License Agreement
Direct Marketing Software
SERVICE AND SOFTWARE LICENCE AGREEMENT
THIS AGREEMENT is for the use and access to three (3) products. These products are:
1. POSTman Web Service Service;
2. Kaleidoscope AMAS compliant software;
3. PAF (files) from Australia Post.
You must agree to the terms and conditions contained within each part of this Agreement if you wish to access and operate the POSTman Web Service Service. The Agreement contains three (3) parts – POSTman Web Service Agreement, Kaleidoscope Agreement, and PAF Agreement.
THIS AGREEMENT is made on the date that the customer registers a POSTman Web Service Service Account or utilises the POSTman Web Service Service in any way.
DEFINITIONS AND INTERPRETATION
Definitions
In this Agreement, unless the contrary intention, appears:
Additional Charge means a charge made in accordance with DMS's or its Agent's standard charge-out rates in effect from time to time and all out-of-pocket expenses of DMS or its Agent. The Customer shall pay to DMS or its Agent all additional charges of DMS or its Agent within 30 days (or such other number of days as is specified in the invoice) of the date of invoice.
Agreement means this Agreement between DMS and the Customer as amended or varied from time to time.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made and is between the hours of 9.00am and 5.00pm.
POSTman Web Service means a software service delivered over the internet, and hosted by DMS, that incorporates both the Kaleidoscope AMAS Compliant Software and the PAF (files) from Australia Post. The POSTman Web Service operates on a "Pay Per Click" basis where each call to the POSTman Web Service, either directly, or via a POSTman Web Service or 3rd party software application may use one or more POSTman Web Service Credits. POSTman Web Service credit may be purchased by the Customer via the POSTman Web Service website or directly via DMS or one of its agents. For details refer to the POSTman Web Service website.
POSTman Web Service Account means an account registered by the Customer either via the POSTman Web Service website or via any other means that permits access to and usage of the POSTman Web Service by the Customer.
POSTman Web Service Website means the website located at www.postmanws.com, www.bizeo.biz or via other associated URLs or such other location as we may notify to you from time to time.
Charges means the fees or charges that are levied by DMS or its Agent for the supply of a Licence to the Customer for the Customer to use and operate software under this Agreement and subject to any variations, additional charges, expenses, taxes or interest as provided by this Agreement.
Customer means the Licensee and is the entity named during the POSTman Web Service Account registration process and includes the Customer's successors and permitted assigns.
DMS means Direct Marketing Software Pty Ltd, A.C.N. 080177975, a business operating in Australia and having its mailing address at PO Box 1566, Milton BC, Queensland, 4064, Australia, and its successors and permitted assigns.
Days means a reference to a day of the week including weekends and public holidays.
Designated Computer Equipment means the Customer's selected equipment on which the Software is to be installed. Designated Computer Equipment must comply with the Specified Operating Environment.
Designated Site means the site at which the Software is to be operated by the Customer as designated in the Registration Form, or any other sites to which the Software is relocated by the Customer as provided by the Agreement.
In Credit with respect to a POSTman Web Service Account means that the Customer has received or purchased sufficient POSTman Web Service Usage Credits so as to have a positive number or credits remaining on the POSTman Web Service Account. Refer to the FAQ section of the POSTman Web Service Website for details on Credit Purchases and Usage.
Licence means the non-exclusive licence for the Software granted to the Customer pursuant to the terms under this Agreement.
Licensed Documentation means the document or documents (if any) relating to the Software as amended from time to time, which are designed to assist or supplement the understanding or application of the Software.
Licensee means the Customer and is the entity named during the POSTman Web Service Account registration process and includes the Licensee's successors and permitted assigns.
Location means the place at which the Designated Computer Equipment of the Customer is located as specified during the POSTman Web Service Account registration process.
Maintenance and Support Services means the maintenance and support services for the Software that are supplied to Customer under a separate Agreement.
Revisions and New Releases in relation to the Software, means software which has been produced to update, extend, altered or improved by providing additional functionality or performance enhancements (including error or defect corrections), while still retaining the original purpose of the Software. Generally a Revision and New Release of the Software will replace an existing version of the Software. Revisions and New Releases are supplied to Customer under the terms and conditions of this Agreement.
Services means the services provided by DMS or its Agent to the Customer under a separate Agreement that DMS or its Agent may agree in writing to provide to the Customer to compliment the operation of the Software supplied under this Agreement.
