Additional Fee means the additional fee for an additional service in relation to the BrandSuite Products provided by Adstream, as set out in clause 2.5 of Schedule 1.
Adstream Account Manager means the Adstream representative nominated by Adstream and notified to Customer from time to time.
Adstream Products means the products to be provided by Adstream as set out in the Commercial Details, which may be comprised of any of the BrandSuite Products, Broadcast Products, Print Products and any other products that may be notified by Adstream to Customer from time to time.
Adstream Rate Card means the current rate card as notified by Adstream to Customer from time to time.
Adstream Site means www.adstream.com.au.
BrandSuite Products means the “BrandSuite Products” to be provided by Adstream as set out in the Commercial Details.
Broadcast Products means the “Broadcast Products” to be provided by Adstream as set out in the Commercial Details.
Commercial Details means the front section of this agreement called “Commercial Details.”
Confidential Information means information which is or has been disclosed to (whether orally, electronically or in writing), or otherwise obtained by, one party from or through the other party in connection with this agreement, other than any such information which:
(a) was in the public domain at the time of its provision;
(b) became part of the public domain after its provision other than as a result of a disclosure in breach of this agreement; or
© is or came into the possession of the other party otherwise than as a result of a disclosure in breach of an obligation of confidence.
Customer Registration Form means an application, in the form provided or approved by Adstream, completed by the Customer to apply for credit from Adstream in respect of the Products.
Early Termination Fee means the relevant fee set out in the Commercial Details.
Fees means the Standard Fee and any applicable Additional Fee.
General Terms means the section of this agreement entitled “General Terms.”
Implementation and Training Schedule means the document available from Adstream that sets out the implementation and training stages involved in the Brandsuite Products.
Products means the Brandsuite Products, the Broadcast Products and the Print Products.
Print Products means the “Print Products” to be provided by Adstream as set out in the Commercial Details.
Standard Fee means the fees set out in the Commercial Details.
Term means the term of the relevant Adstream Product (as set out in the Commercial Details), commencing on the Commencement Date for the relevant Adstream Product (as set out in the Commercial Details).
2 Adstream Products
2.1 Application of Agreement
(a) This agreement applies generally to all Adstream Products. However:
(i) Schedule 1 (BrandSuite Products) sets out the product specific terms that apply to BrandSuite Products;
(ii) Schedule 2 (Broadcast Products) sets out the product specific terms that apply to Broadcast Products; and
(iii) Schedule 3 (Print Products) sets out the product specific terms that apply to Print Products.
(b) If there is any inconsistency between any of the terms set out in General Terms of this agreement and the Schedules, the terms set out in the Schedules will prevail to the extent of any inconsistency.
Adstream grants Customer a non-exclusive and non-transferable licence to access and use the Adstream Products for the Term.
2.3 Conditions of Use
(a) Customer’s continued access to and use of the Adstream Products is subject to timely payment of all invoices issued in accordance with clause 3.
(b) Customer must not cause or permit any unauthorised third party access to or use of the Adstream Products or the Adstream Site.
© Customer must immediately notify Adstream on becoming aware of any unauthorised use or copying of the Adstream Products.
(d) Customer must not:
(i) make a copy of any of the Adstream Products;
(ii) modify any of the Adstream Products or combine or incorporate any of the Adstream Products in any other program or system (although Customer acknowledges that Adstream would own all right, title and interest in any such modifications or combinations);
(iii) reverse engineer any of the Adstream Products or separate any of the Adstream Products into component parts; or
(iv) cause or permit any third party to use, copy or install any of the Adstream Products.
(e) Customer must not create, alter, compile, transmit or publish any material using the Adstream Products that:
(i) contains a computer virus of any kind;
(ii) is an infringement of any intellectual property rights (including copyright) of any third party;
(iii) is defamatory;
(iv) is in breach of any trade practices or other consumer protection legislation; or
(v) is otherwise an infringement of law or any rights of any third party.
(f) Customer warrants that it will not be involved (whether directly or indirectly) in any act, omission or thing that will or may decrease the value of the Adstream Products or the intellectual property contained in the Adstream Products.
2.4 Customer’s obligations
(a) In accordance with clause 1.1(a) of Schedule 1, Customer must allow Adstream to train all new users of any of the Adstream Products, to ensure such users enjoy optimum use of the Adstream Products and their capabilities.
(b) Access to Adstream Products may require the use of one or a series of logins (made up of a combination of an email address and a user-selected password) and pin codes. These are allocated on acceptance by Adstream of an application to become a customer. It is possible to limit the extent of access that a particular login will allow and Customer must advise Adstream of the level of access that each user is permitted at the time of issue of the login.
