THIS SOFTWARE LICENCE AGREEMENT is made on the date of acceptance of the online terms & conditions and the completion of the Australian Credit Data registration process as defined by the Australian Credit Data registration form located at http://www.australiancreditdata.com.au/#company-registration/c6c1.

Completion of the registration process remains subject to the review and acceptance of terms by Australian Credit Data.

BETWEEN:

AUSTRALIAN CREDIT DATA COMPANY PTY LTD (ACD) [ACN 165 958 583] of 37 Henrietta St Waverley NSW 2024 (“the Licensor”)

AND

Company Name and ACN as obtained from the ACD registration form with the corresponding unique application number (“the Licensee”)

BACKGROUND

A The Licensor has written software called Credit Complaint Software which enables a credit provider or a credit reporting body to obtain Complaint Data  which is then  forwarded  to another credit provider or a credit reporting body in the event of a credit reporting complaint or a credit reporting infringement in connection with that provider or body  (“the Software”).

B The Licensor grants and the Licensee accepts a non-exclusive and non-transferable licence to use the Software for the Approved Purpose (“the Licence”).

1.1       Definitions

Approved Purpose means the use of the Software to obtain Complaint Data where:

(a)        an individual has made an application for consumer credit with the Licensee;          and

that individual has made a credit reporting complaint, or a credit reporting infringement is alleged by that individual, in relation to:

an application for consumer credit by that individual to a credit provider other than the Licensee or the granting of consumer credit by a credit provider other than the Licensee;

Complaint Data held by a credit reporting body in relation to that individual.

Change in Control Event means:

(a)        a change in 15% or more of the shareholding of the Licensor or any Related Body Corporate of the Licensee using the Software pursuant to clause 2.3;

(b)        any change in shareholding, management or Control of the Licensor or any Related Body Corporate of the Licensee that may affect its ability to abide by the terms and conditions of this agreement; or

(c)        any other event which results in or causes a change of the person who Controls the Licensee or any Related Body Corporate using the Software pursuant to clause 2.3.

Commencement Date means the date of the completion of the registration process including the acceptance of ACD’s terms and conditions.

Complaint Data means information (including credit information, consumer credit liability information, CP derived information, CRB derived information, court proceedings information, credit eligibility information, and credit reporting information) in connection with a complaint by an individual pursuant to s23A(1) or s23A(2) of the Privacy Act 1988 (Cth), or a request for correction of credit information pursuant to ss20S, T and U of the Privacy Act 1988 (Cth).

Confidential Information means Complaint Data and, in relation to a party, all trade secrets, ideas, know how, concepts and information whether in writing or otherwise relating in any way to that party, its sub-licensees, agents and employees, its affairs or businesses, sales, marketing or promotional information, the terms of this agreement and including any such information in the party’s power, possession or control concerning or belonging to any third party, but does not include any information that is:

(a)        on receipt, in the public domain or that subsequently enters the public domain without any breach of this agreement;

(b)        on receipt, already known by the party receiving it;

(c)        at any time after the date of receipt, received in good faith from a third party without any restriction as to use or disclosure; or

(d)        required by law to be disclosed.

Control of an entity includes the direct or indirect power to:

(a)        direct the management or policies of the entity; or

(b)        control the membership of the board of directors,

whether or not the power has statutory, legal or equitable force or is based on statutory, legal or equitable rights, and whether or not it arises by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or stock of that corporation or otherwise.

GST means the GST as defined in the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.

Hardware means personal computers owned, leased or hired by the Licensee on which the Licensee must use the Software.

Initial Term means five years from the Commencement Date.

Intellectual Property Rights means all current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.

Licensee means the company completing the registration form obtainable at http://www.australiancreditdata.com.au/#!company-registration/c6c1 and has accepted the related terms and conditions, and each Related Body Corporate licensed to use the Software pursuant to clause 2.3.

Licence Fee means the fees payable in respect of the use of the Software set out in Item 1 of the Schedule.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an identified individual, or an individual who is reasonably identifiable, which is received by the Licensor from any source as a consequence of the performance of rights and obligations under this agreement.

