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Standard Terms and Conditions

1.  CONFIDENTIALITY
 
(1)  Each party (“Receiving Party”) acknowledges that the other party (“Disclosing Party”) must not disclose information that is confidential (“Confidential Information”).
 
(2)  The Receiving Party must ensure the Confidential Information is not, in any way or form, disclosed to any other person (including its related entities) and use its best endeavours to protect, preserve and safeguard the Confidential Information from passing into the public domain.
 
(3)  The Receiving Party must not, abuse, misuse or exploit the Confidential Information in any way and must only use it for the sole purpose of acquiring, searching and checking the information, knowledge and facts regarding this Agreement and/or performing its obligations pursuant to and arising from this Agreement and the transactions related to it.
 
(4)  However, notwithstanding anything hereunder, a party is not prohibited nor proscribed from disclosing the Confidential Information where: The Disclosing Party, prior to the Confidential Information being disclosed, has authorised, consented to and agreed to the disclosure the Confidential Information; or, the Confidential Information is disclosed to a party’s legal, financial or other such professional advisor(s) for the purposes of this Agreement and its related transactions; or, the law, a court proceeding or other binding authority or order requires a party to disclose it.
 
(5)  A party is not in breach of this condition, and is not proscribed from disclosing the Confidential Information, if the information has entered the public domain, and/or it was received from a person not a party to this Agreement (“Third Party”) provided that Third Party did not breach or contravene a confidential obligation.
 
(6)  The Receiving Party must immediately return all Confidential Information (in any way or form which it is held) to the Disclosing Party if completion does not occur. The obligations imposed pursuant to this Special Condition survive termination of this Agreement.
 
2.  WARRANTIES
 
(1)  Upon receiving a correctly executed Order Form from the Licensee/Agent, the Licensor warrants it shall furnish and deliver to the Licensee the Data therein requested within five (5) Business Days of receipt of the Order Form and in as accurate a representation as possible as detailed in the Order Form.
 
(2)  The Licensee warrants the Data it receives pursuant to each Order must be used only once and in the manner as prescribed on the said Order Form (“Prescribed Use”), unless otherwise previously agreed to in writing by the Licensor (“Alternate Use”).
 
(3)  The Licensee warrants it shall examine the Data within four (4) weeks of receiving it and if, during those four (4) weeks, the Licensee discovers any mistakes/inaccuracies of any kind therein (“Incorrect Data”), the Licensee shall notify the Licensor of the Incorrect Data (“Notification”).  The Licensor warrants it shall rectify the Incorrect Data within five (5) Business Days of receiving such Notification.  Both parties acknowledge no rectifications shall be made if the Licensor receives Notification after the four (4) week period as specified herein.
 
(4)  The Licensee warrants it shall provide the Licensor with a list of names and addresses of individuals or parties contained within the Data who have requested they wish to be removed from the Data.
 
3.  DELIVERY GUARANTEE
 
The Licensor warrants it will provide the Licensee with a guarantee of 95% deliverable Data for mailing addresses, including, replacing data that has not been delivered (“Undelivered Data”) on a ‘one for one’ basis (“Delivery Guarantee”).  The Delivery Guarantee shall strictly exist for a period of six (6) weeks after delivering the Data, or four (4) weeks of use of the Data, whichever is sooner (“Delivery Guarantee Period”) and it will only apply where the Licensee provides the Licensor with details of the Undelivered Data as sooner as possible but before the expiration of the Delivery Guarantee Period.
 
4.  EXCLUSIVE AND SUPPLIED USE
 
(1)  Upon signing this Agreement and placing subsequent Orders, the Licensor grants the Licensee use of the Data it shall receive pursuant to the terms and conditions herein prescribed.
 
(2)  It is an express condition of this Agreement that under no circumstances shall any party (third or otherwise, (including, but not limited to, any division, affiliate, subsidiary, executor, administrator, successor or assignee of the Licensee) other than the Licensee herein named have access to and use any Data received by Licensee without first receiving the express written consent from the Licensor.
 
