These terms and conditions apply to purchases of commercial data (“Information”) produced by the Company’s third party information providers or its related entities (“Information Providers”) (including from a non-Information Provider source). By purchasing an Information product or using an Information service provided by Information Provider or a non-Information Provider source, you agree to these terms and conditions (“Agreement”). If you are purchasing an Information product or using an Information service as an authorised representative (e.g. you are an employee of a company), you undertake to provide a copy of this Agreement to each principal, company officer, partner, or other person that you represent. This Agreement will bind that organisation and those people. Customer means “you” or “your” and includes the organisation and the people represented by the Customer.
You agree that Information Provider has no responsibility for, and excludes liability for any reports, products and materials accompanying the Information that you receive from non-Information Provider sources, including without limitation any credit decisioning recommended by non-Information Provider sources or provided by non-Information Provider sources. Information Provider does not endorse or express any view as to the accuracy, completeness or content of non-Information Provider reports, products or materials.
You Need to Obey the Law
- You must comply with all applicable laws, regulations and directives that relate to the access and use of the Information (including laws and regulations in countries of use, as well as the Territory). These include those relating to marketing by means of electronic communications services, customer solicitation, consumer protection, consumer credit, anti-corruption, Anti-Money Laundering / Counter-Terrorism Financing Laws, and the Privacy Act 1988 (Cth), related regulations, and codes of conduct (“Privacy Laws”) being in either Australia or New Zealand (the “Territory”) and all privacy laws of each other country in which personal information is received, collected, held, used or disclosed by that party in connection with this Agreement. If Customer is excluded from the operation of all or part of any Privacy Laws (because for example, Customer’s annual turnover is less than $3 million), Customer agrees to comply with those Privacy Laws (including credit reporting provisions) as if it were bound.
Example 1: the Privacy Law governs the collection, use, storage and disclosure of personal Information. The Privacy Act requires you to comply with general principles. It also has restrictions on direct marketing.
Example 2: the Australian Consumer Law prohibits individuals and organisations from engaging in misleading or deceptive conduct and other unfair business practices.
Compliance with this clause includes:
(a) protecting all Information from misuse, interference and loss, and from unauthorised access, modification and disclosure;
(b) procuring regular audits of your own activities to determine compliance with Privacy Laws;
(c) ensuring that all information you provide or disclose (“Customer Data”) is accurate, up to date and complete; and
(d) making the necessary disclosures and obtaining the required consents from individuals in connection with this Agreement (for example, by telling them exactly how you will collect, hold, use and disclose Customer Data before disclosing Customer Data to Information Provider).
- The Customer agrees not to engage in any unfair or deceptive practice or in a manner that brings the Company or the Information Provider into disrepute. Customer warrants and represents to the Company or the Information Provider that it has the lawful right to request and receive the Information from the Company or the Information Provider and its proposed use of the Information is lawful.
- These are not the only laws that may apply to your use of Information. You must seek legal advice if you are unsure.
- Where it is permitted by this Agreement and lawful to access and use the Information outside the Territory, Customer may do so provided that Customer must: (i) ensure that its personnel are trained in, and comply with Privacy Laws in the Territory and in countries in which the personal information is accessed and used; and (ii) only access and use the Information in a country subject to a law or binding scheme that has the effect of both: (A) protecting personal information in a way that, overall, is at least substantially similar to the Privacy Laws in the Territory; and (B) having mechanisms for individual enforcement of that protection in a way that is substantially similar to the Privacy Laws in the Territory.
- Customer acknowledges and agrees that:
- a) Information is based on or incorporates data that is provided to the Information Provider by third parties (including ASX, NZX, ASIC, FMA, other government agencies, and publicly available information sources) (“Third Party Data”);
- b) Customer must comply with any Third Party Data provider’s conditions relating to the Third Party Data, including (if applicable) the ASX Market Data Products & Services Guide (a copy of which can be accessed at www.asxonline.com) or equivalent conditions required by NZX (see www.nzx.com/services) and requirements nominated by ASIC or FMA;
- c) although Information Provider uses extensive procedures to keep its databases current and to promote data accuracy Information Provider and the relevant third parties do not independently verify the Third Party Data, and Information Provider has no control over the availability of Third Party Data;
- d) the Information: (i) contains a degree of error; (ii) may not include, or be created with reference to, all information material to its purpose; (iii) is not fit for any specific circumstance or purpose; and (iv) may not be appropriate or sufficient for it to achieve compliance with applicable laws; and
- e) to the maximum extent permitted by law: (i) Information Provider and each Third Party Data provider exclude all liability for inaccurate, incomplete or out of date Third Party Data; and (ii) Information Provider and each Third Party Data provider will not be liable to Customer should any access to Third Party Data be suspended, varied or withdrawn by a Third Party Data provider.
