Blue Flag Licence Agreement
This Agreement is formed between Blue Flag Pty Ltd (ACN 128 781 395) of 92 Green Street, Richmond, Victoria, Australia 3121 (Us, Our, We) and the customer as set out in the Order Form (You, Your).
THE PARTIES AGREE THAT:
1. Definitions and interpretation
In this Agreement:
3P means the third party(ies) listed at the following link: http://www.austroads.com.au/drivers-vehicles/nevdis
3P Data means the data that belongs to the 3Ps and is made available by Blue Flag to You through the Platform;
Applications means the applications made available to You through the Platform, as set out in the Order Form, which may be varied between the Parties in writing from time to time;
Business Day means any day that is not a weekend or public holiday in the State of Victoria, Australia;
Change of Control in relation to:
(a) a body corporate (including a body corporate acting in the capacity as trustee of a trust) means the occurrence of an event or circumstance where a person who is not presently able to do any of the following things becomes able to do one of the following things (whether directly or indirectly or through one or more intervening persons, companies or trusts):
(i) control the composition of more than one half of the body's board of directors;
(ii) be in a position to cast, or control the casting of, more than one half of the maximum number of votes that
might be cast at a general meeting of the members of the body; or
(iii) hold or have a beneficial interest in more than one half of the issued share capital of the body;
(b) a trust means the occurrence of an event or circumstance where a person who is not presently the Controlling Person of that trust becomes the Controlling Person of that trust;
Commencement Date means the date upon which You execute the Order Form;
Confidential information means the confidential information of a Party which relates to the subject matter of this Agreement and includes all information:
(a) relating to trade secrets, know-how, financial information and other commercially valuable information of whatever description and in whatever form (whether written or oral) which may be disclosed by one Party to the other in connection with this Agreement or otherwise concerning the Platform, any technology, marketing strategies and business of the disclosing Party, the terms of this Agreement and any information which is by its nature confidential;
(b) that is designated by the disclosing Party to be confidential;
(c) which is by its nature confidential; or
(d) which the receiving Party ought reasonably to know is confidential,
but does not include:
(e) information already known to the receiving Party at the time of disclosure by the other Party or information in the public domain other than as a result of disclosure by a Party in breach of its obligations of confidentiality under this Agreement;
Controlling Person means, in relation to a trust, the person in whom is vested the ability to appoint a new or additional trustee of that trust or remove the trustee of that trust or with whose instructions such trustees are accustomed to act or any other power which in all relevant circumstances would cause a reasonable person to believe that that person controlled the trust;
Default Interest means interest payable at the rate of 12 per cent per annum calculated on a daily basis;
Dispute means a dispute, difference or question relating to this Agreement including any dispute, difference or question regarding the breach, termination, validity or subject matter of this Agreement, or dispute as to the circumstances leading to the entry by the Parties into this Agreement or any claim whether in tort, negligence, equity, under statute or otherwise;
Fixed Percentage Increase has the meaning given to it in the Order Form;
Initial Term means the initial term of this Agreement as set out in the Order Form;
Intellectual Property Rights means all present and future intellectual and industrial property rights throughout the world, including all rights, whether conferred by statute, common law, equity or otherwise, in or in relation to:
(a) inventions, discoveries and novel designs (whether or not registered or registrable as patents or designs) including developments or improvements of equipment, products, technology, processes, methods or techniques;
(b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist, and includes moral rights;
(c) obligations to have confidential information and trade secrets kept confidential and secret;
(d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get- up; and
(e) circuit layouts;
Licence means the licence to use the Platform granted by Us to You on the terms of this Agreement;
Licence Agreement General Terms means the general terms set out in this document, which forms part of the Agreement;
Licence Fees means the fees set out in the Order Form, excluding GST unless otherwise provided for in the Order Form;
Parties means the parties to this Agreement;
Platform means the platform and any associated functionalities, software, data, materials or documentation that is made available to You by Us via the login function on the Blue Flag website at www.blueflag.com.au and includes the Applications;
Order Form means the order form which We supply to You containing commercial terms forming part of this Agreement;
Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth);
Renewal Term has the meaning it is given by clause 2(a)(ii) of these Licence Agreement General Terms;
Special Terms means the special terms, if any, set out in the Order Form which form part of this Agreement;
Term means the Initial Term and each of the Renewal Terms (if any);
Users means the users of the Platform under Your Licence.