(3)  The Licensee acknowledges it, nor any of its employees, agents, contractors or any other such party (related, third or otherwise), must not use the Data to enhance another list/database, or sell, copy, duplicate, distribute, reproduce, lease, assign, extract or use all or part of the Data except for the Supplied Use and within the territorial limits of Australia.
 
(4)  The Licensee must immediately notify the Licensor of any unauthorised access to or use of the Data (“Misused Data”) by any party (“Unauthorised User”) and do all things necessary to recover the Misused Data and/or prevent the Unauthorised User from continuing to use the Misused Data.
 
(5)  The Licensee warrants it shall take all necessary precautions and reasonable steps to ensure the Data is used solely for the Supplied Use and not used for fraudulent or illegal purposes. In the event the Licensee determines the Data or any part of it is being used for fraudulent or illegal purposes (“Illegal Activity”), the Licensee shall immediately take all necessary steps to terminate such Illegal Activity.
 
(6)  The Licensor monitors the use of the Data by Seeding and other control measures and in the event it discovers any inconsistency with regards to the Supplied Use and/or use by an Unauthorised User, it may terminate this Agreement and reserves all its rights to pursue an action for claim for damages against the Licensee in law. The Licensee acknowledges any use other than the Supplied Use and/or use by an Unauthorised User is a breach that could cause significant damage to the Licensor.
 
5.  LEGAL COMPLIANCE
 
All parties shall comply with all applicable laws, including, but not limited to, the Privacy Act 1988, the Do Not Call Register Act 2006, the Spam Act 2003, as amended or replaced from time to time.
 
6.  OWNERSHIP
 
Both parties acknowledge the Licensee is licensing the use of the Data and it does not have any ownership or claim to proprietary, copyright, intellectual or other such rights to the Data whatsoever.  The granting of the License does not cause for any proprietary rights to be transferred to the Licensee whatsoever.
 
7.  PAYMENT

The Licensor reserves the right to request full up front payment from first time Licensees and historically late or non paying customers before the order is delivered.

The Licensee shall pay to the Licensor the fees, expenses, disbursements, charges, stamp duty, taxes and GST as set out in Order Form. Overdue accounts are defined as those being past the 30 days terms of trade limit, or otherwise advised. If an overdue account is paid by credit card, it will incur the applicable merchant fee. List Factory reserves the right to withhold the supply of data on current orders until overdue accounts are settled. An account that remains unpaid after thirty (30) days may incur penalty interest at the rate fixed under division 2 of the Penalty Interest Rate Act 1983 or 1.5% per month, whichever is the greater.  The Licensee shall also pay any reasonable legal fees and/or collection costs incurred by the Licensor in collecting any past due amounts from the Licensee.

8.  GST
 
(1)  Consideration due to be paid or provided for a supply made pursuant to, under or in connection with this Agreement does not include an account of GST and is GST exclusive unless otherwise specified.
 
(2)  Where any supply to be made by one party ('Supplier') to the other party ('Recipient') pursuant to, under or in connection with this Agreement is subject to GST (unless it is otherwise specifically described as 'GST Inclusive'): The consideration payable or to be provided for that supply ('GST Exclusive Consideration') shall be increased by an amount equal to the GST payable (“Additional Amount”); and, (ii) the Recipient must pay that Additional Amount at the same time and in the same manner as the GST Exclusive Consideration payable or to be provided for that supply.
 
(3)  In the event that any payment to be made to a party pursuant to, under or in connection with this Agreement is a reimbursement of an expense or other liability incurred or to be incurred by that party, then the amount of the payment must include any increase in accordance with above if that payment is subject to paying GST.
 
(4)  Notwithstanding anything herein, the Recipient shall not make any payment for a taxable supply made pursuant to, under or in connection with this Agreement until the Recipient has been given a tax invoice by the Supplier.
 
