DATA LICENCE TERMS AND CONDITIONS
RECITALS
A. These terms and Conditions ("T&Cs") will apply to any supply of the Data by PTA to a Recipient.
B. PTA owns the Data, which the Recipient wishes to use for the Permitted Purpose.
C. PTA agrees to grant a licence to the Recipient for use of the Data for the Term subject to these T&Cs.
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Claim” means any information (in whatever form) of a confidential nature (or which the Recipient ought to reasonably know is confidential) which relates to the business, affairs or activities of PTA and which is disclosed by PTA or on behalf of PTA, or otherwise comes to the knowledge of the Recipient, and includes the Data.
“Contract” means a contract formed as a result of the acceptance of an Order by PTA;
“Data” means those Data, including without limitation Documents, equipment, information and data stored by any means, which PTA provides to the Recipient in accordance with these T&Cs;
“Document” means any of, or any part of: any paper or other material on which there is writing; a map, plan, drawing or photograph; any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; any article on which information has been stored or recorded, either mechanically or electronically; any other record of information; or, any copy, reproduction or duplicate of such a thing; or any part of such a copy, reproduction or duplicate.
“Fees” means the fees payable by the Recipient to PTA for use of the Data;
“Intellectual Property” or “IP” includes all copyright and neighbouring rights, all rights under statute, common law or equity in relation to inventions (including patents), registered and unregistered trade marks (including service marks), registered and unregistered designs, circuit layouts, Confidential Information, moral rights and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields including as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967.
“Insolvency Event” means any of the following, or any analogous, events:
(a) the Recipient disposes of the whole or any part of the Recipient’s assets, operations or business other than in the ordinary course of business;
(b) the Recipient ceases, or threatens to cease, carrying on business;
(c) the Recipient is unable to pay the Recipient’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Recipient’s assets, operations or business;
(e) any step is taken for the Recipient to enter into any arrangement or compromise with, or assignment for the benefit of, the Recipient’s creditors or any class of the Recipient’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Recipient’s assets, operations or business;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Licence” in relation to the Data, means the licence granted by PTA to the Recipient in accordance with clause 2.1 of these T&Cs.
“Order” means any written or verbal order by the Recipient to PTA for use of the Data for the Permitted Purpose;
“Party” means either PTA or the Recipient (as the context requires) and Parties means both of them.
“Permitted Purpose” is the purpose for which the Recipient may use the Data in order to undertake the Project.
“Project” means operation of one (1) pub trivia competition at one (1) venue only.
"PTA" means Jordan Matthew Oppy t/a Pub Trivia Australia ABN 25 240 676 268
"Term" means seven (7) calendar days commencing from the date the Data is received by the Recipient.
1. INTERPRETATION
1.1 In these T&Cs unless the contrary intention appears:
1.1.1. clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
1.1.2. a cross-reference to a clause number is a reference to all its sub-clauses;
1.1.3. words in the singular include the plural and vice versa;
1.1.4. words importing a gender include any other gender;
1.1.5. reference to a person includes a partnership and a body, whether corporate or otherwise;
1.1.6. a party includes the party’s successors, legal personal representatives, executors, administrators and permitted assigns;
1.1.7. a statute, regulation or provision of a statute or regulation (“Statutory Provision”) includes:
1.1.7.1. that Statutory Provision as amended or re-enacted from time to time; and
1.1.7.2. a statute, regulation or provision enacted in replacement of that Statutory Provision;
1.1.8. “including” and similar expressions are not words of limitation;
1.1.9. where a word or expression is given a particular meaning, other parts of speech and grammatical forms have a corresponding meaning;
1.1.10. a thing (including but not limited to a chose in action or other right) includes a part of that thing.
2. LICENCE AND GENERAL OBLIGATIONS
2.1. PTA grants to the Recipient a non-exclusive, non-transferable licence to use, reproduce, and adapt the Data for the Permitted Purpose during the Term.