In this Agreement, unless the context otherwise requires:
(a) headings and notes in square brackets are for convenience only and do not affect the interpretation of this Agreement, except for the purpose of rectifying any erroneous cross-reference;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include all genders;
(d) a reference to a paragraph, clause, or schedule is a reference to a paragraph, clause, or schedule to this Agreement;
(e) references to any document or agreement include references to such document or agreement as amended, novated, supplemented, varied or replaced from time to time;
(f) all monetary amounts referred to in this Agreement are in AUD or Australian currency unless expressly stated otherwise;
(g) a reference to a party to this Agreement includes that party’s legal successors (including executors and administrators) and permitted assigns; and
(h) the words ‘including’, ‘includes’ or ‘for example’ or similar expressions are not words of limitation.
2. Agreement and grant of Licence
(a) This Agreement commences on the Commencement Date and, subject to its earlier termination or expiration under the terms of this Agreement, shall continue for the Initial Term.
(i) For customers with an Initial Term of 1 year or less, at the end of the Initial Term, the Agreement shall automatically and perpetually renew for successive periods of 1 year on the terms and conditions of this Agreement (each a Renewal Term) unless either Party gives notice in writing to the other Party at least 3 months prior to the expiry of the Initial Term or the Renewal Term (as the case may be) that it does not wish for this Agreement to be renewed beyond that Term.
(ii) For customers with an Initial Term of more than 1 year, at the end of the Initial Term, the Agreement shall automatically and perpetually renew for successive periods of time equivalent to the Initial Term on the terms and conditions of this Agreement (each a Renewal Term) unless either Party gives notice in writing to the other Party at least 3 months prior to the expiry of the Initial Term or the Renewal Term (as the case may be) that it does not wish for this Agreement to be renewed beyond that Term.
(b) During the Term, We grant the Licence to You and You accept the Licence on the terms of this Agreement.
(d) The Order Form and these Licence Agreement General Terms may only be varied by agreement between the Parties in writing.
(e) If there is any inconsistency between any of the terms of this Agreement, then, to the extent of the inconsistency, the order of precedence will be as follows:
(i) the Order Form;
(ii) these Licence Agreement General Terms;
(iv) the Acceptable Use Policy.
3. Payment of Licence Fees
(a) In consideration of Us granting the Licence to You, You must pay the Licence Fees to Us in accordance with each valid tax invoice We render to You in accordance with this Agreement (Invoice).
(b) Subject to clause 3(c), if You do not pay any of the Licence Fees to Us on or by the due date on the Invoice (Due Date), Default Interest will be payable on the overdue amount and, if any payment of Licence Fees and interest is owing to Us after 30 days from the Due Date, We may do any or all of the following:
(i) suspend Your Licence;
(ii) terminate this Agreement;
(iii) notwithstanding any other term of this Agreement, initiate proceedings to recover the Licence Fees and Default Interest then outstanding as a liquidated debt from You.
(c) If You dispute the whole or any part of the amount claimed in an Invoice rendered by Us to You in connection with this Agreement, You must pay any undisputed portion on or by the Due Date. Either You or We can refer the dispute regarding the disputed amount to the dispute resolution procedure prescribed by clause 10 of this Agreement. If it is determined by that process that a further amount is payable in addition to the disputed amount, You must pay that amount to Us together with Default Interest on the outstanding amount since the Due Date.
(d) On each anniversary of the Commencement Date (including at the commencement of any Renewal Term(s), the Licence Fees payable by You during the immediately preceding 12 month period will automatically be increased by the Fixed Percentage Increase.
4. Licence conditions
(a) We warrant that We have the authority to grant the Licence to You.
(b) The Licence We grant to You is a limited, revocable, non-transferable, non-assignable, non-exclusive licence for the Users to access and use the Platform in accordance with this Agreement.
(c) You warrant that:
(i) You have obtained all the necessary authorisations and consents for You to validly enter into, and perform all of Your obligations arising under, this Agreement; and
(ii) You will only allow persons who have been provided with a username and password by Us to use the Platform.
