1. INTERPRETATION
1.1 Definitions
In this Agreement the following definitions apply unless the
context otherwise requires:
"Business Day"means a day on which the Licensor
and banks are open for general business in Brisbane;
"Commencement Date"means the date on which the
Licensee’s application is approved;
"Data"means the data used in the Service and
includes Third Party Data;
"Force Majeure"means any act or omission as a
result of which a party is prevented from or delayed in performing
its obligations under this Agreement and which is beyond the
control of that party including (without limitation) occurrence of
weather or other forces of nature, acts of God, industrial action
and action or inaction by any Government Agency or third party;
"Government Agency"includes a government or
government department, a governmental or semigovernmental entity
and a person charged with administration of any applicable law;
"Insolvency Event"in relation to the Licensee
means:
-
(a) the suspension or cessation of the Licensee's business
activities;
- (b) the liquidation or insolvency of the Licensee;
-
(c) the appointment of a receiver or trustee in respect of any
property of the Licensee;
-
(d) the assignment of any rights or other property by the
Licensee for the benefit of its creditors;
-
(e) the making of any arrangements by the Licensee with its
creditors; and
-
(f) any other act which shows or tends to show that the
Licensee is insolvent;
"Intellectual Property Rights"means all rights
relating to patents, copyrights, trade secrets, trade marks and
service marks and any other proprietary rights, as well as all
applications, registrations and goodwill pertaining to these
rights;
"Licensee"means the person, or organisation,
whose name and address are set out in Item 1 of the Order Form;
"Licensor"means the Supreme Court of Queensland
Library, Level 12, 415 George Street, Brisbane QLD 4000;
"Location"means the location specified on the
Order Form, which must be located in Australia;
"Manipulate"means, in respect of information in
the Service, to create new information or other works from
information included in the Service;
"Module"means a module of the Service;
"Order Form"means the order form signed by the
parties that sets out the details of the Licensee and other
matters relevant to this Agreement;
"Supplier"means a supplier of Third Party Data;
"Service"means the Queensland Sentencing
Information Service (QSIS) and includes the software used in the
QSIS;
"Third Party Data"means the data supplied to the
Licensor by another person, or organisation, (excluding the
Licensee) for the purposes of the Service;
"Training"means the training related to the
Service, delivered by the Licensor’s personnel.
1.2 General
In this Agreement, including the recitals, schedules and annexures
unless the context otherwise requires:
-
(a) a reference to any legislation or legislative provision
includes any statutory modification or reenactment of, or any
legislative provision substituted for, or any subordinate
legislation under, that legislation or legislative provision;
- (b) the singular includes the plural and vice versa;
-
(c) a reference to an individual or person includes a
corporation, partnership, joint venture, association,
authority, trust, state or government and vice versa;
- (d) a reference to any gender includes all genders;
-
(e) a reference to a recital, clause, schedule or annexure is
to a recital, clause, schedule or annexure of or to this
Agreement;
-
(f) a recital, schedule or annexure forms part of this
Agreement;
-
(g) a reference to any Agreement or document is to that
Agreement or document (and, where applicable, any of its
provisions) as amended, novated, supplemented or replaced from
time to time;
-
(h) a reference to any party to this Agreement or any other
document or arrangement includes that party's executors,
administrators, substitutes, successors and permitted assigns;
and
-
(i) where an expression is defined, another part of speech or
grammatical form of that expression has a corresponding
meaning.
1.3 Headings
In this Agreement, headings are for convenience of reference only
and do not affect interpretation.
1.4 Business Day
If the day on which any act, matter or thing is to be done under
or pursuant to this Agreement is not a Business Day, that act,
matter or thing:
-
(a) if it involves a payment other than a payment which is due
on demand, must be done on the preceding Business Day; or
-
(b) in all other cases, may be done on the next Business Day.
2. SCOPE OF AGREEMENT AND TERM
2.1 Scope
Subject to the provisions of this Agreement:
-
(a) the Licensor grants the Licensee a licence (the "Licence")
to:
- (i) access and use the Service;
-
(ii) copy Data and print the Data for the limited
purposes specified in this Agreement;
- (b) the Licensee accepts the Licence.
2.2 Licence
The Licence is non-exclusive and nontransferable.