Specified Operating Environment means the computer hardware, network and operating software system required for the Software to operate, as specified by DMS and amended from time-to-time as Revisions and New Releases of Software are provided.
Software means the computer programs and files in object code listed at the start of this Agreement and includes Revisions and New Releases of the Software and modified software supplied to the Customer by DMS or its Agent.
Usage Credits means the Credits on a POSTman Web Service Account that permit usage of the POSTman Web Service. POSTman Web Service Credits may be given to the customer or purchased by the customer via the POSTman Web Service Website purchase facility. One or more Usage Credits may be consumed on each use of the POSTman Web Service by the Customer either via a POSTman Web Service Application or via the customers or 3rd Parties application or website.
Interpretation
The headings used in this Agreement are included for convenience and reference only and shall not be construed as affecting the meaning and interpretation of this Agreement.
A reference in this Agreement to a statute includes all amendments to the statute and any statutes passed in substitution for the statute.
This Agreement shall extend to and include every renewal, extension, variation or amendment to this Agreement.
The Schedules attached forms part of and is incorporated in this Agreement.
References to the singular include the plural and vice versa.
THE PARTIES AGREE AS FOLLOWS:
PART 1 - POSTman Web Service AGREEMENT
By registering for or utilizing the POSTman Web Service, you will become legally bound by the POSTman Web Service Agreement below.
1. LICENCE
1.1 We grant you, during the term of this agreement and subject to these terms and conditions, a non-exclusive non-transferable license to access and use the POSTman Web Service.
2. USE OF POSTman Web Service
2.1 You must provide all equipment and facilities you may need to access and use the POSTman Web Service in the method it is provided to you.
2.2 You may, at your own risk, provide relevant extracts of the POSTman Web Service to third parties, but you must not make available the whole or a significant part of the POSTman Web Service to a third party without our express prior written consent.
2.3 You must only use the POSTman Web Service strictly in accordance with all usage, operating and any other instructions provided to you from time to time, including those advised via the POSTman Web Service.
2.4 You are responsible for maintaining the currency, integrity and security of the systems you use to utilize the POSTman Web Service.
2.5 You must not use the POSTman Web Service in any way that may infringe the rights of any person (including intellectual property rights and any privacy rights) or breach any relevant law. We make no representation or give any warranty that any use or disclosure by you of POSTman Web Service will be lawful regardless of whether it may be permitted by this agreement.
2.6 You must promptly notify us if you believe you have discovered an error in the POSTman Web Service, or if you become aware of any relevant circumstance that may lead to a complaint or claim being made against the Commonwealth (for example, in respect of breach of privacy or intellectual property rights).
2.7 You must not misrepresent your rights under this agreement or use the POSTman Web Service in any way that is or may be false, misleading or deceptive.
2.8 You must not represent or imply, or allow any associated person to represent or imply, that the Commonwealth endorses, approves, or is affiliated in any way with you or any use you may make of the POSTman Web Service or any of your products or services.
2.9 You acknowledge that details that form part of the POSTman Web Service may subsequently be withdrawn from the POSTman Web Service.
3. POSTman Web Service
3.1 Access to the POSTman Web Service is restricted to authorised users, ie. The customer, its staff and authorised representatives.
3.2 The POSTman Web Service has been implemented in a technical environment designed to provide high availability and be reasonably fault tolerant. However, as with any technical system, the POSTman Web Service may not always work as described and may be subject to interruption or breakdown for a wide variety of reasons. You acknowledge and agree that your use of the POSTman Web Service is on an 'as is, as available' basis only.
3.3 We may alter or, where there is reasonable cause, suspend the POSTman Web Service at any time.
3.4 You must have contingency plans to deal with any disruption or unusual delay occurring in respect of the POSTman Web Service.
4. SECURITY
4.1 You must take all reasonable action to protect and maintain the security or all user-ids, passwords, encryption keys and other information relating to access, authentication or security relating to the POSTman Web Service, including those of any user sub-accounts you create.
4.2 You must take all reasonable action to prevent and detect unauthorised use of the POSTman Web Service originating within or via your organisation.
4.3 You must immediately notify us if you know or suspect hat access or authentication security information has been compromised or any other kind of unauthorised use or security breach has occurred.
4.4 You are responsible for all use (including unauthorised use) of your POSTman Web Service account, including that via any user sub-accounts you create.
5. TERMINATION
5.1 You may terminate this agreement at any time by giving us not less than 7 days prior written notice.
5.2 If you breach these Conditions of Use, we can give you a notice setting out the details of the breach and require you to rectify it within 7 days. If you fail to rectify the breach within that period we may immediately terminate this agreement by providing you with written notice that this has occurred.
