DATA SOLUTIONS AUSTRALASIA PTY. LIMITED
ABN 31 161 743 577
Suite 102, 161 Walker Street, North Sydney, NSW 2060 TEL: 61 2 8908 7788 FAX: 61 2 8908 7799
Between Data Solutions Australasia Pty Ltd ABN 31 161 743 577 trading as Data Solutions Australia of Suite 102, 161 Walker Street, North Sydney, NSW 2060 (hereinafter referred to as DSA)
And 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.
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.
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.
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).
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.
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.
Agreement shall be governed by and construed in accordance with the laws of