- Customer acknowledges that every business decision represents an assumption of risk, and Information Provider cannot and does not underwrite Customer’s risk in any manner whatsoever. Customer agrees that, in making a decision in connection with the Information (including whether to access or use the Information, or whether to act or omit to act on the basis of any Information), Customer: (i) must not rely on the Information as its sole source for decision-making; (ii) must independently verify all Information; (iii) is solely responsible for the consequences of its access to and use of that Information; and (iv) acknowledges that Information Provider does not give legal advice so Customer must seek its own. (For example, Customer must obtain prior legal advice before deciding whether to register a security interest using the Information, as not registering such an interest will affect Customer’s ability to enforce that interest).
- If requested by a Third Party Data provider, Customer must permit Information Provider or its nominee, on reasonable notice, during business hours, to inspect any location where Third Party Data is accessed or used by Customer to review Customer’s compliance with its Third Party Data obligations, but not more than once every 12 months and on one occasion following expiry or termination. In doing so, Information Provider or its nominee will comply with Customer’s policies notified to it in advance in writing (including IT access and security policies) and, if required by Customer, will remain under the supervision of Customer’s staff at all times while on Customer’s premises.
- To the maximum extent permitted by law, unless expressly stated to the contrary in this Agreement, all Information and/or, services are provided on an “as is,” “as available” basis, and the Information Provider disclaims all warranties relating to such Information and/or services including warranties of accuracy, completeness, currency, acceptable quality, availability, conformity with description, non-infringement of third party rights, and fitness for a particular purpose. Without limitation the Information Provider does not warrant that any product will be uninterrupted or error-free, Information Provider disclaims any warranty or representation regarding availability of the Information, service levels or performance, and Information Provider does not warrant that Customer’s use of the Information will ensure its compliance with laws.
Information and Business Decisions
- You agree to use Information for your internal business purposes only. This means no disclosure to third parties (including without limitation any of your related bodies corporate). You further agree to only access and use the Information and Information services within the country of origin of the data or information (including Personal Information) comprised in the Information Territory, to only use the Information to support your business operations in that Territory, and not to share any login details for Information services (including passwords) or any Information with persons located outside that Territory.
- You acknowledge and agree that the Information is not to be used for, and is not provided for, personal, domestic or household purposes.
- You agree that Information will not be used to determine an individual’s eligibility for employment.
- Where you provide Customer Data to Information Provider, you agree and acknowledge the following in respect of that Customer Data:
- a) you represent and warrant that you have all necessary legal rights, title, consents and authority to provide Customer Data to Information Provider;
- b) you grant the Company and Information Provider a non-exclusive, perpetual, royalty-free licence to use that Customer Data to fulfil its obligations to you and to validate and/or enhance Information Provider’s products and services.
- c) you acknowledge that Information Provider will not disclose the origin of Customer Data unless required by law or disclosure is inherent in the nature of the Information Provider product (for example, credit Information inherently discloses the identity of the credit provider, the contact details of the individual that the credit reporting Information is about, as well as the party requesting the Information).
- Information Provider retains all ownership rights (including copyright and all other intellectual property rights) in the Information. Information Provider grants you a non-exclusive, non-transferable licence to use the Information for your internal business purposes only (subject to the limitations contained in this Agreement). You obtain only such rights as this Agreement explicitly grants.
- You further acknowledge that the Information, regardless of form or format, is proprietary to Information Provider and comprises: (a) works of original authorship, including compiled Information containing Information Provider’s selection, arrangement and coordination and expression of such Information or pre-existing material it has created, gathered or assembled; (b) confidential and/or trade secret Information; and (c) Information that has been created, developed and maintained by Information Provider at great expense of time and money such that misappropriation or unauthorised use by others for commercial gain would unfairly and irreparably harm Information Provider. You must not commit or permit any act or omission by your agents, employees or any third party that would impair Information Provider’s proprietary and intellectual property rights in the Information. You agree to notify Information Provider immediately upon obtaining any information regarding a threatened or actual infringement of Information Provider’s rights.
