LANDGATE LAND INFORMATION VALUE ADDED RESELLER LICENCE AGREEMENT

Transcription

LANDGATE LAND INFORMATION
VALUE ADDED RESELLER
LICENCE AGREEMENT
VERSION: 250112
AGREEMENT NUMBER:
Between
WESTERN AUSTRALIAN LAND INFORMATION AUTHORITY
(“LANDGATE”)
and
NAME
VALUE –ADDED RESELLER (“VAR”)
© Western Australian Land Information Authority 2012
ABN: 86 574 793 858
TABLE OF CONTENTS
Western Australian Land Information Authority ABN 86 574 793 858
Landate Sample Land Information VAR Licence Agreement 250112.docx
BACKGROUND............................................................................................... 3
AGREED TERMS ............................................................................................ 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
Definitions ....................................................................................................... 3
Interpretation .................................................................................................. 7
Grant of Licence ............................................................................................. 8
Intellectual Property Rights ........................................................................... 8
VAR’s Obligations .......................................................................................... 8
Risk................................................................................................................ 10
Payments and the GST................................................................................. 10
Accounts, Register and Audits .................................................................... 11
Bank Guarantee ............................................................................................ 12
Alteration of Nature and Content of the Land Information Products ....... 12
Land Information Product Updates ............................................................. 12
VAR’s System Requirements and Maintenance ......................................... 12
Out of Scope Matters.................................................................................... 13
Security ......................................................................................................... 13
Storage of Land Information Products........................................................ 14
Business Continuity ..................................................................................... 15
Confidentiality............................................................................................... 15
Privacy .......................................................................................................... 16
Suppression of Information ......................................................................... 16
Publicity ........................................................................................................ 17
Disclaimers and Release .............................................................................. 17
Limitation of Liability.................................................................................... 18
Indemnity and Responsibility ...................................................................... 18
Insurance ...................................................................................................... 19
Default and Termination ............................................................................... 20
Obligations when Agreement Ends ............................................................. 21
Further Term or Holding Over Period.......................................................... 21
Variation ........................................................................................................ 22
Force Majeure ............................................................................................... 22
Conflict of Interest ........................................................................................ 22
No Bribe, Inducement or Offer of Employment .......................................... 22
Use of Lobbyists........................................................................................... 23
Governing Law, Parties’ Rights and Remedies .......................................... 23
Assignment and Sub-Licensing .................................................................. 24
Notices .......................................................................................................... 25
Dispute Resolution ....................................................................................... 25
SCHEDULE ................................................................................................... 26
SIGNING PAGE............................................................................................ 30
CONFIDENTIALITY DEED ............................................................................ 32
This agreement (“Agreement”) is made on the date shown in Item 1 of the Schedule, between
the Parties, namely Landgate and the VAR, as specified in Item 2 of the Schedule.
BACKGROUND
A
Landgate has developed the Land Information Products and is the owner of the
Intellectual Property in those Land Information Products.
B
The VAR has responded to Landgate’s expression of interest to become a valueadded reseller of Land Information Products and the VAR has successfully met
Landgate’s Qualitative Criteria for appointment as a value-added reseller
C
Landgate has accepted the VAR’s offer to become a value-added reseller of Land
Information Products subject to Landgate and the VAR executing this Agreement.
AGREED TERMS
1
Definitions
The following words and expressions are capitalised in this Agreement and have the
meanings assigned to them as shown below, except where the context implies otherwise:
Accounts means the books, records and financial accounts of the VAR, as further detailed in
clause 8.
Agreement means this document, the Landgate Land Information Value-Added Reseller
Licence Agreement which includes any Schedule, Annexure or other document incorporated
by reference into this document.
Annual Licence Charge means the charge specified in Item 15 of the Schedule which is
payable to Landgate for each of the Land Information Products it licenses to the VAR, either:
in full on the Commencement Date and each anniversary of that date, during the
Term; or
otherwise as approved by Landgate.
Annual Royalty Cap means the total amount payable annually by the VAR, as specified in
Item 16 of the Schedule, for the unlimited use of all Land Records in the Land Information
Products, including the VAR’s Internal Use. The Annual Royalty Cap is only payable after the
Transitional Royalty Cap has ceased to apply.
Approved Purpose means the purpose specified in Item 9 of the Schedule.
Bank Guarantee means the amount specified in Item 19 of the Schedule, which must be
provided by the VAR to Landgate in accordance with clause 9 of this Agreement.
Business Day means any day other than a Saturday, Sunday or public holiday in Western
Australia.
Commencement Date means the date this Agreement takes effect, as specified in Item 4 of
the Schedule.
Confidential Information means information that:
(a)
is by its nature confidential;
(b)
is designated in writing by Landgate as confidential;
(c)
the VAR knows or reasonably ought to know is confidential, and includes:
(i)
Information comprised in or relating to any Intellectual Property Rights of
Landgate or the State of Western Australia;
(ii)
Landgate information to which the VAR has access, other than information
referred to in (i), which has actual or potential commercial value to Landgate;
(iii)
Information relating to internal management, computing operations,
personnel, policies, strategies, practices and procedures of Landgate and/or
the Government of the State of Western Australia and any information in the
VAR’s possession relating to the Western Australian Public Sector; and
(iv)
Information in the VAR's possession relating to Landgate's customers, clients
or suppliers;
(v)
Any information shared between the Parties to this Agreement, pursuant to
this Agreement, including the final terms of this Agreement;
(vi)
The contents of any documentation supplied by Landgate to the VAR, except
for the Land Information Products.
Consultant means any person (including employees, servants and agents of that person)
engaged by the VAR for a specific project within the VAR’s own business, which requires that
person to access or use any Land Information Product.
CPI means the CPI All Groups Index Numbers for Perth the subject of Catalogue No. 6401.0
provided by the Australian Bureau of Statistics or if the basis upon which it is determined is
substantially altered, then such basis as Landgate may reasonably determine to be as near
to the CPI previously referred to as possible.
Date of Agreement means the date on which the last Party executes this Agreement.
Direct Marketing means any activity which makes it possible to offer goods or services or to
transmit other messages to a person, organisation or segment of the population by post,
telephone or other direct means (electronic or otherwise) aimed at informing or soliciting a
response from the person, organisation or segment of the population as well as any service
ancillary to the same.
End User means the VAR’s customers, members or subscribers, who have entered into an
agreement in accordance with sub-clauses 5.4 and 5.5 (Related Contracts) for the Value
Added Products, or the final recipient and user of any Value Added Products. Where
appropriate, this term includes the employees, servants and agents of those End Users, who
have access to such Value Added Products. End Users may use Value Added Products for
Internal Use only.
Further Term means any period specified in Item 18 of the Schedule, or any period of
extension of the Agreement granted by Landgate under clause 27 of this Agreement.
GST means the goods and services tax payable under the GST Act.
GST Act means the New Tax System (Goods and Services Tax) Act 1999 (Cth).
Holding Over Period means the time period after the Termination Date of this Agreement,
during which the Parties extend the operation of this Agreement, in accordance with subclause 27.3 of this Agreement.
Information Suppression Application means an application made to Landgate by a person
for suppression of specified information about that person or another person, from all
Landgate name indices, data extracts and other Land Information Products, for reasons of
personal safety and security.
Information Suppression Notice means a written notice given to the VAR by Landgate
under clause 19 of the Agreement following the granting of an Information Suppression
Application by Landgate, which requires the VAR to delete or amend specified information
from any Land Information Products.
Intellectual Property Rights means all rights in and to any copyright, trademark, trading
name, design, patent, know how (trade secrets) and all other rights resulting from intellectual
activity in the industrial, scientific, literary or artistic field and any application or right to apply
for registration of any of these rights and any right to protect or enforce any of these rights, as
further specified in clause 4.
Internal Use means use for a person’s internal business or personal purposes.
Land Information Product means a collection or compilation of particular Land Records for
a specific purpose (eg Sales Evidence or Tenure data). Land Information Products are:
-
only those specified in Item 6 of the Schedule;
in the form stated in Item 7 of the Schedule;
with the Metadata specifications set out in Item 8 of the Schedule; and
updated from time to time by Land Information Product Updates, in accordance with
clause 11.
Land Information Product Updates are updates to Land Records which improve their
accuracy and completeness. These updates will be made available by Landgate to the
VARS, in accordance with clause 11 and at the time intervals specified in Item 12 of the
Schedule.
Land Record means any information (usually identified according to certain field descriptors)
about a particular property or land-holding, extracted from Landgate's databases.
Metadata means the specification of the Land Information Product which may consist of a
number of elements describing the content, quality, currency, collection methods, accuracy of
source data sets, processing history, archival procedures, projection specifications, scale,
data dictionary and integration and analysis techniques.
Notice means a written note (or email), given and effective in accordance with clause 35 of
this Agreement.
Party means a person who has executed this Agreement, as further defined in clause 2. The
details of the Parties are specified in Item 2 of the Schedule.
Privacy Legislation means the Privacy Act 1988 (Cth) and any State privacy legislation
which may be enacted during the Term.
Qualitative Criteria means Landgate's requirements for VARs, as detailed in the package
distributed in relation to Landgate's 2008 advertisement for “Expression of Interest Land
Information – Value Added Reseller”.
