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Subscriber
1. Parties
This Agreement is made between
(1) The Woolmark Company Pty Ltd (ACN 067 866 657) ("Woolmark")
and
(2) The Subscriber organisation firm company or individual identified
in the Order Form to which this subscription and licence agreement
refers ("Subscriber"), and governs the Subscriber's Authorised
User's use of the Woolmark Site.
2. Definitions
In this Agreement all expressions are as set out in the following
meanings:-
2.1 "Authorised User" means any person who has
access to the Woolmark Site under a separate ID issued by Woolmark,
on the Subscriber's written instructions, by virtue of this Agreement;
2.2 "Commencement Date" means the date upon which
Woolmark accepts the Subscriber's application to subscribe to the
Woolmark Site and from which the Subscriber's Authorised User shall
have access to the Woolmark Site;
2.3 "Content" means any and all such data which
from time to time comprises the Woolmark Site including, without
limitation, illustrations, photographs and text or any part thereof;
2.4 "ID" means the Authorised User's user name
and password;
2.5 "Licence" means the licence granted to the
Subscriber's Authorised User(s), pursuant to clause 3.1 below;
2.6 "Premises" means the main address from which
the Subscriber's Authorised User(s) will access the Woolmark Site
and such other addresses where the User may access the Site remotely,
as notified to Woolmark in the Order Form;
2.7 "Order Form" means the form set out on the
front of this document or printed from the Woolmark Site containing
the Subscriber details, submission of which form duly completed
to Woolmark constitutes an application to subscribe to the Woolmark
Site under the terms set out in this Agreement;
2.8 "Software" means the software or any part
of it (including any upgrades or modifications thereto from time
to time) to which Woolmark or Woolmark Suppliers give the Subscriber
access or is made available for the Subscriber to download to enable
the Subscriber to use the Woolmark Site;
2.9 "Subscription Fee" means the annual non-refundable
subscription fee for access to the Woolmark Site by the Authorised
User(s), the initial fee shall be as specified in the Order Form
and may be varied from year to year by at least 30 days' notice
to the Subscriber prior to each anniversary of this Agreement;
2.10 "Supplier" means all such Persons who supply
the Woolmark Site including but not limited to those who publish
and provide information, supply hardware, software or other services
to the Woolmark Site;
2.11 "Woolmark Site" means the on-line woolmark.info
wool market information service (and other such services as may
be supplied from time to time) currently available at www.woolmark.info
as made available to the Subscriber pursuant to this Agreement;
2.12 "Woolmark User T&C's" the user terms
and conditions attached as Schedule 1.
3. Licence
3.1 In consideration of the Subscriber paying the Subscription
Fee and all other charges associated with the Subscriber and/or
any of the Subscriber Authorised Users' use of the Woolmark Site,
Woolmark hereby grants to the Subscriber's Authorised User(s), a
non-exclusive non-transferable limited licence to access and utilise
the Woolmark Site in accordance with the Woolmark User T&C's.
3.2 Woolmark shall assign to the Subscriber an ID for the
Subscriber's Authorised User(s) to access the Woolmark Site at the
Premises. Each additional Authorised User appointed by you (the
subscriber) shall be assigned a separate ID for access to the Woolmark
Site.
3.3 The Subscriber warrants that the information the Subscriber
has given in the Order Form, including as to Authorised User details,
is accurate and complete and the Subscriber undertakes to notify
Woolmark immediately, and in any event within 7 days, of any changes
to that information.
3.4 The Subscriber hereby warrants and undertakes that
all Content accessed by the Subscriber's Authorised User(s) through
the use of the Woolmark Site will be used in accordance with the
Woolmark User T&C's attached.
3.5 The Subscriber shall notify Woolmark immediately in
writing of any misuse of the Content and/or the Woolmark Site including
any infringement of copyright or other intellectual property rights
arising in the Content or the Woolmark Site.
