Schedule of Services and Charges

Terms and Conditions

1 Term

1.1 This Agreement shall commence upon the acceptance by MSA of the End User’s Licence Agreement and subject to the terms and conditions outlined herein.

1.2 MSA may from time to time vary the terms and conditions of this Agreement (including the prices at which the Service is to be provided) by either notification on-screen to the End User or by giving written notice of such variation to the End User. Continuing use of the Services by the End User shall be taken as agreement by the End User to be bound by the terms and conditions so displayed on-screen or notified in writing.

2 Termination

2.1 MSA may, subject to providing seven (7) days written notice to the End User (during which time the End User may remedy any breach to the satisfaction of MSA), terminate this Agreement and deny the End User access to the Service:
a) if the End User is in breach of any of the terms and conditions herein;
b) fails to pay for the Service; or
c) if the End User commits any act of bankruptcy or makes any composition or arrangement with its creditors or a receiver or manager is appointed over any part of its undertaking or its assets or it goes into liquidation or any petition is presented for its winding up.

3 Payments, Charges and GST

3.1 All costs, fees and charges are payable within 14 days from date of the invoice issued by MSA, or as otherwise specified by MSA at its discretion.

3.2 If the End User defaults in payment, MSA reserves the right, without notice, to suspend access to the Service pending payment and if payment is not made within 14 days of the due date, to terminate this Agreement without any further notice to the End User.

3.3 The End User acknowledges that all costs, fees and charges that are incurred by the End User are incurred as a principal and not as agent for any other party and agrees to pay all charges by the due date. In the event of a debt being handed over to a collections agency, the End User will be liable for all costs, fees and charges including legal and other costs associated with the collection of this debt. This is an essential term of this Agreement.

3.4 In this clause 3 the expressions “adjustment note”, “consideration”, “GST”, “supply”, “tax invoice”, “recipient” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.

3.5 For the avoidance of doubt, “GST” includes any penalties or additional tax imposed in relation to the GST.

3.6 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST. The End User must pay GST on the supply of the Services and MSA will supply a tax invoice for its Services.

3.7 Despite any other provision in this Agreement, if GST is imposed on any supply made under this Agreement, the recipient must pay to the supplier an amount equal to the GST payable on the supply.

3.8 MSA reserves the right to retain service fees where a search result is cancelled, or the search result is NIL. Each refund is assessed based on its own merits and requires the relevant Authority to refund the applicable charges.

4 Liability

4.1 MSA grants the End User access to the Service on the basis that MSA is merely providing the Service and is not in any way whatsoever engaged in rendering legal or other professional services.

4.2 MSA shall not be liable to the End User in breach, negligence or otherwise in respect of anything done or omitted to be done by the End User in reliance in whole or in part on the Service including any assistance or demonstration provided to the End User by MSA and MSA’s liability to the End User shall in any event be only limited to the amount of the fees charged for the Service to which such liability relates.

4.3 To the extent that Clause 4.2 is rendered void or unenforceable by any relevant law MSA’s liability to the End User is limited to either (at MSA’s discretion) the supplying of the Service again or the payment of the cost of having the Service supplied again.

4.4 MSA does not warrant the accuracy or timeliness of searches provided by any government department or agency or other third-party provider and shall not be liable to the End User or any third party for any delay, error or inaccuracy in any search or information supplied by any government department or agency or other third-party provider or from any error or inaccuracy caused by communicating via the internet.

4.5 The End User acknowledges certain government departments or agencies impose terms and conditions and limitations of liability in respect of the obtaining and use of information and searches from those departments and agencies. The End User agrees to comply with the terms and conditions of supply and use imposed by any relevant government departments and agencies from time to time, including those which are extracted in Attachment “A” hereto.

5 Force Majeure

5.1 MSA shall not be liable for any delay, loss or damage (including consequential loss and liability) caused to the End User directly or indirectly by the unavailability of access to the Service, power or mechanical failure howsoever caused, delays or failures in telecommunication systems or in the transmission of information via the internet or any cause whatsoever.

6 End Users, password and End User manuals

6.1 MSA shall issue the End User with an End User ID and Password allowing access to the Services. The End User is responsible for the acts of its own employees, officers, agents, delegates and contractors and, without limitation must ensure that it protects the secrecy of any passwords issued to the End User and controls the use of the Services by its employees and contractors. The End User is responsible for all charges incurred on the End User’s account and the use of a password issued by MSA to the End User is prima facie evidence of the End User’s authority to order the Services. Where the End User requests in writing that MSA cancel a particular password or account, MSA shall cancel that password or account as soon as practicable in normal business hours following receipt of that request.