(d) Unless expressly provided otherwise in the Agreement or agreed by Us in writing, We are not required to support the Platform, whether by providing advice, training, error-correction, modification, updates, upgrades, new releases or enhancements or otherwise.
(e) We agree to provide limited support during the Term by way of a support ticketing system which enables Users to report technical issues or perceived data inaccuracies within the Platform. In the event that We receive notice of a technical issue or perceived data inaccuracy within the Platform through the support ticketing system, We will use reasonable endeavours to investigate the issue, and where reasonably practicable, attempt to resolve the issue within a reasonable period of time.
(f) You are responsible for ensuring that there is no unauthorised use of the Platform by Users or any other persons under your Licence. You acknowledge that any unauthorised use of the Licence and the Platform would cause significant harm to Our business which could not be calculated by damages alone, and that the award of other legal and equitable remedies such as specific performance would be required in addition to monetary damages to adequately compensate Us for any such unauthorised use.
(g) Before the Commencement Date, You must supply Us with a list of the persons You wish to appoint as Users of the Platform under this Licence, and obtain Our consent to the appointment of those Users (which consent will not be unreasonably withheld or delayed). Should the Users You wish to appoint under this Licence change during the Term, You must obtain Our written consent to any such change.
5. 3P Terms
Where You access the 3P Data through the Platform:
(a) the terms set out in this clause 5 will apply to Your access, use and exploitation of that 3P Data in addition to the other terms included in these Licence Agreement General Terms;
(b) You are granted a non-exclusive, non-transferable licence to use 3P Data, for and as part of your use of the services provided by Blue Flag, and for no other purpose;
(c) You may only access the 3P Data using the unique API key or user ID and password that will be provided to you by Blue Flag;
(d) You must keep your password secure;
(e) You must not allow any other person (including any Related Body Corporate) to use or access Your user ID and/ or password;
(f) You must take all reasonable precautions and implement all reasonably necessary security measures to ensure that the 3P Data is protected from any form of cyber attack, virus or malicious code;
(g) You must not, under any circumstances, use the 3P Data to create any other database in electronic or any other form;
(h) You must ensure that no other activity which may compromise the security or integrity of the 3P Data or the Platform occurs;
(i) You must not use the 3P for any purpose other than as set out in clause 5(b) above;
(j) You must not, under any circumstances:
(i) sublicence, sell, supply, communicate, lease, loan or otherwise make available the 3P Data to any person; or
(ii) disassemble, decompile or reverse engineer the 3P Data from the form in which it is made available to you by Blue Flag;
(iii) transfer or permit the transfer outside of Australia, or permit access by any person outside of Australia, to the 3P Data; and
(k) You acknowledge and agree that:
(i) the 3P Data remains at all times the property of the relevant 3P;
(ii) access to and use of 3P Data will at all times remain subject to and conditional upon Blue Flag’s continued supply of the 3P Data from the relevant 3P, and Blue Flag does not make any express or implied representation or warranty or give any assurance that access to the 3P Data will be unbroken or continuous;
(iii) neither Blue Flag nor the relevant 3P makes any express or implied representation or warranty that the 3P Data does not contain any errors or inaccuracies, or that its use will not infringe the rights, including the Intellectual Property Rights, of any third party or any relevant law; and
(iv) where We receive the 3P Data under an agreement between Blue Flag and any relevant 3P and that agreement is terminated, then We may terminate this Agreement with You immediately by written notice.
6. Ownership and Intellectual Property Rights
(a) Notwithstanding anything written elsewhere in this Agreement or in any other document, You acknowledge that We are the sole owner of the Platform, including any copies, modifications, updates or new releases whether modified by Us, You (or by Your officers, employees, contractors, associates, affiliates or agents) or any third party.
(b) To the extent permitted by law, all Intellectual Property Rights in the Platform, including any copies, modifications, updates or new releases of the Platform, are vested in and retained by Us. For the avoidance of doubt, nothing in this Agreement gives rise to any assignment, acquisition, transfer or conveyance of any kind whatsoever of any Intellectual Property Rights.