3.6 The Subscriber undertakes to procure the compliance
by the Subscriber's Authorised User(s) with the Woolmark User T&C's
and such variations as may from time to time be made thereto and
to set up appropriate management processes to monitor that compliance.
The Subscriber further agrees to indemnify Woolmark against any
breach of those terms.
4. Disclaimer and Limitation
of Liability
4.1 The Subscriber expressly acknowledges and agrees that
the Woolmark Site is provided subject to the disclaimers and limitations
of liability set out in the Woolmark User T&C's and agrees to
be bound by them as if it were itself an Authorised User.
4.2 Woolmark relies on the World Wide Web for delivery
of the Woolmark Site to the Subscriber's Authorised User(s) and
without limiting the foregoing whilst Woolmark will use reasonable
efforts to minimise delays and interruptions in the delivery and/or
updating of the Woolmark Site, Woolmark will not be liable to the
Subscriber in any manner whatsoever for any consequences of such
delay or interruption.
4.3 The Woolmark Site may from time to time contain advertising
and sponsorship. Woolmark is not responsible for the compliance
or otherwise of the material provided by such advertisers and sponsors
and their compliance or otherwise with voluntary or statutory codes
or provisions and can provide no warranty that it will not take
advertisement or sponsorship from competitors of the Subscriber.
5. Charges and Payment
5.1 The Subscriber shall pay to Woolmark the following sums:
5.1.1 the Subscription Fee annually, in advance;
5.1.2 any other charges arising out of the Authorised User(s)
use of the Woolmark Site from time to time for which the Subscriber
and its Authorised Users are jointly and severally liable
5.1.3 Woolmark will invoice the Subscriber annually in
advance, in respect of the Subscription Fee, at the address submitted
on the Order Form or such other address as is notified to Woolmark
in writing by the Subscriber. All invoices are due and payable
upon receipt. Accounts not paid within thirty (30) days of the
date of invoice shall be deemed overdue and Woolmark reserves
the right to charge interest on such sums on a day to day basis
(as well after as before any judgment) from the date or last date
for payment thereof to the date of actual payment (both dates
inclusive) at the rate of four per cent (4%) per annum above the
11am cash rate quoted in the Australian Financial Review, compounded
monthly. Such interest shall be paid on demand. Woolmark reserve
the right to suspend the Subscriber's Authorised User use of the
Woolmark Site for non payment, without prior notice. The Subscriber
shall be liable for all costs of collection incurred by Woolmark
including, without limitation, legal fees in collecting overdue
Sums
5.2 The Subscription Fee and all other charges payable
under this Agreement are exclusive of Value Added Tax or other applicable
sales taxes which shall be paid by the Subscriber at the rate and
in the manner for the time being prescribed by law.
5.3 All taxes and other government charges or fees are
the Subscriber's responsibility and may be added and billed to the
Subscriber's account.
6. Term and Termination
6.1 This Agreement shall take effect upon the Commencement
Date and shall continue for one year and thereafter for additional
one year periods unless or until sooner terminated as provided below.
6.2 Either party may terminate this Agreement effective
on any anniversary thereof by providing written notice of cancellation
no later than thirty (30) days prior to the end of the current term.
6.3 Notwithstanding this clause Woolmark may terminate
this Agreement effective immediately if an event of Force Majeure
(as defined in the clause below) continues for a period of more
than 1 month or any Authorised User is in breach of the Woolmark
User T&C's.
6.4 Upon termination, the Subscriber shall remain responsible
for all monies due and owing to Woolmark under this Agreement.
6.5 Any termination of this Agreement, for whatever reason,
shall not affect any accrued rights or liabilities of either party
nor shall it affect the coming into force or the continuance in
force of any provision which is expressly or by implication intended
to come into or continue in force on or after such termination.
7. Notice
All notices served pursuant to this Agreement shall be sent by
electronic mail to the appropriate party at the parties' address
contained in the Order Form or as otherwise agreed in writing between
the parties. Such notice shall be deemed effective three hours from
transmission.