Privacy Legislation means:

(a)        the Privacy Act 1988 (Cth); and

(b)        any legislation (to the extent that such legislation applies to the Licensee or the Licensor any other recipient of Personal Information) from time to time in force in any Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia) affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of personal data.

Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).

Services means the automated collection and collation from of Complaint Data by the Licensor using the Software from a credit reporting body in connection with individuals who intend to lodge or who have lodged a credit reporting complaint or credit reporting infringement with a respondent pursuant to s23A of the Privacy Act 1988 (Cth).

Software means the Licensor’s Credit Complaint Software which enables a credit provider to obtain Complaint Data from a credit reporting body and then  forwarded that Complaint Data to another credit provider or a credit reporting body in the event of a credit reporting complaint or a credit reporting infringement in connection with that provider or agency.

Term means the period from the Commencement Date until the end of the Initial Term or any extension thereof in accordance with clause 2.1.

Territory means Australia only.

1.2       Interpretation

In this agreement, unless the context clearly indicates otherwise:

(a)        a reference to a person includes a natural person, company, statutory corporation, partnership, the Crown and any other organisation or type of legal entity;

(b)        a reference to a right or obligation of a party is a reference to a right or obligation of that party under this agreement;

(c)        including and includes are not words of limitation;

(d)        a reference to a time is to that time in New South Wales;

(e)        a reference to a day or date concludes at 5 pm on that day;

(f)         a requirement to do any thing includes a requirement to cause that thing to be done;

(g)        a reference to terminate, terminated or termination includes the circumstance where the Term of this agreement expires;

(h)        clause headings and the table of contents are inserted for convenience only and must not be used when interpreting this agreement;(i)         monetary amounts ($) are expressed in Australian dollars;

(j)         the singular includes the plural and vice-versa;

(k)         a reference to a natural person includes their personal representatives, successors and permitted assigns;

(l)         a reference to a company includes its successors and permitted assigns; and

(m)       italicised terms have the meaning given to those terms in the Privacy Act 1988 (Cth) as amended and applying from 12 March 2014.

2          Software licence and term

2.1       Subject to clause 2.2, the licence granted under this agreement will commence on the date of acceptance of the terms and conditions made available online at http://www.australiancreditdata.com.au/#!company-registration/c6c1 and the corresponding acknowledgement of this agreement from ACD, and continue unless and until terminated in accordance with clause 11 (the termination clause) for the Initial Term. The Term will automatically be extended for a further period of two years on the anniversary of the Commencement Date at the end of the Initial Term, and thereafter for further periods of one year on the anniversary of the Commencement Date unless:

(a)        the Licensee notifies the Licensor earlier than 30 days  before the end of the Term that the license should not be renewed; or

(b)        the Licensor or Licensee terminates this agreement earlier in accordance with clause 11.

2.2       Upon the signature of this agreement and payment of the first Licence Fee the Licensor agrees to issue to the Licensee one copy of the Software for licensed use by the Licensee and, subject to clauses 2.3 and 2.4, its Related Bodies Corporate, on the Hardware in the Territory for the Approved Purpose during the Initial Term and any extension thereof.

2.3       The Licensee enters into this agreement on its own behalf and as agent for each Related Body Corporate of the Licensee with respect to the obligations and undertakings of this agreement. The Licensee must notify the Licensor of each Related Body Corporate for whom it acts or intends to act as agent for the purpose of this agreement. If the Licensee acts as the agent of a Related Body Corporate, the Licensee:

(a)        warrants that it has the authority to act as agent for that Related Body Corporate; and

(b)        will continue to be liable under this agreement for the acts and omissions of that Related Body Corporate, despite the relationship of agency, as if they were the acts and omissions of the Licensee

Nothing in the agreement shall prevent the Licensor from enforcing its rights against any Related Body Corporate to whom the Licensor provides Services or licenses the Software under this agreement and for whom the Licensee acts as agent.

2.4       For the purposes of this agreement “use” means the utilisation of the Software by the Licensee on the Hardware, without networking or other multiple use, and solely for the Approved Purpose in the Territory for the Term in accordance with the terms and conditions of this agreement.