5.3 Access to and use of the POSTman Web Service by you or any of your users may be suspended if we feel it is necessary to protect our interests or those of any other person while we are investigating any breach of security or possible breach of this agreement or while any such breach is being rectified by you.
5.4 We may also terminate this agreement for our own reasons and without fault on your part providing we give you not less than 30 days prior written notice.
6. DISCLAIMER AND LIMITATION OF LIABILITY
6.1 To the extent permitted by law:
6.1.1 the POSTman Web Service is provided "as is" and without warranties of any kind, either express or implied,
6.1.2 we expressly disclaim all representations and warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose,
6.1.3 we do not represent or warrant that your access to or use of the POSTman Web Service will be uninterrupted or error-free, that any defects will be corrected or that the POSTman Web Service or the server which stores and transmits the POSTman Web Service to you are free of viruses or any other harmful components,
6.1.4 we do not warrant or make any representation that the POSTman Web Service is correct, accurate, up to date, complete, reliable or is not subject to errors or malfunctions of any kind, and
6.1.5 you (and not us) assume the entire risk for any use you make of the POSTman Web Service.
6.2 To the extent permitted by law, we have no liability to you in respect of any loss or damage that you might suffer that is directly or indirectly related to the POSTman Web Service, no matter how arising (including as a result of negligence).
6.3 Under no circumstances (including but not limited to any act or omission by us) will we be liable for any indirect, incidental, special and/or consequential damages or loss of profits whatsoever which result from any use or access of, or any inability to use or access, the POSTman Web Service.
6.4 To the fullest extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded limited at our option to any of the following:
6.4.1 in the case of services supplied or offered by us,(i) the supply of the services again, or (ii) the payment of the cost of having services supplied again; and
6.4.2 in the case of goods supplied or offered by us, (i) the replacement of the goods or the supply of equivalent goods, (ii) the repair of such goods, (iii) the payment of the cost of replacing the goods or acquiring equivalent goods, or (iv) the payment of the cost of having the goods repaired.
7. INDEMNITY
7.1 You indemnify us against any loss, damage, cost, expense, claim, proceeding or liability of any kind that we (or our personnel) may incur to any third party arising out of your use (including unauthorised use) of or access to the POSTman Web Service, or the lawful exercise of our rights pursuant to this agreement.
8. NOTICE
8.1 You must appoint and notify us of the details of your nominated client contact, who you have duly authorised to bind you in respect of all matters related to this agreement. If the details of your client contact change, you must immediately notify us.
8.2 We may send notices to you by delivering them to your client contact at the email, fax, postal or business address you have nominated.
8.3 You may send notices to us by delivering them to our email, fax, postal or business address.
8.4 Without prejudice of any other way to establish delivery has occurred, delivery will be deemed to have occurred when:
8.4.1 an email has been received into the relevant electronic mail box, whether the message has been read or not; and
8.4.2 a facsimile transmission has been confirmed as successful by a relevant confirmation report issued by the sending fax machine.
8.4.3 This agreement is governed and will be construed according to the laws of the State of Queensland.
PART 2 - KALEIDOSCOPE AGREEMENT
Kaleidoscope software is a joint development between Direct Marketing Software Pty Ltd and PMP Data Based Marketing Pty Ltd (trading as Pacific Micromarketing). All intellectual property in the Kaleidoscope software is owned by Direct Marketing Software Pty Ltd. All rights in the Kaleidoscope trademark are owned by Pacific Micromarketing.
Kaleidoscope software is an AMAS compliant product under the Australia Post AMAS program for appending DPIDs and barcodes to customer databases for the purposes of gaining mailing discounts.
This Agreement is made between Direct Marketing Software Pty Ltd and you, the Customer, whose name and address details are specified on the Registration Form for the supply of one Software Licence subject to the terms set out below.
Introduction
DMS has agreed to deliver to the Customer access to the Software via the POSTman Web Service and to grant the Customer a non-exclusive Licence to use the Software and Licensed Documentation upon the terms and conditions contained in this Agreement.
It is agreed
1. Grant of Licence
1.1 DMS grants The Customer a non-exclusive Licence to use the Software on the terms and conditions contained in this Agreement.
1.2 DMS warrants that it has the right and authority to grant the Licence upon the terms and conditions contained in this Agreement.