Register means the Register of Access, Transfers and Sales or a record kept by the VAR
specifying when any Land Information Product or Value Added Product has been accessed,
transferred, supplied, licensed or sold. The Register must be in the form stated in Item 14 of
the Schedule.
Review Date means the annual date(s) on which the payments made under this Agreement
are reviewed, as specified in Item 17 of the Schedule or as further detailed in sub-clause 7.5.
Royalty means the payment made by the VAR to Landgate in accordance with Item 16 of the
Schedule.
Security Level means the security measures required of the VAR to protect the integrity of
Land Information Products or Value Added Products, as detailed in sub-clause 14.5.
Site means the VAR’s business premises or the locations specified in Item 10 of the
Schedule.
Software means the computer program, code, algorithm (if any) incorporated into or provided
with the Land Information Product, which is necessary to use that Land Information Product
in accordance with this Agreement.
Special Conditions means the conditions of this agreement set out in Item 21 of the
Schedule
Sub-Licensee means a sub-contractor or similar who has entered into a contract with the
VAR to acquire all or part of the VAR’s licence to use the Land Information Products (as
specified in clause 3 of this Agreement), for the purpose of developing other Value-Added
Products for End Users and third parties. Where appropriate, the Sub-Licensee includes its
officers, employees and agents who have access to the Land Information Products.
Suppressed Information means Land Record information that is the subject of an
Information Suppression Notice, as further detailed in clause 19 of this Agreement.
Term means the period of time beginning on the Commencement Date and ending on the
Termination Date and, where the context requires, any Further Term or Holding Over Period
granted under clause 27.
Termination Date means:
(a)
the date or latest date stated in Item 5 of the Schedule; or
(b)
if the Agreement is terminated earlier in accordance with clause 25, that date; or
(c)
if the parties enter into a Further Term or Holding Over Period, the expiry date of the
same.
Transitional Royalty Cap means the total amount of Royalties payable by the VAR during
the first 5 months of the Term only, as specified in Item 16 of the Schedule, for the VAR’s
unlimited use of all Land Records in the Land Information Products, including the VAR’s
Internal Use. The Transitional Royalty Cap is only available to VAR’s who elect to pay
Royalties by means of the Annual Royalty Cap.
Unique Hit means each time that an End User accesses, uses, receives, views or downloads
a Land Record for the first time in any twelve month period during the Term.
Value Added Product means any use made of the Land Information Products by the VAR,
including:
(a)
any data output, compilation, creation, manufacture, service or assistance, which
incorporates an Land Information Product, in whole or in part; and
(b)
the development of a new product or computer program that enhances, adds value,
adds to, manipulates, personalises, interprets or filters an Land Information Product,
or parts thereof.
VAR or Value Added Reseller means the Party to this Agreement who develops a Value
Added Product for the purpose of display, distribution, sale, licence, hire, let or trade of the
Value Added Product to an End User.
VAR’s System means the computer system comprising the operating, application and
database systems of the VAR as specified in Item 11 of the Schedule.
2
Interpretation
In this Agreement, unless the contrary intention appears:
(a)
Words importing the singular include the plural and vice versa and words
denoting a given gender include all other genders;
(b)
Reference to a person or third party includes an individual, the estate of an
individual, a partnership, a body politic, a corporation and a statutory or other
authority or association (incorporated or unincorporated);
(c)
References to any person or to any Party to this Agreement will include that
person’s or Party’s personal representatives, executors, administrators,
predecessors, successors and permitted assigns;
(d)
Reference to a Party includes that Party’s board members, officers,
employees, sub-contractors, agents and invitees;
(e)
Where any word or phrase is given a defined meaning, any other part of
speech or grammatical form of such word or phrase has a corresponding
meaning;
(f)
Headings and bold print are for convenience only and do not affect
interpretation;
(g)
A reference to a statute, ordinance, code or other law includes regulations,
by-laws, rules and other statutory instruments for the time being in force and
consolidations, amendments, re-enactments or replacements of any of them;
(h)
A reference to any agreement or document is a reference to that agreement
or document as amended, supplemented or replaced from time to time;
(i)
Where a Party to this Agreement is more than one person, they are jointly
and severally liable under the terms of this Agreement;
(j)
If a word or phrase is defined, other parts of speech and grammatical forms
of that word or phrase have corresponding meanings;
(k)
References to time are to Western Standard Time or Western Daylight Time,
in Perth, Western Australia;
(l)
Where time is to be reckoned from a day or event, that day or the day of that
event is to be included;
(m)
References to currency are to Australian currency unless otherwise stated;
(n)
When the day or last day for doing an act is not a Business Day in the place
where that act is to be done, then the day or last day for doing the act will be
the directly preceding Business Day in the place where that act is to be done;
(o)
Any Schedule, Annexure or document entered into pursuant to this
Agreement whether executed at the time of entering into this Agreement or
later during the Term of this Agreement, is incorporated into and forms part
of this Agreement; and
(p)
No decision, exercise of discretion, judgment or opinion or approval of any
matter mentioned in this Agreement or arising from it, will be deemed to have
been made by Landgate, unless in writing and at its sole discretion, except
where otherwise expressly provided in this Agreement.
3
Grant of Licence
3.1
Landgate grants to the VAR a non-exclusive and non-transferable licence to use,
value-add and on-sell the Land Information Products specified in Item 6 of the
Schedule, for the Approved Purpose at the Site for the Term, in accordance with the
terms and Special Conditions of this Agreement.
3.2
The VAR must provide a certificate of readiness within 90 days of the date of this
Agreement, to certify that it is operational as a VAR and in a position to fulfill all of its
obligations and responsibilities under this Agreement.
4
Intellectual Property Rights
4.1
The VAR only acquires the right to use the Land Information Products in accordance
with this Agreement, during the Term. The VAR does not acquire any rights of
ownership in the Land Information Products.
4.2
Intellectual Property Rights over and for the Land Information Products will at all
times remain with Landgate unless otherwise identified (eg. third party computer
program copyright owner). Landgate retains the right to distribute, market and sell the
Land Information Products to any other person on such terms and conditions as
Landgate deems fit.
4.3
To the extent permitted by law, the VAR will promptly report to Landgate any known
infringement by any End User, Sub-Licensee or third party, of Landgate’s Intellectual
Property Rights, over or for the Land Information Products.
4.4
The VAR must ensure that:
(a)
all reproductions and adaptations of the Land Information Products, however
altered, reformatted or redisplayed, display the following proprietary notice:
“© Western Australian Land Information Authority (201__) trading as Landgate.”
(b)
all Value Added Products created and distributed by the VAR display the
following notice:
“Based on information provided by and with the permission of the Western
Australian Land Information Authority (201__), trading as Landgate.”
5
VAR’s Obligations
5.1
The VAR must provide Landgate with access to any Value Added Product or service
utilising the Land Information Products free of charge, for the purpose of ensuring
compliance by the VAR with this Agreement. This includes the access account
referred to in sub-clause 8.3.
5.2
The VAR must, at its own cost, comply with all regulations, restrictions and conditions
imposed by any legislation for the use of, access to, storage of or dealing with the
Land Information Products or Value Added Products. This includes, but is not limited
to, the requirements of the Privacy Legislation.
5.3
The VAR must not permit itself or any other person to, distribute, sell, transmit,
licence, hire, let, trade or expose for sale any Land Information Product or Value
Added Product, other than as expressly provided for in this Agreement.
5.4
The VAR must:
(a)
Ensure that no change is made to the land coordinates or spatial integrity or
referencing, of any Land Information Product; and
(b)
Not allow any End User, Sub-Licensee, Consultant or third party, access to
any Land Information Product or Value Added Product, unless they have
entered into an appropriate agreement (“Related Contract”) , the terms and
conditions of which have first been approved in writing by Landgate. [Note,
the Related Contract may take the form of a shrink-wrap agreement]
(c)
Ensure any variation in the terms and conditions approved pursuant to the
preceding sub-clause are also approved in writing by Landgate (except for
price changes or any other Related Contract clauses that may be excluded in
writing by Landgate).
5.5
As a minimum, any Related Contract must provide that End Users, Consultants and
third parties:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
5.6
Will not change the land coordinates or spatial integrity or referencing, of any
Land Information Product; and
Will not use the Value Added Product other than for their own Internal Use.
Will not reproduce the Value Added Product or supply the Value Added
Product to any other party;
Will comply with any restriction imposed by Landgate on searching of the
Value Added Product for reasons relating to the Privacy Legislation or an
Information Suppression Notice;
Will not display, distribute, sell, license, hire, let, trade or expose for sale the
Value Added Product;
Agree to be bound by and comply with the VAR’s obligations under this
Agreement in relation to the ownership of, access to, use of and dealing with
the Value Added Product; and
Will comply with the VAR’s security obligations contained in this Agreement;
Will on receipt of a written notice given by the VAR in relation to clause 19 of
this Agreement, forthwith delete or amend the Suppressed Information from
all Value Added Products in their possession or under their control.
