Subscription Product Terms and Conditions

Version V1.0 – published August 2026

By signing the Order Form, you accept these Terms and Conditions which will govern the supply of the Service(s) by Infomedia.

1. DEFINED TERMS

The following capitalised terms shall have the meaning given in this Agreement:

Affiliate means, with respect to a legal entity, any other legal entity that directly or indirectly Controls, is Controlled by, or is under common Control with that legal entity, provided that no investment fund, fund manager, general partner or portfolio company shall be deemed an Affiliate solely by virtue of being under common ownership or investment management by the same investment fund, fund manager or general partner.

Agreement has the meaning given in clause 14.1.

AI means artificial intelligence.

AI Functionality means any AI-enabled functionality, features or services used or provided in connection with the Service(s).

AI Terms means Infomedia’s terms relating to the use of AI Functionality, found at https://ifmamericas.com/legal/ai-terms/ (as updated, amended, replaced or superseded from time to time), and which forms part of this Agreement.

Applicable Data Protection Laws means all data protection, privacy or personal information laws or regulations in any jurisdiction applicable to the Processing of Personal Data under these Terms and Conditions (as updated, amended, replaced or superseded from time to time). 

Authorised Purpose means the Customer’s internal business use of the Service(s), Documentation and Interfaces (if applicable) in the Territory.

Authorised User means end users of the Customer who are granted authorisation to use the Service(s), Documentation and Interfaces solely for the Authorised Purpose.

Business Day means a day other than a Saturday, Sunday or public holiday where the Customer is located.

Commencement Date means the date this Agreement commences, which is deemed to be the earlier of (a) the date the Customer signs the Order Form, and (b) the Services Activation Date.

Committed Term means the period of time set out in the Order Form from the Services Activation Date.

Competing Product means any software product, platform, tool, application, interface or service that performs the same or substantially similar functions as the Service(s) and/or the Interface, or that is marketed to the same or a substantially similar customer base as the Service(s) and/or the Interface, whether offered commercially or made available as open source.

Competitive Purpose means any use of the Service(s), or any data, output, or information derived from the Service(s), that is intended to, or that does in fact:

(a) assist in the design, development, testing, training, or improvement of a Competing Product;

(b) enable any person to replicate, emulate, or substitute for the Service(s) or any material feature or functionality of the Service(s); or

(c) provide competitive intelligence or benchmarking advantage to the Customer or any third party in relation to Infomedia’s business, technology, or pricing.

Confidential Information means all information acquired by the Recipient in connection with the Service(s) or the Agreement, including:

(a) information concerning the technology, personnel, policies, customers or business strategies of the Discloser;

(b) information relating to the Service(s) and/or the Fees;

(c) the Customer Data; and

(d) all other information relating to the Discloser, including its products, business activities, finances, Intellectual Property, marketing or promotional information, policies and personnel,

but not information that: (i) either is or becomes available to the public other than as a result of a breach of an obligation of confidentiality; or (ii) the Recipient can demonstrate was already in the Recipient’s possession at the time of receipt or becomes lawfully available to the Recipient on a non-confidential basis from a third party entitled to make disclosure.

Consumer Price Index means the Australian All Groups consumer price index published by the Australian Bureau of Statistics at www.abs.gov.au.

Contract Representative means the person or people identified as the primary contact on an Order Form.

Control means the direct or indirect power to direct or cause the direction of the management and policies of a legal entity, whether through the ownership of voting securities, the right to appoint or remove a majority of the board of directors (or equivalent governing body), by contract or otherwise, and Controlled and Controlling have corresponding meanings.

Customer or you means the party specified as the Customer or Dealer in an Order Form and includes the employees and agents of the Customer or Dealer as context requires.

Customer Data means any information, materials, documents and other data in any form uploaded to, collected by, generated through, or otherwise provided to the Service(s) by or on behalf of the Customer or its Authorised Users in connection with your use of the Service(s), including Personal Data and the Customer’s Confidential Information but excluding any Infomedia Material.

Customer Material means any material developed independently of this Agreement by the Customer or its licensors and provided to or accessed by Infomedia in connection with its performance of this Agreement.

Customer Dependencies meansthe actions or inputs the Customer must provide for Infomedia to provide the Service(s) including preparation for Infomedia set up, completion of Infomedia questionnaire and maintenance of systems that meet or exceed the following specifications: www.infomedia.com.au/dealer-support/recommended-specifications/.

Derived Data means metadata and any other data, analytics, insights, statistics, trend information, benchmarking information or other derivative works generated, created, compiled or derived by Infomedia through its analytical processes and procedures, including in connection with the provision or use of the Service(s), Customer Data and/or Information. For the avoidance of doubt, Derived Data includes aggregated, de-identified and anonymised data sets, but does not include Customer Data in identifiable form and does not identify, or reasonably permit the identification or re-identification of, the Customer, any Authorised User or any other individual.

Discloser means the Party disclosing Confidential Information.

Documentation means the documentation setting out the specifications for the Service(s) made publicly available by Infomedia.

DPA means Infomedia’s standard form data processing addendum, found at https://ifmamericas.com/legal/dpa/ (as updated, amended, replaced or superseded from time to time) or such other data processing addendum as may be agreed between Infomedia and the Customer, and in either case, which forms part of this Agreement.

EULA means Infomedia’s standard form, ‘click to accept’ end user licence agreement, found at https://ifmamericas.com/legal/eula/ (as updated, amended, replaced or superseded from time to time).

Fees means the fees and charges for the Service(s) specified in the Order Form.

Force Majeure Event means any of the following causes provided that they are outside the reasonable control of the affected Party and could not have been prevented or avoided by that Party taking all reasonable steps:

(a) act of God, pandemic, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought or meteor;

(b) war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection or militarily usurped power;

(c) act of public enemy, sabotage, malicious damage, terrorism or civil unrest;

(d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government or government authority; or

(e) industrial action not specific to Infomedia or its Personnel.

Gross Negligence means any act or failure to act (whether sole, joint or concurrent) which seriously and substantially deviates from a diligent course of action or which is in reckless disregard of or indifference to the harmful consequences.

Information Security Compliance Terms means Infomedia’s standard form security and compliance terms, found at www.infomedia.com.au/legal/information-security-and-privacy-compliance-terms (as updated, amended, replaced or superseded from time to time) and which forms part of this Agreement.

Infomedia means Infomedia Pty Ltd ACN 003 326 243 of Level 5, 155 Clarence Street, Sydney NSW 2000, Australia and any of its Affiliates.