2.3 Acknowledgement
The Licensee acknowledges that:
-
(a) the sole obligation of the Licensor under this Agreement
is to provide access to the Service to the Licensee together
with any services expressly specified in this Agreement and
grant the Licence;
- (b) the Licensor is not required to supply any:
- (i) software;
- (ii) hardware;
- (iii) software support services;
- (iv) hardware support services;
- (v) training; or
-
(vi) other items or services to the Licensee, other than
those expressly identified in this Agreement.
2.4 Term of Agreement
-
(a) This Agreement will commence on the date of first
execution of this Agreement and will continue indefinitely
unless terminated earlier in accordance with the provisions of
clause 12.
-
(b) the Licensor may in its absolute discretion not grant or
not renew access passwords that it may have provided.
2.5 Intellectual Property Rights
The Licensee acknowledges that:
-
(a) the Intellectual Property Rights in the Service are owned
by the Licensor and its Suppliers; and
-
(b) this Agreement does not effect any transfer of any
Intellectual Property Rights in the Service to the Licensee.
2.6 Reverse Engineering
The Licensee must not reverse assemble or reverse compile or
directly or indirectly cause a third party to reverse assemble or
reverse compile the whole or any part of the Service.
3. USE OF SERVICE
3.1 Change of Password
The Licensor may at its absolute discretion supply a password to
access the Service. The Licensor may change this password as
required, and will notify the Licensee of that new password via
e-mail.
3.2 Third Party Data
The Licensee acknowledges and agrees that:
-
(a) certain Suppliers may have the unilateral right to require
the Licensor to terminate the supply of Third Party Data (or
parts of Third Party Data) with or without notice;
-
(b) an item of Third Party Data will be supplied by the
Licensor to the Licensee only for as long as that item of
Third Party Data is supplied to the Licensor; and
-
(c) the Licensor does not make any representations or give any
warranties that any Supplier will continue to provide Third
Party Data to the Licensor.
3.3 Modification of Service
The Licensor reserves the right to modify the Service without
notice to the Licensee.
3.4 Audit
The Licensee accepts that usage of the Service by the Licensee
will be recorded and monitored by the Licensor for its own
purposes.
4. TRAINING
4.1 Provision of Training
Without express agreement between the parties, the Licensor will
not provide training to the Licensee.
5. OBLIGATIONS OF THE LICENSEE
5.1 Use of the Service
The Licensee must:
-
(a) use the Service solely for its own purposes and must not
redistribute the Service, or passwords associated with the
Service, to any other person in any way;
-
(b) use graphs for information purposes only and not for any
purpose other than that intended by the Service;
-
(c) ensure that the Service is not used for any defamatory or
illegal purposes;
-
(d) not publish or make known in a public forum, other than a
courtroom environment information from the Service without the
express written permission of the Licensor; and
-
(e) provide and monitor an individual e-mail address for the
exchange of notices. This e-mail address will also serve as
the QSIS user name to access the Service. Password changes
will be sent to this account. Shared and group email accounts
will not be used for QSIS accounts.
-
(f) notify the Licensor if they become ineligible for access
under s 19 of the Supreme Court Library Act 1968 (Qld).
5.2 Copying of Data
The Licensee must not (except as otherwise provided in this
Agreement) copy or Manipulate the Data or modify or merge the Data
with other data without the prior written approval of the
Licensor; except for its own internal purposes.
5.3 Communications Facilities
To the extent:
- (a) necessary for the proper supply of the Service; and
-
(b) not otherwise specified in this Agreement or any other
agreement between the Licensor and the Licensee,
the Licensee must, at its own expense, arrange for the
installation of all software, hardware, communication facilities,
cabling and electrical power necessary for the use of the Service.
5.4 Government Approvals
If required by any Government Agency in any jurisdiction in which
a Licensee is located, the Licensee must, at its own expense,
obtain all necessary approvals and pay all necessary fees to allow
the Licensor to supply the Service to the Licensee.
5.5 Approvals by Suppliers
If required, the Licensee must comply with any restrictions or
limitations imposed by each Supplier and notified to the Licensee
by the Licensor.
5.6 Licensee Not to Make Certain Representations
The Licensee must not represent, either directly or indirectly,
that the Licensor or the Service has been certified, endorsed or
approved by any Government Agency, Supplier or other organisation
without the prior written approval of the Licensor or the relevant
Government Agency, Supplier or other organisation.