© All passwords must be kept confidential. Customer is solely responsible for maintaining the confidentiality of all passwords issued. Adstream must be notified immediately of any unauthorised use of any password. In the event that any unique passwords are provided to or accessed by a user other than Customer, Adstream accepts no responsibility or liability for any loss or damage that may result from any use of such password.
2.5 Adstream’s obligations
(a) provide Customer with 24 hour customer and technical phone support for the Adstream Products; and
(b) provide all relevant documentation (including user guides) for the Adstream Products to Customer’s nominated Adstream Products representative.
Adstream retains ownership of all right, title and interest (including intellectual property rights, such as copyright) in the Adstream Products (including any documentation provided by Adstream in relation to the Adstream Products) and the Adstream Site.
3 Credit and Payment
(a) On request by Adstream, Customer will provide to Adstream a completed Customer Registration Form.
(b) On receipt of a completed Customer Registration Form, Adstream will evaluate the credit worthiness of Customer and may require:
(i) the Customer’s credit worthiness be confirmed by a credit-reporting agency; and /or
(ii) the Customer to provide security for any credit extended by Adstream in a form nominated by Adstream (for example by way of a director, personal or bank guarantee).
© Customer authorises Adstream to contact Customer’s banking/financing institution(s), vendor references and credit reporting agencies. Customer hereby grants permission for these parties to release and to make available both current as well as historical commercial credit information to Adstream.
(d) Where Adstream is willing to extend credit to Customer, Adstream will include details of any specific payment terms in the Commercial Details.
(e) At any time during the Term, where Adstream is concerned about the Customer’s ability to pay the Fees, Adstream may require Customer to provide advance payment of the Fees or security for payment in a form nominated by Adstream.
3.2 Invoices and monthly statements
Adstream will provide to Customer an invoice for each product or service provided and a monthly statement that sets out all current and overdue invoices.
Customer will pay Adstream the Fees within 30 days from the date of the monthly statement or, where alternate payment terms are specified in the Commercial Details, the customer will pay the Fees in accordance with those terms.
3.4 Overdue amounts
(a) If Customer has not paid the Fees within 30 days from the statement date or, where alternate payment terms are specified in the Commercial Details this date Adstream may charge Customer interest on the overdue amounts at the rate of 3% above the then published rate of the National Australia Bank’s benchmark rate until the date the overdue amount is paid in full. Customer agrees to reimburse Adstream for any additional expenses incurred by Adstream in collecting any outstanding Fees, including any fees charged by an external debt collecting agency.
(b) If Customer elects to pay by cheque, Adstream will charge Customer an administration fee if Customer’s cheque is dishonoured.
© If Customer has an overdue account, Adstream may, in its absolute discretion, withdraw the credit extended to Customer by Adstream.
4.1 Recovery of GST
If one party (“supplying party”) makes a taxable supply and the consideration for that supply does not expressly include GST, the party that is liable to provide the consideration (“receiving party”) must also pay an amount equal to the GST payable by the supplying party.
4.2 Time for payment of GST amount
Subject to first receiving a tax invoice, the receiving party must pay the GST amount when it is liable to provide the consideration.
4.3 Identity and reimbursement payment
If one party must indemnify or reimburse another party (“payee”) for any loss or expense incurred by the payee, the required payment does not include any amount which the payee (or an entity that is in the same GST group as the payee) is entitled to claim as an input tax credit, but will be increased under clause 4.1 if the payment is consideration for a taxable supply.
In this agreement:
(a) Terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act, unless the context makes it clear that a different meaning is intended; and
(b) Consideration includes non-monetary consideration, in respect of which the parties must agree on a market value, acting reasonably.
5 Warranties, liability and indemnities
Customer acknowledges that:
(a) the Internet is not a completely secure medium of communication;
(b) the speed and upload capability of the Adstream Products available online is determined by the quality of the Internet connection from where such Adstream Products are accessed;
© use of Adstream Products and the availability of the Adstream Site may involve reliance on third party data carriers over which Adstream has no control; and
(d) except as expressly provided in this agreement and to the extent permitted by law, Adstream does not make any warranties of any kind, whether express or implied in relation to goods or services supplied by Adstream in accordance with this agreement (including the Adstream Products).
5.2 Limitation of liability
If any statute implies any term into Customer’s use of, or any arrangement arising out of Customer’s use of the Adstream Products and that statute prohibits exclusion of that term, then that term is included. However, if and to the extent permitted by the statute, Adstream’s liability for any breach of such term is limited to the re-supply of the Adstream Products.