7 Additional Services

7.1 In introducing any additional Services, MSA may add to or vary the terms and conditions of this Agreement as they apply to those additional Services by notification on-screen or by written notice to the End User. Continuing use of the additional Services by the End User shall be taken as agreement by the End User to be bound by the terms and conditions so displayed on-screen or notified in writing.

8 Assignment and Notices

8.1 MSA may by notice in writing to the End User assign the benefits and obligations of this Agreement. End Users may only assign this Agreement with the consent in writing of MSA.

9 Exclusion of implied terms and jurisdiction

9.1 This Agreement and the Schedules attached to or referred to herein constitute the entire agreement between the parties in respect of the Services and supersede all other negotiations, agreements or understandings whether written or oral relating to the supply of the Services and the other services provided under this Agreement. All implied terms are hereby excluded, to the full extent permitted by law.

9.2 This Agreement is made in New South Wales and is governed by the laws of New South Wales.

10 Privacy and Data Security

10.1 MSA complies with the Privacy Act 1988 in respect of personal information and will not use or disclose any personal information received from the End User or its clients except as is necessary for the purposes of providing the Service or related purposes such as invoicing, providing customer support, training, record maintenance or statistical purposes or as otherwise required by law. While MSA takes reasonable precautions to prevent unauthorised access to or use of personal information and confidential information, the use of electronic communications and electronic data storage system means that there remains a possibility that such information may be accessed by unauthorised persons.

10.2 The End User warrants that it has all authorities and consents to necessary to disclose any personal information it supplies to MSA.

TERMS AND CONDITIONS IMPOSED BY VARIOUS GOVERNMENT DEPARTMENTS AND AGENCIES AND MSA WITH RESPECT OF THE SERVICE

1. DEFINITIONS

Agreement means the head licence or sub-licence with respect of the Department’s Business. Authorised Purposes means:

a) Dealings by individuals, companies, trusts, partnerships, joint ventures and other legal entities with respect of interests held in land and companies authorised by Law;
b) A purpose directly related to such dealing provided that the purpose is not contrary to any Law; or
c) An enquiry relating to land or the ownership of land or company recorded with the Department provided that the enquiry or the purpose of enquiry is not contrary to Law; but does not mean:
d) data aggregation, data matching, marketing, compilation of mailing lists, list brokering of the Licensed Material or any related purpose except to the extent that such data aggregation, data matching, marketing, compilation of mailing lists, list brokering of the Licensed Material or related purpose is required by law (including any obligation under a court order).

Department means Australia’s various government departments and agencies including but not limited to NSW Land & Property Information (“NSW LPI”), VIC Land Registry (“Landata”), the State of Queensland (Department of Natural Resources and Mines), Landgate WA, Australian Securities and Investment Commission (“ASIC”), Australian Financial Security Authority (“AFSA”) and Mirus Data (Person Locator) and any other government department or agency subject to an Agreement.

Department’s Business means to market, promote and sell the Service, on behalf of the Department to End Users.

Direct Marketing means one to one marketing, normally supported by a database, which uses one or more advertising media to effect a measurable response and or transaction from a person (including a corporation or organisation) and includes but is not limited to, telemarketing, bulk e-mail messaging (spam), postal canvassing and list broking.

End User means the Service Provider’s or Sub-Service Provider’s customer, member or subscriber, who has entered into an agreement with the Service Provider or Sub-Service Provider, for the supply or provision of the Service. The term End User includes the officers, employees, servants, contractors and agents of the same. End Users may use the Service for their Internal Use only.

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. Internal Use means use for an End User’s:

a) own business or internal purposes; or
b) own clients or customers, where those clients will be the final recipient of the Service concerned and they will only use the Service concerned in relation to the singular purpose or transaction for which they were acquired.

Law means the requirements of all Acts applicable to the Department and of the Commonwealth of Australia and the requirements of all ordinances, regulations, by-laws, orders and proclamations made or issued under any such Acts or ordinances and with the lawful requirements of public and other authorities in any way affecting or applicable to this agreement.

Licensed Data means data that is owned by or licensed to the Department and licensed to others under the Agreement and the Department data that is provided in the Service.

Licensed Data Product means any value-added product derived from or based on the Licensed Data or any Licensed Data Product. Value Adding means any augmenting, repackaging or incorporating of the Licensee’s data, or other data licensed to the Licensee, with the Licensed Data. Conversion of the Licensed Data onto different media or the translation into a different format is not Value Adding.

Privacy Legislation means the Privacy Act 1988 (Cth) and any State privacy legislation which may be enacted during the term of the Agreement.