Infomedia Material means any material (other than Customer Data and Customer Material) that is owned by, licensed to, developed by or created for Infomedia in connection with this Agreement, including:

(a) the Service(s), Documentation, Interfaces and Derived Data;

(b) any material incorporated in, necessary to use or obtain the benefit of, or otherwise provided in connection with, the Service(s); or

(c) any work product, developments, modifications, enhancements, configurations, customisations or other materials created by Infomedia or its Personnel in connection with this Agreement.

Insolvency Event means, in respect of a person, any of the following events:  

(a) the person is unable to pay its debts as and when they fall due;

(b) the person enters into, proposes, or resolves to enter into any arrangement, compromise, composition, moratorium, restructuring or other arrangement with creditors generally;

(c) a receiver, receiver and manager, administrator, trustee, liquidator, provisional liquidator, insolvency practitioner, restructuring officer or similar officer is appointed in respect of the person or any material part of its assets;

(d) the person becomes subject to liquidation, winding up, administration, bankruptcy, dissolution, reorganisation, restructuring or a similar insolvency proceeding;

(e) an application, petition, resolution or other step is taken which is preparatory to, or could reasonably result in, any of the events described in paragraphs (b), (c) or (d), unless the relevant step is withdrawn, dismissed or stayed within thirty (30) days; or

(f) any event occurs in any jurisdiction that has an analogous or substantially similar effect to any of the events described in paragraphs (a) to (e).

Interface means any application programming interface and any other proprietary processes, systems, software, hardware, specifications, data formats, security codes, scripts and related Intellectual Property Rights developed, owned, licensed or otherwise made available by either Infomedia or a third party that enables the transfer, exchange or interoperability of data between the Service(s) and any third-party system or application, including any updates, modifications or enhancements.

Intellectual Property Rights meansall intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trademarks (including any goodwill acquired therein), service marks, trade names, patents, trade secrets, know-how, Confidential Information, inventions, discoveries, Moral Rights, and all other intellectual property and proprietary rights (whether registered or unregistered) as defined in Article 2 of the Convention Establishing the World Intellectual Property Organization 1967, together with all rights to enforce any of the foregoing, that exist or may exist anywhere in the world.

Moral Rights means any moral rights including the rights described in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as updated, amended, replaced or superseded from time to time), being “droit moral” or other analogous rights arising under any statute (including the Copyright Act 1968 (Cth) or any other law of the Commonwealth of Australia), that exist or that may come to exist, anywhere in the world.

Named User Licence means a licence to use the Service(s) that is personal to a designated individual nominated by the Customer and which must not be shared or concurrently used by multiple individuals.

Order Form means the document produced by Infomedia and accepted by the Customer that details the Service(s) and the Fees payable, as may be updated from time to time to reflect any additional services or renewal (if applicable).  

Party means Infomedia and the Customer (and together the Parties).

Personal Data means information about an identified or identifiable natural person, or which otherwise constitutes “personal data”, “personal information”, “personally identifiable information” or similar terms as defined in Applicable Data Protection Laws.

Personnel means employees, partners, agents and sub-contractors (including employees of sub-contractors) of Infomedia.

Processing (and Process and Processed) means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.

Protected Customer meansa Customer who, at the time of the fee adjustment notice in clause 5.5:

(a) operates in Australia with fewer than 100 employees or an annual turnover of less than AUD $10 million; or

(b) is a party to a contract that is a “small trade contract” under the New Zealand Fair Trading Act 1986, being a contract with an annual value of less than NZD $250,000 (including GST) and operates in New Zealand; or

(c) is expressly entitled under mandatory applicable law in its jurisdiction to a right to exit a contract in response to a unilateral price variation, and only to the extent required by that law.

Recipient means the Party receiving Confidential Information.

Service(s) means Infomedia’s cloud-hosted software applications made available to the Customer on a subscription term and ancillary services as set out in the Order Form.

Services Activation Date means the earlier of:

(a) the date on which the Service(s) are activated and/or made available to the Authorised Users; and

(b) sixty (60) days from the date of signing the Order Form.

Term means the Committed Term and any Renewal Term.

Territory means the territory specified in the Order Form.

2. SUPPLY OF SERVICES

2.1 INFOMEDIA’S OBLIGATIONS

2.1.1 Services – Infomedia will make the Service(s) available to the Customer and its Authorised Users within the Territory during the Term in accordance with this Agreement and with reasonable skill and care and in accordance with good industry practice.

2.1.2 Acknowledgement – TheCustomer acknowledges that Infomedia’s ability to deliver the Service(s) is subject to the Customer complying with its obligations and undertakings in clause 2.2.

2.2 CUSTOMER OBLIGATIONS

2.2.1 Obligations – TheCustomer must:

(a) comply with all of its obligations under this Agreement;

(b) provide reasonable and timely assistance and co-operation to Infomedia in all matters relating to the Service(s);

(c) ensure it completes and supplies any Customer Dependencies in a timely, and accurate manner, and acknowledges that Infomedia may be unable to provide the Service(s) unless and until the Customer has completed all Customer Dependencies;

(d) provide to Infomedia in a timely manner all Customer Materials required for Infomedia to perform the Service(s);

(e) provide Infomedia with access to the Customer premises and/or technology environment as is reasonably required for the purpose of allowing Infomedia to perform its obligations under this Agreement;

(f) not use the Service(s), Documentation or Interfaces in any manner for any purpose other than the Authorised Purpose and not use the Service(s) outside the Territory; and

(g) not allow any person other than an Authorised User to access or use the Service(s).

2.2.2 Undertakings – The Customer undertakes that:

(a) where applicable, it will maintain the minimum monthly subscription to the Service(s) as set out in the Order Form during the Term;

(b) it is responsible for all acts and omissions of its Authorised Users and any use of the Service(s) through accounts and/or account credentials of the Customer;

(c) the number of Authorised Users using the Service(s) will not exceed any applicable maximum number (if any) or other condition/s imposed by this Agreement or the applicable Order Form; and

(d) where Named User Licences apply, it will not allow or suffer any user subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case, the prior Authorised User shall no longer have any right to access or use the Service(s) and/or Documentation.

3. SERVICES: TERMS OF USE

3.1 EULA – The Customer and its Authorised Users’ right to access the Service(s) remains subject to, at all times, the Authorised Users’ acceptance of and adherence to the EULA, which forms a binding agreement between Infomedia and each of the Authorised Users on behalf of the Customer.  To the extent of any inconsistency between the EULA and the terms of this Agreement, the terms of this Agreement will prevail.