No Copying or Sharing With Others
- You agree not to reproduce, reveal, disclose, sell, or make the Information available to anyone else. You must hold all Information in strict confidence. You agree to indemnify, defend and hold harmless Information Provider from any claim or cause of action against Information Provider arising out of your breach of this Agreement or relating to use of the Information by individuals or entities who have not been authorised by this Agreement to have access to and/or use the Information.
Limitation and Exclusion of Liability
- The Australian Consumer Law may confer certain rights and remedies on you in relation to the provision by Information Provider of goods or services under this Agreement. This Agreement does not exclude, restrict or modify the application of any condition, warranty, guarantee, right or remedy conferred by or implied under any provision of the Australian Consumer Law or any other statute where to do so would:
- a) contravene the relevant statute; or
- b) cause any part of this agreement to be void or unenforceable.
- To the extent permitted by law (including by the Australian Consumer Law):
- a) all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute are expressly excluded under this Agreement; and
- b) Information Provider is not liable (including in negligence) for any loss of profit, loss of revenue, loss of goodwill, loss of or damage to reputation, loss of capital, downtime costs, loss under or in relation to any other contract, or any indirect, consequential or special loss or damage incurred by you or any other person arising under or in connection with this Agreement or the provision, collection, interpretation, reporting, communication or delivery of any Information (even if you have been advised of the possibility of such loss or damage).
- Subject to clause 18, and to the extent permitted by law (including by the Australian Consumer Law), Information Provider’s total liability to you under or in connection with this Agreement (including in negligence) or any Information (including any Information supplied by a non-Information Provider source) is limited, at Information Provider’s option, and in the aggregate to:
- a) in the case of services, supplying the services again or payment of the cost of having the services supplied again; and
- b) in the case of goods, replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired.
- You agree that the limitations on Information Provider’s liability contained within this Agreement (including under clause 21) are fair and reasonable because the Information is general in nature and neither the Information or the Information services were developed or tailored for you, the Information and Information services are not of the kind ordinarily acquired for (and are not intended to be used for) personal, domestic or household use or consumption, and you are able to obtain products and services equivalent to the Information and Information services from alternative suppliers.
- You indemnify and hold Information Provider and its employees, agents and contractors harmless from all costs, losses and expenses arising from or in connection with third party claims for or in connection with: (i) your or any user’s unlawful use (whether in the countries of use or in Australia) of the Information, or a Information Provider product or service; (ii) the provision by you to Information Provider of any Customer Data; (iii) any reliance by you on Information provided by Information Provider to you (including, to avoid doubt, where you have acted, or have omitted to act, on the basis of that Information); and (iv) the observance or performance by Information Provider of any instructions given by you in relation to any Information Provider product or service.
- Information Provider indemnifies and holds you harmless from all costs, losses and expenses arising from or in connection with third party claims for or in connection with (i) Information Provider’s unlawful creation of a Information Provider product or service; (ii) intellectual property infringement claims (“IPR claim”) relating to Information Provider authorised use of Information Provider product or services, where the Information Provider product or service (including any Information or software) has not been modified by you, and where that Information Provider product or service is not being used with other Information Provider product or services not supplied by Information Provider (if the intellectual property infringement claim would not have arisen without that other Information Provider product or service use)
- Those indemnified will: (i) give written notice to the indemnifying party of any threatened or actual costs, losses and expenses as soon as is practical; (ii) give the indemnifying party the option to conduct the defence and settlement of the costs, losses and expenses and not make any admissions or otherwise attempt to settle or compromise the costs, losses and expenses except on the express instructions of the indemnifying party; (iii) provide the indemnifying party with reasonable assistance (at the indemnifying party’s expense) in conducting the defence or settlement of the costs, losses and expenses.
- Where there is an IPR claim and Information Provider either: (i) modifies or substitutes the infringing part of the Information, or other part of Information Provider product or service (at Information Provider’s expense) so that it becomes non-infringing without suffering a material adverse effect on performance or functionality; or (ii) obtains for You the right to continue to use the infringing Information, or other part of a Information Provider product or service, this is Your sole remedy for breach of contract in connection with any alleged IPR infringement.
- Each indemnity in this agreement is a continuing obligation which is independent from the each party’s other obligations and continues after the expiry or termination of this agreement.
- This Agreement constitutes the entire agreement between you and Information Provider concerning its subject matter and is governed by and construed in accordance with the laws of the State of Victoria. If any term of this Agreement conflicts with the provision of any legislation of the Commonwealth of Australia or any State, that legislation will prevail. This Agreement is binding upon and will inure to the benefit of the parties, their successors and permitted assigns.