2. Term
2.1 The term of this Agreement shall commence on the date set out in the Registration form and shall continue until the next anniversary date of December 31, in any year, unless terminated earlier in accordance with this Agreement.
3. Licensed Documentation
3.1 No Licensed Documentation is supplied with this software.
4. Licence Fee
4.1 Access to the Software is supplied to The Customer free of any additional Licence Fee when purchased as a package of software products with other Software supplied by DMS or its Agent.
5. Use Restrictions
5.1 The Customer may only use the Software in accordance with the Licensed Documentation and any direction issued from time to time by DMS or its Agent.
6. Delivery and Installation
6.1 DMS or its Agent shall promptly notify the Customer of any additional or customised software upon which the Software is dependent for its proper functioning. DMS shall provide or develop such additional or customised software and DMS or its Agent may make an additional charge to the Customer for providing or developing such additional or customised software.
6.2 DMS or its Agent shall use its reasonable endeavours to deliver to the Location and enable the installation upon the Designated Computer Equipment the Software during normal business hours.
6.3 The Customer shall give to DMS or its Agent such reasonable assistance, including the provision of personnel and equipment, as DMS or its Agent reasonably considers necessary, to ensure satisfactory delivery and installation of the Software. Such reasonable assistance may include the provision of modem equipment, communications connection and software as DMS or its Agent may recommend.
6.4 If the computer designated by the Customer for the installation of the Software is, in the reasonable opinion of DMS or its Agent, inadequate for the proper operation of the Software, and the Customer does not within seven (7) days of DMS or its Agent's request designate another computer which is, in DMS or its Agent's reasonable opinion, adequate for the proper operation of the Software, DMS or its Agent may, at its discretion, terminate this Agreement but nevertheless shall be entitled to make an additional charge to the Customer in respect of the delivery and attempted installation of the Software.
7. Copy Restrictions
7.1 The Customer acknowledges DMS's proprietary rights in respect of the Software.
7.2 Subject to clause 7.3, the Customer shall not copy, alter, modify or reproduce any or all of the Software.
8. Transfer Restrictions and Copy Standards
8.1 The Customer shall not, without the prior written consent of DMS, sell, assign, transfer, lend, rent, mortgage, encumber, sub-licence or otherwise dispose of, on either a temporary or permanent basis, the Software, in whole or in part, or of any of the rights, duties or obligations conferred upon it under this Agreement.
8.2 The Customer must reference DMS under Copyright notice on any material, printed or electronic, referencing DMS's intellectual property ownership rights in the Software.
8.3 The Customer must reference Pacific Micromarketing under Copyright notice on any material, printed or electronic, referencing the Kaleidoscope trademark.
9. Updates
9.1 DMS or its Agent shall deliver via the POSTman Web Service a New Release of the Software, within 30 days of the release of such New Release Software when the Customer has a current POSTman Web Service Account usage Agreement which includes the AMAS option for the 12 month AMAS cycle.
10. Security
10.1 The Customer will be solely responsible for the use, supervision, management and control of the Software and all copies of the whole or any part of the Software made by it.
10.2 The Customer will ensure that the Software and all copies of the whole or any part of the Software made by it are protected at all times from access, use or misuse, damage or destruction by any person not an employee of the Customer or authorised by DMS or its Agent for that purpose.
10.3 The Customer shall notify DMS or its Agent immediately upon becoming aware of any unauthorised use or copying of the whole or any part of the Software.
10.4 Immediately upon the expiration or termination of this Agreement, the Customer shall, at its expense, deliver up to DMS or its Agent the Software (including all copies, authorised or otherwise) and Licensed Documentation (including all copies, authorised or otherwise), whether in their original form or modified or otherwise or, if requested by DMS or its Agent, shall destroy the same and certify in writing to DMS or its Agent that they have been destroyed.
11. Risk
11.1 Risk of damage to or loss of the whole or part of the Software shall pass to the Customer upon delivery of the Software to the location.
12. Modifications
12.1 The Customer shall not directly or indirectly modify or allow the modification of the whole or any part of the Software or combine or incorporate the whole or any part of the Software in any other program or system without the approval of DMS.
12.2 If the Software is modified in accordance with the preceding clause 12.1, the modifications shall, unless DMS directs otherwise, be made by DMS and DMS may make an additional charge to the Customer in respect of such modifications.
12.3 The Customer shall fully indemnify and hold harmless DMS against any liability incurred if modifications made by or at the request of the Customer infringe or are alleged to infringe the intellectual property rights of any third person.