2.2. The Recipient must not disclose the Data to any person other than to its own personnel who are required to receive and consider the Data in the course of (and solely for the purpose of) the Permitted Purpose.
2.3. The Recipient must ensure that any person to whom they give or allow access to the Data observes the provisions of the T&Cs as if that person were the Recipient.
2.4. The rights granted herein are restricted solely to the Recipient and may not be assigned, transferred or sub-licensed without the prior written permission of PTA, which permission may be granted subject to any conditions which PTA may require.
2.5. The Recipient must ensure that Data is stored in a secure manner and in accordance with any reasonable directions of PTA. The Recipient will immediately return Data to PTA where the Recipient refuses or is unable to securely store the Data.
2.6. The Recipient acknowledges that:
2.6.1. PTA may at any time, and in its sole discretion, direct the Recipient to return or destroy any Data it has provided to the Recipient, and any copies the Recipient has made; and
2.6.2. if given such a direction, it will comply with it.
2.7. On completion of the Permitted Purpose or the Project or the Term, the Recipient must destroy all Data and any copies in its possession, unless PTA otherwise directs.
3. NO REPRESENTATIONS OR RELIANCE IN RELATION TO DATA
3.1. PTA does not warrant that the Data is free from errors. While PTA uses all reasonable endeavours to ensure the accuracy and completeness of the Data, the Recipient acknowledges that it does not rely on any representations made by PTA as to the Data’s accuracy, completeness, or suitability for use for the Permitted Purpose or the Project.
3.2. The Recipient will make its own inquiries to satisfy itself of the accuracy or completeness of the Data, including its suitability for use for the Permitted Purpose or Project, and takes full responsibility for any use of the Data.
4. LICENCE FEES
4.1. In consideration for the provision of the Data and grant of the Licence, the Recipient must pay to PTA the Fees.
4.2. The Fees are exclusive of GST unless otherwise stated by PTA in writing.
4.3. The Recipient must not withhold, make deductions from, or set-off, payment of any money owed to PTA for any reason.
4.4. PTA may charge, in addition to the Fees, any other fees and charges that PTA notifies to the Recipient from time to time.
5. ORDER FOR DATA
5.1. Any Order by the Recipient to PTA and/or any acceptance of any Data by the Recipient will constitute agreement to these T&Cs by the Recipient.
5.2. If PTA accepts an Order, the parties will have created a binding Contract and PTA will supply the Data to the Recipient, and the Recipient will pay the Fees to PTA in accordance with the terms of the Contract (which will include these T&Cs).
5.3. PTA may cancel any Contract at any time prior to delivery of the Data with no liability other than to repay any amount of the Fees paid in advance of the cancellation.
6. DELIVERY
6.1. PTA will supply the Data to the Recipient by email or by post, as nominated by the Recipient when placing an Order.
6.2. PTA will not be liable for any delay in the delivery of the Data to the Recipient.
7. CREDIT TERMS
7.1. The Recipient must make full payment of the Fees and any other amounts payable to PTA within seven (7) days of the issue of the invoice to the Recipient unless PTA has granted credit terms to the Recipient in which case the Recipient must make full payment of the Fee and any other amounts payable to the PTA within 21 days of the date of the invoice.
7.2. If PTA grants credit terms to the Recipient, the Recipient agrees to grant PTA a charge over the whole of the Recipient’s present and future undertaking, property and assets (including, without limitation, all of the Recipient’s legal and beneficial interests in freehold and leasehold land) as security for any amount owed by the Recipient to PTA and the Recipient acknowledges PTA may lodge caveats or take any other action to enforce the PTA's security over the charged property.
7.3. The Recipient must reimburse PTA for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses associated with any action by PTA to recover money from the Recipient.
7.4. PTA may charge monthly compound interest on any overdue amounts owed by the Recipient at a rate of 6% per annum above the Reserve Bank of Australia’s cash rate target.
