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Terms |
Standard Data License Agreement
DATA BUSINESS SOLUTIONS
AUSTRALIA PTY. LIMITED
A.C.N. 125 000 820
Suite 6, 11 Rangers Roads, NEUTRAL BAY NSW 2089 TEL: 61 2 8908 7788 FAX: 61 2 8908 7799
Between Data
Business Solutions Australia Pty Limited
A nd DSA’s customers (hereinafter referred to as the Licensee) **
**unless such customers have entered into an alternate
Granting of License
1.
DSA
grants a non-transferable, non-exclusive licence, without the right to
sublicense, to the Licensee to use the List in Australia on the terms and
conditions set out in this Agreement.
Term
2.
The
Licence enables the Licensee to utilise the data during the term as determined
by the Expiration Date as specified within the data supplied.
Payment
3.
The
Licensee agrees to pay the fees as set out in Quote/Invoice. In addition to the
fees set forth in the Quote/Invoice the Licensee must pay DSA any GST payable
for any supply by DSA under or in connection with this Agreement, (if such fees
have not been clarified as GST inclusive) without deduction or set-off. The Licensee will make that payment
as and when the cost, or other consideration or part of it, must be paid or
provided.
4.
Any
amounts due and not paid within thirty (30) days of the due date will accrue
interest at the rate of ten percent (10%) from the due date off payment until
the date of payment. Interest will
be cumulative, accruing on a daily basis.
Proprietary Information
5.
The
Licensee acknowledges that the List(s) shall at all times remain the proprietary
or copyrighted property of DSA and the data owners who provided data contained
within the Lists to DSA, and that Licensee has no proprietary rights in the
List(s). The List(s) or any part
thereof shall not be copied, disseminated, sublet, resold, or republished in any
manner whatsoever. Furthermore, the
List(s) shall not be used in the development of any service or product provided
to third parties, including without limitation any file, direct marketing list,
model, analysis, code, report or application which uses or is derived from the
Lists.
6.
In
addition to the restrictions set forth herein, the Licensee shall not modify,
adapt, translate, reverse engineer, de-compile, disassemble, or otherwise
attempt to discover the technology or methodologies underlying the data in the
Lists, nor shall the Licensee instruct or allow anyone else to undertake such
prohibited actions.
ADMA Services & Do Not Call Register
7.
DSA
will use the Australian Direct Marketing Association’s (ADMA) registries and
services in accordance with industry guidelines and legislation.
8.
DSA
warrants that it has complied with the Do Not Call Register Act 2006
9.
DSA
does not guarantee that the ADMA registry or services are up to date or complete
or that the contents have been obtained for the use and disclosure of the
information from all individuals to whom the data in the Lists relate.
10.
The Licensee
must not use, publish or permit the use or publication of any telephone number
or address which is indicated or which it knows or ought reasonably to know is a
silent address or telephone number.
Licensee’s use of Lists
11.
The Licensee
shall examine the Lists upon the delivery thereof and the Licensee shall notify
DSA in writing within two (2) working days of delivery of any questions or
problems in regard to the List.
12.
The Licensee
agrees that each authorised data element within the List shall not be used more
than once by the Licensee during the Term (unless otherwise agreed in writing
with DSA).
13.
The Licensee
agrees that the data contained within the Lists will not be used by the Licensee
after the date referred to as the Expiration Date within the data supplied
within the Lists.
14.
DSA
discloses that the Lists are seeded to detect any unauthorised use or
duplication hereof. In the event the Licensee uses the Lists in breach of this
agreement the Licensee agrees to pay DSA as liquidated damages a sum equal to
five times the amount invoiced pursuant to Clause 3 for the damage.
15.
In addition
to any liquidated damages payable to DSA as a result of the Licensee’s
unauthorised use of the Lists, the Licensee indemnifies DSA against any claim
made by any entity made as a result of any unauthorised use or duplication of
the Lists by the Licensee.
16.
The List(s)
is for the Licensee’s own internal marketing programs and for no other purpose,
unless otherwise agreed in writing by DSA.
17.
The Licensee
is responsible for all materials intended for mailing to names/addresses on the
List(s) provided by DSA, and further agrees to (i) keep copies of mail materials
for a period of no less than six (6) months after any mail date and (ii) provide
one (1) copy of such materials to DSA as and when requested. The Licensee shall
indemnify DSA with respect to any claim made against DSA for the content of
material supplied by the Licensee.
18.