12.4 The Software shall remain the property of DMS even if modified or altered by any person.
12.5 This Agreement shall continue to apply to the Software as modified.
13. Training
13.1 DMS or its Agent will, if requested by the Customer, provide training in the use of the Software. An additional fee will be levied for training.
14. No Creation of Derivative Works
14.1 Subject to this Agreement, the Customer shall not:-
(1)directly or indirectly modify, adapt, translate, reverse engineer, de-compile, disassemble or create derivative works based on the Software or allow a third party to do any of those things; or
(2)directly or indirectly modify, adapt, translate or create derivative works based on the Licensed Documentation or allow a third party to do any of those things.
15. Confidentiality
15.1 In this clause 15, "Confidential Information" means material or information provided by DMS or its Agent to the Customer or emanating from DMS or its Agent and obtained by the Customer which relates to any or all of the Software, DMS or its clients or otherwise arising from or in connection with this Agreement but excludes material or information which is at the time of disclosure or subsequently becomes material or information in the public domain otherwise than as a result of the breach either by the Customer of this Agreement or by any third party of its agreement with DMS.
15.2 The Customer shall:-
(1) treat Confidential Information as secret and confidential and as the property of DMS;
(2) not use Confidential Information for any purpose other than as contemplated by this Agreement or otherwise in the performance of its obligations pursuant to this Agreement;
(3) restrict the disclosure of Confidential Information to those employees who require Confidential Information to enable the Customer to use the Software as contemplated by this Agreement or otherwise to perform its obligations pursuant to this Agreement; and
(4) ensure that each person to whom Confidential Information has been disclosed complies with the obligations of the Customer under this Agreement and, if required by DMS or its Agent, executes a confidentiality agreement in the form reasonably required by DMS.
15.3 The Customer acknowledges that any discoveries, inventions, patents or designs or other rights arising, directly or indirectly, out of or in performance of this Agreement shall be the property of DMS.
15.4 The provisions of this clause 15 shall survive the termination for any reason of this Agreement.
16. Source Code
16.1 The Customer shall have no right or access to or use of the source code relating to the Software.
17. Address Matching Approval System (AMAS)
17.1 This Licence Agreement includes the Postal Address File (PAF) for use in the Australia Post AMAS program and the Customer unconditionally agrees to the terms under which the PAF is licensed to the Customer. These terms are detailed in Part 3 - PAF Agreement.
18. Warranty
18.1 DMS shall not be liable to remedy any defect in the Software if:-
(1)the defect is the result of alterations or modifications to the Software not authorised in writing by DMS;
(2)the defect is the result of use of the Software in combination with equipment, programs or services not authorised in writing by DMS;
(3)the defect is the result of use of the Software other than in the operating environment recommended by DMS or otherwise than in accordance with this Agreement or DMS's directions; or
(4)the defect is the result of failure of the Customer to meet its obligations under this Agreement.
19. Exclusion of Implied Warranties
19.1 Except as expressly provided to the contrary in this Agreement, all terms, conditions, warranties, undertakings, inducements or representations whether expressed, implied, statutory or otherwise relating in any way to the Software or to this Agreement are (to the fullest extent permitted by law) excluded.
19.2 Without limiting the generality of clause 19.1, DMS or its Agent shall not be under any liability to the Customer (other than liability which may not be lawfully excluded) in respect of any loss or damage (including consequential loss or damage such as loss of profit or anticipated profit, loss of data, loss of use, damage to goodwill and loss due to delay) however caused (including breach of contract, negligence and/or breach of statute), which may be suffered or incurred or which may arise, directly or indirectly, from or in connection with the Software, Licensed Documentation or the failure or omission on the part of DMS or its Agent to comply with any or all of its obligations under this Agreement.
19.3 If any Act whether State, Territory or Commonwealth implies into this Agreement any term, condition or warranty and that Act avoids or prohibits provisions in a contract excluding or modifying the application of, or liability pursuant to, that term, condition or warranty, that term, condition or warranty shall be deemed to be included in this Agreement except that the liability of DMS for a breach of such a term, condition or warranty other than a warranty implied by section 69 of the Trade Practices Act 1974 (Commonwealth) (or an equivalent section of corresponding legislation of any State or Territory) is limited to, at the option of DMS, any one or more of the following:-
(1) if the breach relates to goods:-
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired; and
(2) if the breach relates to services:-
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again.
19.4 The Customer warrants that it has not relied on any representation made by DMS or its Agent, which has not been stated expressly in this Agreement, or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by DMS, Pacific Micromarketing or any Agent of DMS.