3.2 Prohibited use – The Customer must not:

3.2.1 use the Service(s), Documentation, Interfaces, Derived Data or any output, report, recommendation, data or information generated through the Service(s) to: (a) design, build, test, train, develop or improve any Competing Product; or (b) evaluate, analyse, or document the features, functionality, performance, architecture or user experience of the Service(s) for the purpose of replicating or competing with the Service(s);

3.2.2 use any output generated by the Service(s) as training data, fine-tuning data, or evaluation data for any machine learning model, algorithm or AI-system;

3.2.3 permit any employee, contractor, consultant or agent who is involved in the development of a Competing Product to access the Service(s), Documentation or Interfaces;

3.2.4 share, disclose, or make available, any information derived from the Service(s) (including performance data, pricing data, feature comparisons, output data, Documentation, Interfaces or Derived Data) to any third party for the purpose of developing or improving a Competing Product; or

3.2.5 copy, misuse, disclose any users names or passwords, alter, circumvent, reverse engineer, recompile, decompile, disassemble, resell, pass-through, sub-licence, transfer, rent, lease, timeshare or re-brand any part of the Service(s) or Documentation for any purpose, nor shall it facilitate, induce or permit any other person to do the same.

3.3 Competitive Purpose – If the Customer becomes aware that any of its Authorised Users, employees, contractors, consultants or agents has accessed or used the Service(s), Documentation, Interfaces, Derived Data or any output, report, recommendation, data or information generated through the Service(s) for a Competitive Purpose, the Customer must:

3.3.1 immediately revoke that person’s access to the Service(s);

3.3.2 notify Infomedia in writing within three (3) Business Days of becoming aware of the breach; and

3.3.3 provide Infomedia with reasonable details of the breach and the steps taken by the Customer to remedy it.

3.4 Acknowledgement – The Customer acknowledges that:

3.4.1 a breach or threatened breach of this clause 3 would cause Infomedia irreparable harm for which damages alone would not be an adequate remedy;

3.4.2 Infomedia may immediately suspend access to the Service(s) by the Customer or any Authorised User where Infomedia reasonably suspects a breach of this clause 3. Infomedia will notify the Customer of the suspension as soon as reasonably practicable;

3.4.3 in addition to any other remedy available at law or in equity, Infomedia is entitled to seek urgent injunctive or other equitable relief to restrain any actual or threatened breach of this clause 3 without the need to prove actual damage or to post any bond or other security;

3.4.4 Infomedia’s right to seek injunctive relief under this clause 3 is in addition to, and does not limit, any other rights or remedies available to Infomedia, including termination of this Agreement under clause 6 and the recovery of damages; and

3.4.5 the rights of the Customer and its Authorised Users to access and use the Service(s) are conditional upon payment of the applicable Fees in accordance with this Agreement, and that non-payment of Fees may result in those access rights being restricted, suspended or terminated in accordance with this Agreement and the EULA.

3.5 Survival – The Customer’s obligations in this clause 3 survive termination or expiry of this Agreement.

3.6 Audit right – The Customer shall, no more frequently than once per year, permit Infomedia or its designated auditor to audit the Customer’s use of the Service(s), or use Infomedia’s requested software reporting, to verify the Customer’s compliance with this Agreement; and if any audit reveals that the Customer has underpaid Fees or other charges, then without prejudice to Infomedia’s other rights, the Customer shall pay to Infomedia an amount equal to such underpayment as calculated in accordance with Infomedia’s current list prices in addition to the cost of the audit.

4. INTELLECTUAL PROPERTY

4.1 Ownership –Except as expressly set out in this Agreement, nothing in this Agreement transfers ownership of, or grants any rights in, a Party’s Intellectual Property Rights.

4.2 Customer Intellectual Property Rights –

4.2.1 As between the Parties, the Customer retains all right, title and interest in and to the Customer Data and Customer Materials, subject to any rights of individuals in their Personal Data under Applicable Data Protection Laws.

4.2.2 To the extent Customer Data includes Personal Data, individuals may retain statutory privacy and data protection rights in relation to that Personal Data independent of this Agreement under Applicable Data Protection Laws.

4.2.3 The Customer grants to Infomedia a non-exclusive, worldwide, royalty free licence to collect, access, use, store, host, process, combine, analyse and otherwise Process Customer Data and Customer Material (including Customer Data and Customer Material from multiple customers, dealers, Authorised Users and instances of the Service(s)) for the Term to which it relates, to: (i) provide, operate, support and maintain the Service(s); (ii) maintain, evaluate, develop, train, enhance and improve the Service(s) and any other products, services, technologies, analytics,  tools and capabilities of Infomedia and/or any of its Affiliates; (iii) create, generate, compile and derive Derived Data; (iv) respond to a support request; (v) fulfil its obligations under this Agreement; and (vi) otherwise comply with applicable laws. Except for the rights expressly granted under this clause, Infomedia acquires no ownership rights in Customer Data or Customer Material.

4.3 Infomedia Intellectual Property Rights –

4.3.1 As between the Customer and Infomedia, all rights, title and interest, including all Intellectual Property Rights, in and to the Infomedia Material, Derived Data and Infomedia’s Confidential Information vest in and remain the property of Infomedia. 

4.3.2 Apart from any limited rights granted under this Agreement, neither the Customer nor any Authorised User (or any Affiliate of the Customer) acquires any right, title or interest in or to the Infomedia Material, Derived Data, Infomedia’s Confidential Information or any associated Intellectual Property Rights by virtue of this Agreement, payment of Fees, use of the Service(s) or any other dealings between the Customer and Infomedia.

4.3.3 Subject to the terms of this Agreement, Infomedia grants to the Customer, a non-transferable, non-exclusive, non-sublicensable and revocable licence for the applicable Term to use and access the Service(s), Documentation and Infomedia Interfaces (if applicable) solely for the Authorised Purpose.

4.3.4 To the extent any Intellectual Property Rights vest in the Customer or any of its personnel (including, without limitation, employees, partners, agents and sub-contractors (including employees of sub-contractors) (the “Customer Personnel”), the Customer assigns and must procure that the relevant Customer Personnel assigns, to Infomedia all right, title and interest, including the Intellectual Property Rights, in and to the Infomedia Material with effect on creation.

4.3.5 The Customer must, and must procure that the relevant Customer Personnel will, execute all documents and do all things reasonably required by Infomedia to give effect to, perfect or record the assignment of all Intellectual Property Rights in the Infomedia Material.