8. Force Majeure
Woolmark shall not be liable to the Subscriber or the Subscriber's
Authorised User(s) for any breach of Woolmark's obligations under
this Agreement as a result of any event or matter beyond Woolmark's
reasonable control including, without limitation strikes, lock-outs,
trade disputes, defaults of Suppliers or licensors, failure of any
telecommunication system, failure of the World Wide Web including
the effects of security breach, unauthorised use or manipulation
of the WBI Site, any computer system or any internet service provider,
failure by any Supplier to supply an service (including Content
and Software) and any act of God or any government or regulatory
authority ("Force Majeure").
9. Invalidity
If any term or provision in this Agreement shall in whole or in
part be held to be invalid, illegal or unenforceable the enforceability
of the remainder of this Agreement shall not be affected.
10. Indemnity
The Subscriber agrees to indemnify and hold Woolmark its employees,
agents, officers, directors and other representatives harmless from
and against all liabilities, damages, claims, actions, costs and
expenses (including legal fees) which Woolmark may suffer or incur,
in connection with or arising from any of the Subscriber's Authorised
User's breach of this Agreement and use of the Woolmark Site. Where
any action is brought against Woolmark in respect of such breach
or use Woolmark may participate in the defence of any claim or action,
and any negotiations for settlement, and reserves the right, at
its own expense, to formally assume the exclusive defence and control
of any claim or action whereupon the Subscriber obligations under
this clause shall cease.
11. Entire Agreement
and Waiver
This Agreement together with the Order Form and Woolmark User T&C's
forms the entire understanding between the parties. No Subscriber
purchase terms or other purported variation shall have any effect
on these terms agreed between the parties. No delay or indulgence
by Woolmark in enforcing the provisions of this Agreement shall
affect Woolmark's rights nor shall any waiver of Woolmark's rights
operate as a waiver of any subsequent breach. No right, power or
remedy conferred upon or reserved for Woolmark is exclusive of any
other right, power or remedy available to Woolmark and each such
right, power or remedy shall be cumulative.
12. Variation
Woolmark reserve the right to vary the Woolmark User T&C's
as set out therein.
13. Governing Law and
General Provisions
The validity construction and performance of this Agreement shall
be governed as set out in the Woolmark User T&C's.
User
Please read this carefully. By accessing the web site at www.woolmark.info
(the "Site") you are agreeing to the terms that appear
below. This is a legally binding agreement. If you have any questions,
please contact woolmarkinfo@wool.com.
These Terms were last updated on 1st June 2001.
Introduction
This Site is owned and operated by The Woolmark Company Pty Ltd
("Woolmark") Contact details appear below.
As a user (trialist or subscriber) you will be able to access material
on areas of the site, in accordance with your service level agreement
and having completed the registration process.
Any time limit applying to your access and use of the Site on these
Terms will be set out in the terms of any offer or your, or your
organizations subscription agreement. However, Woolmark reserves
the right to suspend or terminate your access and use of the Site
at any time. It may exercise this right with or without notice.
If applicable, notice will be given to your e-mail address as notified
to Woolmark. In that event, notice will be deemed to be served three
hours after transmission. You are responsible for all charges from
your own internet and telecommunications service providers.
Use of woolmark.com Content
All material on the Site and messages by email (the "Content")
belongs to Woolmark. You may retrieve and display content from the
site on a computer screen, print pages, stores pages in electronic
format on your PC and use charts and data within your own presentations
for your own personal or company information needs. You may not
commercially exploit the information. You must ensure that information
used gives full credit to Woolmark as the source, including the
trademark and copyright notice. Please be careful not to copy the
designs, trademarks and intellectual property of others reported
on the site as this may result in your being sued or prosecuted
by the owner of that content. In particular, but without limiting
the general application of the restrictions contained in the preceding
sentence, you may not do any of the following without prior written
permission from Woolmark:
- redistribute any of the Content (including by using it as part
of any library, archive or similar service);
- remove the copyright or trade mark notice from any copies of
Content made under these Terms;
Requests to republish or redistribute Content should be addressed
to Woolmark at woolmarkinfo@wool.com.