5.7 Responsibility for Access
The Licensee will remain at all times responsible for all access
to and use of the Service by it, its employees and agents and:
-
(a) must take all necessary steps to ensure that only
competent and responsible personnel have access to the
Service;
-
(b) must effect and maintain adequate security measures to
safeguard the Service from unauthorised use; and
-
(c) must not access the Service other than by means of
equipment and software approved by the Licensor.
6. CONFIDENTIAL INFORMATION
The Licensee must:
-
(a) keep confidential and must not disclose to any other
person (and must ensure that its employees and agents keep
confidential and do not disclose to any other person) all
information which is of a confidential nature; and
-
(b) ensure that any confidential information is used solely in
accordance with this Agreement.
7. WARRANTIES
7.1 Licensor Warranty
The Licensor represents and warrants that it is authorised to
enter into this Agreement.
7.2 Licensee Acknowledgement
The Licensee acknowledges that the only warranties in relation to
the Services and services provided by the Licensor under this
Agreement are the warranties set out in this Agreement.
7.3 Licensee Warranty
Without limitation to any other warranty set out in this
Agreement, the Licensee warrants that:
-
(a) there has been no reliance upon the Licensor's skill or
judgment or written or oral representations in deciding
whether the Service is fit for a particular purpose or will
meet particular criteria; and
- (b) it is authorised to enter into this Agreement.
8. LIABILITY OF THE LICENSOR
8.1 Exclusion of Implied Terms
Except as expressly provided to the contrary in this Agreement and
subject to any legislation in any jurisdiction in which a Licensee
is located, all terms, conditions, warranties, undertakings,
inducements or representations (whether express, implied,
statutory or otherwise) relating in any way to:
- (a) the Service;
- (b) the supply of the Service or services; or
- (c) this Agreement,
are excluded.
8.2 Exclusion of Liability
In no event will the Licensor or any of its Suppliers be under any
liability to the Licensee (including, without limitation liability
in respect of any special, incidental, indirect or consequential
loss or damage or for loss of profit, business, revenue or data)
which may be suffered or incurred or which may arise in respect of
or as a consequence:
-
(a) any errors, omissions or inaccuracies in the Service or
any documentation provided under this Agreement or delays or
interruptions in the delivery of the Service;
-
(b) any decision made or action taken by the Licensee in
reliance on the Service;
- (c) the services provided under this Agreement; or
-
(d) failure on the part of the Licensor to comply with any of
its obligations under this Agreement.
8.3 Limitation
If any legislation in any jurisdiction in which a Licensee is
located does not allow the exclusion of terms, conditions,
warranties, undertakings, inducements or representations but
allows the limitation of liability in respect of these terms,
conditions, warranties, undertakings, inducements or
representations, then the Licensor limits its liability to the
maximum extent allowed under the applicable legislation.
9. LICENSEE INDEMNITY
9.1 Licensee to Indemnify the Licensor and its
Suppliers
The Licensee agrees to indemnify and keep indemnified the Licensor
and all Suppliers, against and from any and all claims,
proceedings, losses, liabilities, fines, costs and expenses
(including court costs and fees for lawyers and other
professionals) incurred by these parties.
9.2 Licensee to Indemnify the Licensor in respect of
Enforcement
The Licensee agrees to indemnify and keep indemnified the Licensor
against all liabilities, costs, causes of actions, claims,
proceedings, expenses, damages and liabilities, (including court
costs and fees for lawyers and other professionals) in any way
relating to or arising out of the enforcement of this Agreement.
9.3 Acknowledgement
The Licensee expressly acknowledges and agrees that the
unauthorised copying, modification, use and distribution of the
Service by the Licensee in breach of its obligations under the
Agreement will cause the Licensor irreparable damage and that the
Licensor will be entitled to restrain unauthorised copying,
modification, use and distribution of the Service by the Licensee.
10. FORCE MAJEURE
Neither party will be liable for any delay or failure to perform
its obligations under this Agreement if such failure or delay is
due to Force Majeure. The performance of a party's obligations
under this Agreement will be suspended for the period of the delay
due to Force Majeure.
11. SUSPENSION OF THE LICENSOR'S OBLIGATIONS
Without limitation to any other right of the Licensor under this
Agreement, the Licensor may suspend:
-
(a) the supply of access to the Service or particular Modules
of the Service; or
-
(b) any or all of its remaining obligations to the Licensee
under this Agreement, if:
-
(c) the Licensee is deemed to be in breach of any of the
obligations imposed under clause 5 of this agreement; or
-
(d) any Supplier informs the Licensor that the Licensee has
not complied with any condition, restriction or limitation
imposed by that Supplier on the Licensee (under clause 5.6).