4.3.6 The Customer must also procure all necessary consents and waivers of Moral Rights from Customer Personnel to permit Infomedia and its licensees to use, modify, adapt, exploit and commercialise the Infomedia Material without restriction.

4.4 Infomedia Derived Data –

4.4.1 The Customer acknowledges that Infomedia may create Derived Data from Customer Data, including statistical, benchmarking, trend, performance, utilisation, market and other analytical information in connection with the provision and use of the Service(s), including for usage measurement, licence compliance, analytics, benchmarking, product development, service improvement and other legitimate business purposes.

4.4.2 Subject to Applicable Data Protection Laws, Infomedia may use, reproduce, modify, adapt, publish, disclose, distribute, licence, sell, commercialise and otherwise exploit Derived Data for any lawful business purpose, including product and service development, research, analytics, benchmarking, reporting and commercial offerings.

4.4.3 Without limiting clause 4.4.2, Infomedia may disclose, licence, provide, or otherwise make Derived Data available to its Affiliates and/or third parties (such as national sales companies, distributors, automakers, original equipment manufacturers and/or business partners), provided that such Derived Data remains Derived Data as defined in this Agreement.

4.5 Feedback – Any comments, suggestions, ideas, recommendations, enhancement requests, corrections, improvements or other feedback relating to the Service(s), Infomedia Interfaces and/or Documentation (“Feedback”) provided by the Customer or any Authorised User are voluntary. The Customer assigns, and must procure that its Authorised Users assign, to Infomedia all right, title and interest, including all Intellectual Property Rights, in and to the Feedback. Infomedia may freely use, reproduce, modify, disclose, licence, distribute and otherwise exploit the Feedback in any manner and for any purpose without compensation, approval or any other obligation to the Customer or any Authorised User.

5. FEES AND PAYMENT TERMS

5.1 Fees – In consideration of the rights granted to the Customer under this Agreement, the Customer must pay the Fees to Infomedia or its nominee within 14 days of issue of an invoice in the currency specified in the Order Form. Monthly billing for services rendered will commence on the Services Activation Date.

5.2 Interest – Without limiting any other right, Infomedia reserves the right to demand interest on overdue payments at an annual rate of the Consumer Price Index plus 2%, calculated and applied daily until final payment and suspend Customer’s right to use the Service(s) if payment is overdue.

5.3 Survival – The obligation to pay any outstanding amount to Infomedia under this Agreement will survive any termination or expiration of this Agreement or applicable Order Form.

5.4 Ad hoc services – Any ad hoc or additional services or programs requested by the Customer and agreed to by Infomedia which are not a part of the Service(s) specified in an Order Form shall be invoiced by or on behalf of Infomedia and calculated at Infomedia’s then current rates.

5.5 Fee review – Infomedia reserves the right to review and adjust the Fees once per annum to reflect inflation and increased costs of production at the greater of 5% or the Consumer Price Index. Infomedia will provide no less than sixty (60) days’ written notice prior to any fee adjustment. The Customer that qualifies as a Protected Customer may terminate the Agreement by providing Infomedia with written notice no later than fifteen (15) days after receipt of Infomedia’s fee adjustment notice. Any such notice of termination must specify the Customer’s basis for qualifying as a Protected Customer. Termination will take effect on the last day of the current notice period, and the Customer remains liable for all Fees accruing up to and including that date. Where the Customer validly exercises this right, no early termination fee will apply in respect of the terminated Service(s). For the avoidance of doubt, the termination right in this clause 5 does not apply to any Customer that does not qualify as a Protected Customer, and no other right to terminate in response to a fee adjustment arises under this Agreement.

5.6 Taxes – All Fees exclude any applicable taxes, duties or levies which will be added to each invoice. The Customer is responsible for paying all applicable taxes associated with the purchase or use of the Service(s) provided under this Agreement, except taxes based solely on Infomedia’s income. If Infomedia has a legal obligation to collect and remit taxes, the appropriate amount shall be added to the Customer’s invoice and paid by the Customer, unless the Customer provides Infomedia with a valid tax exemption certificate authorised by the appropriate taxing authority.

5.7 Tax treaty – To the extent the Customer is required by applicable law to deduct any withholding tax from any payment to Infomedia, then to the extent there is a double tax treaty which applies to the supply made in connection with this Agreement, the Customer must provide Infomedia with valid tax certificates as issued by the relevant local tax authorities which enables Infomedia to claim amounts withheld from the relevant taxing authority.  If no taxation treaty exists, or if the Customer fails to produce appropriate tax certificates, then Infomedia or its nominee shall be entitled to gross up the Fees to ensure it receives the total Fees stated in each Order Form.  This right extends to include the ability to issue supplementary invoices for past supplies from which Customer withheld withholding tax.

5.8 Billing Agent – Infomedia may appoint any of its Affiliates (“Billing Agent”) to issue invoices, collect payments, and perform related billing and payment-processing functions on its behalf under this Agreement. Any invoice issued by a Billing Agent shall be deemed issued by Infomedia for all purposes of this Agreement. Payment made by the Customer to the Billing Agent in accordance with this Agreement shall constitute valid discharge of the Customer’s payment obligations to Infomedia as if payment had been made directly to Infomedia.

6. TERM & TERMINATION

6.1 Term & Renewal – This Agreement will commence with effect from the Commencement Date and remains in force until the end date of the Committed Term unless validly terminated earlier. Upon expiration of the Committed Term, this Agreement will automatically renew under the same terms and conditions for further 12-month periods (each a “Renewal Term”), save that Fees may be adjusted by Infomedia in accordance with clause 5.5.

6.2 Termination – This Agreement or an Order Form may only be terminated as follows:

6.2.1 By either Party giving at least ninety (90) days’ written notice of non-renewal to the other Party prior to the expiration of the current Term.

6.2.2 By either Party with immediate effect if the other Party is in material breach of this Agreement and the breach is incapable of remedy or is capable of remedy but the defaulting Party has not remedied that breach within ten (10) Business Days of the notice of material breach.

6.2.3 By either Party if the other Party is subject to an Insolvency Event (to the extent the termination is permitted by law).

6.2.4 By Infomedia if the Customer defaults on its obligation to pay Fees and such Fees remain unpaid for ninety (90) days. Infomedia may also place a suspension on the Customer’s Service(s) in this instance.

6.3 Effect of termination of an Order Form – Termination of an Order Form will only terminate that Order Form and will not affect any other Order Form or this Agreement.