20. Indemnity - Copyright Infringement
20.1 Subject to clauses 20.2 and 20.3, DMS shall indemnify and hold harmless the Customer against liability under any final judgment in proceedings bought by a third party against the Customer determining that the Customer's use of the Software constitutes an infringement of Australian copyright.
20.2 DMS shall not be liable to the Customer under clause 20.1 if:-
(1) The Customer does not promptly notify DMS or its Agent of the third party's claim within twenty-one (21) days of becoming aware of the claim;
(2) DMS's ability to defend the claim has been materially prejudiced by the Customer's non-compliance with any of its obligations under this Agreement;
(3) the Customer does not give DMS or its Agent reasonable assistance in defending the claim;
(4) the claim has arisen because of the use of the Software in combination with equipment, materials or computer programs not supplied or approved by DMS; or
(5) the Customer does not permit DMS to have control of the defence of that claim and/or related settlement negotiations.
20.3 DMS shall not indemnify the Customer if such infringement, suspected infringement or alleged infringement arises from:-
(1) use of the Software in any combination by any means and in any form with computer programs not specifically approved by DMS;
(2) use of the Software in a manner or for a purpose not reasonably contemplated or not authorised by DMS;
(3) modification or alteration of the Software without prior consent in writing of DMS; or
(4) any transaction entered into by the Customer relating to the Software without DMS's prior consent in writing.
20.4 The Customer shall indemnify and hold harmless DMS against all losses, costs, expenses, demands and liabilities, whether direct or indirect, arising from or in connection with a claim by a third party alleging such infringement if:-
(1) the claim arises from an event specified in clause 20.3;
(2) the ability of DMS to defend or settle the claim has been materially prejudiced by the failure by the Customer to comply with the provisions in clause 20.2; or
(3) information provided to DMS or its Agent by the Customer to enable DMS to develop the Software encroaches upon any intellectual or industrial property rights of a third party.
21. Force Majeure
21.1 A failure or omission by either party to perform or observe the provisions of this Agreement shall not, except in relation to an obligation to pay money, give rise to any right of action or claim against that party or be in breach of this Agreement if the failure or omission arises from any cause beyond the reasonable control of that party.
22. Termination
22.1 DMS or its Agent may, without prejudice to its other rights under this Agreement or at law, immediately terminate this Agreement, upon provision of notice in writing to the Customer, if:-
(1) any amount due from the Customer under this Agreement is not paid within thirty (30) days of the due date for payment thereof;
(2) The Customer fails to perform or observe any provision of this Agreement and does not remedy that failure to perform or observe within fourteen (14) days after receiving written notice from DMS or its Agent requiring it to be remedied;
(3) The Customer disposes of all or any part of the Software; or
(4) The Customer becomes an insolvent under administration or an externally-administered body corporate as defined in section 9 of the Corporations Law (as the case requires);
(5) The Software ceases to be approved under the AMAS scheme as defined in the Part 3 - PAF Agreement.
22.2 Termination of this Agreement for any reason shall not affect any right or remedy accruing to either party prior to the termination.
22.3 Upon termination of this Agreement for whatever reason, the Customer must immediately upon request furnish DMS or its Agent with written confirmation that it has complied with clause 10.4 of this Part 2 of the Software Licence Agreement.
23. Software Maintenance and Support
23.1 In this Agreement, "maintenance" encompasses such support as is reasonably necessary to ensure that the Software is substantially free of defects and errors and comprising:-
(a) telephone advice;
(b) error and defect correction by whatever means considered appropriate by DMS; and
(c) on-site attendance at the location followed by such advice, programming or reconfiguration as DMS or its Agent considers reasonably necessary.
23.2 In the case of Software being used in conjunction with other DMS software products, the Customer may be offered a Maintenance and Support agreement. In the case of Software being used in conjunction with DMS software products where no Maintenance and Support agreement is available, the Customer may request DMS or its Agent to provide Maintenance and Support on a time and materials basis. Where maintenance services are requested by the Customer and provided by DMS or its Agent in respect of Software that is performing in accordance with the provisions of this Agreement, DMS or its Agent may make an additional charge to the Customer in respect of those maintenance services. Such maintenance services may include:
(1) correction of errors or defects caused by any modification, revision, variation, translation or alteration of the Software not authorised by DMS;
(2) correction of errors or defects caused by the use of the Software or the Designated Computer Equipment by a person or persons not authorised by DMS;
(3) correction of errors caused in whole or in part by the use of computer programs other than the Software;
(4) correction of errors caused by the failure of the Customer to provide suitably qualified and adequately trained operating and programming staff for the operation of the Software;
(5) subject to clause 13, additional training of operating or programming staff;
(6) rectification of operator errors;
(7) rectification of errors caused by incorrect use of the Software;
(8) rectification of errors caused by a fault in the Designated Computer Equipment;
(9) equipment maintenance;
(10) diagnosis or rectification of faults not associated with the Software; or
(11) correction of errors arising directly or indirectly out of the Customer's failure to comply with this Agreement.