(c) If You correspond or otherwise communicate with Us or post or publish any statement about Our Platform, You automatically grant to Us an irrevocable, perpetual, non-exclusive, fully paid-up, royalty-free, world-wide licence to use, copy, display and distribute that content and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote that content. This may include, but is not limited to, publishing testimonials and developing Your ideas and suggestions for improved products or services We provide.
(d) Neither You, nor Your Users, officers, employees, contractors, associates, affiliates or agents may publish, make publically available, electronically transmit or otherwise share with any third party any of the data or content accessed or receive through the Platform unless, and only to the extent that, You have been expressly authorised to do so by Us.
(e) You indemnify Us against any loss or damage suffered or incurred by Us as a result of Your infringement (or the infringement by Your officers, employees, contractors, associates, affiliates or agents) of the Intellectual Property Rights attaching to the Platform.
(f) You grant to Us an irrevocable, perpetual, non-exclusive, fully paid-up, royalty-free, world-wide licence to use Your logo, trademark or corporate name for the purposes of promoting Your association with the Platform.
7. Indemnity and Liability
(a) You indemnify Us and Our Related Bodies Corporate and their respective officers and employees and contractors (for whom We enter into this Agreement as trustee) (the Indemnified) in respect of all damages, costs, losses or other liability incurred by any of the Indemnified or awarded (or agreed to be paid by settlement or compromise) as a result of any claim, allegation, action or proceeding made or brought against any of the Indemnified arising out of or in connection with:
(i) any negligent, unlawful or wilfully wrong act or omission by You or the Users;
(ii) any breach of this Agreement by You or the Users;
(iii) any unauthorised use of the Platform, by a User, or one of Your employees or contractors or otherwise, in connection with Your Licence.
(b) To the extent permitted by law, We exclude all liability to You or anyone else for loss or damage of any kind (however caused or arising) relating in any way, directly or indirectly, to the this Agreement, including liability for loss of revenue, loss of profits, loss of opportunity, or any other form of consequential, special, indirect, punitive or exemplary loss or damage.
(c) Where We are not entitled to exclude Our liability under this Agreement, Our total cumulative liability under this Agreement, whether in contract, tort (including negligence) under statute, strict liability or otherwise shall not exceed an amount equal to the total Licence Fees paid or payable by You over the immediately preceding 6 month period of the Term.
(d) We will provide the Platform to You under this Agreement with due care and skill and in accordance with any non-excludable guarantees which apply to the service under this Agreement. We do not guarantee that the service We provide or the content accessed through the Platform will be continuously available or free from errors, nor do We warrant, endorse, guarantee or assume responsibility for any products or services (or claims or statements about those products or services) that You may view in connection with the Platform that are supplied by third parties. Where We are not permitted to exclude Our liability for any loss or damage in connection with Our breach of any non-excludable guarantee, Our liability for any such breach will be limited, at Our option, to re-supplying the Licence or re-payment of the cost of having the Licence supplied again.
(a) We may terminate this Agreement (and the Licence We grant to You under it) immediately if any of the following events occur:
(i) You breach or threaten to breach any of Your material obligations under this Agreement;
(ii) any type of administrator, receiver or liquidator is appointed in respect of Your business, property or affairs;
(iii) You enter into any scheme, composition or arrangement of any kind with any of Your creditors; or
(iv) You merge with or are taken over by a third party without our prior written consent.
(b) We may terminate this Agreement (and the Licence We grant to You under it) for convenience upon 30 days' written notice to You.
(c) You may terminate this Agreement (and the Licence We grant to You under it) immediately upon written notice to Us if any of the following events occur:
(i) We breach any of Our material obligations to You under this Agreement and do not rectify that breach within thirty (30) days of receiving written notice from You requiring Us to do so; and
(ii) We terminate Your access to the Platforms (other than as a consequence of Your breach of this Agreement).
(d) If this Agreement is terminated in accordance with clause 3 or this clause 8, You must ensure that the Users immediately cease using the Platform and erase and destroy (as appropriate) software or any materials or documentation related to the Platform from Your Users' operating systems and hardware and certify in writing to Us that they have been erased or destroyed (as the case may be).
(e) Termination of this Agreement (and the Licence We grant to You under it) does not affect any of Our accrued rights or liabilities, nor shall it affect any provision of this Agreement which are expressly or by implication intended to continue in force after such termination.