6.4 Customer Data after Termination – Upon termination of the Agreement:

6.4.1 the Customer will cease using the Service(s) and Infomedia will cease using Customer Data;

6.4.2 unless some other time period is required under applicable laws (including, without limitation, the EU Data Act), within ninety (90) days of the date of termination of the Agreement and subject to the Customer’s written request, Infomedia will deliver to the Customer all Customer Data (for the avoidance of doubt, excluding any Infomedia Material) in the possession or control of Infomedia, in a format as determined by Infomedia. Unless prohibited by applicable law (including, without limitation, the EU Data Act), Infomedia may charge the Customer its direct costs of providing such Customer Data, plus a margin not exceeding twenty percent (20%) of those direct costs; and

6.4.3 any Customer Data stored on the Infomedia’s backup media will “age out” over the period of routine rotation practices and the Customer acknowledges that it is not possible to selectively delete the Customer Data from the backup sets.

6.5 No obligation to disclose – Nothing in this Agreement requires Infomedia to disclose data or information that:

6.5.1 constitutes Infomedia’s Intellectual Property Rights, including trade secrets or proprietary algorithms, models, or methodologies;

6.5.2 is generated solely by Infomedia’s internal processes without direct input from the Customer’s use of the Service(s); or

6.5.3 is protected by Intellectual Property Rights held by Infomedia or a third party, where disclosure would constitute an infringement of such Intellectual Property Rights.

6.6 Enforceability – All rights and liabilities accrued pre-termination shall remain enforceable between the Parties.

7. WARRANTIES

7.1 Mutual Warranties –  Each Party warrants to the other Party that it:

7.1.1 has the right, power and authority to enter into this Agreement and to grant the licences and rights set out in this Agreement;

7.1.2 owns, or has the necessary rights to licence, the Intellectual Property Rights it contributes under this Agreement;

7.1.3 is not in material breach of any applicable laws and regulations relevant to its performance under this Agreement;

7.1.4 has complied in all material respects with Applicable Data Protection Laws in relation to any Personal Data Processed by it under this Agreement; and

7.1.5 has obtained all licences, permits, approvals and authorisations required to perform its obligations under this Agreement.

7.2 Customer Warranties – The Customer warrants to Infomedia that:

7.2.1 it has relied on its own commercial analysis and judgment in selecting the Service(s) and has not relied upon any representation, warranty or undertaking not expressly set out in this Agreement;

7.2.2 the Customer is authorised to provide the Customer Data to Infomedia and has obtained all rights, permissions, consents, notices and other lawful bases required under Applicable Data Protection Laws to enable Infomedia, its Affiliates and the Personnel to access, use, disclose, store and otherwise Process the Customer Data in accordance with this Agreement, the EULA and Applicable Data Protection Laws;

7.2.3 it has the right to grant, and hereby grants, to Infomedia the rights and licences in respect of the Customer Data and Customer Material contemplated by this Agreement; and

7.2.4 Infomedia’s access to, use, disclosure, storage and other Processing of the Customer Data in accordance with this Agreement, the EULA and Applicable Data Protection Laws will not infringe the rights of any third party or cause Infomedia to breach Applicable Data Protection Laws.

7.3 Performance Warranties – Infomedia warrants to the Customer that the Service(s) materially conform to the Documentation.

7.4 Statutory Warranties – Notwithstanding clause 9, Infomedia’s liability for a breach of a condition or warranty implied by law and which cannot be excluded, is limited to the extent possible, at Infomedia’s option, to:

7.4.1 the re-supply of the Service(s); or

7.4.2 the payment of the cost of having the Service(s) re-supplied or repaired.

7.5 Acknowledgement – The Customer acknowledges that:

7.5.1 The Service(s) are provided on an ‘as is’ and ‘as available’ basis.

7.5.2 Infomedia does not warrant that the Service(s) will be uninterrupted, timely, error free or suitable for the Customer’s use.

7.5.3 Infomedia is not responsible for delays, disruptions or other faults in the Service(s) caused by factors beyond Infomedia’s control, including but not limited to any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet and the network/technology environment of the Customer or its Authorised Users.

7.5.4 Certain Service(s) and/or certain functionalities within the Service(s) may be reliant on (a) the availability of data from original equipment manufacturers (the “OE Data”); (b) single or bi-directional integration with third party systems and processes (“Integrations”) and/or (c) ongoing consent of data subjects to the use of their Personal Data (“Privacy Consents”) (collectively, the“Third Party Agreements”).

7.5.5 Infomedia does not warrant that access to OE Data, Integrations and/or Privacy Consents will be continuous or error free.

7.5.6 If any Third Party Agreement(s) are varied or terminated for any reason during the Term, or if the continued supply of any Service(s), Documentation, Interface or functionality would infringe, or is reasonably likely to infringe, or it is reasonably necessary to protect, the Intellectual Property Rights or other legal rights of Infomedia or any third party, Infomedia may at its discretion: (i) limit, suspend, restrict, modify or discontinue the affected Service(s), Documentation, Interface or functionality; (ii) cease supplying some or all of the Service(s); or (iii) terminate the relevant Order Form and any licences granted in connection with the Order Form or this Agreement generally.  Any action taken shall not constitute a breach of any obligation under this Agreement or under any Order Form.

7.6 Compatibility and maintenance – The Customer and each Authorised User must satisfy itself that the Service(s) are compatible with its own hardware, software and internet and network capabilities and must maintain all hardware, software, third party applications and other technology necessary to be able to access and use the Service(s).

7.7 Exclusion of all other warranties – To the maximum extent permitted by applicable law, Infomedia, its licensors and authorised suppliers disclaim all other warranties, either expressed or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose with respect to the Service(s), the product information and/or the Interfaces.

7.8 Competency – The Customer must ensure that all users of the Service(s) are suitably trained and competent and are made aware of the limitations of any recommendations made by the Service(s) (which are based on user input and use manufacturer recommendations) and that they apply their technical skills and knowledge in reviewing and implementing any recommendations.

8. INDEMNITY

8.1 IPR – To the extent the Customer Data includes any Intellectual Property Rights belonging to a third party (“Third Party IPR”), the Customer shall on demand indemnify, defend, and hold Infomedia harmless from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable legal fees) (“Loss”) arising from any claim alleging that Infomedia’s use of the Third Party IPR in accordance with this Agreement infringes the rights of a third party, except to the extent the Loss arises:

8.1.1 from Infomedia’s use of the Intellectual Property Rights in a manner not authorised by this Agreement;

8.1.2 from a modification of the Customer’s materials by Infomedia without the consent of the Customer;

8.1.3 from a combination of the Customer’s materials with third party materials not contemplated by this Agreement; or

8.1.4 from or is contributed to by an act or omission of Infomedia.

