licence is:

  • for the term of this agreement;
  • revocable for so long as Supplier exercises its rights to suspend the Services pursuant to this agreement;
  • non-transferable and non-sublicensable other than to Supplier’s Related Bodies Corporate and sub-contractors.

4.3 Infringement

(a) Client warrants that Supplier’s use of Client Materials and Client Data as contemplated by this agreement will not infringe the Intellectual Property or other rights of any third party.

(b) Supplier must not do any act that infringes Intellectual Property or other rights in Client Materials or Client Data.

(c) Supplier warrants that Client’s use of Supplier Materials in accordance with this agreement will not infringe the Intellectual Property or other rights of any third party.

(d) Client must not do any act that infringes Intellectual Property or other rights in Supplier Materials.

5 DATA

5.1 Ownership

Except as expressly provided in this agreement, Supplier acknowledges that, as between it and Client, Supplier does not own any rights in electronic copies of Client Data or New Data.

5.2 Storage

(a) Client acknowledges that Sub-Contractor Service Providers may include data storage service suppliers. In that regard, Supplier must:

  • use only reputable suppliers of data storage services;
  • ensure that each data storage service provider has access controls in effect that will protect Client Data and New Data from unauthorised access, to a level of protection consistent with the reasonable expectations of a first-class commercial organisation; and
  • ensure that each data storage service provider has recovery systems in effect such that Client Data and New Data is protected from primary systems failure, to a level of protection consistent with the reasonable expectations of a first-class commercial organisation.

5.3 Copies

(a) Upon Client’s request, Supplier must deliver up to Client all copies of Client Data and New Data in Supplier’s possession, custody or control. Supplier reserves the right to use service hours for this effort.

(b) Supplier is under no obligation to provide such copies in any particular format.

5.4 Destruction

Upon Client’s request, but only to the extent that it is reasonably practicable, lawful and does not expose Supplier to commercial or legal risks associated with a failure to keep records, Supplier must permanently destroy or disable access to all copies of Client Data and New Data in Supplier’s possession, custody or control.

5.5 Privacy

Nothing in this agreement affects the parties’ obligations under privacy laws.

6 EXCLUSIONS

6.1 Exclusions generally

(a) Client acknowledges that the Services exclude:

  • reviewing content in relation to formatting or typographical errors;
  • reviewing or ‘signing off’ on any client functional specifications:
  • reviewing or ‘signing off’ on Client’s Legal Compliance generally or providing professional or legal advice in relation to Legal Compliance, even if Supplier supplies a ‘spam assessment’ or similar tool to Client, which Client acknowledges is merely a guide to assist Client to manage its own Legal Compliance;

6.2 Liability

(a) Client acknowledges that it is at all times solely liable for the:

  • accuracy and integrity of Communications content and Client Data;
  • Legal Compliance of Communications and Client’s commercial conduct and affairs;
  • configuration of user-configurable aspects of its account; and
  • any loss or damage suffered by Client as a result of any failure on its part in relation to the matters in this paragraph (a), including any failure in the delivery of Communications.

(b) The parties acknowledge that in relation to Client Data that is also Personal Information, then as between Client and Supplier, and to the maximum extent within the meaning of the Privacy Act 1988 (Cth), Client alone collects, stores, uses and discloses the Personal Information.

7 ADDITIONAL WARRANTIES SUPPLIER does not give

In addition to warranties expressly disclaimed elsewhere in this agreement, Supplier gives no warranty that:

  • the Services will not fail in circumstances where a Third Party Service Provider fails;
  • the Services may be relied upon in circumstances affecting the health, safety or protection of persons or property.

Ovato Support Schedule

(The use of the term ‘Client’ or ‘client’ in the table below is generic only. It is not intended to refer specifically to the Client or Client Group.)

 

SUPPORT CATEGORY SUPPORT TYPE A SUPPORT TYPE B
Client Setup Initial legacy data import – Image hosting (basic package) Custom client domain creation (trclient.com) – Individual email server IPs – Extended data clean – Image hosting extended package – Client training
Platform Support Assistance with use of the user interface – this does not include campaign setup etc. Generation of reports – Creation of targets – Approval or resume of campaigns
Campaign Setup None Campaign setup and support – Creation of T&C – Permit acquisition – Campaign support lines
Account Management User login management – Initial campaign review per type (e.g. client’s first broadcast) Additional Ovato accounts (based on contract terms)
Mobile Provisioning SMS endpoint setup – Number availability checks Number provisioning and rental
SMS Deliverability Connectivity fixes where Ovato at fault – Escalation of network issues to appropriate vendor notification of progress and resolution
Email Deliverability Email send issues (from Ovato to a transit state) – Delivery issue fixes where Ovato at fault – Escalation of delivery issues to appropriate ISP notification of progress and resolution Email deliverability consulting – Email evaluations – Whitelisting – Junk folder monitoring and management
Internal Ovato errors Investigation and resolution
Integration API fixes where Ovato at fault Coding or code review – Developer training
Email design WYSIWYG editor issues (independent of content) HTML coding or code review
Data services Customer upload – Customer export (excluding on termination of contract) – Data cleaning – Attribute/profile design – Data strategy workshops