12. TERMINATION
12.1 Termination by the Licensor
Without limiting the generality of any other clause in this
Agreement, the Licensor may terminate this Agreement immediately
by notice in writing if:
-
(a) the Licensee is deemed to be in breach of any of the
obligations imposed under clause 5 of this agreement;
-
(b) any Supplier informs the Licensor that the Licensee has
not complied with any condition, restriction or limitation
imposed by that Supplier on the Licensee (under clause 5.5);
or
-
(c) the Licensee breaches any clause of this Agreement and
such breach is not remedied within 10 Business Days of receipt
of written notice from the Licensor.
12.2 Termination by the Licensee
Without limiting the generality of any other clause in this
Agreement, the Licensee may terminate this Agreement immediately
by notice in writing.
12.3 Effect of Termination by the Licensor
If notice is given to the Licensee pursuant to clauses 12.1:
-
(a) the Licensor will be regarded as discharged from any
further obligations under this Agreement; and
-
(b) the Licensee may pursue any additional or alternative
remedies provided by law or in equity.
12.4 Effect of Termination by the Licensee
If notice is given to the Licensor pursuant to clause 12.2, the
Licensee will be regarded as discharged from any further
obligations under this Agreement.
13. PARTIES' RIGHTS
Any express statement of a right of a party under this Agreement
is without prejudice to any other right of that party expressly
stated in this Agreement or arising at law or in equity.
14. ASSIGNMENT
The Licensee may not assign this Agreement without the prior
written consent of the Licensor. The Licensor may assign this
Agreement without the consent of the Licensee.
15. NOTICES
15.1 Method of Giving Notices
A notice, consent, approval or other communication (each a
"Notice") under this Agreement must be signed by or on behalf of
the person giving it, addressed to the person to whom it is to be
given and transmitted by e-mail.
15.2 Time of Receipt
A Notice given to a party by e-mail in accordance with clause 16.1
is treated as having been given and received on the day of
delivery if between 9.00am and 5.00 pm on a Business Day,
otherwise at 9.00am on the next Business Day.'
16. GENERAL
16.1 Waiver
The non-exercise of or delay in exercising any power or right of a
party does not operate as a waiver of that power or right, nor
does any single exercise of a power or right preclude any other or
further exercise of it or the exercise of any other power or
right. A power or right may only be waived in writing, signed by
the party to be bound by the waiver.
16.2 Amendment
This Agreement may only be amended or supplemented in writing,
signed by the parties.
16.3 Attorneys
Each attorney who executes this Agreement on behalf of a party
declares that the attorney has no notice of the revocation or
suspension by the grantor or in any manner of the power of
attorney under the authority of which the attorney executes this
Agreement.
16.4 Severability
Any provision in this Agreement which is invalid or unenforceable
in any jurisdiction is to be read down for the purposes of that
jurisdiction, if possible, so as to be valid and enforceable, and
is otherwise capable of being severed to the extent of the
invalidity or unenforceability, without affecting the remaining
provisions of this Agreement or affecting the validity or
enforceability of that provision in any other jurisdiction.
16.5 Further Assurance
Each party must do, sign, execute and deliver and must procure
that each of its employees and agents does, signs, executes and
delivers, all deeds, documents, instruments and acts reasonably
required of it or them by notice from the other party to
effectively carry out and give full effect to this Agreement and
the rights and obligations of the parties under it.
16.6 Entire Agreement
This Agreement is the entire agreement of the parties on the
subject matter. The only enforceable obligations and liabilities
of the parties in relation to the subject matter are those that
arise out of the provisions contained in this Agreement. All
representations, communications and prior agreements in relation
to the subject matter are merged in and superseded by this
Agreement.
16.7 Publicity
The Licensee hereby grants the Licensor the right to publicise
that the Licensee is a customer of the Service provided that any
publicity by the Licensor is approved by the Licensee prior to the
publicity being effected.
17. LAW AND JURISDICTION
17.1 Governing Law
This Agreement is governed by the law in force in Queensland.
17.2 Submission to Jurisdiction
The parties submit to the non-exclusive jurisdiction of the courts
having jurisdiction in Queensland and any courts which may hear
appeals from those courts in respect of any proceedings in
connection with this Agreement.