9. LIABILITY

9.1 Disclaimer – Nothing in this Agreement limits or excludes a Party’s liability:

9.1.1 in relation to the Customer’s obligations to pay the Fees;

9.1.2 that cannot by law be limited or excluded;

9.1.3 in respect of the indemnity;

9.1.4 resulting from its fraudulent, or unlawful act or omission; and

9.1.5 resulting from wilful or malicious breach of this Agreement including any Order Form.

9.2 LIMITATION OF LIABILITY – EXCEPT FOR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, TO THE EXTENT PERMITTED BY LAW, INFOMEDIA’S LIABILITY FOR ALL CLAIMS DURING THE TERM SHALL NOT EXCEED IN AGGREGATE AN AMOUNT EQUAL TO FEES PAID OR PAYABLE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9.3 NO LIABILITY FOR INDIRECT OR CONSEQUENTIAL LOSS – OTHER THAN IN RELATION TO A BREACH BY THE CUSTOMER OF CLAUSE 3, AND A BREACH BY EITHER PARTY OF THE OTHER PARTY’S CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY, THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS, AFFILIATES, SUBCONTRACTORS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE OR DATA) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE ARISING OUT OF THE PERFORMANCE OF THE SERVICE(S), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.4 Exclusion of liability – Without limiting clause 9.3, Infomedia excludes all liability for:

9.4.1 loss or corruption of Customer Data or any other data held on the Customer’s systems;

9.4.2 loss of profits, revenue, or business arising from downtime, errors, or unavailability of the Service(s);

9.4.3 loss caused by the Customer’s reliance on any output, recommendation, or information generated by the Service(s);

9.4.4 losses arising from the failure of any third-party service, third party Interface, infrastructure provider, or telecommunications network used to access or integrate with the Service(s);

9.4.5 losses arising from any breach by the Customer or its users of the acceptable use policy or any applicable law; and

9.4.6 losses arising from a claim that the Services, Interfaces or Documentation infringe any patent or patent rights of a third party.

9.5 Application of exclusions – The exclusions in this clause 9 apply even if the parties have been advised of the possibility of such loss or damage.

9.6 Caps – The parties agree the caps in this clause 9 are reasonable having regard to the Fees charged.

9.7 Survival – The provisions of this clause 9 governing liability survive termination or expiry of this Agreement.

10. AI, SECURITY AND PRIVACY

10.1 AI. Where AI Functionality is included in the Service(s), the Parties shall comply with the AI Terms. 

10.2 Security. The Parties shall comply with the Information Security Compliance Terms.

10.3 Privacy.

10.3.1 Each Party must comply with Applicable Data Protection Laws in relation to its Processing of Personal Data under this Agreement.

10.3.2 Infomedia will implement and maintain commercially reasonable technical, administrative and physical safeguards designed to protect Customer Data and Personal Data against unauthorised access, use, disclosure, alteration, loss or destruction.

10.3.3 Infomedia may engage subcontractors and Affiliates in connection with the provision of the Service(s) and may transfer Customer Data, including Personal Data, to jurisdictions outside the jurisdiction of the Customer. Infomedia will ensure that any such subcontractors and Affiliates are subject to appropriate contractual obligations regarding the security, confidentiality and Processing of Customer Data and Personal Data.

10.3.4 To the extent Infomedia Processes Personal Data on behalf of the Customer and such Processing is subject to Applicable Data Protection Laws, the DPA is incorporated into and forms part of this Agreement.   To the extent of any inconsistency between this Agreement and the DPA in relation to the Processing of Personal Data, the DPA prevails.

11. CONFIDENTIALITY

11.1 Treatment of Confidential Information – Each Party acknowledges that the Confidential Information of the other party is valuable to the other Party.  Each Party undertakes to keep the Confidential Information of the other Party secret and to protect and preserve the confidential nature and secrecy of the Confidential Information of the other Party.

11.2 Use of Confidential Information –  The Recipient may only use the Confidential Information of the Discloser for the purposes of performing the Recipient’s obligations or exercising the Recipient’s rights under this Agreement.

11.3 Disclosure of Confidential Information – A Recipient may not disclose Confidential Information of the Discloser to any person except:

11.3.1 its Affiliates and each of Recipient and each Affiliates’ representatives, legal advisers, auditors and other consultants of the Recipient who require it for the purposes of Infomedia performing its obligations or exercising its rights under this Agreement and then only, on a need to know basis;

11.3.2 with the prior written consent of the Discloser;

11.3.3 if the Recipient is required to do so by applicable law or by a recognised stock exchange; or

11.3.4 if the Recipient is required to do so in connection with legal proceedings relating to this Agreement.

11.4 Disclosure by Recipient – A Recipient disclosing information under clause 11.3 must ensure that persons receiving Confidential Information from it are aware it is the other Party’s Confidential Information and do not disclose the information, except in the circumstances permitted in clause 11.3.

11.5 Return of Confidential Information – Subject to clause 11.6, on the Discloser’s request, the Recipient must promptly (unless another timeframe is agreed under clause 6.4) securely destroy or deliver to the Discloser all documents or other materials containing or referring to the Discloser’s Confidential Information which are:

11.5.1 in the Recipient’s possession, power or control; or

11.5.2 in the possession, power or control of persons who have received Confidential Information from the Recipient under clause 10.3.

11.6 Exceptions – The obligations in clause 11.5 do not apply to Confidential Information which:

11.6.1 is required (by applicable law, rule, regulation, or legal process) to be held by the Recipient or its authorised representatives (as applicable);

11.6.2 is held by the Recipient or its authorised representatives (as applicable) in accordance with a bona fide document retention or compliance policy;

11.6.3 is required to be retained for the purposes of any insurance policies of the Recipient or by a legal, financial or other professional adviser of the Recipient; and

11.6.4 is stored electronically as a result of automatic back-up in accordance with the normal practices of the Recipient, provided the Recipient (and any of its authorised representatives) does not make any attempt to retrieve or access the Confidential Information from the backups unless permitted for the reasons outlined above in this clause, or with the prior written consent of the Discloser.

12. FORCE MAJEURE

12.1 Effects of Force Majeure Event – A Party does not breach this Agreement and is not liable to the other Party for a delay or failure to perform an obligation to the extent it results from a Force Majeure Event.