You acknowledge that "Woolmark", "Woolmark
Business Intelligence" and "www.woolmark.info"
are trade marks and that you may not use them without written permission
from Woolmark.
Registration
On registration, you must provide Woolmark with accurate, complete
registration information and it is your responsibility to inform
Woolmark of any changes to that information (including in particular
your email address) by emailing woolmarkinfo@wool.com.
Each registration is for a single user only. On registration,
you will be given a user name and password. Woolmark does not permit
any of the following:
- any other person sharing your user name and password;
- access through a single name and password being made available
to multiple users on a network.
You are responsible for all use of the Site made by you or
anyone else using your user name and password (collectively, "ID")
and for preventing unauthorized use of your ID. If you believe there
has been any breach of security such as the disclosure, theft or
unauthorized use of your ID or any payment information, you must
notify Woolmark immediately by emailing woolmarkinfo@wool.com.
Any misuse of this Site or breaches of this agreement may also lead
to you being disciplined or penalized by any organization with whom
you are associated who subscribes to this Site on your behalf and
Woolmark reserves the right to inform them of such misuse or breach.
Bulletin Boards &
Discussion Groups
The Site may include bulletin boards, discussion groups and other
public areas that allow feedback to Woolmark and interaction between
users ("Forums"). While Woolmark does not control the
information posted to Forums (the "Messages"), it reserves
the right (which it may exercise at its sole discretion without
notice) to delete, move or edit the Messages and you waive any moral
rights that you may have in regard to the Messages.
You are solely responsible for the content of your Messages. You
must comply with any rules posted by Woolmark on a Forum. You may
not:
- post or otherwise publish any Messages containing any form
of advertising for goods and services;
- post or otherwise publish any Messages that are unlawful, threatening,
abusive, libelous, indecent, infringe the rights of third parties
or which contain any other form of illegal content;
- post or otherwise publish any Messages that contain a virus
or other harmful component;
- restrict or inhibit any other user from using the Forums.
By submitting messages to any Forum you personally agree to indemnify
and hold harmless Woolmark from all claims, costs and expenses (including
legal expenses) arising out of any Messages posted or published
by you.
By submitting Messages to any Forums you are granting Woolmark
a perpetual royalty free non-exclusive licence to reproduce, make
available, distribute and sub-license the Message in whole or in
part and in print or electronic form.
Updates by E-Mail
Woolmark may provide news email service or other prompts to new
Content. Your use of the Content received through the email news
service will be subject to these Terms.
Additional Services Content
We may offer you the opportunity to partake in complimentary services
that do not form part of the news, information and source material
on the site, such additional material ("Additional Services
Content") would be available to you on a paid-for basis. Additional
Services Content will be clearly identified as will any additional
terms applicable.
Software and Java Security
Copyright in any software that is made available for download from
the Site ("Software") belongs to Woolmark or its suppliers.
Your use of the Software is governed by the terms of any licence
agreement that may accompany or be included with the Software. Do
not install or use any Software unless you agree to such licence
agreement. ("plug-ins")
Limitation of Liability
and Disclaimer
The Content is tailored only to the service level agreement you
choose and will not necessarily address your particular requirements.
Some service level agreements include tailored reported and ad hoc
query request facility, but we cannot guarantee that we can always
provide you with the specific data you require. In particular, the
Content does not constitute any form of advice, recommendation or
arrangement by Woolmark and is not intended to be relied upon by
users in making (or refraining from making) any specific investment
or other business or personal decisions. Appropriate local independent
advice should be obtained before making any such decision. Any arrangements
made between you and any third party named on this Site whether
in the trade directory or otherwise are at your sole risk and responsibility.