8. INTELLECTUAL PROPERTY
8.1. The Recipient acknowledges that Data remains at all times the property and Intellectual Property of PTA and the Recipient will only use the Data for the Project and the Permitted Purpose or otherwise in accordance with any conditions notified to it by PTA. Nothing in this T&Cs shall be taken to transfer or assign any Intellectual Property rights in the Data to the Recipient.
9. CONFIDENTIAL INFORMATION
9.1. The Recipient acknowledges, except where the Recipient has obtained PTA's prior written consent to do so:
9.1.1. that it will hold all Confidential Information in strict confidence and will not disclose, permit or cause the Confidential Information to be disclosed, to any person other than to its own personnel on a strictly “need to know” basis; and
9.1.2. not to make use of the Confidential Information (including duplicating, reproducing, distributing, disseminating or directly or indirectly deriving information from the Confidential Information) except and solely to the extent necessary to undertake the Permitted Purpose or Project,
10. INDEMNITY
10.1. The Recipient is liable for, and indemnifies PTA, and must keep PTA indemnified from and against any liability, cost (including legal costs on a solicitor/own client basis), expense, loss, damage, suit, demand, action, claim or proceeding of any kind whatsoever, and whenever arising, whether directly or indirectly, relating to, arising from or in connection with:
10.1.1. any breach of the undertakings contained in the T&Cs;
10.1.2. any loss or damage arising out of, or in connection with, any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by the Recipient’s or its personnel’s use of Data;
10.1.3. any negligent, wilful, reckless, malicious or unlawful act, omission or default by the Recipient or its personnel in connection with the T&Cs;
10.1.4. any penalty imposed for breach of an applicable law in connection with the use of Data,
except to the extent that the liability, cost, expense, loss or damage is directly caused by PTA’s wilful misconduct or negligence.
10.2. Each indemnity in these T&Cs is a continuing obligation separate and independent from the Recipient’s other obligations.
11. FORCE MAJEURE
PTA will not be liable to the Recipient for any failure to perform, or delay in performing, PTA’s obligations under these T&Cs if the failure or delay is due to any cause beyond PTA’s reasonable control and if any such failure or delay continues for a period of 14 days PTA may terminate any affected Contract.
12. LIMITATION OF LIABILITY
12.1. To the fullest extent permitted by law, PTA's liability for any Liability or Claim in relation to these T&Cs, any Contract, and any supply of Data will be limited to the amount of the Fees paid by the Recipient to PTA.
12.2. PTA will not be liable to the Recipient or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
13. TERMINATION
13.1. PTA may immediately terminate, or suspend the performance of, any Contract and the Recipient must immediately pay any money owed to PTA if:
13.1.1. the Recipient breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days of receiving a notice from PTA requiring the Recipient to do so;
13.1.2. the Recipient breaches a term of these T&Cs or any Contract which is not capable of remedy;
13.1.3. there is any direct or indirect change in the Control of the Recipient; or
13.1.4. an Insolvency Event arises in relation to the Recipient.
14. GENERAL
14.1. These T&Cs are governed by and to be interpreted in accordance with the laws of the New South Wales and the Recipient unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales
14.2. If a provision or part of a provision of the T&Cs is void or unenforceable for any reason, that provision or part shall be severed without affecting the enforceability of the remainder of this document. The T&Cs will be interpreted as if the severed provision or part had never existed.
14.3. These T&Cs or any Contract may only be amended with PTA's express written agreement.
14.4. Any waiver by PTA must be express and in writing.
14.5. PTA's rights under these T&Cs or any Contract do not exclude any other rights of PTA
14.6. The Recipient must immediately provide written notice to PTA if there is any direct or indirect change in the control of the Recipient.
14.7. PTA may assign any rights or benefits under any Contract or these T&Cs or any Contract to any third party.
14.8. The Recipient may only assign any rights or benefits under any Contract or these T&Cs or any Contract with PTA's prior written consent.