12.2 Obligations of the parties – The Party affected by a Force Majeure Event must notify the other Party of the Force Majeure Event as soon as reasonably practicable and must take all reasonable steps to limit the effect of the Force Majeure Event.

12.3 No obligation to pay – The Customer is not obliged to pay, and Infomedia must not invoice the Customer, for any amounts related to any Service(s) not received during a Force Majeure Event.

12.4 Termination- If a Force Majeure Event occurs and its effect continues for a period of more than forty five (45) Business Days, either Party may terminate the Agreement in whole or in part at any time by giving written notice to the other Party.

13. DISPUTE RESOLUTION

13.1 Procedure – If a dispute arises out of or in connection with this Agreement or its performance, validity or enforceability, then the Parties shall follow the procedure set out in this clause 13 before commencing court proceedings (except for urgent injunctive or declaratory relief):

13.1.1 if a dispute arises between the Parties that cannot be resolved promptly between each Party’s Contract Representatives, either Party may nominate a senior executive to meet within seven (7) days’ of the notice to try to resolve the dispute;

13.1.2 if the dispute remains unresolved, the Parties must try to resolve it by video conference with an accredited mediator, conducted in accordance with the Resolution Institute Online Mediation Protocol and in English. Each Party shall bear its own costs of the mediation; and

13.1.3 if for any reason the dispute is not resolved within thirty (30) Business Days of commencement of the mediation, either Party may refer the dispute for resolution by the courts. 

14 GENERAL

14.1 Entire Agreement – These Terms and Conditions, together with the Information Security Compliance Terms, the DPA, the AI Terms, the applicable Order Form(s) and any other document expressly incorporated into this Agreement, constitute the entire agreement between the Parties in relation to their subject matter (the “Agreement”). If there is any inconsistency between the documents comprising this Agreement, they will prevail in the following order:

14.1.1 these Terms and Conditions;

14.1.2 the Information Security Compliance Terms;

14.1.3 the DPA (with respect to any Personal Data);

14.1.4 the AI Terms (with respect to any AI Functionality);

14.1.5 the applicable Order Form; and

14.1.6 any other document expressly incorporated into this Agreement.

14.2 Governing Agreement – This Agreement governs the supply of the Service(s) by Infomedia to the Customer to the exclusion of all other terms and conditions, including any terms and conditions contained in or referenced by any purchase order, request for proposal, vendor registration form, procurement policy, or other document issued by the Customer.

14.3 Governing Law – The governing law applicable to these Terms and Conditions and the exclusive venue applicable to all disputes arising in connection with it shall be determined by the location of Customer’s principal place of business (“Domicile”) as follows:

14.4 Consent – You hereby irrevocably consent to the personal jurisdiction and venue of the courts listed above.  In all cases, the application of law shall be without regard to any conflicts of laws principles.

14.5 Sub-contracting – Infomedia may subcontract, or otherwise arrange, wholly or partially, for its obligations under this Agreement to be performed by any other person without the prior written consent of the Customer provided Infomedia remains liable for all acts of its subcontractors under these Terms and Conditions.

14.6 Mitigation – Each Party must take reasonable steps to mitigate any loss or damage it suffers under or in connection with this Agreement. A Party may not recover loss or damage it could reasonably have mitigated.

14.7 No assignment – The Customer may not assign, novate or transfer this Agreement without the prior written consent of Infomedia and then only if the incoming party agrees in writing to the terms and conditions of this Agreement (as amended) in a manner acceptable to Infomedia.

14.8 Notices – All notices, certificates, consents, approvals, waivers and other communications in connection with this Agreement must be sent in writing to Infomedia Pty Ltd at 155 Clarence St, Level 5, Sydney NSW 2000, with a copy to legal@infomedia.com.au. A notice is taken to be received (a) if sent by post, three (3) days after posting (or seven (7) days after posting if sent to or from a place outside Australia) or (b) if sent by email, (i) when the sender receives an automated message confirming delivery or (ii) four (4) hours after the time sent (as recorded on the device from which the sender sent the email), unless the sender receives an automated message that delivery failed, whichever happens first.

14.9 Service Variations – Infomedia may change, update, or adapt its Service(s) from time to time, including in response to technological developments, security requirements, or changes in applicable law or regulatory framework conditions. Infomedia will provide the Customer with reasonable prior written notice of any such changes (and no less than sixty (60) days’ notice for material changes) by email or via notification through the Service(s) or Infomedia website. Where a change materially and adversely affects the Service(s) available to the Customer (for example, core features are removed), the Customer may terminate the affected Service(s) by providing Infomedia with no less than thirty (30) days’ written notice within thirty (30) days of receiving notice of the change, and no early termination fee shall apply.

14.10 Terms and Conditions Variations – Infomedia may amend, update, replace or otherwise vary these Terms and Conditions from time to time. Changes to these Terms and Conditions that materially and adversely affect the Customer require the Customer’s express acceptance before taking effect as against the Customer. Where the Customer does not accept such changes, Infomedia will notify the Customer of the consequences, including the Customer’s right to terminate.  For changes that do not materially and adversely affect the Customer, the Customer’s continued access to or use of the Service(s) after such notice shall constitute acceptance of the revised Terms and Conditions. If the Customer reasonably determines that an amendment materially and adversely affects its rights or obligations under these Terms and Conditions, the Customer may terminate the affected Service(s) by providing Infomedia at least thirty (30) days’ written notice within forty-five (45) days after receiving notice of the amendment (the “Notice”). The Notice must include a clear explanation for why the Customer considers the amendment to have a material and adverse affect. No early termination fee shall apply where the Customer rightfully exercises its termination right under this clause 14.

14.11 Severability – If any provision of this Agreement is held to be illegal, invalid, unenforceable or unreasonable in any jurisdiction, it will be severed to the extent necessary so that the remaining provisions continue in full force and effect.

14.12 Costs – Each Party bears its own costs in entering into this Agreement.

14.13 Export controls – Each Party will comply with all applicable export control and trade sanctions laws, including the US Export Administration Regulations (EAR), the sanctions programs administered by the US Office of Foreign Assets Control (OFAC), and the Australian Autonomous Sanctions Act 2011. The Customer must not, and must ensure that its Authorised Users do not, access or use the Service(s) from, or provision access to the Service(s) for any person or entity located in, any country or territory that is the target of comprehensive sanctions under applicable trade control laws. The Customer must not provision access for, or permit use by, any person or entity that is designated on any applicable restricted or sanctioned party list, or that is owned or controlled by any such designated person or entity.

