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Prenax Pty Ltd, TERMS AND CONDITIONS
1st December 2010
1. Description of Prenax Services
1.1 Prenax offers a procurement and management service whereby Prenax
obtains for, and sells and provides subscriptions, publications, memberships
and data in online, print and CD Rom formats (below also referred to as
“product/s”) to, its customers at its customers’ request. Prenax's customers
are thereby offered a coordinated management service in respect of such
Publications. Besides ordering their publications and data through Prenax
customer services, customers may also access the Prenax Product service
through the Prenax on-line service on the internet (“Prenax Online”).
This on-line service enables customers to make address changes, cancel
certain publications, order certain new publications and make similar changes.
In addition, they can gain access to data on the internet about the orders they
currently hold with Prenax and make searches and compilations of selected parts
of Prenax's database.
1.2. Prenax Online is available at Prenax's website, www.prenax.com.au.
1.3. Prenax is entitled at any time to modify Prenax Online on the internet,
its offer of procurement and management services and/or implement additional
content/functions in any manner it deems suitable at its discretion.
1.4. The Customer undertakes, over and above the terms and conditions of this
agreement, to observe the instructions and conditions for using Prenax Online
laid down from time to time at Prenax's website or as may be made available to
Customer by other means.
1.5. Prenax undertakes to use all reasonable skill and care in the provision
of its services to the Customer and its applicable staff and to ensure that
its services shall be available for use by the Customer’s applicable staff
for the duration of this agreement.
2. Prenax Services
2.1. Prenax agrees to obtain for and sell and provide Publications to the
Customer in accordance with the Customer's orders and the terms and conditions
of this agreement and the terms and conditions imposed by the publisher(s) of
any applicable Product(s).
2.2. Customer accepts and agrees that each Product that has been ordered by
Customer and confirmed by Prenax is binding on Customer. Prenax shall use all
reasonable endeavours to obtain a Product for which the Customer places an
order and shall keep records of all orders placed. Upon receipt of an order,
Prenax shall provide the Customer with a confirmation in respect of that order.
In the event of any dispute relating to an order, if Prenax’s records of the
Customer’s order are accurate and consistent with Prenax’s confirmation then
Prenax shall be entitled to payment of the applicable Product Price (defined below)
in respect of the Product concerned.
3. User name and password for Prenax Online
3.1. Prenax Online, requires a user name registered with Prenax and a password.
The customer is entitled to change this password at any time, while Prenax is
entitled to change the user name at any time. If Prenax makes such a change,
the customer will be notified of this by e-mail or ordinary letter in the post
as soon as practicable.
3.2. Customer undertakes:
(A) not to reveal its user name or password to others and not to make a note
of or store it in such a way that it can be recognised as such or be associated
with Prenax Online, and
(B) to notify Prenax immediately if it suspects that an unauthorised person has
gained access to its password.
3.3 Customer shall be liable for any loss or damage suffered or incurred by Prenax
howsoever if:
(A) Customer deliberately or inadvertently reveals its password to
a third party; or
(B) Customer’s password in some other way becomes known to an
unauthorised person and the customer does not change the password as soon as possible
after suspecting this fact and does not notify Prenax as described in 3.2(B) above.
3.4 After Customer has notified Prenax of its suspicion that an unauthorised
person has gained access to the Customer’s password, the Customer will only
be liable to Prenax in respect of any loss or damage referred to in 3.3
above if it has acted fraudulently.
4. Entitlement to withdraw services from Prenax Online
4.1 Prenax is entitled with prior written notice setting out reasons to
deny a customer access to Prenax Online if:
(A) there is reason to assume that grounds exist for cancellation of this
agreement with immediate effect; or
(B) the customer has given notice of cancellation of this agreement; or
(C) Prenax acting reasonably has cause to believe that the customer is
acting in a way which may cause Prenax to suffer a loss; or
(D) there is a reason to assume that there is a risk of unauthorised
access to or loss of information.
5. Terms of delivery
5.1. Once ordered from Prenax, delivery of any particular Product will
be in accordance with the procedures and conditions of the publisher
concerned. Delivery from national print publishers usually varies
between 1-5 weeks and from foreign publishers delivery can vary
between 8-13 weeks. Online delivery of any particular Product as a
file or as a website access code may (but may not) be instant. It is
the Customer’s responsibility to satisfy itself that the particular
subscription, publication or other content source and all of the data
and information reproduced in such Products will be used in accordance
with the applicable publisher’s terms and conditions for the Product
concerned.
5.2. Delivery of each Product is carried out to the Customer's latest
recorded address held by Prenax, i.e. sent by post or, where applicable,
by fax, e-mail or the internet in accordance with the Customer's order
and the existing terms and conditions of the respective publishers.