5.3 Exclusion of indirect loss
Adstream, Adstream’s related bodies corporate and Adstream’s licensors are not liable for any indirect or consequential loss or damage, lost profits, lost revenue, lost data or business interruption suffered or incurred by Customer or any other person arising out of or in connection with the provision of the Adstream Products, whether arising from breach of contract or in tort.
5.4 Exclusion of specific liability
Adstream, Adstream’s related bodies corporate and Adstream’s licensors are not liable to Customer or any other person for any loss or damage arising out of or in connection with:
(a) any person gaining unauthorised access to the Adstream Site or any user zone;
(b) any malfunction, bugs or viruses in customer equipment, software or links as a result of using Adstream Products;
© use or disclosure of any data obtained by any third party as a result of the unauthorised access to the Adstream Site or having intercepted any data as it passes between Customer, Adstream or any third party;
(d) defects in or the unsuitability of any materials supplied by Customer or a third party or by Adstream’s adherence to specific instructions given by Customer;
(e) any data sent via the Internet, via or to Adstream, or via any dedicated link made available by Adstream to Customer or to any third party;
(f) the unavailability of the Adstream Site;
(g) Customer’s inability to access the Adstream Site or to use the Adstream Site or the Adstream Products; or
(h) any delay in the receipt of any data transmitted by Adstream or using any of the Adstream Products.
5.5 Liability cap
Subject to clause 5.6, Adstream’s, Adstream’s related bodies corporate and Adstream’s licensors’ liability for any loss or damage (whether arising from breach of contract or in tort) which is not excluded or limited by clauses 5.2, 5.3 or 5.4 is limited in aggregate to the amount of fees paid by Customer for the Adstream Products.
5.6 Liability for non-transmission
If Customer uses the Adstream Products in the transmission of any material and the material is not transmitted, Adstream will (at Customer’s option):
(a) arrange retransmission of the material; or
(b) refund any licence or service fee paid to Adstream in respect of that particular transmission.
Customer agrees this is Adstream’s entire liability to Customer in such circumstances.
5.7 Indemnity by Customer
Customer must indemnify Adstream, Adstream’s related bodies corporate and Adstream licensors (“indemnified party”) against all claims, liability, loss and damage of any kind whatsoever suffered or incurred by an indemnified party arising out of or in connection with Customer’s act or omission or any breach by Customer of this agreement. Customer must provide the indemnified party with prompt notice of any third party claim or threatened third party claim of which Customer has knowledge. Customer must not enter into any settlement or compromise of any third party claim without the indemnified party’s prior written consent.
6 Confidential Information
6.1 Confidentiality obligations
Each party (“Recipient”) who receives Confidential Information from the other party (“Discloser”) must not:
(a) use Confidential Information for any purpose other than performing its obligations under this agreement;
(b) disclose to any person any Confidential Information except as permitted by this agreement; or
© make or assist any person to make any use of Confidential Information other than in accordance with this agreement.
6.2 Certain disclosures not prohibited
Either party may disclose Confidential Information:
(a) to a Representative of the Recipient who needs to know that information for the purposes of this agreement, provided that such disclosure is under conditions of confidentiality consistent with this clause 6; or
(b) in respect of which the Discloser has given its written consent to disclosure or use.
6.3 Notification of disclosure
The Recipient must immediately notify the Discloser of all information which comes to its attention regarding any actual or potential disclosure or use of Confidential Information of the Discloser other than in accordance with this clause 6.
6.4 Return of Confidential Information
On the earlier of:
(a) a demand by the Discloser; or
(b) the expiry or termination of this agreement,
the Recipient must deliver to the Discloser (or with the Discloser’s prior consent, destroy or erase) any Confidential Information of the Discloser in the possession, power or control of the Recipient or any of its representatives.
7 Delay, Suspension and Cancellation
The time for performance or delivery of the Adstream Products or any separately quoted products or services, in every case, is dependent on the prompt receipt of all necessary information, final instructions or approvals from Customer. Alteration by Customer of Customer’s requirements may result in a delay in performance or delivery.
(a) Adstream may at any time withhold the provision of, or Customer’s use of, any of the Adstream Products or any separately quoted products or services or delivery of any goods, pending payment of any sum due from Customer under any agreement between Customer and Adstream or any invoice rendered by Adstream to Customer.
(b) Adstream may at any time without notice to Customer and without liability to Customer or any third party, suspend access to any of the Adstream Products, in the event that:
(i) Adstream needs to carry out maintenance, updates and/or corrections to any of the Adstream Products or the Adstream Site;
(ii) Adstream is obliged to do so to comply with an order, instruction or request of any government or other competent administrative authority; or
(iii) Adstream cannot provide any of the Adstream Products due to any cause beyond Adstream’s control.