(5)  If an adjustment event has occurred in respect of a taxable supply made under or in connection with this Agreement, any party that becomes aware of the occurrence of that adjustment event must notify the other party as soon as practicable, and the parties agree to take whatever steps are necessary (including to issue an adjustment note), and to make whatever adjustments are required, to ensure that any GST or additional GST on that taxable supply, or any refund of GST (or part thereof), is paid no later than 28 days after it becomes aware that the adjustment event has occurred.
 
9.  CANCELLATION OF ORDER
 
If the Licensee cancels an Order with the Licensor, it must pay the Cancellation Fees as applicable: the set up fee if cancelled before delivery of Data and an Order form is signed; 50% of the Order value if the Order is already delivered.  The Licensee is liable for payment of the Data in full, and cannot cancel the Order ten business days after the Licensor has delivered the Data.
 
10.  MISCELLANEOUS
 
(1)  If the Licensee breaches this Agreement, and without limiting any other right or remedy the Licensor may have, the Licensor may terminate as per clause 11 above.  The Licensee must pay the Licensor the whole of any cost, loss or damage suffered or incurred by the Licensor as a result of the Licensee’s breach of this Agreement as well as the amounts set out on the applicable Order Form.
 
(2)  The Licensee shall indemnify and hold the Licensor harmless from and against any and all third party claims, actions, losses, damages, liabilities, costs and expenses arising out of or in connection with the Licensee's use of the Data.
 
(3)  The Licensor is not responsible for failing to perform its obligations herein if it is prevented or delayed in its performance by a Force Majeure.   In such an event the Licensor will immediately notify the Licensee giving full details of the said event.  The Licensee has no entitlement to, and the Licensor has no liability for,  any costs, losses, expenses or damages it claims to have suffered due to an event of Force Majeure.
 
(4)  This Agreement shall be governed by and interpreted in accordance with the laws of Victoria (as amended) and the parties irrevocably submit to the non-jurisdiction of the Courts of Victoria.
 
(5)  In the event that any provision or part of any provision of this Agreement is deemed void, invalid, illegal or unenforceable for any reason, if capable of being read down, be read down, or may be severed from this Agreement. Such severance will not affect the validity, operation or enforceability of any other provision of this Agreement. A defect in any provision of this Agreement or any part of a provision of this Agreement shall not affect any other provision.
 
(6)  The failure, delay or omission by a party to exercise a power or right conferred on that party by this Agreement will not operate as a waiver of that power or right, and any single exercise of a power or right will not preclude another exercise of that power, or the exercise of another power or right under this Agreement.  A waiver of a provision of this Agreement, or consent to a departure by a party from a provision of this Agreement, must be in writing and signed by both of the parties.
 
(7)  Each party and its signatory below hereto represents and warrants that it has all necessary power and authority to enter into this Agreement and perform its obligations hereunder; and its execution and delivery of and performance under this Agreement does not violate any law, statute or other governmental regulation.
 
(8)  This Agreement is the sole and entire Agreement between the parties.  The parties expressly acknowledge that no representations or warranties have been given by either of them other than those contained in this Agreement and any earlier representations or warranties have been superseded with terms and conditions herein contained.  No part of this Agreement may be amended, varied or modified unless reduced to writing and signed by both parties.  No party may assign, subcontract or otherwise dispose of any of its rights or obligations, whether in whole or in part, under this Agreement without the prior written consent of the other party.


Additional Terms for Agency Resellers

11.  ORDER FORM
 
The Agent acknowledges the Licensor will only accept an Order that has been placed using the prescribed Order Form and no variation, deviation or alternate shall be accepted by the Licensor.  The parties acknowledge this is an essential term of this Agreement and it shall be strictly enforced by the Licensor.
 
12.  WARRANTIES and ACKNOWLEDGEMENTS
 
(1)  Upon receiving a correctly executed Order Form from the Agent, the Licensor warrants it shall furnish and deliver to the Agent the Data therein requested within five (5) Business Days of receipt of the Order Form and in as accurate a representation as possible as detailed in the Order Form.
 