BECAUSE OF THE NUMBER OF SOURCES FROM WHICH WOOLMARK OBTAINS
CONTENT AND THE NATURE OF ELECTRONIC DISTRIBUTION VIA THE WORLD
WIDE WEB, WOOLMARK DOES NOT GIVE ANY WARRANTIES IN RESPECT OF THE
SITE. IN PARTICULAR, THE SITE IS PROVIDED ON AN "AS IS",
"AS AVAILABLE" BASIS AND WOOLMARK DOES NOT GUARANTEE THE
ACCURACY, TIMELINESS, COMPLETENESS, PERFORMANCE OR FITNESS FOR A
PARTICULAR PURPOSE OF THE SITE OR ANY CONTENT. ALL IMPLIED WARRANTIES
ARE EXCLUDED FROM THESE TERMS TO THE EXTENT THAT THEY MAY BE EXCLUDED
AS A MATTER OF LAW. ADDITIONALLY, WOOLMARK MAKES NO WARRANTY THAT
THE SITE IS YEAR 2000 COMPLIANT OR FREE FROM INFECTION BY VIRUSES
OR ANYTHING ELSE THAT HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES.
WOOLMARK WILL NOT BE LIABLE FOR ANY DAMAGES (INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS) ARISING IN CONTRACT, TORT
OR OTHERWISE FROM YOUR USE OR INABILITY TO USE THE SITE OR ANY CONTENT
OR FROM ANY ACTION TAKEN (OR REFRAINED FROM BEING TAKEN) AS A RESULT
OF USING THE SITE OR ANY CONTENT.
The Site contains links to other World Wide Web sites, either directly
or through frames and, where possible, we will make clear where
such links are being made. Those sites are provided by independent
third parties and Woolmark is not responsible for their availability
or content.
Privacy
The information that you provide about yourself to Woolmark will
only be used by Woolmark in providing services to you and will not,
without your consent, be provided to any third parties.
Changes to these Terms
Woolmark reserves the right, at its discretion, to make changes
to any part of the Site. Due to it's policy of updating and improving
the site, Woolmark may wish to change these Terms (including those
relating to your use of the Content). When terms are changed, Woolmark
will notify you by email or by publishing details of those changes
by including them at the end of these Terms. If you use the Site
after Woolmark has published or notified you of the changes, you
are agreeing now to be bound by those changes. If you do not agree
to be bound by those changes, you should not use the Site any further
after they are published at the end of these Terms or after you
receive notice of them.
Advertising and Sponsorship
Part of the Site may contain advertising and sponsorship. Advertisers
and sponsors are responsible for ensuring that material submitted
for inclusion on the Site complies with international and national
law. Woolmark will not be responsible for any error or inaccuracy
in advertising material.
Choice of Law and Jurisdiction
These Terms shall be governed by, and construed in accordance with,
the Laws of the State of Victoria, Australia.
The parties irrevocably agree that the courts of Victoria shall
(subject to the paragraph below) have exclusive jurisdiction to
settle any dispute which may arise out of, under, or in connection
with these Terms or the legal relationship established by them,
and for those purposes irrevocably submit all disputes to the jurisdiction
of the Victorian courts and courts of appeal from them.
For the exclusive benefit of Woolmark, Woolmark shall retain the
right to bring proceedings as to the substance of the matter in
the courts of the country of your residence or, where these Terms
are entered into in the course of your trade or profession, the
country of your principal place of business.
General
You may not assign sub-license or otherwise transfer any of your
rights or obligations under these Terms.
If any provision of these Terms is found to be invalid by any court
having competent jurisdiction, the invalidity of that provision
will not affect the validity of the remaining provisions of these
Terms, which shall remain in full force and effect.
Failure by either party to exercise any right or remedy under these
Terms does not constitute a waiver of that right or remedy.
Headings in these Terms are for convenience only and will have
no legal meaning or effect.
The Woolmark Company's registered office is at 369 Royal Parade,
Parkville, Victoria 3052, Australia. Please use this as the address
for correspondence Tel:- +61 3 9341 9284 Fax:- +61 3 9341 9303.
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