The VAR must:
(a)
Comply throughout the Term with all warranties and representations made in
its response to Landgate’s 2008 request for “Expressions of Interest Land
Information – Value Added Reseller (VAR)";
(b)
Always act ethically in connection with this Agreement and in accordance
with good corporate governance practices;
(c)
Act in good faith at all times towards Landgate and provide assistance and
co-operation as practicable, on request by Landgate;
(d)
Not demean, defame or otherwise denigrate Landgate;
(e)
Comply with all State and Commonwealth laws relevant to this Agreement;
(f)
Use its best endeavours to ensure that none of its employees, Consultants or
clients, cause the VAR to breach this Agreement;
(g)
Notify Landgate if any of the details in Items 2 and 20 of the Schedule
changes;
(h)
Ensure that any notices relating to Intellectual Property Rights appearing in
or on the Value-Added Products or literature relating to them, are not altered
or removed.
6
Risk
6.1
Risk (but not title) in the Land Information Products delivered to the VAR and in the
media or software on which it is delivered and stored, passes to the VAR on delivery.
6.2
The VAR acknowledges and agrees that:
(a)
It uses the Land Information Products at its own risk; and
(b)
Subject to clause 21, neither Landgate nor its board members, officers,
employees or agents, will be liable for any loss or damage occasioned to the
VAR by provision of the Land Information Products under this Agreement, or
use of it by the VAR, Consultants, End Users, Sub-Licensees or third parties;
and
(c)
Landgate is released from any claim for any such loss or damage.
7
Payments and the GST
7.1
The VAR agrees to pay Landgate, in the amounts and manners specified in Items 15
and 16 of the Schedule, the following:
(a)
The Annual Licence Charge; and
(b)
Either:
(i)
the Royalties for each Unique Hit by the VAR, or
(ii)
the Transitional Royalty Cap and subsequently, the Annual Royalty
Cap; and
(c)
The Royalties for each Unique Hit by any of the VAR’s Sub-Licensees.
7.2
The VAR must notify Landgate by the Commencement Date, of which of the two
options specified in sub-clause 7.1(b) the VAR elects as the basis for paying its
Royalties. Otherwise, Royalties will be payable by the VAR, for each of its Unique
Hits and those of any of its Sub-Licensees, in accordance with sub-clauses 7.1(b)(i)
and (c).
7.3
All taxes, duties, and royalties and all charges arising out of or incidental to this
Agreement will be the responsibility of and payable by the VAR.
7.4
All payments to be made by the VAR (including but not limited to the Annual Licence
Charge) are calculated without regard to GST. The VAR must pay Landgate (at the
same time and in the same manner as the VAR is obliged to pay for the supply) the
amount of any GST which Landgate pays or is liable to pay on a supply (as that term
is defined in the GST Act), in addition to the consideration payable for that supply.
Where GST is payable, Landgate will provide to the VAR, if required by the VAR, a
Tax Invoice in the format and form required by the GST Act.
7.5
Price Increases
The Annual Licence Charge and Royalties payable under this Agreement will be
reviewed prior to each Review Date, to determine the new amounts payable for the
same from the next Review Date. Those new amounts will be payable from the
relevant Review Date until the day before the next Review Date, if there is one, or
until the expiration of the Term, as set out below:
(a)
Landgate will, without time being of the essence, give to the VAR a notice
specifying any new Annual Licence Charge or Royalty;
(b)
The Annual Licence Charge payable following a Review Date:
(i)
will not be less than the Annual Licence Charge payable immediately
prior to the Review Date; and
(ii)
will be increased by a factor equal to the percentage increase in the
annual CPI in the 12 month period preceding the Review Date, or in
the case of the first Review Date the 12 month period preceding the
Commencement Date;
(c)
The Royalties payable following a Review Date will be increased by:
(i)
a factor equal to the percentage increase in the annual CPI in the 12
month period preceding the Review Date, or in the case of the first
Review Date the 12 month period preceding the Commencement
Date; and
(ii)
such other amount as Landgate can reasonably justify in seeking to
achieve a fair return on government assets pursuant to the Land
Information Authority Act 2006.
8
Accounts, Register and Audits
8.1
For the purpose of calculating and confirming any payments due to Landgate, the
VAR must:
(a)
Observe, perform and comply with the reasonable requirements of Landgate
and the accounting and security standards and requirements of the
Commissioner of Taxation;
(b)
Keep full, proper and up-to-date books of account and records (“Accounts”)
showing clearly all inquiries, transactions and proceedings relating to this
Agreement; and
(c)
Retain such Accounts for a period of 5 years after the Termination Date;
(d)
Allow any person authorised by Landgate to have access to those Accounts
and take copies of them as they require;
(e)
Supply Landgate with those Accounts and related information arising from
this Agreement, on request and in the form nominated by Landgate, for a
period of 5 years after the Termination Date
(f)
Keep a Register from the Commencement Date, with the details specified in
Item 14 of the Schedule and:
(i)
provide the Register to Landgate for inspection within 7 days of
every quarterly period during the Term; and
(ii)
permit Landgate or any person authorised by Landgate to inspect
and audit the Register when and as required by Landgate.
(g)
If an inspection under this clause 8 reveals that the total amount payable to
Landgate for any month is a sum greater than the amount paid by the VAR,
then the VAR will pay Landgate the difference within 14 days of demand in
writing by Landgate, which demand will be accompanied by a copy of any
accountant's report.
(h)
If the amount payable to Landgate under the preceding sub-clause exceeds
the amount paid by the VAR by 5% or more, then the VAR will also pay the
costs and expenses of that inspection.
8.2
Landgate or any person authorised by Landgate may:
(a)
subject to the provision of 14 days prior written notice, enter the VAR’s
premises during Business Hours to verify the use of the Land Information
Products and payments by the VAR in accordance with this Agreement,
including inspecting any facilities, records, Accounts, hardware and software
for such purposes;
(b)
at any time monitor the VAR’s use of the Land Information Products without
notice to the VAR; and
(c)
subject to the provision of 14 days prior written notice, require the VAR to
provide such information notified by Landgate exclusively for the purpose of
confirming the VAR’s compliance with this Agreement, including the
provisions of clause 9, provision of any Bank Guarantee and payments.
8.3
The VAR must set up and maintain an access account, user identification and
password, equivalent to the access provided to End Users and Sub-Licensees, to
enable Landgate to access Land Information Products and Value-Added Products
available online or otherwise, from the VAR. Both Parties will ensure there is no
charge or fee payable for the access account, or for any Land Records accessed in
relation to it.
8.4
Landgate may use the access account referred to in the preceding sub-clause, to
verify the use and delivery of Land Information Products and Value-Added Products
and compliance by the VAR, with the terms and conditions of this Agreement.
9
Bank Guarantee
9.1
The VAR must effect a Bank Guarantee before the Commencement Date, in
accordance with this clause 9, in the amount specified in Item 19 of the Schedule,
derived in accordance with clause 9.2(c).
9.2
The VAR's Bank Guarantee must:
(a)
be maintained for the Term; and
(b)
be provided in favour of Landgate from a financial institution approved by
Landgate; and
(c)
guarantee the payment to Landgate of such amount equal to Landgate's
estimate of the Royalties payable for all Land Information Products provided
under this Agreement for an estimated 60 day period
9.3
Subject to 7 days written notice, Landgate may review the amount secured by the
Bank Guarantee in accordance with clause 9.2 (c) and request the VAR to
immediately provide a revised Bank Guarantee in accordance with the reviewed
amount.
10
Alteration of Nature and Content of the Land Information
Products
Landgate reserves the right to alter, correct or amend the nature and content of the
Land Information Products from time to time and will (subject to any more immediate
requirements under clauses 18 and 19), notify the VAR in writing, at least 60 days
prior to any alteration or amendment being made. The alteration or amendment will
form part of the Land Information Products.
11
Land Information Product Updates
11.1
Landgate will, subject to the provisions of this Agreement, provide the VAR with Land
Information Product Updates, in the manner stated in Item 12 of the Schedule, during
the Term. The Land Information Product Updates will form part of the Land
Information Products, immediately on their provision.
11.2
Landgate will be under no obligation to supply Land Information Product Updates
other than as stated in this clause 11.
12
VAR’s System Requirements and Maintenance
12.1
The VAR must:
(a)
undertake sufficient maintenance of its computer and office systems, to
ensure that its levels of service are compliant with this Agreement;
(b)
undertake necessary improvements to its computer and office systems, in
accordance with Landgate’s reasonable requirements.
12.2
Landgate will publish the formats required to make use of the Land Information
Products.
12.3
Landgate will advise the VAR of any changes to the formats supported by Landgate,
with at least 30 days Notice of the same.
12.4
Landgate may withdraw support of obsolete or decommissioned formats, by giving
the VAR 30 days Notice.
