This Agreement is between Echo News Pty Limited ("The Licensor"), a company duly incorporated and having its registered office at Suite 7A, Bungan Street Mona Vale NSW 2103 of one part and "The Licensee" of the other part.
A. The Licensor as part of its business owns and operates the products and services and licences as listed on the schedule (hereinafter called "Schedule Items") and has developed considerable goodwill and favourable reputation in relation to these products and services.
B. The Licensee wishes to obtain a non-exclusive licence from the Licensor to use schedule items.
C. The Licensee is the holder of a current real estate licence.
D. The Licensor is willing to grant to the Licensee a non-exclusive licence on the following terms and conditions.
NOW THIS DEED WITNESSED AND IT IS HEREBY AGREED AND DECLARED as follows:
In this deed unless the context requires otherwise:
(a) The singular includes the plural and via versa.
(b) A reference to one gender includes a reference to all other genders.
(c) Headings to clauses are included for the sake of convenience only and shall not affect the interpretation of the clauses to which they relate.
(d) Reference to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any order, regulations, instruments or other subordinate legislation made under the relevant statute.
(e) The word "person" means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee or not.
(f) This Agreement shall bind each party's legal representatives, successors and assignees.
(g) When a party comprises two or more persons the rights and obligations of such persons pursuant to this Agreement shall ensure for the benefit of and bind all of them jointly and each of them severally.
For the consideration hereinafter the Licensor grants the Licensee a non-exclusive nontransferable licence under copyright patents and other intellectual property rights of the Licensor and/or its supplier of the schedule items from the date of this Agreement:-The right to the Licensee to advertise, promote, link, reprint and/or access items as specified in the schedule.
The Licensee shall keep passwords supplied for access to the schedule items secret and shall not divulge any such passwords to any other person other than persons directly employed by the Licensee. For security purposes the Licensee further agrees with the Licensor to change such passwords as directed by the Licensor.
(a) The Licensee may access, forward and reprint material according to the Schedule without acknowledging the source with the exception of tables of data, charts or images which must be footnoted as per the original or in the absence of the same then "Source: Echo News Pty Limited". If the Licensee uses Schedule Items for publication purposes, which may include but are not limited to press releases, client newsletter or advertising material, the Licensee agrees to supply the Licensor with a copy of the printed material within seven (7) days of publication.
(b) The Licensee acknowledges that the information resulting from calculations should not be relied upon as a true representation of actual payments, cost or expenses. This information is not a substitute for professional advice from a qualified financial advisor. The Licensor accepts no liability, either directly or indirectly arising from a person relying either wholly or partly, upon any information shown in or omitted from any calculations within the Schedule Items. When using information in any Schedule Items for any financial purpose the Licensee should consult a qualified professional to verify accuracy. All information contained within any Scheduled Item should be used as a guide only.
(c) The Licensee acknowledges that it has the necessary hardware and software to access services referred to in the Schedule and will be responsible for the payment of fees and charges pursuant to this Agreement from the date hereof.
(d) The Licensee acknowledges that the Licensor has satisfied its obligations under this Agreement once the product or service has been transmitted by the Licensor.
5.1 The Licensee expressly acknowledges that:-
(a) All Schedule Items are provided "as is" and without warranties of any kind, either expressed or implied.
(b) The Licensor and its suppliers expressly disclaim all warranties of any kind excluding but not limited to implied warranties of merchant ability and fitness for a particular purpose.
(c) The Licensor does not warrant that any Schedule Item will be uninterrupted, error-free, free of defects or that the systems which transmit schedule Items are free of viruses or other harmful components.
(d) The Licensor does not warrant to make any representation regarding access to or the result of access to any Schedule Item (including any related linked web sites or articles) or any content in terms of correctness accuracy, timeliness, completeness, reliability or otherwise.
(e) The Licensee assumes the entire cost of any necessary verification, maintenance, repair and/or correction of any relevant content.
5.2 The Licensor's liability for breach of any implied warranty or condition which cannot be excluded at law is limited at the option of the Licensor to the following:
(a) Supply the services again; or
(b) The payment of the cost of having the service supplied again;
And in the case of goods supplied or offered by the Licensor:
(c) The replacement of the goods or the supply of equivalent goods;
(d) The repair of such goods;
(e) The payment of the cost of replacing goods or acquiring equivalent.
(f) The payment of having the goods repaired.
5.3 All information contained with the Schedule Items is provided as a convenience to the Licensee. Neither the Licensor nor its licensors or suppliers accept liability direct or indirect for any loss, claim, damage or any incidental injury or consequential damages including but not limited to lost profits or savings arising out of or in any way connected with the use of any information. Prices quoted are current at the time of issue but may change at any time and are subject to availability.
(a) The Licensee will pay the Licensor the set up fee expressed in the Schedule. The Licensee acknowledges that any set up fees paid are non refundable.
(b) Weekly Charges - Weekly and/or other charges will commence on the date specified in the Agreement and are payable monthly in advance on the same date.