© Adstream has no liability to Customer or any third party arising out of, or in connection with, Adstream’s non-provision or non-performance of any of the Adstream Products under paragraphs (a) and (b).
7.3 Cancellation of Print Products
Adstream or Customer may cancel the Print Products in accordance with the Commercial Details.
8.1 Termination for breach
Either party may terminate this agreement with immediate effect if:
(a) the other party is in breach of any provision of this agreement; and
(i) the breach cannot be remedied; or
(ii) the other party fails to remedy the breach within fourteen (14) days after notice is given to the other party to do so.
8.2 Termination for insolvency
Either party may terminate this agreement with immediate effect if:
(a) an application is presented against the other party, an order made or a resolution passed, for the other party’s winding up;
(b) an administrator, trustee, liquidator, provisional liquidator, receiver, receiver and manager or other insolvency administrator is appointed over all or any part of the other party’s assets;
© the other party becomes insolvent, or a party believes, on reasonable grounds that the other party is, or may become, insolvent;
(d) the other party becomes bankrupt, or a party believes, on reasonable grounds, that the other party is, or may become, unable to pay the other party’s debts as and when they fall due;
(e) the other party ceases to carry on the other party’s business or ceases to pay its debts or suspends payment generally; or
(f) the other party enters into, or propose to enter into, any scheme, composition or arrangement with the other party’s creditors generally or with any class of the other party’s creditors or a meeting is convened for any such purpose.
8.3 Termination for convenience
(a) Subject to the payment of any applicable Early Termination Fee, Customer may terminate this agreement on 30 days written notice to Adstream.
(b) Adstream may terminate this agreement on 30 days written notice to Customer.
8.4 Consequences of termination
(a) Termination of this agreement will result in immediate termination of Customer’s access to the Adstream Products.
(b) On termination of this agreement for any reason:
(i) Customer must promptly return to Adstream all of Adstream’s property that is in Customer’s possession or control; and
(ii) Adstream will, provided that Customer has complied with all of Customer’s obligations in this agreement (including payment obligations) promptly return all materials and files owned by Customer in Adstream’s possession or control, in a format as may be agreed between the parties, and the Customer will be responsible for Adstream’s reasonable costs in doing so.
Clauses 5 and 6 survive termination or expiry of this agreement.
(a) Customer may not assign or otherwise deal with all or any of Customer’s rights or obligations under this agreement without Adstream’s prior written consent.
(b) Adstream may assign or otherwise deal with all or any of Adstream’s rights and obligations under this agreement on giving notice to Customer.
9.2 Variation and Waiver
A provision of this agreement or a right created under it, may not be waived or varied except in writing, signed by the party or parties to be bound.
(a) A notice, approval, consent or other communication in connection with this agreement must be in writing and hand delivered, sent by prepaid mail or facsimile to the addressee set out in the Details section on the front of this agreement.
(b) A notice or other communication takes effect when received or otherwise:
(i) in the case of a posted letter – from the third day after posting; and
(ii) in the case of a facsimile – from the production of a facsimile transmission report from the machine from which the notice was sent showing the facsimile to have been successfully sent to the correct facsimile number in its entirety.
If the whole or any part of a provision of this agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this agreement or is contrary to public policy.
9.5 Entire agreement
This agreement set out the entire agreement between the parties concerning all matters dealt with by it, and supersedes any prior agreement between the parties in regard to those matters.
9.6 Governing law and Jurisdiction
This agreement is governed by the law in force in the place specified in the Details. Each party submits to the non-exclusive jurisdiction of the courts of that place.
EXECUTED as an agreement
Schedule 1 – BrandSuite Products
1 Acceptance of terms
By using the BrandSuite Products, Customer agrees to be bound by this Schedule
2 General BrandSuite Terms
2.1 Application of this Schedule 1
This Schedule 1 (BrandSuite Products) applies generally to all BrandSuite Products. However, clauses 3, 4 and 5 of this Schedule apply only to the specific BrandSuite Products covered by those clauses.
2.2 Inclusions in Standard Fee
For the Standard Fee set out in the Commercial Details for the Term, Adstream will provide Customer with the opportunity to discuss, via a telephone meeting with Customer’s Adstream Account Manager once a month (or as otherwise agreed between the parties), any issues associated with the BrandSuite Products; and
2.3 Additional training sessions, meetings and development discussions
For the Additional Fee set out in clause 2.5(a) of this Schedule 1, Adstream may provide training sessions (in addition to any Brandsuite Training purchased) and participate in meetings and development discussions for any of the BrandSuite Products at Customer’s premises.