(f) If You terminate this Agreement for any reason:
(i) You forfeit any right or claim to any Licence Fees You have paid to Us in connection with this Agreement;
(ii) any Licence Fees that would be payable by You for the remainder of the then-current Initial Term or Renewal Term (as the case may be) will immediately become due and payable; and
(iii) We may plead this clause 7(f) as a full and complete defence to any proceedings arising in connection with any such claim for Licence Fees.
(g) If We terminate this Agreement under clause 7(b), We will refund to You an amount equal to the proportion of the Licence Fees paid by You for the period from the termination date until the end of the Initial Term or Renewal Term (as the case may be) calculated on a pro rata basis.
(a) A Party will not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.
(b) Notwithstanding this clause 9, a Party will not be in breach of this Agreement in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.
(c) Each Party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.
(d) You must inform Us immediately upon becoming aware of any breach of this clause 9 or of any unauthorised, unintended or undesirable disclosure of Our Confidential Information, and must provide Us with all reasonable assistance in remedying any such breach or disclosure.
(e) During the Term and for two (2) years after termination of this Agreement, You must not disclose the amount or details of any Licence Fees You have paid under this Agreement, or any other term of this Agreement, to any third party without Our prior written consent (which may be granted or withheld in Our absolute discretion).
(f) Notwithstanding anything written elsewhere in this Agreement, a Party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its solicitors, auditors, insurers and accountants.
10. Dispute Resolution
(a) In the event of a Dispute, the Parties must comply with this clause 10 before starting any arbitration or court proceedings (except proceedings for urgent injunctive relief).
(b) A Party claiming that a Dispute has arisen must give the other Party notice setting out details of the Dispute.
(c) During the fourteen (14) days after a notice is given under clause 10(b) (or longer period if the Parties to the Dispute agree in writing), each Party to the Dispute must use reasonable efforts to resolve the Dispute. If the Parties cannot resolve the Dispute within that period, a Party may refer the Dispute to a binding arbitration to be conducted in Victoria in accordance with the Rules of the Institute of Arbitrators & Mediators Australia (Institute) and will be conducted by one or more arbitrators appointed by the President (or nominee) of the Institute.
(d) A Party must not start court proceedings in relation to a Dispute until it has exhausted the mandatory procedures of this clause 10.
(a) A notice, consent or other communication under this Agreement is only effective if it is:
(i) in writing, signed by or on behalf of the person giving it;
(ii) addressed to the person to whom it is to be given; and
(A) delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to that person’s address; or
(B) sent by email to that person’s email and the machine from which it is sent produces a delivery log which signifies that the email was sent and relayed to its intended recipient successfully.
(b) A Party’s mail address and email address are as set out in the Order Form or as that Party notifies the other Party in writing from time to time.
(c) If any notice, consent, information, application or request is delivered, or read report in relation to it is received, on a day that is not a Business Day, or if on a Business Day, after 5pm on that day, it is to be treated as having been given or made at the beginning of the next Business Day.
(a) This Agreement is not to be interpreted against the interests of a Party merely because that Party proposed this Agreement or some provision of it or because that Party relies on a provision of this Agreement to protect itself.
(b) You may not assign, whether in whole or part, Your benefit or any of Your rights or obligations under this Agreement to any other party without Our prior written consent, which We may grant or withhold in Our absolute discretion.
(c) If You undergo a Change in Control, it will be deemed an assignment of this Agreement. Any assignment or transfer of this Agreement by You other than in accordance with the terms hereof shall be void ab initio and shall entitle Us to terminate this Agreement by written notice with immediate effect.
(d) This Agreement will be governed by and interpreted in accordance with the laws of Victoria, Australia. You irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.
(e) If We do not exercise or enforce any right or provision under this Agreement, it will not constitute a waiver of such right or provision. Any waiver of any provision under this Agreement will only be effective if it is in writing and signed by Us.
(f) If any part of this Agreement is found to be void, unlawful or unenforceable, it will be deemed to be severed from this Agreement to the extent of its invalidity, illegality and/or unenforceability only and the remainder of this Agreement will remain in full force and effect.