13
Out of Scope Matters
13.1
The VAR agrees and acknowledges that:
(a)
Landgate is not required to install the Land Information Products on any
equipment or to test whether the Land Information Products are capable of
being processed on any equipment;
(b)
Landgate is not required to provide any training in the use of the Land
Information Products, but may do so at its absolute discretion, at a cost
which provides a fair commercial return to Landgate, in accordance with
section 16 of the Land Administration Act 2006; and
(c)
Subject to clause 12, full responsibility for obtaining and for the consequence
of use of hardware, software, computer programs and any other thing
necessary to make use of the Land Information Products, remains with the
VAR;
(d)
Landgate gives no assurance or guarantee of the volume of sales or orders
which the VAR may receive or expect to receive, in relation to Land
Information Products licensed under this Agreement. The VAR is responsible
for making its own assessment of the potential market for the same;
(e)
Landgate does not represent or warrant to the VAR that:
(i)
the Land Information Products are error free or virus free;
(ii)
the supply of the Land Information Products will be uninterrupted; or
(iii)
the Land Information Products will provide any function not
designated in any Land Information Products definition.
14
Security
14.1
The VAR must effect and maintain adequate security measures to ensure that any
Land Information Products or Value Added Products are not used or accessed by
any End Users, Sub-Licensees or third parties, who are not permitted by this
Agreement to use or have access to the same.
14.2
The VAR must ensure that any Land Information Products or Value Added Products
are kept in a secure manner to protect its value and prevent any Land Information
Product or Value Added Product from being altered or changed without permission,
or being released without Landgate's authorisation.
14.3
The VAR may only acquire and/or distribute any Land Information Product or Value
Added Product in accordance with the Security Level specified in sub-clause 14.5.
14.4
The relevant Security Level relates to the sensitivity and confidentiality of any Land
Information Product or Value Added Product and how the VAR intends to use and/or
distribute the same. The Security Level reflects the standard of security required to
protect the integrity of any Land Information Product or Value Added Product.
14.5
The VAR must:
(a)
Take all reasonable steps that a prudent operator in a similar situation would
take to prevent unauthorised physical access, damage and interference to
the Site and Equipment, including but not limited to those set out in Items 10
and 11 of the Schedule;
(b)
Take all reasonable steps that a prudent operator in a similar situation would
take to protect any Land Information Product or Value Added Product against
unauthorised access by any person including employees and Consultants or
by computer programs including but not limited to viruses;
(c)
Have formal procedures in place to:
(i)
manage (eg. grant, revoke and audit) access to any Land
Information Products or Value Added Products by the VAR itself,
End Users, Sub-Licensees, or any third parties including employees,
agents, Consultants or by computer programs; and
(ii)
authorise and record every access or receipt of Land Records;
(iii)
store and archive any Land Information Product or Value Added
Product and manage the development of a new Value Added
Product behind a firewall that prevents unauthorised access of any
kind and in particular access via the Internet;
(iv)
provide protection eg. firewall against intrusion and uncontrolled
access, to any Land Information Product or Value Added Product
from across the Internet;
(v)
prevent unauthorised down loading before payment has been
secured or terms of payment agreed; and
(vi)
ensure any Land Information Product or Value Added Product is
properly secured from interference when being transferred across
the Internet.
14.6
The VAR will ensure that its employees, agents, Consultants, Sub-Licensees, End
Users and clients are made aware of and agree to comply with the VAR’s security
obligations contained in this Agreement, before providing access to any Land
Information Product or Value Added Product.
14.7
The VAR undertakes to only use any Land Information Product or Value Added
Product on the Equipment and at the Site specified in Items 10 and 11 of the
Schedule.
14.8
Landgate reserves the right to periodically test security of the Site and the VAR’s
Equipment to ensure compliance with this clause 14 to Landgate’s reasonable
satisfaction.
15
Storage of Land Information Products
The VAR may:
(a)
copy the Land Information Products as it reasonably requires for backup
purposes, provided that all copies of the same contain the proprietary notice
(specified in clause 4.4) and are secured so as not to be accessed or used
by unauthorised persons for any purpose;
(b)
store on the computer server supporting the VAR’s computer systems,
copies of the Land Information Products and Value-Added Products provided
for each End User, for a maximum of 30 days after the relevant transaction
and for the sole purpose of providing backup to those End Users. Those
backup copies (in whatever form or medium they are held) must be
destroyed after the 30 day period expires.
16
Business Continuity
16.1
Landgate may develop and implement planning and procedures coordinating the
responsibilities of the VAR and Landgate in order to minimise service disruption
arising from the occurrence of any event which may disrupt or otherwise materially
adversely affect the continuity of the Landgate business (“Landgate Business
Continuity Plan”).
16.2
The VAR must:
(a)
Document and implement business continuity planning and procedures that
are reasonably satisfactory to Landgate and appropriate to the VAR’s role in
reselling Land Information Products, including the appropriate priority of
electronic information security programs (“VAR Business Continuity Plan”);
(b)
Regularly review the VAR Business Continuity Plan to ensure it remains
current and relevant to the VAR’s business and relationships with Landgate
and any Sub-Licensee; and
(c)
Provide to Landgate a current version of the VAR Business Continuity Plan,
or allow Landgate to review the VAR Business Continuity Plan, on 30 days
Notice from Landgate.
(d)
Comply with any reasonable request from Landgate for the VAR to amend
the VAR Business Continuity Plan, to a standard not less than that of
Landgate Business Continuity Plan.
17
Confidentiality
17.1
The Parties must not disclose Confidential Information except in the circumstances of
clause 17.4.
17.2
Neither Party may use or make available in any form to any third party the other
Party’s Confidential Information, unless in accordance with this Agreement.
17.3
A VAR may only provide the Land Information Product to a Consultant if:
(a)
The Consultant has lodged a Confidentiality Deed (in the form set out in
Annexure A) and it has been approved by Landgate; and
(b)
The Land Information Product is only provided for the purpose of a specific
project, for which the Consultant receives no benefit from the use of the Land
Information Product, other than the Consultant’s fee paid by the VAR.
17.4
Each Party must hold the other Party’s Confidential Information secure and in
confidence, except for such Confidential Information which the first Party can
demonstrate:
(a)
is required to be disclosed according to the requirements of any law, stock
exchange, judicial or parliamentary body or government agency;
(b)
is or has generally become available to the public without breach of this
Agreement;
(c)
was approved for release in writing by the other Party, but only to the extent
of and subject to such conditions as may be imposed in such written
authorisation; and
(d)
is required to be disclosed to a Western Australian government Minister, the
Western Australian Parliament, or any committee or sub-committee of the
Western Australian Parliament (where Landgate is the first Party).
17.5
This clause 17 will survive termination of this Agreement.
18
Privacy
18.1
The VAR agrees to:
(a)
comply with the requirements of the Privacy Legislation, particularly in
relation to its handling of personal information, as defined in the same,
including the collection, use, disclosure and security of such information,
whether or not the VAR is required by law to comply with the Privacy
Legislation;
(b)
comply with any other reasonable direction relating to privacy given by
Landgate, including those relating to Landgate’s own privacy policies and
procedures; and
(c)
not do anything which if done by Landgate would be a breach of the Privacy
Legislation.
18.2
Landgate, its board members, officers and employees will not be responsible for any
actions, claims, cost, proceedings, suits or demands whatsoever arising out of any
breach of the Privacy Legislation by the VAR, Sub-Licensees, End Users,
Consultants or any other person or body corporate in relation to any Land Information
Product or Value Added Product obtained under this Agreement.
18.3
The VAR must not use any Land Information Product or Value Added Product for the
purpose of Direct Marketing of goods or services.
18.4
The VAR must not release the Land Information Products or Value Added Products
obtained under this Agreement to any third party where that party proposes to use
those Land Information Products or Value Added Products for the purpose of Direct
Marketing of goods or services.
18.5
The VAR will provide any assistance requested by Landgate in relation to an
investigation of an allegation of misuse of any Land Information Product or Value
Added Product, or contravention of the Privacy Legislation.
18.6
19
Suppression of Information
19.1
Landgate may at any time give the VAR an Information Suppression Notice.
19.2
An Information Suppression Notice must be in writing and contain the Land
Information Products to be deleted or amended.
19.3
If the VAR is able to search the VAR’s System by a land owner’s name, then within 5
Business Days of receiving an Information Suppression Notice, the VAR must delete
or amend the Suppressed Information from any Land Records in the VAR’s
possession or under its control, including:
(a)
Land Records stored for backup purposes; and
(b)
any Land Records provided by Landgate under this or any previous
agreement.
19.4
On receiving an Information Suppression Notice, the VAR must also take all
reasonable steps to ensure that End Users, Consultants and Sub-Licensees do not
have Land Records containing Suppressed Information in their possession or control.
20
Publicity
20.1
The VAR agrees to:
(a)
Only release publicity statements or any other form of advertisement or
promotion that specifically refers to Landgate or Landgate’s Land Information
Products where:
(i)
they have first been approved by Landgate’s authorised delegate in
writing (including by email), which approval will not be unreasonably
withheld; and
(ii)
at least 24 hours written notice has been provided to Landgate prior
to any such release; and
(b)
Advise Landgate of any media report in relation to the Land Information
Products of which the VAR is aware, at least 24 hours prior to the report
being published;
(c)
Not permit commercial filming or recording in relation to Landgate, without
the prior written approval of Landgate’s authorised delegate.
21
Disclaimers and Release
21.1
To the extent permitted by law, Landgate will in no way be liable to the VAR or
anyone else for any loss or damage, however caused (including through negligence)
which may be directly or indirectly suffered in connection with the use of the Land
Information Product. This general disclaimer is not restricted or modified by any of
the following specific disclaimers.