14.14 English language – The Agreement is drafted in the English language, which shall be the only authoritative and binding version unless otherwise required by applicable law. Any translation of this Agreement is provided for convenience only and shall have no legal effect. In the event of any inconsistency between the English version and any translation, the English version shall prevail.

14.15 Counterparts – The Order Form and any other documents forming the Agreement which require execution by both parties may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution and delivery of the documents comprising the Agreement by electronic transmission (including PDF or electronic signature) shall be legal, valid, and binding for all purposes.

SCHEDULE A – EU DATA ACT – SWITCHING RIGHTS

1. Switching Right for In-Scope Services. The Switching Right contained in this Schedule A applies to Customers located in the European Union in relation to In-Scope Services only and supersedes any inconsistent provisions in this Agreement to the extent of that inconsistency.

2. Switching Notice. The Customer may at any time during the Term exercise the Switching Right by issuing a Switching Notice relating to an In-Scope Service, which must: (a) include all the Switching Information; and (b) be provided to Infomedia at least two (2) months before the Switching Right is to take effect (the “Notice Period”).

3. Transition Period. The Transition Period shall commence on the expiry of the Notice Period.  Infomedia may specify a Transition Period of up to seven (7) months provided the duration is technically necessary and the justification for the duration is given to the Customer in writing within fourteen (14) days of the date of the Switching Notice.  In all other cases, the Transition Period shall be thirty (30) days. The Customer, acting reasonably, has the right to extend the Transition Period once if it has a genuine, justified reason for doing so, provided it notifies Infomedia as soon as possible after the Switching Notice (or such other date as the parties agree) of the request for extension and the reason.  Following expiry of the Transition Period, Infomedia shall make the Customer’s Exportable Data and Digital Assets available for retrieval by the Customer for a minimum period of thirty (30) days (the “Retrieval Period”). Provided the switching process has been completed successfully, Infomedia shall, upon expiry of the Retrieval Period (or such alternative agreed date), erase all of the Customer’s Exportable Data and Digital Assets generated directly by, or relating directly to, the Customer.

4. Transition obligations. During the Transition Period Infomedia shall maintain the same service level, service continuity and security standards and shall, in relation to the In-Scope Services, to the extent requested in the Switching Notice: (a) support the migration of the Customer’s Exportable Data and Digital Assets to the replacement Data Processing Service or to the Customer’s own infrastructure including by providing all relevant information; or (b) transfer the Customer’s Exportable Data and Digital Assets to the Customer in a commonly used, machine-readable format. The categories of data and digital assets that can be ported in connection with the exercise of the Switching Right are the Exportable Data and Digital Assets as defined in this Schedule.

5. Termination. For the purposes of the Agreement, the date of expiry of the Transition Period shall be treated as the termination date of the applicable In-Scope Service and shall be notified to the Customer (the “Service Termination Date”).  Where the Switching Right is exercised in relation to only part of the Service(s), termination of that service shall not affect the Parties’ respective rights and obligations relating to the remaining Service(s), including the binding nature of any Fixed Term.

6. Early Termination Fee.

(a) Payment of fee. If the Switching Right results in the termination of an In Scope Service during a Fixed Term, the Customer shall pay Infomedia the Early Termination Fee.

(b) Partial Termination. Where the Service Termination Date applies to only part of the Service(s), the Early Termination Fee shall be calculated in relation to the affected In-Scope Service only.  Where the Fees set out in the Agreement do not specify individual fees relating to the terminated In-Scope Service, when determining the amount to be paid by the Customer under paragraph 6(a), Infomedia, acting reasonably, shall apportion part of the Fees to the terminated In-Scope Services.

(c) Invoice. Any time after the Service Termination Date, Infomedia shall be entitled to issue an invoice to the Customer for the Early Termination Fee calculated in accordance with this Agreement. The Customer shall pay such invoice within thirty (30) days of the invoice date, unless otherwise agreed in writing.  The obligation to pay the Early Termination Fee is without prejudice to the Customer’s obligation to pay any outstanding fees for Service(s) provided up to the effective date of termination. 

(d) No other charges. No switching, migration, or data egress fees shall be payable by the Customer in connection with the exercise of the Switching Right, except for the standard Fees and any Early Termination Fee.

7. Definitions

The following capitalised terms shall have the meaning given in this Schedule A and other capitalised terms used but not defined in this Schedule A shall have the meanings given in the Agreement:

(a) Data Processing Service has the meaning given in the EU Data Act.

(b) Digital Assets means elements in digital form in Infomedia’s possession or control, which the Customer has the right of use independently of the Agreement and which are necessary for the Customer to effectively use its Exportable Data in a materially equivalent manner with an alternative Data Processing Service or on its own infrastructure, but excluding the Excluded Data.

(c) Early Termination Fee means the Fees for the remainder of the applicable Term in respect of the terminated In-Scope Service.

(d) EU Data Act means Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 (as updated, amended, replaced or superseded from time to time).

(e) Excluded Data means any data that Infomedia is entitled to withhold, exclude from transfer or otherwise not provide under the EU Data Act, including without limitation, information that constitutes or would disclose Infomedia Materials or Infomedia’s and/or any third party’s Intellectual Property Rights, Confidential Information, trade secrets, proprietary software, algorithms, models, methodologies, Derived Data or other proprietary information.

(f) Exportable Data means any Customer Data in Infomedia’s possession or control that can be transferred, or is otherwise required to be made available, to the Customer (or such different provider of Data Processing Services) by Infomedia under the EU Data Act, but excluding the Excluded Data.

(g) Fixed Term means a fixed duration relating to provision of the Service(s) (or part of them) as specified in the Agreement or otherwise agreed between the Parties.

(h) In-Scope Service means any part of the Service(s) which amounts to a Data Processing Service, and which is provided to a Customer which is within the scope of the EU Data Act.

(i) Switching Information means the following information: (a) details of the In-Scope Services covered by the Switching Notice; (b) the duration of the Notice Period; and (c) which of the following actions should occur on the expiry of the Notice Period in relation to the In-Scope Services (each a “migration”): (i) switch the In-Scope Services to a different provider of Data Processing Services, in which case the Switching Notice must also provide the necessary details of that provider; (ii) switch the In-Scope Services to an on-premises ICT infrastructure; or (iii) erase all the Customer’s Customer Data and Digital Assets relating to the In-Scope Services.

(j) Switching Right means, in relation to a Data Processing Service, any of the rights granted by Article 25(2)(a) of the EU Data Act, but only to the extent they apply to the Customer as a matter of law.

(k) Transition Period means the period in which the migration of the In-Scope Service must occur.