3          Licence Fee

3.1       In consideration of the licensed use referred to in clause 2.1 above the Licensee agrees to pay the Licence Fee to the Licensor in accordance with the provisions of Item 1 of the Schedule.

3.2       The Licence Fees may be adjusted by the Licensor at their discretion but on no less than 30 days notice to the Licensee.

4.         GST

4.1       Words used in this clause that are defined in the GST Law have the meaning given in that legislation.

4.2       Unless otherwise specified, all amounts payable under this agreement are exclusive of GST and must be calculated without regard to GST.

4.3       If a supply made under this agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.

4.4       The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply.

4.5       If there is an adjustment to a taxable supply made under this agreement then the Supplier must provide an adjustment note to the Recipient.

4.6       The amount of a party’s entitlement under this agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or liabilities.

5          Licensee’s undertakings

5.1       The Licensee undertakes:

(a)        not to copy, reproduce, translate, adapt, vary, decompile, disassemble, reassemble or modify the Software nor to communicate it to any third party without the Licensor’s prior written consent;

(b)        to supervise and control the use of the Software in accordance with this Licence; and

(c)        not to make the Software available (including program listings, object and source program listings, object code and source code) in any form to any person without the prior written consent of the Licensor.

(d)        to notify the Licensor of any changes in personal or roles that may no longer warrant access to the Software, allowing the Licensor to terminate or restrict that access accordingly.

6.         Confidentiality

6.1       The parties recognise and acknowledge the confidential nature of the Confidential Information.

6.2       Subject to clause 6.3, neither party may use or disclose any Confidential Information other than:

(a)        to its employees to the extent necessary for the Approved Purpose;

(b)        with the express prior written consent of the other party; and

(c)        to its professional advisers.

6.3       The parties acknowledge and agree that Confidential Information containing Complaint Data may only be disclosed for the Approved Purpose or as otherwise permitted under Privacy Legislation.

6.4       Each party agrees to implement such security arrangements as may be necessary to ensure that the secrecy of the Confidential Information is preserved.

6.5       Neither party may advertise or publicly announce any matter relating to the existence or the contents of this agreement without the other party’s prior written consent.

6.6       The Licensee shall indemnify the Licensor against any losses, costs (including solicitor and client costs), expenses, demands or liability, whether direct, indirect, consequential, or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, incurred as a result of any unauthorised disclosure or use of the Confidential Information by the Licensee or any of its employees.

7.         Privacy

7.1       The Licensee must ensure that any collection, use, disclosure or transfer of Personal Information in the course of performing this agreement or using the Software complies with Privacy Legislation.

8          Licensor’s undertakings

8.1       The Licensor agrees to provide the Services to the Licensee and any Related Body Corporate notified to the Licensor pursuant to clause 2 during the Term.

8.2       The Licensor may update the Software at such reasonable cost as may be notified from time to time by the Licensor to the Licensee.

8.3       Upon the request of the Licensee, the Licensor agrees to instruct members of the Licensee’s staff in the use of the Software on the Licensee’s Hardware for such reasonable hourly fee as may be notified from time to time by the Licensor to the Licensee.

9          Limitation of liability

9.1       To the extent permitted by law, and subject to the Licensee’s rights under the Australian Consumer Law (ACL):

(a)        the Licensor is not liable to the Licensee or any third party for any loss, damage, cost or expense arising directly or indirectly in connection with:

(i)         this Licence, the Services, the Software, its use, misuse or otherwise; or

(ii)        any decision made using information (including Complaint Data and any Personal Information) supplied by the Licensor,

including (but without limitation) any loss of profit, business, revenue, goodwill or anticipated savings. This exclusion of liability applies to liability in contract, tort (negligence) and any other principle of legal liability;

(b)        the Licensor excludes from this agreement all conditions, warranties and terms implied by statute, general law or custom, except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void (non-excludable condition).

9.2       The remedy for breach of any other express term or any non-excludable condition (other than one implied by the ACL) of this agreement is limited, at the Licensor’s option, to any one of supplying, replacing, repairing or the cost of resupplying the goods or services to be provided under this agreement, in respect of which the breach occurred.