21.2
The Land Information Product is provided by Landgate in good faith on an “as is”
basis. The Land Information Product is believed to be accurate and current at the
date it is supplied. The VAR acknowledges that it must not act on the basis of
anything contained in any Land Information Product without first obtaining specific
professional advice.
21.3
All Land Information Products have been acquired from data from various sources
and therefore are recorded and stored at different levels of reliability. The VAR
acknowledges that any Land Information Product may become erroneous over time.
The VAR must ensure that Landgate will not be held liable in any way, for any loss,
damage or injury suffered by the VAR or by any other person for the use of or
reliance on any Land Information Product, or for the existence of any errors in any
Land Information Product.
21.4
Notwithstanding anything contained in this Agreement, the VAR must ensure that
Landgate will not be held liable for any claim which may arise from the modification,
combination, operation or use of any Land Information Product with computer
programs or data not provided by Landgate.
21.5
Landgate does not warrant that any Land Information Product will be capable of
being processed on any equipment.
21.6
The VAR acknowledges that:
(a)
Land Information Products have not been prepared to meet the requirements
of the VAR or of any other party; and
(b)
it is therefore the responsibility of the VAR to ensure that any Land
Information Product meets its own individual requirements.
21.7
To the extent permitted by law and except where consumer guarantees imposed by
Division 1 of Part 3-2 of the Australian Consumer Law are applicable, no warranty,
condition, undertaking or term, (whether express or implied), as to the condition,
quality, reliability, accuracy or completeness, performance, merchantability or fitness
for purpose of any Land Information Product is given or assumed by Landgate.
21.8 Pursuant to section 64A of the Australian Consumer Law, this clause 21.8 applies in
respect of any of the goods or services supplied under this Agreement which are not
of a kind ordinarily acquired for personal, domestic or household use or consumption.
To the extent permitted by law, Landgate’s liability for failure to comply with a
guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law,
other than a guarantee under section 51, 52 or 53 of the Australian Consumer Law,
is hereby limited to:
(a)
(b)
in the case of goods, at Landgate’s option, any one or more of the following:
(i)
the replacement of the goods or the supply of an equivalent product;
(ii)
the repair of the goods;
(iii)
the payment of the cost of replacing the goods or of acquiring an
equivalent product; or
(iv)
the payment of the cost of having the goods repaired; or
in the case of services, at the Landgate’s option;
(i)
the supply of the services again; or
(ii)
the payment of the cost of having the services supplied again.
.
21.9
This clause 21.9 applies where any act, statute, rule or regulation (other than Division
1 of Part 3-2 of the Australian Consumer Law and regulations made in relation
thereto) (“other law”) implies in this Agreement any term, condition, warranty, right or
obligation (“implied term”), and the other law avoids or prohibits a provision in a
contract excluding or modifying the application of, exercise of or liability under such
implied term. To the extent permitted by law, the liability of Landgate for any breach
by it of such implied term is limited, at Landgate’s option, to any one or more of the
remedies referred to in clauses 21.8(a) or 21.8(b) above.
21.10
If appropriate Landgate will provide and the VAR will place on its website and Value
Added products Landgate’s Disclaimer and Copyright Notice.
22
Limitation of Liability
22.1
The VAR agrees that, subject only to clause 21.8, in no circumstances will Landgate
be liable for damages, including indirect, special, incidental or consequential
damages (including loss of existing or anticipated revenue) in connection with or
arising out of the use of any Land Information Product or Software or otherwise in
connection with this Agreement, even if Landgate has been advised of the possibility
of such damages.
22.2
The VAR agrees that, subject only to clause 21.8, the liability of Landgate for all
claims, in aggregate, which it may have against Landgate relevant to any Land
Information Product (whether for breach of this Agreement, for negligence or
otherwise), will be limited to the amount paid or payable by the VAR to Landgate
during the first 12 months’ duration of this Agreement.
23
Indemnity and Responsibility
23.1
The VAR must indemnify (and keep indemnified) Landgate, its board members,
officers, employees and agents in respect of all claims, demands, actions, suits and
damages for loss, damage or injury (including indirect or consequential loss) suffered
by Landgate, its board members, officers, employees and agents resulting from:
(a)
the VAR’s, or their Sub-Licensee’s or End User’s use, reliance on, or sale of
Land Information Products and Value Added Products, or reliance on the
Software, whether or not any such reliance is notified to Landgate by the
VAR;
(b)
any breach of this Agreement and any tort or negligence by the VAR, any
Consultant, End User or Sub-Licensee in connection with this Agreement;
(c)
(d)
all breaches of Intellectual Property Rights by the VAR or any third party to
whom the VAR provided access to any Land Information Product, either
deliberately or inadvertently; and
any legal costs, charges and expenses arising in respect of (a) – (c) above
except to the extent such loss is caused by Landgate’s negligence or breach of this
Agreement.
23.2
23.3
The VAR agrees to:
(a)
notify Landgate of and to provide all information in its possession or under its
control for any breach of this Agreement by any End User, Consultant, SubLicensee or a third party; and
(b)
provide all reasonable assistance in any action taken or proposed to be
taken by Landgate in enforcing its rights under this Agreement; and
(c)
promptly advise Landgate in writing of any actions, suits, claims, demands,
proceedings, losses, damages, compensation, sums of money, costs,
charges and expenses which may be brought, claimed or threatened against
the VAR, a Sub-Licensee, End User, Consultant or Landgate for or relating to
any Land Information Product or Value Added Product.
24
Insurance
24.1
The VAR must take out and maintain at its sole expense for the Term:
(a)
all statutory workers' compensation insurance required by law;
(b)
a valid and enforceable product and public liability insurance policy with an
insurer approved by the Australian Prudential Regulation Authority (“APRA”),
for a sum insured of at least $10,000,000 for each claim; and
(c)
a valid and enforceable professional indemnity insurance policy with an
insurer approved by Landgate, covering the VAR’s liability arising out of any
act, neglect, error or omission made or done by or on behalf of the VAR, its
employees, agents, members, subscribers, End Users, Sub-Licensees and
Consultants in connection with this Agreement for a sum insured of at least
$5,000,000 per occurrence.
24.2
The VAR must disclose this Agreement to any insurer from whom such insurance is
referred to in this clause 24 is sought and provide proof of this disclosure by a written
confirmation from the insurer to Landgate. Landgate acknowledges and agrees that
such disclosure will not constitute a breach of clause 17 (Confidentiality).
24.3
The VAR must notify Landgate immediately of any cancellation or non-renewal of the
insurance policies referred to in clause 24.1 and 24.2.
24.4
Landgate may, in its absolute discretion, subject to the provision of 60 days Notice,
reasonably require the VAR to increase the level of insurance obtained by the VAR,
as referred to in this clause 24.
24.5
The VAR must purchase a special professional indemnity policy covering a run off
period for a minimum of 7 years (continuing) in the event of:
(a)
cessation of the VAR’s business;
(b)
termination of this Agreement resulting from the VAR ceasing to operate,
becoming insolvent or a receiver/manager, trustee in bankruptcy,
administrator or similar officer being appointed to take charge of all or part of
the VAR’s property;
(c)
a petition being presented for the winding up or dissolution of the VAR, or the
VAR terminating this Agreement.
24.6
The VAR must provide to Landgate:
(a)
a certificate of currency or other policy documentation as deemed reasonably
necessary by Landgate, as evidence of the insurance held by the VAR to
meet the requirements of clauses 24.1 and 24.5; and
(b)
a copy of each annual renewal of the VAR’s certificate of currency, on receipt
from their insurer.
25
Default and Termination
25.1
Either Party may terminate this Agreement by giving the other Party at least 30 days
Notice.
25.2
If the VAR fails to perform any of its obligations under this Agreement, then Landgate
may:
(a)
Give the VAR a Notice describing the default and requiring the VAR to
remedy the default within 7 days;
(b)
Immediately (without notice) suspend part or all of the VAR’s access to the
Land Information Products, until such time as the VAR remedies the default;
(c)
Charge the VAR interest on any overdue amounts at a rate equal to 2% per
cent above the applicable base lending rate of the Commonwealth Bank (as
determined by Landgate), calculated on a daily and cumulative basis from
the payment due date until the date of payment in full;
(d)
Charge the VAR a default fee for all costs reasonably incurred by Landgate
in relation to the enforcement and/or collection of any overdue amounts; and
(e)
Immediately draw on or require payment under the Bank Guarantee to an
amount equal to the total amount owing to Landgate and any other charges
owed by the VAR.
25.3
To the extent that Landgate is required to do any matter or thing which the VAR
should have done or is required to do under this Agreement, then the VAR agrees as
follows:
(a)
The VAR agrees to pay Landgate, within 7 days of receiving an invoice for
such matter from Landgate, the full amount of such invoice without setoff or
deduction; and
(b)
In the event that the VAR does not make payment within 7 days, Landgate
may immediately take action to recover any sums due to it as and by way of
liquidated debt, in a court of competent jurisdiction.
25.4
Landgate may terminate the Agreement immediately by Notice to the VAR, if:
(a)
the VAR fails to remedy a default after being given 14 days Notice;
(b)
anything occurs, the effect of which is to transfer, directly or indirectly, the
management or control of the VAR to another person or third party;
(c)
there is any change in control of the VAR within the meaning of the
Corporations Act 2001 (Cth).