23.3 If the Customer so requests, DMS or its Agent may provide any of the maintenance services referred to in clause 23.2 in which event DMS or its Agent may make an additional charge to the Customer for providing such services.
24. Notices
24.1 A notice or other communication required or permitted to be given by a party to another shall be in writing and:-
(1) delivered;
(2) sent by mail, postage prepaid.
24.2 A notice or other communication is sufficiently given if:-
(1) delivered, with a receipt provided;
(2) mailed by registered mail receipt requested.
24.3 A party may change its address for service by giving notice of that change to the other party.
26. Severability
26.1 If a Court determines that a word, phrase, sentence, paragraph or clause is unenforceable, illegal or void then it shall be severed and the other provisions of this Agreement shall remain operative.
27. Governing Law
27.1 This Agreement is governed by the Laws of Queensland. Each party submits to the non-exclusive jurisdiction of courts there in connection with matters concerning this Agreement.
28. Entire Agreement
28.1 This Agreement contains the entire agreement between and understanding of the parties relating to the subject matter of this Agreement. There is no other written or oral understanding, agreement, warranty or representation whether express or implied in any way extending, defining, varying or limited this agreement.
29. Variation
29.1 No variation of a provision of this Agreement shall be effective unless in writing and executed by DMS and the Customer.
30. Non-Partnership
30.1 This Agreement does not create or evidence a partnership, agency or joint venture relationship between any of the parties.
30.2 Neither party shall have the authority to bind the other to a person or otherwise to act in any way as the representative of the other unless otherwise expressly agreed in writing signed by both parties.
31. Assignment
31.1 The Customer shall not assign its interest in the subject matter of this Agreement or any right under this Agreement.
32. Interpretation
32.1 A reference to a person includes a reference to a firm, corporation or other corporate body.
32.2 A reference to a statute, regulation or provision of a statute or regulation ("statutory provision") includes a reference to:-
(i) that statutory provision as amended or re-enacted from time to time; and
(ii) a statute, regulation or provision enacted in replacement of that statutory provision.
32.3 A reference to writing includes a reference to printing, typing and each other method of producing words in a visible form.
32.4 Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have corresponding meanings.
32.5 Headings where used in this document are purely for the purposes of identification and must not be considered in the interpretation of the provisions of this Agreement.
32.6 If the Customer consists of more than one person, this Agreement binds those persons jointly and each of them severally.
32.7 DMS or its Agent's failure or delay to exercise a power or right does not operate as a waiver of that power or right and the exercise of a power or right by DMS does not prejudice its future exercise or the exercise of any other power or right.
32.8 If a day appointed by this Agreement for the payment of money or the performance of an act falls on a day which is not a business day the day for the payment of that money or the performance of that act shall instead be the business day immediately following the day appointed.
32.9 The words "including" and "such as" and similar words are not intended to be words of or imply any limitation.
33. Disclosure of Agreement
33.1 Subject to clause 32.2, the Customer agrees that DMS shall have the right to refer to and discuss this Agreement as a reference for attracting work from potential new clients of DMS or to include references to this Agreement in DMS promotional material from time to time as DMS sees fit.
33.2 DMS or its Agent shall not be entitled to disclose any confidential information whatsoever of the Customer in any promotion of DMS or it Agent's business.
PART 3 - PAF AGREEMENT
This part of the Licence Agreement is for the use of Postal Address File (PAF) and participation in the Address Matching Approval System (AMAS) for the purposes of letter barcoding and the receiving of postal discounts for bulk mail lodgements.
Introduction
DMS has agreed to make available for use by the Customer the Software and to grant the Customer a non-exclusive Licence to use the Software and Licensed Documentation upon the terms and conditions contained in this Agreement.
1. Definitions
"AMAS" means Australia Post’s Address Matching Approval System (documented in the
AMAS handbook which is subject to revision from time to time) which is a Program that evaluates and approves software based on the software’s ability to validate, match and append the correct DPID.