(2)  The Agent warrants the Data it receives pursuant to each Order shall be passed onto the List User as identified on the Order Form and who must only use it once and in the manner as prescribed on the said Order Form (“Prescribed Use”), unless otherwise previously agreed to in writing by the Licensor (“Alternate Use”).
 
(3)  The Licensor acknowledges the Agent has placed an Order on behalf of the List User as its agent and the Data shall be for the use and benefit of the List User.
 
(4)  Both parties acknowledge the Licensor has the right to refuse an Order at all times and for any reasons whatsoever (“the Refusal”).  The Licensor warrants it shall confirm a Refusal in writing to the Agent within business day of receiving an Order.
 
(5)  The Agent warrants it is responsible for ensuring the List User strictly adheres to the terms and conditions herein prescribed.  The Agent warrants it has entered/will enter into a separate agreement with each List User similar to the terms and conditions herein prescribed.
 
(6)  The Agent warrants it shall examine the Data within four (4) weeks of receiving it and if, during those four (4) weeks, the Agent discovers any mistakes/inaccuracies of any kind therein (“Incorrect Data”), the Agent shall notify the Licensor of the Incorrect Data (“Notification”).  The Licensor warrants it shall rectify the Incorrect Data within five (5) Business Days of receiving such Notification.  Both parties acknowledge no rectifications shall be made if the Licensor receives Notification after the four (4) week period as specified herein.
 
(7)  The Agent warrants it shall provide the Licensor with a list of names and addresses of individuals or parties contained within the Data who have requested they wish to be removed from the Data.
 
13.  EXCLUSIVE AND SUPPLIED USE
 
(1)   Upon signing this Agreement and receiving subsequent Orders, the Licensor:
 
(a)  Grants the Agent the right to distribute (but not use) the Data it receives to the applicable List User as identified on the applicable Order Form; and
 
(b)  Grants the said List User a license to use the Data in accordance with the terms and conditions herein prescribed.
 
(2)  It is an express condition of this Agreement that under no circumstances shall any party (third or otherwise, (including, but not limited to, any division, affiliate, subsidiary, executor, administrator, successor or assignee of the Agent and/or List User identified on each Order Form)) other than the List User identified on each Order Form, access and use any Data without first receiving the express written consent from the Licensor.  Notwithstanding this clause, the Licensor grants the Agent access to the Data only to ensure its accuracy and to distribute the Data to the applicable List User as prescribed herein this Agreement.
 
(3)  The Agent acknowledges the following on behalf of itself and as agent for on behalf of the List User:
 
(a)  Neither the Agent nor the List User, nor any of their employees, agents, contractors or any other such party (related, third or otherwise), shall use the Data to enhance another list/database, or sell, copy, duplicate, distribute, reproduce, lease, assign, extract or use all or part of the Data except for the Supplied Use and within the territorial limits of Australia;
 
(b)  The Agent or the List User must immediately notify the Licensor of any unauthorised access to or use of the Data (“Misused Data”) by any party (“Unauthorised User”) and do all things necessary to recover the Misused Data and/or prevent the Unauthorised User from continuing to use the Misused Data;

(c)  The Agent or the List User shall take all necessary precautions and reasonable steps to ensure the Data is used solely for the Supplied Use and not used for fraudulent or illegal purposes. In the event the Agent and the List User determine the Data or any part of it is being used for fraudulent or illegal purposes (“Illegal Activity”), the Agent or the List User shall immediately take all necessary steps to terminate such Illegal Activity.

(d)  The Licensor monitors the use of the Data by Seeding and other control measures and in the event it discovers any inconsistency with regards to the Supplied Use and/or use by an Unauthorised User, it may terminate this Agreement and reserves all its rights to pursue an action for claim for damages in law. The Agent and the List User acknowledge any use other than the Supplied Use and/or use by an Unauthorised User is a breach that could cause significant damage to the Licensor.

Copyright 2014 List Factory Pty Ltd

 
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