(d)
the VAR is wound up, becomes insolvent or has a liquidator, provisional
liquidator, administrator, receiver, manager or receiver and manager
appointed; or
(e)
the VAR fails to comply with clause 4, 5, 7, 8, 9, 12, 14, 15, 17, 18, 19, 20
and 23 of this Agreement
25.5
If Landgate ceases to be a public authority within the meaning of s3(1) the State
Supply Commission Act 1991, either Party may terminate the Agreement by Notice
within 30 days.
26
Obligations when Agreement Ends
26.1
The expiration or termination of the Agreement does not affect any rights, liabilities or
obligations of the Parties as a result of anything occurring before the expiration or
termination.
26.2
On termination of this Agreement, the VAR must immediately:
(a)
pay Landgate all payments owing immediately; and
(b)
cease to use all Land Information Products;
(c)
delete and expunge any Land Information Products from its systems and
records and return to Landgate, within 30 days of the Termination Date, all
copies of those Land Information Products that are able to be disaggregated
and that are in its possession (in whatever form or medium it is held);
(d)
in every other respect co-operate with Landgate as it may reasonably
require, to minimise any loss, damage or inconvenience to Landgate and its
customers resulting from the expiration or termination of the Agreement.
26.3
The VAR may continue to keep one copy of relevant Land Information Products for
archiving, statutory and indemnity purposes, but may not further use or distribute
such Land Information Products.
26.4
The VAR must provide to Landgate written certification specifying that clause 26.2
has been complied with, within 30 days of the Termination Date.
26.5
The VAR must permit Landgate or any person authorised by Landgate to inspect and
audit the VAR’s systems and Accounts for compliance with this clause on being given
at least 30 Business Days’ Notice.
26.6
This clause 26 will survive the termination of this Agreement.
27
Further Term or Holding Over Period
27.1
The VAR may exercise an option to extend this Agreement for the Further Term or
terms (if any) set out in Item 18 of the Schedule, on the terms and conditions of this
Agreement (except for this option to extend in the second Further Term), provided:
(a)
The VAR is not in breach of any of the terms and conditions of this
Agreement;
(b)
the VAR makes a written request to Landgate, that the Agreement be
extended, at least 3 months prior to the expiration of the Term; and
(c)
Landgate, in its absolute discretion, agrees to that request.
27.2
If the VAR exercises the option referred to in clause 27.1 and Landgate consents, the
Agreement will be extended for the Further Term and will:
27.3
(a)
Commence on the day after this Agreement expires;
(b)
Include the Annual Licence Charge and Royalties that will increase annually
on each anniversary of the Commencement Date, in accordance with clause
7.5 of this Agreement.
If this Agreement is not extended under sub-clauses 27.1 and 27.2; and
(a)
the VAR makes payment of the Annual Licence Charge due for the time
period after the Termination Date; and
(b)
Landgate accepts the same; and
(c)
the VAR is not in arrears with its Royalties at the Termination Date;
Then this Agreement will continue in operation in all respects during a Holding Over
Period, terminable by either Party on not less than 30 days Notice, except that the
Annual Licence Charge will be payable monthly in advance on a pro-rata basis.
27.4
If this Agreement is not extended in accordance with sub-clauses 27.1 and 27.2 or
held over for the Holding Over Period:
(a)
This Agreement will cease at the expiration of the Term or sooner if
terminated; and
(b)
No further licence in relation to the Land Information Products may be
exercised or implied.
28
Variation
28.1
The Agreement may be varied by the Parties. Any variation of the terms and
conditions of the Agreement will only be binding if in writing and signed by both
Parties.
29
Force Majeure
29.1
A Party to this Agreement will not be entitled to exercise its rights and remedies upon
the default of the other Party if that default:
(a)
is caused by an act or event beyond the reasonable control of that other
Party;
(b)
continues for greater than one month; and
(c)
was not reasonably foreseeable at the time this Agreement was entered into.
29.2
Both Parties will be released from their respective obligations in the event of national
emergency, war, prohibitive governmental legislation or if any other cause beyond
the reasonable control of the Parties renders performance of the Agreement
impossible.
29.3
In the event that the preceding two sub-clauses apply then neither Party will be in
breach of its obligations which it cannot fulfill as a result of that event. As soon as a
Party believes an occurrence has occurred of the type stated in those sub-clauses, it
must notify the other Party.
29.4
If the situation specified in sub-clauses 29.1 or 29.2 occurs, the VAR must comply
with clause 26.
30
Conflict of Interest
30.1
The VAR must disclose to Landgate, any information that is or might be relevant to
determining whether an actual, potential or perceived conflict of interest exists or
might exist in relation to this Agreement or the performance of this Agreement by the
VAR.
30.2
Landgate may, in its discretion, terminate the Agreement if it considers that the VAR
has, or could reasonably be considered to have, an actual, potential or perceived
conflict of interest in relation to the performance of the Agreement by the VAR.
31
No Bribe, Inducement or Offer of Employment
31.1
The VAR must not, without the prior written consent of Landgate, directly or indirectly
approach or communicate with any officer or employee of Landgate having any
connection or involvement with the Agreement, for:
(a)
an offer of employment; or
(b)
availability of employment,
with the VAR or any related entity.
31.2
The VAR must not directly or indirectly offer a bribe, gift or inducement to any officer
or employee of Landgate in connection with the Agreement.
32
Use of Lobbyists
The VAR warrants and represents to Landgate that any "Lobbyist"
[as that term is defined in Premier's Circular No. 2007/09
(see http://www.dpc.wa.gov.au/psmd/pubs/legis/premcirculars/premierscirc.cfm )]
that the VAR has employed, engaged or has otherwise involved, directly or indirectly,
in connection with the Agreement, is duly registered as a "Lobbyist" in terms of that
Premier's Circular and has fully complied with the obligations under it.
33
Governing Law, Parties’ Rights and Remedies
33.1
This Agreement will be construed and governed by the law for the time being in force
in Western Australia. The Parties submit to the non-exclusive jurisdiction of the courts
of Western Australia.
33.2
The VAR:
(a)
must not represent itself or allow itself to be represented as a partner, joint
venturer, employee or agent of Landgate;
(b)
is not by virtue of this Agreement a partner, joint venturer, employee or agent
of Landgate, nor does the VAR have any power or authority to bind or
represent Landgate.
33.3
A Party may exercise a right, power or remedy at its discretion either separately or
concurrently with another right, power or remedy. A single or partial exercise of a
right, power or remedy by a Party does not prevent a further exercise of that right,
power or remedy or an exercise of any other right, power or remedy. Failure by a
Party to exercise or delay in exercising a right, power or remedy does not prevent its
exercise.
33.4
The rights, powers and remedies provided in this Agreement are cumulative with and
not exclusive of the rights, powers or remedies provided by law or available in equity,
independently of this Agreement.
33.5
If any provision of this Agreement becomes invalid, illegal or unenforceable for any
reason, this Agreement will remain otherwise in full force apart from such provision,
which will be deemed deleted or read down to the extent reasonable to make it valid
and enforceable, at Landgate’s election.
33.6
This Agreement constitutes the entire agreement between the Parties and
supersedes any previous agreements or representations, written or oral, about the
Land Information Products.
33.7
Waiver by either Party of any default or breach of this Agreement will not constitute a
waiver of any other or subsequent default or breach.
33.8
No decision, exercise of discretion, judgment or opinion or approval of any matter
mentioned in this Agreement or arising from it, will be deemed to have been made by
Landgate, unless in writing and at its sole discretion, except where otherwise
expressly provided in this Agreement.
33.9
The VAR must do all things and sign all documents necessary to give effect to the
provisions of this Agreement.
33.10
If there is any inconsistency between:
(a)
this Agreement; and
(b)
the Schedule to this Agreement,
the Schedule prevails to the extent of that inconsistency.
34
Assignment and Sub-Licensing
34.1
The VAR may not assign, transfer or sub-licence its rights under this Agreement
unless it has first obtained the written consent of Landgate, whose consent may be
withheld in its absolute discretion.
34.2
If the VAR is a corporation [other than a public company as defined in the
Corporations Act 2001 (Cth)] the VAR is deemed to have assigned the Agreement if:
(a)
anything occurs, the effect of which is to transfer, directly or indirectly, the
management or control of the VAR to another person; or
(b)
there is any change in control of the VAR within the meaning of the
Corporations Act 2001 (Cth).
34.3
Any assignee or similar must comply with the Qualitative Criteria, prior to Landgate
approving any assignment, transfer, sub-licence or similar.