"Australia Post" means the Australian Postal Corporation.
"Barcode Pricing" means Australia Post’s special postage prices for mail that has been prepared using the Sub-Licensee Software, together with a barcode printed on the mail, in accordance with Australia Post’s conditions for lodgment of mail as amended from time to time.
"Confidential Information" means the confidential information of Australia Post which includes information relating to the design, specification or content of the PAF.
"Delivery Point Identifier" or "DPID" means an eight character code which has been developed by Australia Post to enable delivery points to be uniquely identified.
"End User" means the Party bound by these provisions.
"Expiry Date" means the date upon which this License Agreement ends.
"Intellectual Property Rights" includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, rights in trade, business or company names, and such other rights as are generally accepted as falling within the term "intellectual property", and shall also include any rights to application or registration of such rights, in Australia or elsewhere, and whether created before, on or after the date of this Agreement.
"Licensor Software" means the version of software produced by the Licensor and approved by Australia Post in accordance with AMAS which (when used in conjunction with the PAF) can validate, match and correct the Licensor's and any End User's address database files, and append correct DPIDs.
"PAF" means the Postal Address File which is a database created by Australia Post containing information on addresses to which Australia Post may deliver mail, the information associated with each address record on the PAF consists of:
(a) a DPID; and
(b) the address details in a correct address format.
"Permitted Purpose" means the preparation of mailing list and/or databases by the End
User:
(a) by correcting and validating addresses; and
(b) by appending DPIDs to validated addresses, and
(c) by matching of individual DPID’s to a corresponding address, PROVIDED that no software, list or database may contain functionality which allows reverse engineering of the PAF or use any not permitted by this Agreement.
"Test Standard" means a software performance standard set by Australia Post to approve the Licensor Software for the Permitted Purpose. The test standard is more fully described in the current AMAS Handbook published by Australia Post
2. License
2.1 The Licensor Software may only be used by the End User during the License term, and may only be used by the End User for the Permitted Purpose.
2.2 The End User shall comply with all requirements of the Privacy Act 1988 as amended by the Privacy Amendment (Private Sector) Act 2000 ("the Act") relevant to its possession or use of the PAF.
2.3 The End User acknowledges that:
(a) Australia Post has approved that the Licensor Software has achieved the Test
Standard specified by Australia Post;
(b) the approval of the Licensor Software by Australia Post does not represent an
endorsement by Australia Post that the Licensor Software is suitable for the End User’s purposes or is capable of being used by the End User; and
(c) any and all enquiries concerning the characteristics or performance of the
Licensor Software must be referred to the Licensor, and not to Australia Post.
2.4 The Licensor warrants that it will supply quarterly PAF updates to the End User via updates to the POSTman Web Service within 30 days of the end of the month of such updates being supplied to the Licensor. The Licensor may provide such updates to the End User by providing an upgrade to the Licensor Software and Service.
3. Intellectual Property Rights
3.1 The End User acknowledges that the PAF and the Intellectual Property Rights in the PAF are and shall remain the property of Australia Post. Nothing in this Agreement shall operate as an assignment of any Intellectual Property Right that exists in the PAF. The PAF may not be sold, copied or distributed without prior written permission from Australia Post.
SCHEDULE
Item 1 (Software):
The directory and the software to be supplied will be:
Kaleidoscope, incorporating Australia Post's Postal Address File (PAF).
Item 2 (Use):
The Software shall only be used in connection with the following applications:
Appending DPID's to address records
Appending Australia Post's PAF corrected and formatted address data to address records.
For the above purposes only, the Software may be incorporated within the Customer's programs and systems.
Item 3 (Additional materials):
Updates of Kaleidoscope, incorporating updated versions of the Postal
Address File (PAF) in accordance with the Australia Post Address Matching Approval Scheme (AMAS).
Item 4 (Location):
As per detailed on the Software Registration Form that is transmitted by fax or email to DMS or its Agent.
Item 5 (Term):
For a period from date of Registration until the next occurrence of the anniversary of December 31st, in any year.
Item 6 (Addresses, Facsimile & Email details):
Pacific MicroMarketing
2 Southbank Bvd
SOUTHBANK VIC 3004
Ph: 03 9936 3931
Fax: 03 9936 3738
Direct Marketing Software Pty Ltd
17 Douglas St
MILTON QLD 4064
Phone: 07 3510 9555
Fax: 07 3510 9556
Email: [email protected]