(c) Other Charges - The Licensor reserves the right to make a charge for any work done by the Licensor and/or its suppliers which is attributable to the Licensee's failure to observe its obligations and/or not covered by the Licensee's and/or its suppliers warranty and/or selected maintenance or rental option.
(d) The Licensee will pay to the Licensor upon demand any Federal or State duties or taxes which may be levied on this Agreement or on the company as a result of this contract or its operation excepting income tax (Commonwealth) on such income as may arise there from.
(e) The Licensor shall be entitled to charge separately for all consumables supplied by the Licensor or its suppliers for the everyday operation of the system pursuant to this contract.
(f) If any sums payable under this Agreement are in arrears, then the Licensor reserves the right to charge and the Licensee agrees to pay the Licensor interest calculated on a daily basis from the original due date at the rate of fifteen per centum (15%) per annum on such arrears.
7. REVIEW OF FEES
The Licensor may review the Licence Fee after 12 months from the date of this contract by giving the Licensee thirty (30) days notice of its intention to do so.
The Licensee shall not disclose, use or make copies of confidential information including but not limited to advertising, sales promotion, accounting systems, business methods or procedures, services or client lists of the Licensor.
The Licensor warrants that it will not use the Licencees email database stored within any schedule item for its own advantage or purpose and will not sell the said database to another party. Upon termination of this agreement, the Licensor will return the Licencees database and will destroy all records held relating to the Licencee.
This agreement is effective until:
(a) Termination by the Licensee at any time by giving the Licensor seven (7) days written notice prior to the end of the billing period of its intention to do so. Upon termination there shall be forthwith due and payable by the Licensee without demand or notice, the total amount of any fees and other moneys then accrued but not paid. In the event of termination the Licensee will continue to receive the Schedule Items until the end of the billing period and all restrictions imposed on the Licensee and all disclaimers and limitations of liability set out in this Agreement will survive, or,
(b) Termination by the Licensor at any time by giving the Licensee seven (7) days written notice. Upon termination there shall be forthwith due and payable by the Licensee without demand or notice, the total amount of any fees and other moneys accrued but not paid. In the event of termination the Licensee will continue to receive the Schedule Item until the end of the billing period and all restrictions imposed on the Licensee and all Licensor disclaimers and limitations of liability set out in this Agreement will survive.
10. TERM OF LICENCE
This Agreement is for an initial period of one (1) month from the date hereof and shall be automatically renewed until termination by the Licensee.
It is hereby acknowledged and agreed by the Licensee that the Licensee is not an agent, partner, servant or employee of the Licensor and that neither the Licensee nor any of his servants or agents shall have any right or authority to bind the Licensor in any respect or for any purpose and the Licensee shall not indulge in any conduct which would deceive or mislead the public into believing that the Licensor is in any way involved in the ownership of the business conducted by the Licensee in the designated area.
The failure by the Licensor to exercise any right hereunder or the waiving or condoning by the Licensor of any delay or failure by the Licensee to comply with any terms or conditions of this Agreement shall not affect the ability of the Licensor to exercise such right or pursue its remedies hereunder in respect of such delay or failure as and when the Licensor sees fit.
This Agreement contains the entire Agreement between the parties hereto and no representations, inducements, promises or agreement oral or otherwise not embodied herein shall have any force or effect other than as expressly provided in this Agreement or subsequent to the date hereof in writing and signed by a proper and duly authorised representative of the party to be bound thereby.
(a) In the event of any covenant or other provisions of this Agreement being invalid, illegal, unlawful or otherwise being incapable of enforcement, all other covenants and provisions of this Agreement shall nevertheless prevail and remain in full force and effect and be valid and fully enforceable and no covenant or other provision hereof shall be construed to be dependent upon any covenant or provision unless so expressed therein.
(b) In the event of any such provision being severed pursuant to this clause the parties shall endeavour to agree upon provisions in substitution therefore which are not legal and which substantially express the meaning of the severed provisions.
(c) This Agreement shall be construed subject to the Trade Practices Act 1974 (as amended) and any provision herein which constitutes either exclusive dealing or restraint of trade or commerce (within the meaning of the Act) which exclusive dealing or restraint has or is likely to have a significant effect on competition between the parties or between either of them and other persons shall (unless authorised in accordance with the provisions of the Act) be deemed to be severed from this Agreement and of no force and effect.
Service of any notice under or relating to this Agreement shall be sufficiently served:
(a) if delivered personally to the party to be served.
(b) if left at or sent by prepaid registered post to:
i the address of the party to be served as set out in the description of that party on the front page of this Deed.
ii the last known place of abode or business of the party to be served
iii the registered office of any party to be served which is a company.
and in the case of posting such notice shall be deemed to have been duly served on the second day after such notice has been posted; or
(c) if sent by facsimile transmission to the last known facsimile number of the party to be served and shall be deemed to have been duly served at the time such facsimile transmission is sent.