Service is the term used to describe data that is owned by or licensed by the Departments under the Agreement and it includes but it is not limited to:
a) any of the products which are supplied by the Department; and
b) any of the other products and services which the Department may make available to the Service Provider through the Web Service from time to time

Service Provider means:
a) the party who has been appointed under an Agreement as a non-exclusive agent to carry on that Department’s Business for the term of the Agreement;
b) an approved Reseller of the Service Provider; and
c) the party with whom the End User has entered into a contract to supply or provide the Service.

Service Provider’s Outputs means the Service Provider’s own products and services which:
a) are produced independently by the Service Provider; and
b) are not part of the Department’s Business and not the subject of the Department’s agency arrangements; and
c) supplement the Service, without altering their inherent nature or integrity; and
d) will be supplied at a price determined entirely by the Service Provider; Service Provider’s Outputs may include the following products and services:
e) Bundling or packaging together several Services; and/or
f) Bundling or packaging the Service with other products from the Service Provider’s business;
g) Providing integrated web portals or web services;
h) Providing advanced account management functions;
i) Any other Service Provider product which incorporates the Service.

Web Service means the customised internet access to the Departments computerised systems, including an online ordering service, which is provided by the Department for the Service Provider.

2. OWNERSHIP

a) The End User acknowledges that it has no rights of ownership in the Licensed Data and all Intellectual Property Rights including copyright in the Licensed Data and the Services are retained by the Department and MSA (as applicable).
b) MSA will not provide access to the Licensed Data unless the End User has accepted these terms and conditions and has executed a deed or an agreement as required by MSA and in the form prescribed by the relevant Department.

3. The End User:
c) may only use the Services for its own Internal Use;
d) must do all things within its power to prevent the unauthorised use or disclosure of the Licensed Data and the Service and any related information;
e) must do all things within its power to ensure the Services are only used for lawful purposes and in ways that are consistent with these terms and conditions, the Department’s terms and conditions and applicable legislation;
f) 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 Service. This includes, but is not limited to, the requirements of the Privacy Legislation;

is prohibited from:
g) providing, reproducing, supplying, on-selling, sub-licencing, disclosing or otherwise providing the Licensed Data in any form to any other party;
h) altering the format, meaning or substance of the Licensed Data;
i) making copies of the Licensed Data other than as are reasonably required for backup purposes, provided that such copies includes the Department’s proprietary notice (as applicable) and are secured so as not to be accessed or used by unauthorised persons or for any purpose other than backup;
j) assembling or compiling, attempting to assemble or compile or directly or indirectly allowing or causing another person to assemble or compile or attempt to assemble or compile a database, directory or similar device which is similar in content, functionality or in any other respect which is the same or similar to the Service and the Licensed Data;
k) extracting data from the Licensed Data, or directly or indirectly allowing or causing another person to extract data from the Licensed Material, using screen scraping, web scraping or any other similar data extraction techniques;
l) on selling or distributing the Licensed Data in any format unless the User is also a MSA Searching Reseller;
m) altering or omitting the meaning, substance, content, coordinates or spatial integrity of any Licensed Data;
n) Creating data or other products which are the same as or substantially similar to the Licensed Data, or reverse engineer or rework the Licensed Data or by any means use any:

(i) outputs, whether or not from the Licensed Data; or
(ii) combination of data which includes the Licensed Data; or
(iii) permit any third party to do the same, except as permitted by Law;

o) derogate or detract from the legal rights of the Department in the Licensed Data or any data derived from the Licensed Data;
p) display, distribute, sell, license, hire, let, trade or expose the Licensed Data for sale;
q) keep a copy of any portion of the Licensed Data or any data derived from the Licensed Data;
r) store any Licensed Data (or any part of them) in any form;
s) not use or permit to be used, the logo of the Department or any modification thereof; and
t) using the information available from the Licensed Data for other than the Authorised Purposes.

4. The End User acknowledges and agrees that:
a) Copyright in all information from the Licensed Data is owned by the relevant Department. No part of the Licensed Data supplied may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth), pursuant to written agreement or to the extent required for the purpose of compliance with any legislation.
b) The information from the Service is valid at the time and in the form obtained only. The Department or MSA accepts no responsibility for any subsequent release, publication or reproduction of the information.
c) Where an End User has access to the Service, the End User is responsible for the accuracy and completeness of the information submitted in each application and that if, due to the inaccurate or incomplete information which the End User supplies:

(i) there is an error in the search statement or certificate sent to the End User; or
(ii) the wrong search statement or certificate is sent to the End User, the End User is still responsible for the payment of the fees and charges for such data.

d) The End User consents to the collection and use of the information which is provided by the End User when using the Service for all purposes associated with the use and operation of the Service and all related administration and operations of the Service.
e) The End User must maintain a record of all persons who are given access to the Service throughout the term of its agreement with MSA and not less than 7 years from the date of termination or expiration of its agreement with MSA.
f) End Users acknowledge that they use the Service at their own risk, from the time of delivery to them.
g) The End User may only store data drawn from the Licensed Data for a period of 120 days and after the expiration of that period the data must be deleted from any server or other data storage facility but may be retained as part of the discrete record of that enquiry. The End User may only use the data stored for the purposes of the enquiry for which it was originally made.