9.3       Without limiting the generality of clause 9.1(a), the Licensee shall be solely liable for the results any actions or decisions taken by it on the basis of, or in reliance upon, the Complaint Data, including decisions about complaints determined pursuant to s23B of the Privacy Act 1988 (Cth) or the correction of requests to amend credit credit information pursuant to ss20S,T and U of the Privacy Act 1988 (Cth).

9.4       Subject to clause 9.2, the liability of the Licensor to the Licensee for all other proven loss or damage arising from a breach of this agreement is limited, for an aggregate of all claims, to the amount paid by the Licensee under this agreement in the month immediately prior to the cause of action or claim arising or the act or omission alleged to have cause the loss or damage in question for each event or series of connected events, exclusive of GST.

9.5       The Licensee indemnifies the Licensor against any loss, damage, cost or expense suffered or incurred by the Licensor as a result of any claim or action against the Licensor that the Services or anything produced as part of the Services  infringes the Intellectual Property Rights of any person, except to the extent that the Loss is caused by the negligence or wrongful act or omission of the Licensor.

10        Intellectual Property Rights

10.1     The Licensee acknowledges that all Intellectual Property Rights, including copyright relating to the Software are the sole property of the Licensor and agrees to keep such Intellectual Property Rights confidential to the extent that they are not public knowledge.

10.2     Subject to clause 2 the Licensee does not obtain, either under this Licence or by reason of its use of the Software, any right to copy the materials comprising the Software, or any right to use the Software after this agreement and the licence has terminated.

10.3     Any revisions, modifications, enhancements or updates to the Software, whether carried out by the Licensor, Licensee or any other person, remain the property of the Licensor.

11        Termination

11.1     Without limiting any other rights which a party may have at law, a party may terminate this agreement (or any part of it) immediately by issuing the other party (the defaulting party) with a notice, if:

(a)        the defaulting party breaches any term or condition of this agreement and:

(i)         the breach cannot be remedied by the defaulting party; or

(ii)        if it can be remedied, the defaulting party fails or refuses to do so within a period of 14 days specified in a notice issued to the defaulting party, which specifies the nature of the breach and requires the defaulting party  to remedy it; or

(b)        the other party enters into any composition or arrangement with its creditors, has a receiver, a receiver and manager or an administrator appointed to it, or is the subject of any resolution or 

petition for winding up (other than for the purpose of amalgamation or reconstruction while solvent) or becomes bankrupt.

12.       Entire agreement

12.1     This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software. No addition to or modification of any provision of this agreement shall be binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

14.       Assignment

14.1.    Neither party shall assign, whether in whole or part, the benefit of this agreement or any rights or obligations hereunder, without the prior written consent of the other party.

15.       Law

15.1     This agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales, Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts and tribunals of that State.

16.       Waiver

16.1     No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.

17.       Variation

17.1.    No variation of this agreement will be effective unless in writing and signed by both parties.

18.       Severability

18.1.    Should any part of this agreement be or become invalid, that part shall be severed from this agreement. Such invalidity shall not affect the validity of the remaining provisions of the agreement.

19.       Dispute resolution

19.1     Except for disputes/disagreements arising under this clause 20, if a dispute between the parties in relation to, or arising out of, this Agreement (“Dispute”) occurs, each party must not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the provisions of this clause 9, except to seek urgent interlocutory relief.

19.2     A party claiming that a Dispute has arisen must promptly notify the other parties in writing giving details of the Dispute.

19.3     The parties must use reasonable endeavours to resolve any Dispute notified in accordance with clause 20.2.

19.4     If the parties fail to resolve the Dispute within 30 days of a party receiving a notice in accordance with clause 20.2, any of the Parties may immediately refer the Dispute to the Australian Commercial Disputes Centre (“ACDC”) for mediation and the parties will use reasonable endeavours to resolve the Dispute following the ACDC Guidelines.

19.5     Each party must bear its own costs in relation to complying with this clause 20, except for the costs and expenses of the mediation, which will be borne by the parties equally.

20.  Survival

20.1 The rights and obligations under clauses 6 (Confidentiality), 7 (Privacy), 9 (Limitation of Liability) and 10 (Intellectual Property Rights) survive termination of this agreement.