2.4 System upgrades
For the Additional Fee set out in clause 2.5© of this Schedule 1, Adstream will provide system upgrades for any of the BrandSuite Products that are deemed necessary by Adstream and such upgrades will be activated automatically on Adstream providing notice of such upgrades to users of the BrandSuite Products.
2.5 Additional Fees
(a) Other than the Brandsuite Training provided by Adstream in accordance with the Commercial Details, training sessions, meetings and development discussions in relation to the BrandSuite Products will incur the following additional charges:
(i) Training sessions provided in Sydney or Melbourne – $500 (Excluding GST) per 2 hour session and based on a maximum of 10 people per session;
(ii) Training sessions provided in venues other than Sydney or Melbourne – $500 (Excluding GST) per 2 hour session, plus all associated travel costs;
(iii) Development discussions or meetings – $225 (Excluding GST) per hour, plus all travel costs associated with travel outside of Melbourne and Sydney.
(b) Additional customisations after the initial implementation of the BrandSuite Products will only be provided if Customer and Adstream agree in writing for a price for the provision of such products or services.
© Providing system upgrades in respect of BrandSuite Products will incur the additional charges notified by Adstream to Customer from time to time.
2.6 Implementation and Training Schedule
There are 4 stages for implementation and training of any of the BrandSuite Products. These stages are set out in an Implementation and Training Schedule.
3.1 Adstream obligation
Adstream will upload to AdBank versions 3.1-3.99 only:
(a) all radio and tv files that Customer has already dispatched to a radio or tv broadcaster using Adstream’s radio distribution service or Adstream’s tv distribution service; and
(b) all radio and tv files that Customer dispatches to a radio or tv broadcaster via Adstream’s radio distribution service or Adstream’s tv distribution service within one day of the file being dispatched via the relevant Adstream distribution service.
3.2 Customer’s obligations
Subject to clause 3.1, Customer, or its nominated agency, is responsible for manually uploading any finished assets (eg print, press, brochures and direct marketing) required to be stored in AdBank.
4.1 Adstream obligations
(a) will set up for ImageBank the user names and company structure information provided to Adstream by Customer that is required to populate the standard fields on the ImageBank master screen, including categories and sub categories;
(b) will store file types (including PDF, Excel, and Word files but excluding .exe files) on ImageBank; and
© is not responsible for the licensing and use of any content or images used by Customer or its associated agency in conjunction with ImageBank.
4.2 Customer’s obligations
Customer, or its associated agency, is responsible for manually uploading content into ImageBank
(a) will store file types (including PDF, Excel, and Word files but excluding .exe files) on ProjectBank;
(b) upload to ProjectBank the user names and company structure information provided to Adstream by Customer that is required to populate the standard fields on the ProjectBank master screen;
© on request from Customer, register all new users of ProjectBank as notified to Adstream by Customer from time to time; and
(d) provide a set of ProjectBank user guides to Customer’s nominated ProjectBank representative.
Schedule 2 – Broadcast Products
1 Acceptance of terms
By installing, copying or using the Broadcast Products, Customer agrees to be bound by this Schedule 2.
2 Use of Broadcast Products
In the case of the transportation of any hard copy of audio visual material or other goods which Adstream supply, any packaging supplied by Adstream will, unless otherwise expressly agreed, be intended to provide adequate protection throughout normal conditions of delivery of usual duration. Notwithstanding clause 5 of the General Terms, Adstream is under no liability in respect of any loss or damage, including indirect or consequential loss, loss of profits, loss of revenue, or loss of business opportunity or otherwise arising as a result of damage to or the loss or destruction of such goods.
3 Transmission of PostBox files
If files located on the PostBox are being transmitted outside the PostBox, they must only be sent either:
(a) Postbox to Postbox;
(b) Postbox to TVMM (Broadcaster);
© Postbox to Adstream; or
(d) Postbox to a third party contractor of Adstream, provided such contractor has been agreed to by Adstream.
Standard transaction charges will apply for all such transmissions.
4 Data and audio visual material
Customer is solely responsible for the content of all data which Customer (whether directly or for any third party) places on the Adstream Site and/or which Customer transmits to Adstream or any third party via Adstream or in connection with Customer’s use of Broadcast Products.
Customer warrants that it will at all times maintain and keep effective insurance policies with reputable insurers and for adequate levels of cover which protect Customer against any loss or liability which they may incur whilst using Broadcast Products. This includes, but is not limited to, insurance for any damage or loss for which Adstream is not liable for under the terms of this agreement, insurance which protects Customer against any accidental loss, damage or destruction to any master tapes, sound tapes, video tapes or visual images or sound held in any media whilst in Adstream’s possession or control, uploaded to the Adstream Site or in transit whether via the Internet, a dedicated line of any kind or any physical form of transportation.