5. Liability
a) The search extracts and certificates provided in the Service are based on information provided to the Department and MSA by third parties. The End User acknowledges that the Department or MSA does not guarantee the accuracy or completeness of the Licensed Data and does not make any warranty about the Licensed Data.
b) The Department or MSA has not verified the accuracy, currency, reliability or completeness of the search extracts and certificates and makes no representation or warranty as to their accuracy, currency or reliability and does not warrant the accuracy or completeness of the Licensed Data or any information made available by the Web Service and any person using or relying upon such information does so on the basis that the Department or MSA bears no responsibility or liability whatsoever for any inaccuracy, errors, faults, defects or omissions in the information.
c) All representations, warranties, terms and conditions whether express or implied by use, statute or otherwise, in relation to the state, quality or fitness for purpose of any documentation, services and/or software provided in conjunction with the Service are excluded.
d) The Department or MSA will not be liable to End Users for any loss or damage (including loss of profits, business, revenue or data), arising from or in connection with the supply of the Service, whether in contract, tort, negligence or otherwise, or in relation to:

(i) the performance of the Web Service;
(ii) any claim for infringement of intellectual property rights based on the modification, combination, operation or use of the Service with any computer programs, systems or data not furnished as part of the Service;
(iii) the Service Provider’s Outputs

e) Notwithstanding the preceding clause, to the extent that the Department’s or MSA’s liability for any breach of terms implied by legislation which cannot be excluded, will be limited to the extent permitted by law and at the option of MSA, to one or more of the ways permitted by section 68A(i) of the Trade Practices Act 1974 (Cth) at MSA’s option.
f) The Department or MSA, makes no representation or warranties about accuracy, reliability, completeness or suitability of the data for any particular purpose and disclaims all responsibility and all liability (including without limitation, liability in breach or negligence) for all expenses, losses, damages (including indirect or consequential damage, losses or liabilities) and costs which might be incurred as a result of the data being inaccurate or incomplete in any way and for any reason.

6. Privacy
a) The End User agrees:

(i) that it will not use the Licensed Data or the Service with the intention of encroaching on the privacy of an individual;
(ii) that the End User will 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 End User is required by Law to comply with the Privacy Legislation;
(iii) it will comply with any other reasonable direction relating to privacy given by the Department or MSA, including those relating to the Department’s or MSA’s own privacy policies and procedures; and
(iv) it will not to do anything which if done by the Department or MSA would be a breach of the Privacy Legislation.

b) The Department or MSA (including its board members, officers, employees, contractors, agents and delegates) will not be responsible for any actions, claims, cost, proceedings, suits or demands whatsoever arising out of any breach of the Privacy Legislation by an End User or third person, in relation to any Service they obtain, or in relation to the Service Provider’s Outputs.
c) The End User must provide any assistance requested by the Department and/or in relation to an investigation of an allegation of misuse of any Licensed Data or Service, or contravention of the Privacy Legislation.
d) The End User agrees that it will not use the Licensed Data for Direct Marketing of goods or services.
e) The End User must not release the Licensed Data to any third party where that party intends to use those Licensed Data for the purpose of Direct Marketing of goods or services.

7. Service Copyright and Disclaimer
a) You agree to be bound by the applicable copyright notice and disclaimer notice with receiving the Service.
b) All reproductions of the Licensed Data, however altered, reformatted or redisplayed, must bear the relevant Departments copyright notice. 8. End User Procedures a) The End User must have formal procedures in place to:

(i) provide protection (e.g. Firewall) against intrusion and uncontrolled access to any Service, particularly through the Internet;
(ii) prevent unauthorised access or downloading of the Service; and
(iii) ensure any Service is properly secured from interference when it is being transferred across the Internet.

b) Ensure that its officers, employees, agents, contractors and third parties are made personally aware of and agree to comply with the security obligations contained in these terms and conditions, before providing them with access to the Service.
c) The End User agrees to only release publicity statements or any other form of advertisement or promotion that specifically refers to the relevant Department or MSA where:

(i) they have first been approved by MSA’s as the Departments authorised delegate in writing (including by email), which approval will not be unreasonably withheld; and
(ii) at least 7 days written notice has been provided to MSA prior to any such release;

9. Inconsistency
a) If there is any inconsistency between these End User terms and conditions and the remainder of the agreement between MSA and the End User for the supply or provision of the Service, then End User terms and conditions prevail to the extent of that inconsistency.