Parties to agreement

Xyst Limited (“Xyst”) works globally with Partner Organisations (as defined in Appendix 1) to provide Yardstick online benchmarking and user survey programs, reports, data and technical support (“the Services”).

The Partner Organisations and Xyst (together referred to as “the Consultants”) agree to provide you (“the Client”) with the Services and in doing so, shall exercise the degree of skill, care and diligence normally expected of a competent professional performing those Services.

What the Client can expect from the Consultants:

The Consultants will:

• provide online access to the Services that the Client has requested and agreed to.
• invoice the Client on an annual basis for the Services.
• provide the Client with instructions and support to enable them to use the Services.
• communicate with the Client about ongoing availability and use of the Services.
• communicate with Clients at least once a year to audit data before it is used in reports.
• maintain the online database and programs and perform updates in a timely manner to facilitate the Client’s access to surveys and reports.

The Consultants will give Clients at least fifteen (15) working days’ notice of the date for any on-site meetings.

The Client will make every endeavour to meet the Consultants’ proposed meeting date, either at the proposed date and time, or within two working days of this date.

If the Client responds to the Consultants within five (5) working days that they are unable to accommodate the proposed date of the meeting, the Client agrees that a suitable alternative date must be provided within two (2) weeks of the original meeting, or as agreed by the Consultants.

If the Client requests a change to the date of the on-site meeting less than ten (10) working days prior to the agreed meeting date, the Client agrees to pay to the Consultant any additional travel related costs (e.g. flights, accommodation, rental cars) required for the Consultants to attend the meeting at an alternative time.

What the Consultants can expect from the Client

For Benchmark projects, the Client shall respond to the online benchmark questionnaire within the timeframe nominated for each project, which will be a minimum of four (4) weeks from the date of the questionnaire release.

For Survey projects, the Client shall provide all necessary information to the Client a minimum of two (2) weeks prior to the date that survey collection is due to start. This information includes, but is not limited to: park/facility names, optional questions, and requests for core questions to be disabled.

The Client shall provide all other relevant and necessary information that is required for the successful delivery of the Services, that is within his or her power to obtain, free of cost and as soon as practicable.

The Client shall pay to the Consultants the agreed fee for the Services within thirty (30) days of the date of any invoice issued by the Consultants to the Client for the Services.

If any item or part of an item in an invoice submitted by the Consultants is contested by the Client, then the Client will give prompt notice to the Consultants with the reasons for disputing the item or part of the item in the invoice within five (5) workings days of receiving the invoice.

Collection and use of data

The Client agrees that all data and factual information provided to the Consultants may be published as part of the Services and associated with the name of the Client.

The data and factual information collected and reported by the Consultants has been sourced from subscribing organisations. While every attempt has been made to verify the information supplied, variances in interpretation of questions and responses, supply or presentation of data may occur. The results are intended to provide indicators only and should not be regarded as absolute. The Client should exercise caution with the use of the data and seek their own verification of the data supplied and interpretation thereof. The Consultants make every effort to ensure the accuracy of the information it publishes, but cannot be held responsible for any consequences arising from errors or omissions.

The ownership of data and factual information collected and reported by the Consultants shall be jointly owned by the Client and the Consultants. However, the Parties agree that data and factual information collected and reported by the Consultants may not be shared publicly, with any other organisation, company or individual except as permitted under this Agreement.

The Client agrees that data and factual information collected and reported by the Consultants may be used by all organisations who subscribe to Yardstick.

The Client agrees that the Consultants may use data and factual information collected and reported by the Consultants for demonstrations, presentations, research and marketing purposes.

The Consultants agree that the Client may provide a limited right to use the data and factual information collected and reported by the Consultants to organisations, companies or individuals engaged by the Client. The right of use is limited to the length of engagement by the Client to provide such services to the Client and the Client shall ensure that the organisation, company or individual does not retain, use or share any data and factual information collected and reported by the Consultants.

The Client acknowledges that while the Consultants will not release the data collected and information collected publicly or to any organisation not participating in the program, they have no control over how other participating organisations may use or distribute the information.

The Consultants shall not, without the Client's prior consent, use information provided by the Client for purposes unrelated to the Services.

Liability

Neither the Client nor the Consultants shall be considered liable for any loss or damage resulting from any use of the Services.

The Consultants shall only be liable to the Client, either in contract or in tort, for direct loss or damage suffered by the Client as the result of a breach by the Consultants of his or her obligations under this agreement. The Consultants shall not be liable to the Client for the Client’s indirect, consequential or special loss, or loss of profit, however arising, whether under contract, in tort or otherwise.

Intellectual Property

Intellectual property prepared or created by the Consultants in carrying out the Services (“New Intellectual Property”) shall be jointly owned by the Client and the Consultants. The Client and the Consultants hereby grant to each other a royalty-free license in perpetuity to copy or use New Intellectual Property. Intellectual property owned by a party prior to the commencement of this Agreement and intellectual property created by a party independently of this Agreement remains the property of that party.

Non Participation, Termination and Disputes

If a Client agrees that, after joining any Yardstick program and paying the fee to the Consultants, that they no longer wish to participate in that current year’s program, that no refund will be payable. The Client will still be provided with access to the reported data and information provided by other organisations participating in the program.

Disputes shall first be referred to conciliation for settlement. Unresolved disputes shall be referred to arbitration in accordance with applicable arbitration law.