Schedule 3 – Print Products
By installing, copying or using the Print Products, Customer agrees to be bound by the following licence terms:
TERMS AND CONDITIONS
These Terms and Conditions (comprising the General Terms and Conditions, the Special Terms and Conditions and Annexure A) govern the use of the Products (as defined below). PLEASE READ THEM CAREFULLY. By installing, copying or using the Products you agree to be bound by these Terms and Conditions. If you do not agree to these Terms and Conditions, do not install, copy or use the Products.
In these Terms and Conditions, and in any instrument created pursuant to or in accordance with them, unless the context otherwise indicates or requires:
“Adstream” means Adstream (Aust) Pty Limited ABN 26 109 644 797;
“Products” means the Software and the Specifications, and any products supplied to you relating to the Software and the Specifications, and all material and information included in, or accessible through, the Software, Specifications and related products;
“Software” means the software products of Adstream, including QuickPrint, QuickPrint PDF+, QuickPrint PDF Lite, PageStore, PageStore Online, Adsolve, Quicksend and Adbits; and
“Specifications” means the mechanical specifications for the Software set out in Part B of the Special Terms and Conditions.
General Terms and Conditions
In consideration for use of the Products and any other related products and services of Adstream, you agree to pay Adstream’s standard charges from time to time and be bound by Adstream’s standard terms of trade from time to time, as notified by Adstream to its customers. Unless otherwise expressly indicated:
(a) QuickPrint must be used in conjunction with PageStore;
(b) Adstream’s stated charges are exclusive of GST (and any other State or Federal tax); and
© Adstream reserves the right to increase its charges so that the amount Adstream receives after payment of GST (and any other State or Federal tax) is equal to the stated charge.
(a) Adstream grants you a licence to use the Products as an end-user in accordance with the Specifications and these Terms and Conditions (the “Licence”).
(b) The Licence is non-transferable and non-exclusive.
© The Licence is limited to a maximum of one (1) computer at the premises at which the Products are installed (the “Location”). If the Products are subsequently installed on additional computers and/or at any place other than the Location, you will require a new licence and you agree to pay all charges under the new licence in addition to the charges payable under this Licence.
(a) Adstream retains ownership of all right, title and interest (including copyright) in all of the Products, other than the Adobe Technology referred to in Annexure A.
(b) You will not:
(i) make a copy of any Product other than for the purposes of installation on a computer in accordance with clause 2©;
(ii) install any Product on computers beyond the maximum number prescribed by clause 2©;
(iii) install any product on computers at any place other than the Location;
(iv) modify the whole or any part of any Product or combine or incorporate the whole or any part of any Product in any other program or system (although you acknowledge that Adstream will have ownership of all right, title and interest in any such modifications or combinations);
(v) reverse engineer any Product or separate any Product into component parts;
(vi) cause or permit any third party to use, copy or install any Product; or
(vii) transfer or resell the Licence or any Product to any third party, or assign any of your rights, benefits or obligations under the Licence or these Terms and Conditions to any third party.
© You also undertake and acknowledge that:
(i) Adstream retains ownership of all right, title and interest in all copies of the Products and the media in or on which such copies are contained, other than the Adobe Technology referred to in Annexure A;
(ii) you will mark all copies of the Products and the media in or on which the copies are contained with a notice of Adstream’s ownership of the Product and the media, the confidentiality of the Product and such other information as Adstream reasonably requires, other than the Adobe Technology referred to in Annexure A;
(iii) you will maintain records of all copies of the Products made by you and the place at which those copies are situated, and supply such records to Adstream upon reasonable notice;
(iv) you will be responsible for ensuring that the Products are used in accordance with the Specifications;
(v) you will be responsible for protecting the Products at all times from unauthorised access, use or damage;
(vi) you will immediately notify Adstream on becoming aware of any unauthorised use or copying of the whole or any part of any Product;
(vii) you will maintain the confidentiality of the Products at all times; and
(viii) you will not be involved (whether directly or indirectly) in any act, omission or thing that will or may decrease the value of the Products or the intellectual property in the Products.
(a) Adstream is not responsible for the content of any material created, altered, compiled, transmitted or published using the Products and you indemnify Adstream against any and all liabilities, claims, losses or expenses arising by reason of such material being:
(i) an infringement of any intellectual property rights (including copyright) of any third party;
(iii) in breach of any trade practices or other consumer protection legislation; or
(iv) otherwise an infringement of law or any rights of any third party; or otherwise arising in respect of such material.