34.4
In addition to sub-clause 34.1, the VAR must not sub-licence its rights under this
Agreement in whole or in part, unless:
(a)
The relevant terms and conditions of this Agreement also apply to any SubLicensee (except for the payment amounts prescribed in the Schedule and
any right to appoint Sub-Licensees) ; and
(b)
The Sub-Licensee’s Unique Hits are accounted for separately and excluded
from those included in the VAR’s Transitional Royalty Cap and the Annual
Royalty Cap, if they apply;
(c)
The VAR ensures that Landgate will be permitted to inspect any SubLicensee’s contracts, accounts and records which arise from or relate to this
Agreement;
(d)
The VAR remains entirely responsible for the acts or omissions of any SubLicensee under or in connection with this Agreement;
(e)
The VAR indemnifies Landgate fully for any loss it suffers or against any third
party liability it incurs, that is caused or contributed to by an act or omission
of a Sub-Licensee;
(f)
The VAR informs all Sub-Licensees (or similar), that the contractual
relationship between the VAR and Landgate does not impose any express or
implied legal obligation of any nature whatsoever, in contract or by any other
means, on the part of Landgate to the Sub-Licensee; and
(g)
The details of any Sub-Licensee as specified in Item 20 of the Schedule are
advised to Landgate in writing and updated in the same manner whenever
the details change.
34.5
Landgate may withdraw its consent to any or all of the VAR’s Sub-Licensees at any
time by Notice and the VAR must terminate the Sub-Licensees concerned within 7
days of the date of such Notice.
34.6
If Landgate withdraws its consent to any Sub-Licensee in accordance with the
preceding clause, Landgate may also (acting in its absolute discretion):
(a)
terminate this Agreement; and
(b)
terminate any other contracts it has with the VAR.
34.7
Neither Landgate, nor the Crown, will be subject to any claim for damages or any
other loss, for any contracts terminated under this clause.
35
Notices
35.1
Any Notice given under this Agreement:
(a)
must be in writing and signed by a person duly authorised by the sender;
(b)
must be addressed to the intended recipient at the address or facsimile
number in Item 2 of the Schedule (or Item 20 for Sub-Licensees), or the
address or facsimile number last notified by the intended recipient to the
sender; and
(c)
will be given and will be taken to have been given or made:
(i)
when delivered, for delivery in person (including by overnight or
international courier) or to the recipient’s address;
(ii)
3 Business Days after posting (or 7 Business Days if from a place
outside Australia, for prepaid post; or
(iii)
at the time of transmission, for facsimile transmission, provided that:
following transmission, the sender’s facsimile machine produces a
report confirming successful transmission of the facsimile in its
entirety; and
(iv)
if delivery or receipt occurs on a day on which business is not
generally carried on in the place to which the Notice is sent, or is
later than 5pm (local time), the Notice will be deemed duly given at
the commencement of business on the next day on which business
is generally carried on in that place.
36
Dispute Resolution
36.1
Before resorting to external dispute resolution mechanisms, the parties must attempt
to settle by negotiation in good faith, any dispute in relation to this Agreement and
where practicable, each Party will refer the matter to personnel who have authority to
intervene and direct some form of resolution.
36.2
Either Party may give the other Party formal notice in writing of a dispute and if the
dispute is not settled within 10 Business Days, it must be submitted to the dispute
resolution process described in clause 36.3 and 36.4.
36.3
It is agreed by both Parties that the dispute resolution process will first consist of
mediation.
36.4
In the absence of agreement, the mediation will be conducted by a single mediator.
The mediator is to be appointed by the President of the Law Society of Western
Australia within 10 Business Days of request for appointment by one Party to the
other. During the mediation:
(a)
the Parties may not be represented by legal practitioners;
(b)
the mediator will determine the process for mediation; and
(c)
the costs of the mediation will be shared equally by the Parties.
36.5
If the dispute remains unresolved after 30 days and both Parties have made genuine
attempts to resolve the dispute in accordance with the preceding sub-clauses, either
Party may then have recourse to the courts.
SCHEDULE
Item 1
Date of Agreement [Licensor to complete]
DATED THIS
Item 2
DAY OF
201
Details of Parties
Landgate
Entity Name
Western Australian Land
Information Authority, a body
corporate established by the Land
Information Authority Act 2006 and
trading as Landgate
ABN
86 574 793 858
Contact Person
Glen Jacobsen, Lead Account
Manager, Land and Property
Market
Address for service of
Notices
1 Midland Square, Midland,
Western Australia 6056
Telephone
(08) 9273 7139
Value-Added Reseller (VAR)
Mobile
Fax
(08) 9273 7205
Email Address
[email protected]
[email protected]
Web Address
www.landgate.wa.gov.au
Item 3
Agreement Number
Item 4
Commencement Date
Item 5
Termination Date
Item 6
Description of Land Information Products
(i)
(ii)
Item 7
Sales Evidence Data
Tenure Data
Format of the Land Information Products
ASCII or Excel
Item 8
Metadata of the Land Information Products
Metadata statements on the Information are provided with the Information
Item 9
Approved Purpose of Land Information Products
The VAR may only use Land Information Products in the lawful conduct of its
business to:
(a)
(b)
(c)
collate and prepare information for the general public, potential vendors, or
prospective market listings, of properties that may be offered for sale in
Western Australia;
collate and prepare information for potential purchasers of properties offered
for sale in Western Australia;
collate and prepare information for persons having or reasonably potentially
likely to have a legitimate interest in a property offered, or that may be
offered, for sale in Western Australia (for example, financiers/mortgagees,
investors, tenderers);
The Land Information Products may be used by the Licensee or any of its End
Users’ entitled to access and use the Land Information Products, in accordance
with this Agreement, for the purpose of preparing, compiling, creating or
manufacturing any Value Added Product of the following type for the following
purpose and subject to Clause 18 of the Licence:
(a)
(b)
(c)
Value Added Products for presentation to the general public, potential
vendors and purchasers of properties that may be offered for sale in Western
Australia;
Value Added Products for inclusion in any other products or for general
publication in any newspaper or other publication, distributed or proposed to
be distributed in relation to the real estate industry in Western Australia;
Value Added Products for inclusion in Property Appraisal Reports for
presentation to owners or potential purchasers of the property, or other
persons having a legitimate interest in property.
Item 10
Site
Item 11
VAR’s System
[See Definition and clause 14. Specify authorised equipment.]
Item 12
Land Information Product Updates
Maintenance updates of the Land Information Products will be provided by
Landgate on:
Sales Evidence Data – Weekly – Incremental
Tenure Data – Fortnightly – Refresh
Item 13
Security Level
As specified in sub-clause 14.5
Item 14
Register of Access, Transfers and Sales
The Register must contain the following information for all End Users, Consultants,
Sub-Licensees and third parties who access or receive Land Information Products
or Value Added Products:
(i)
Name, registered business name, company name and ABN
(ii)
Contact person's name
(iii) Site address
(iv) Date of commencement / signing access agreement.
(v)
Extent of access/usage
(vi) Any other attribute nominated by Landgate
(vii) The Land Record usage (or Unique Hits) for each;
(viii) Land Information Products sold.
In accordance with sub clause 8.1(f), the VAR will forward the Register quarterly to:
Pricing and Licensing Section
Landgate
PO Box 2222
Midland WA 6936
Attention : Business Consultant
or by Email to: [email protected]
Item 15
Annual Licence Charge, Payment Manner and Frequency
Item 16
Royalties, Payment Manner and Frequency
Item 17
Review Date(s)
Annually on the ___________
Item 18
Further Term
One (1) option to extend for a period of one (1) year in accordance with clause 27.
Item 19
Bank Guarantee
$...........................
Item 20
Sub-Licensee Details
Sub-Licensee’s Business Name
ABN
Contact Person
Address for service of Notices
Telephone
Mobile
Fax
Email
Web Address
Item 21
Special Conditions
Not applicable
SIGNING PAGE
Landgate’s Execution
Signed for and on behalf of the Western
Australian Land Information Authority
in accordance with authorisation under
section 87 of the Land Information
Authority Act 2006, in the presence of:
)
)
)
)
)
______________________________________
__________________________________________
Signature of Witness
__________________________________________
Name of Witness (print)
Date:
/
/
VAR’s Execution
Executed by …………………………………….(ABN………………………) in accordance with
section 127 of the Corporations Act 2001:
_____________________________________
Signature of Director
___________________________________
Signature of Director / Company Secretary
_____________________________________
Name of Director (print)
___________________________________
Name (print)
Date:
Date:
/
/
/
/
OR
Executed by …………………………………….(ABN………………………) in accordance with
section 127 of the Corporations Act 2001:
__________________________________________
Signature of Sole Director/Sole Secretary
__________________________________________
Name of Sole Director/Sole Secretary (print)
Date:
/
/
Annexure A
CONFIDENTIALITY DEED
trading as
LANDGATE
(Disclosing Party)
AND
[ OTHER PARTY ]
(Receiving Party)
PARTIES
Trading as Landgate
ABN 86 574 793 858
1 Midland Square, Midland WA 6936
(Disclosing Party)
[ NAME OF RECEIVING PARTY ]
ABN
Address
(Receiving Party)
BACKROUND
A
The Disclosing Party possesses the Confidential Information. The Receiving Party
wants to have access to the Confidential Information for the Specified Purpose.
B
The Disclosing Party has agreed to disclose the Confidential Information to the
Receiving Party subject to the terms and conditions of this Agreement.
AGREEMENT
1
ACCESS
The Receiving Party acknowledges that the Receiving Party may be given access to
certain Confidential Information of the Disclosing Party for the Specified Purpose.