All
marketing communications used in connection with any marketing list created by
or for the Licensee derived solely from the List(s) shall:
(i)
Not
include a reference as to how the recipient was selected or how the recipient’s
name and address were obtained;
(ii)
prominently display a notice that the recipient may elect not to receive further
direct marketing communications from the Licensee
(iii)
set
out the Licensee’s business address and telephone number or a number or address
at which the Licensee can be contacted electronically if such opt-out
communication is made by electronic means; and
(iv)
be in
good taste in accordance with generally recognized standards of high integrity.
19.
The Licensee
will suppress an individual’s information on request by that individual so that
it is removed from future marketing initiatives by the Licensee. The Licensee
will notify DSA of the request and any other consumer inquiry that involves the
accuracy of the Lists or any part thereof within seven (7) days of the date of
consumer inquiry.
Limit of Liability
20.
DSA shall
not be responsible for, or incur any liability, as the result of delays or
failures in the delivery of any List(s), in schedules or in performing any of
the services described herein in the event of strikes, riots, civil commotion,
act or failure to act of any governmental authority, acts of terrorism, delays
in or failure to deliver any products or materials by the Australia Post or
other public or private transport, equipment breakdown or failure, fires,
floods, windstorm or any other act or occurrence beyond DSA’s reasonable
control.
21.
DSA and the
data owners make no warranties, express or implied, hereunder with respect to
the List(s) or the media on which the List(s) is provided, including but not
limited to warranties of accuracy, completeness, currentness, merchantability or
fitness for a particular purpose. In
no event shall any party or any data owner be liable for any special, indirect,
incidental or consequential damages, whether or not foreseeable and however
arising, including but not limited to lost income or lost revenue, whether based
in contract, tort or any other theory. Any
cause of action arising under this Agreement shall be asserted within one (1)
year of the date upon which such cause of action accrued, or the date upon which
the complaining party should have reasonably discovered the existence of such
cause of action, whichever is later.
22.
To the
extent permitted by law, DSA sole obligation and the Licensee’s exclusive remedy
for any claim of a defective List or any claim of defective services provided by
DSA or any of its related bodies corporate shall be to replace the defective
List or reperform the services in question without charge or, at the Licensee’s
option, to refund the price paid by the Licensee for such defective List or
service. DSA’s aggregate liability to the Licensee whether for negligence,
breach of warranty, or any other cause of action shall be limited to the price
paid for the List(s).
23.
The
Licensee hereby releases and agrees to indemnify and hold harmless DSA, its
officers, agents and employees from any and all liabilities, damages, losses,
expenses, demands, claims, suits or judgments, including all attorneys' fees,
costs and expenses arising from any and all unauthorized use by the Licensee or
by any third party processor, including any service bureau acting on the
Licensee’s behalf.
24.
To the
extent permitted by law, DSA shall not be responsible for any direct or indirect
damages that may result from such unauthorized use of the List(s).
Termination
25.
DSA may
terminate this Agreement:
(i)
immediately if the Licensee breaches this agreement and fails to remedy the
breach within 7 days of notice from DSA;
(ii)
immediately on notice if a third party claims the Data infringes its
intellectual property rights;
(iii)
immediately on notice if it receives legal advice that any part of this
agreement contravenes privacy or data protection legislation; and
(iv)
on 30
days' notice if its costs of complying with any law, in respect of the supply of
the Data to the Licensee, exceed the fees stated in any active Quote/Invoice.
26.
Upon
termination of this Agreement and if requested by DSA, the Licensee agrees to
return all copies of the List(s) to DSA or dispose of the List(s) in a manner
acceptable to DSA, and certify such action in writing.
27.
During the
Term of this Agreement and for a period of one (1) year thereafter, the Licensee
shall maintain current, accurate and complete books and records relating to its
use of the List(s) and shall allow DSA or its representative to examine,
inspect, audit, review and copy or make extracts from all such books and records
and any source documents used in preparation thereof, to ensure compliance with
the Agreement upon reasonable prior written notice.
General
28.
To the extent permitted by law (including the
Trade Practices Act 1974 (Cth)),
the specific conditions and warranties contained
in this agreement are the only conditions or warranties in relation to this
Agreement and replace all conditions and warranties that might otherwise be
implied.
29.
With respect
to the subject matter hereof, the Agreement and Schedule shall be the complete
and exclusive statement of the agreement between DSA and the Licensee. DSA must
accept any changes in this Agreement in writing before those changes become
effective.
30.
This
Agreement shall be governed by and construed in accordance with the laws of