(b) Without limiting the generality of the prohibition on modifications under clause 3(b)(iv), you will indemnify Adstream against any liabilities, claims, losses or expenses arising by reason of such modifications being:
(i) an infringement of any intellectual property rights (including copyright) of any third party; or
(ii) otherwise an infringement of law or any rights of any third party.
Risk of loss or damage to the Products will pass to you upon installation of the Products at the Location and from this time:
(a) you will be solely responsible for the supervision, management and control of the Products; and
(b) you will ensure that the Products are protected at all times from unauthorized access or use by a third party or physical misuse, damage or destruction by any person.
6 Liability of Adstream
(a) You acknowledge the technical difficulty of engineering failsafe graphics transmission software, and you agree that Adstream can give no, and that Adstream does not give any:
(i) guarantee that the Products will work as desired on every (or substantially every) occasion; or
(ii) warranty regarding:
(A) suitability of the Products for the uses to which you put them;
(B) suitability of any material altered by the Products with the processes or the systems of publishers;
© compatibility of any material altered by the Products with the processes or systems of publishers;
(D) compatibility of the Products with any of the systems in conjunction with which you use them; or
(E) accuracy or completeness of any database or other information included in the Products or accessible through using the Products.
(b) You warrant that you have not relied on any representation made by Adstream in relation to the Products other than as expressly set out in these Terms and Conditions.
© To the maximum extent permitted by applicable law:
(i) except to the extent set out in the Special Terms and Conditions below, Adstream will not be liable for any damages (whether in negligence, contract or otherwise and including, without limitation, special, punitive, incidental, indirect or consequential damages and damages for economic loss or loss of profit, loss of confidential or other information, business interruption, personal injury, loss of privacy, failure to meet any duty (including of good faith or of reasonable care), negligence, and any other pecuniary or other loss whatsoever) or any other remedy (whether in negligence, contract or otherwise) in any way related to the Products or any transmission, maintenance or other services supplied by Adstream (or an agent or sub-contractor of Adstream) in relation to the Products or any material submitted through or altered by the Products, regardless of any fault of Adstream (or an agent or sub-contractor of Adstream) and even if Adstream has been advised of the possibility of such damages;
(ii) all warranties and conditions implied by law (including, but not limited to, any in relation to title to the Products, non-infringement of third party rights, merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of information, results, lack of negligence, workmanlike effort, quiet enjoyment, quiet possession and correspondence to description) are expressly excluded; and
(iii) the entire risk arising out of use or performance of the Products (including any alteration of material submitted through the Products) and any transmission, maintenance or other services supplied by Adstream (or an agent or sub-contractor of Adstream) in relation to the Products, remains with you.
(a) The Licence may be terminated by Adstream immediately if:
(i) you are in breach, or threaten breach, of a material provision of these Terms and Conditions;
(ii) you breach any provision of these Terms and Conditions and fail to remedy that breach within fourteen (14) days after notice is given to you to do so; or
(iii) without limiting the generality of the foregoing, you fail to make any payment due to Adstream within sixty (60) days after the due date for such payment.
(b) The Licence may also be terminated by Adstream immediately if:
(i) an application is presented against you, an order made or a resolution passed, for your winding up;
(ii) an administrator, trustee, liquidator, provisional liquidator, receiver, receiver and manager or other insolvency administrator is appointed over all or any part of your assets;
(iii) you become insolvent or Adstream believes, on reasonable grounds that you are, or may become, insolvent;
(iv) you become bankrupt or Adstream believes, on reasonable grounds, that you are, or may become, unable to pay you debts as and when they fall due;
(v) you cease to carry on your business or cease to pay debts or suspend payment generally; or
(vi) you enter into, or propose to enter into, any scheme, composition or arrangement with your creditors generally or with any class of your creditors; or a meeting is convened for any such purpose.
© The Licence may be terminated by either party (for any reason and without cause) on one (1) month’s notice to the other party.
(d) On termination of the Licence, you will:
(i) immediately destroy all copies of the Products held by you or return them to Adstream (at Adstream’s option), and remove the Products from each and every computer or other machine on which they, or a copy of them, are installed; and
(ii) if requested by Adstream, you will provide written certification that this has been done.
(e) Clauses 3, 4, 6 and 7(d) of the General Terms and Conditions, clause 2 of the Special Terms and Conditions and Annexure A will survive termination of the Licence and will survive termination of these Terms and Conditions.
(a) If Adstream is delayed, interrupted in, or prevented from, performing its obligations under these Terms and Conditions by any cause beyond its control, Adstream will not be in breach of these Terms and Conditions and the time for performance of its obligations will be extended by a period of time equal to the duration of the cause of the delay, interruption or prevention.