2
OBLIGATION OF CONFIDENTIALITY
2.1
Confidentiality
In consideration of the Disclosing Party allowing the Receiving Party to have access to
the Confidential Information, the Receiving Party agrees that (i) it will keep confidential
the Confidential Information; and (ii) it will ensure that its officers, employees,
contractors, agents and advisors will keep confidential the Confidential Information.
2.2
Continuing Obligation
The Receiving Party shall continue to be bound by the covenants and obligations
contained in this Agreement even if
(a) this Agreement is terminated for any reason, or
(b) the Specified Purpose comes to an end for any reason.
3
RECEIVING PARTY’S OBLIGATIONS
3.1
Non-Disclosure and Use
(a)
(b)
3.2
Unless it has the prior written consent of the Disclosing Party to do so, the
Receiving Party will not
(i)
disclose any of the Confidential Information to any other person; or
(ii)
use any of the Confidential Information otherwise than for the Specified
Purpose.
The Receiving Party will ensure that its officers, employees, contractors,
agents and advisors do not
(i)
disclose any of the Confidential Information to any other person; or
(ii)
use any of the Confidential Information otherwise than for the Specified
Purpose. This clause 3.1(b) does not apply if the Disclosing Party has
given its prior written consent for the disclosure or use.
Uncertainty
If the Receiving Party is uncertain as to whether any information is Confidential
Information, the Receiving Party will treat the information as if it were Confidential
Information unless and until the Disclosing Party agrees in writing that the information
is not Confidential Information.
3.3
Precautions
The Receiving Party will take all reasonable precautions to (i) maintain the
confidentiality of Confidential Information, (ii) prevent the unauthorised disclosure of the
Confidential Information, and (iii) prevent the unauthorised use of the Confidential
Information.
3.4
Unauthorised Disclosure or Use
If the Receiving Party becomes aware of any actual or likely unauthorised disclosure or
use of the Confidential Information, then the Receiving Party will (i) immediately notify
the Disclosing Party of the actual or likely unauthorised disclosure or use of the
Confidential Information, and (ii) take all steps which the Disclosing Party may
reasonably require in relation to such actual or likely unauthorised disclosure or use.
3.5
Return of Confidential Information
At the conclusion of the Specified Purpose or upon the written request of the Disclosing
Party, the Receiving Party will, at its own expense, immediately deliver to the
Disclosing Party all records and materials (and copies of those records and materials)
containing or embodying the Confidential Information that are in the possession of (a)
the Receiving Party, its officers, employees, contractors, agents or advisors, or (b) any
other person to whom the Receiving Party has disclosed all or any of the Confidential
Information (whether or not with the consent of the Disclosing Party).
4
Exceptions
The Receiving Party will not be bound to keep confidential any Confidential Information
if and to the extent that any one or more of the following circumstances occur.
(a) The Confidential Information is, or becomes part of the public domain otherwise
than by breach of this Agreement by the Receiving Party.
(b) Prior to the disclosure of the Confidential Information by the Disclosing Party to
the Receiving Party, the Confidential Information was already in the Receiving
Party’s possession as a result of the Confidential Information having been
lawfully obtained by the Receiving Party from another person without any
restriction as to use or disclosure.
(c)
After the disclosure of the Confidential Information by the Disclosing Party to the
Receiving Party, the Confidential Information is lawfully obtained by the
Receiving Party from another person without any restriction as to use or
disclosure.
(d) The Confidential Information is required to be disclosed by the operation of any
law, stock exchange, judicial or parliamentary body or governmental agency.
(e) The Disclosing Party has given its written consent to the disclosure of the
Confidential Information.
(f)
The Confidential Information is disclosed by the Receiving Party to its officers,
employees, agents, contractors or professional advisers who have agreed in
writing to keep confidential the Confidential Information.
(g) If the Recipient Party is an agent, agency, department or instrumentality of the
State of Western Australia, then the Recipient may disclose the Confidential
Information to
(i) any Western Australian government Minister, or
(ii) the Western Australian Parliament, or
(iii) any committee or sub-committee of the Western Australian Parliament.
5
REMEDY
5.1
Financial and Other Loss and Damage
The Receiving Party acknowledges and accepts that (i) the Disclosing Party would
suffer financial and other loss and damage if there were any breach of this Agreement,
and (ii) monetary damages would be an insufficient remedy.
5.2
Injunctive Relief
The Receiving Party acknowledges and accepts that, in addition to any other remedy
which may be available in law or equity, the Disclosing Party is entitled to injunctive
relief to prevent a breach of this Agreement and to compel specific performance of this
Agreement.
5.3
Costs and Expenses
Following a written request from the Disclosing Party, the Receiving Party will
immediately reimburse the Disclosing Party for all costs and expenses (including legal
costs and disbursements on a full indemnity basis) incurred by the Disclosing Party in
enforcing the obligations of the Receiving Party under this Agreement.
6
INDEMNITY
6.1
Indemnity for Costs
The Receiving Party will indemnify the Disclosing Party against all costs, expenses,
actions or claims directly or indirectly incurred or suffered by the Disclosing Party as a
result of any breach of this Agreement by the Receiving Party.
6.2
Scope of Indemnity
The indemnity in clause 6.1 extends to and includes all costs, damages and expenses
incurred by the Disclosing Party in defending and/or settling any such costs, expenses,
actions, suits proceedings, claims or demands (including legal costs and
disbursements on a full indemnity basis).
7
CUMULATIVE RIGHTS
The rights under or arising out of this Agreement do not exclude any other rights of
either party.
8
WAIVER
8.1
No Waiver Except by Notice in Writing
No right under this Agreement is waived or deemed to be waived except by notice in
writing signed by the party waiving the right.
8.2
No Waiver of Subsequent Breaches
A waiver by one party under clause 8.1 does not prejudice its rights in respect of any
subsequent breach of this Agreement by the other party.
8.3
No Waiver by Extension or Forbearance
A party does not waive its rights under this Agreement because it grants an extension
or forbearance to the other party.
9
VARIATION
A variation of this Agreement will not be effective unless it is in writing and signed by
the parties.
10
GOVERNING LAW AND JURISDICTION
10.1 Governing Law
This Agreement is governed by the laws of the State of Western Australia.
10.2 Jurisdiction
The parties irrevocably submit to the exclusive jurisdiction of the courts of the State of
Western Australia.
11
DEFINITIONS
The following definitions apply to the interpretation of this Agreement.
Confidential Information means any one or more of the following.
(a)
All trade secrets, ideas, know-how, concepts and information whether in writing
or otherwise relating in any way to the matters described in item 1 of the
Schedule.
(b)
All other information relating to the Disclosing Party and its affairs or
businesses, sales, marketing or promotional information, which is not in the
public domain.
Confidential Information includes (i) all information which the Receiving Party becomes
aware of (as well as information which is specifically disclosed), and (ii) any item
referred to above which is in the Disclosing Party’s power, possession or control
concerning or belonging to any other person.
Schedule means the schedule to this Agreement.
Specified Purpose means the purpose set out in item 2 of the Schedule.
SCHEDULE
1
CONFIDENTIAL INFORMATION
1.1
This item requires VERY careful consideration as it describes the information which is
to be protected.
The information to be protected should be clearly identified and then an accurate
description of that information needs to be inserted in this item of the schedule.
Great care needs to be taken to ensure that description includes all of the information
which is to be protected.
The following is included as an example of what Landgate has previously included in
this item.
1.2
1.3
1.4
These notes should be deleted from the final draft.
2
SPECIFIED PURPOSE
2.1
Insert a description of the specified purpose for which the Confidential Information is
being disclosed.
These notes should be deleted from the final draft.
EXECUTED BY THE PARTIES AS AN AGREEMENT
Executed for and on behalf of the
DISCLOSING PARTY
Signature
Date
(i)
Name (Please Print)
(ii)
Status (eg director, manager etc)
By signing this Agreement the Disclosing Party’s
representative warrants that he / she has authority
to sign this Agreement on behalf of the Disclosing Party
Executed for and on behalf of the
RECEIVING PARTY
Signature
Date
(i)
Name (Please Print)
(ii)
Status (eg director, manager etc)
By signing this Agreement the Receiving Party’s
representative warrants that she / he has authority
to sign this Agreement on behalf of the Receiving Party
[These notes should be deleted from the final draft of the agreement]
NOTES FOR COMPLETING THIS PRECEDENT
1
This is a one way Confidentiality Agreement where Landgate (L) discloses
information to the other party (OP). OP’s details need to be included on the cover and on
page 1.
2
If OP is also disclosing information to L, then a separate agreement should prepared
where OP is the disclosing party and L is the Receiving Party.
3
This precedent is based on the precedent which appears in the Encyclopaedia of
Forms and Precedents. It has been reviewed by SSO. Comments from SO have been
incorporated.
4
Steps required to complete this precedent.
4.1
4.2
4.3
5
Include the OP details on the cover and page 1
Complete items 1 and 2 of the schedule.
Execution of the agreement by authorised representatives.
This precedent was prepared in May 2008 (Mark McLinden).
This precedent was last updated in May 2008 (Mark McLinden).

LANDGATE LAND INFORMATION VALUE ADDED RESELLER LICENCE AGREEMENT

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