(b) If any covenant, undertaking or condition of these Terms and Conditions is found to be void or unenforceable at law, that covenant, undertaking or condition will not affect any other covenant, undertaking or condition of these Terms and Conditions and, as far as is possible, will be read down to the extent required to make it enforceable.
© These Terms and Conditions set out the entire agreement between the parties concerning all matters dealt with by them, and supersede any prior agreement between the parties in regard to those matters.
(d) These Terms and Conditions can only be amended in writing, signed by the parties.
(e) The waiver of a breach of any provision of these Terms and Conditions will not be a waiver of any other breach of that provision or the breach of any other provision.
(f) Adstream may assign its rights and obligations under the Licence and these Terms and Conditions to any other party on giving verbal or written notice to you.
(g) All charges incurred by you in connection with the Products, or otherwise in connection with the Licence, will be incurred as principal and not agent.
(h) These Terms and Conditions are governed by, and will be interpreted in accordance with, the laws of the State of New South Wales, Australia; and the parties submit to the jurisdiction of the Courts of New South Wales and the Commonwealth of Australia.
Special Terms And Conditions
1 Incorrect Transmission
If, during the term of the Licence, you use the Products in the transmission of any material and the material is not transmitted properly in accordance with the Specifications, Adstream will (at your option):
(a) arrange proper retransmission of the material; or
(b) refund any licence fee paid to Adstream in respect of that particular transmission; but this will be the entire liability of Adstream to you in such circumstances.
2 Mechanical Specifications
Without limiting the generality of the foregoing provisions of these Terms and Conditions, you acknowledge that Adstream relies on the mechanical specifications, layout, format and other information provided to it by publishers and cannot and does not give any warranty as to the accuracy or completeness of that information. Further, if incorrect or incomplete information results in any type of failure or improper performance of the Products or of any particular use of the Products, Adstream will not be liable to compensate for any loss caused.
1 ADOBE TECHNOLOGY
For the purposes of this Annexure A, “Adobe Technology” means “Adobe” branded software and technology, related documentation and any upgrades, modified versions, updates, additions and copies thereof.
(a) You acknowledge that Adstream may, at its option, integrate and distribute Adobe Technology in and with the Products in accordance with the terms and conditions set out in this Annexure A.
(b) If any Adobe Technology is integrated in, or distributed with, the Products, you acknowledge and agree that you will have a non-exclusive licence to use the Adobe Technology subject to the terms and conditions set out in this Annexure A. All rights to use the Adobe Technology are granted on the condition that such rights are forfeited if you fail to comply with this Annexure A.
1.3 Intellectual Property Rights
(a) The Adobe Technology is owned by Adobe Systems Incorporated (“Adobe”), and the structure, organisation and code of the Adobe Technology are the valuable trade secrets of Adobe. The Adobe Technology is protected by United States copyright law and international treaty provisions. You may not copy the Adobe Technology, except as expressly permitted by this Annexure A. Any copies that you are permitted to make pursuant to this Annexure A must contain the same copyright and other proprietary notices that appear on or in the Adobe Technology. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Adobe Technology. Except as stated above, these Terms and Conditions do not grant you any intellectual property rights in the Adobe Technology.
(b) You may make one backup copy of the Adobe Technology, provided the backup copy is not installed or used on any computer.
1.4 Font License
If the Adobe Technology includes font software, you may embed the font software, or outlines of the font software, into your electronic documents to the extent that the font vendor copyright owner allows for such embedding. The fonts contained in the Adobe Technology may contain both Adobe and non-Adobe owned fonts. You may fully embed any font owned by Adobe.
To the extent permitted by law, neither Adstream nor Adobe gives any warranty, express or implied, as to merchantability, fitness for any particular purpose or non-infringement of the Adobe Technology, or the performance results you obtain by using the Adobe Technology. Neither Adstream nor Adobe will be liable to you for any consequential, incidental or special damages, including any lost profits or lost savings, even if they have been advised of the possibility of such damages, or of any claim by any third party.
1.6 Export Rules
You agree that the Adobe Technology will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Law”). In addition, if the Adobe Technology is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or otherwise located within, an embargoed nation and that you are not otherwise prohibited under the Export Laws from receiving the Adobe Technology.
1.7 General Provisions
If any part of this Annexure A is found to be void and unenforceable, it will not affect the validity of the balance of this Annexure A, which will remain valid and enforceable according to its terms. This Annexure A will not prejudice the statutory rights of any party dealing as a consumer.
“Adobe” and “Adobe PDF Library” are registered trademarks of Adobe in the United States and/or in other countries.