5.3. Prenax reserves the right to make changes to the terms of delivery
of any and all Products. This may (without limitation) arise from changes
in a publisher's delivery schedule, consolidation of more than one Product
(or part thereof) or even the suspension demise of a particular Product.
In doing so, the Customer will be charged or credited in accordance with
any additional price change levied by the applicable publisher.
6. Prices
6.1. The price payable by the Customer to Prenax in relation to each
Product (the “Product Fee”) is the Product rate specified by Prenax
at the time when the applicable Product is ordered by Customer in line
with the agreed pricing model.
6.2. However, Prenax reserves the right to make changes to the Product
rate arising from price changes made by the publishers, including without
limitation due to changes in exchange rates and from changes in the
Prenax list price. Customer accepts and agrees that additional charges
or credits to Customer in respect of such changes may be made without
prior notification.
6.3. Prenax's Product rates are stated exclusive of GST. Value added tax
is payable according to current legislation and Prenax reserves the right
to invoice the customer retrospectively for additional GST that may occur
according to changes in the current legislation and case law or as may
otherwise be required.
7. Terms of payment
7.1. Payment of all Product Fees and Management Fees shall be made by the
Customer within thirty (30) days from the date of Prenax’s invoice to the
Customer with respect thereto, unless otherwise specially agreed between
Prenax and the Customer. Prenax reserves the right to charge interest a
the rate of two percent (2%) per month on late payments provided that no
such interest shall be charged in respect of items on invoices for any
Product Fee which are the subject of a genuine dispute between the Customer
and Prenax.
7.2. If any part of the invoice is disputed, the part in question must be
queried by the Customer in writing within 30 days of its receipt of the
relevant invoice. The parties will endeavour to resolve any such dispute
as soon as practicable, acting reasonably.
8. Cancellation
8.1. The customer accepts the fact that an ordered Product is binding in
accordance with this agreement. If the Customer wishes to cancel a subscription
of any particular Product, cancellation shall be made in writing by post, e-mail
or fax to Prenax customer services, or by using Prenax Online. Prenax shall
notify the relevant Publisher of such cancellation as soon as practicable
thereafter and shall use its reasonable endeavours to obtain a refund for the
Customer for any unused portion of the subscription in accordance with the
applicable publisher’s or producer’s terms and conditions. Some publishers
may refuse to refund for any reason. The cancellation of any subscription for
a particular Product does not affect the Customer's obligation to pay the
Product Fee for the whole subscription period.
8.2. Prenax reserves the right to cancel Product orders and existing
subscriptions in the event that the Customer does not comply with any
applicable publisher’s or producer’s terms and conditions or with the
terms and conditions of this agreement, the Proposal or the SLA or
Prenax’s payment terms. Prenax may use any recovered refunds received
by Prenax in respect of any cancelled subscription to any Product to
pay any sums owed by the Customer to Prenax at such time and will forward
any remaining balance to the Customer thereafter.
9. Claims
9.1. Claims regarding an incorrect delivery or non-delivery of any
particular issue of any Product which has been ordered by Customer
in accordance with this agreement should be made immediately by post,
e-mail or fax to Prenax customer services or by using Prenax Online.
9.2. Prenax is unable to guarantee a replacement issue in the event
of a claim (because, by way of example and not limitation, the relevant
publisher may have run out of copies and is therefore unable to make
a replacement).
9.3. If the Customer has not acknowledged in writing receipt of the
missing item/s at the end of 60 days from the date of the relevant claim,
Prenax will presume that the claim has been resolved and no further
action will be taken.
10. Renewal of subscription
Prenax will send the Customer a list of forthcoming products due for
renewal (a “Renewal List”) every 3 months during the duration of this
agreement. Once any Renewal List has been issued by Prenax, each
subscription listed on it may be allowed to expire or renew
(depending on the agreement) if no notice from Customer requesting
that the subscription be renewed or denied is received by Prenax
within 30 days from the date of the applicable Renewal List.
11. Storage of information etc.
11.1. Prenax will handle the personal details supplied by the Customer
and will store this data. The Customer agrees that this information may
be supplied to publishers and other partners (newspaper distributors,
for example) engaged by Prenax in order for Prenax to fulfil its commitments
to the Customer to the best of its ability. Further, Customer agrees that
Prenax shall be entitled to use the personal data for information mailing
to the Customer. Individuals are entitled to request to be informed of any
personal data held by Prenax concerning them. If these details are incorrect,
incomplete or not relevant, they will be entitled to demand that they be
corrected or deleted.
11.2. By supplying Prenax with personal details, the Customer also consents
to these details being handled by Prenax in the manner stated above.
11.3. Prenax will take appropriate technical and organisational measures
against unauthorised or unlawful processing of personal data and against
accidental loss or destruction of or damage to personal data and will
comply with any other obligations under Data Protection legislation.
12. Limitation of liability / Warranties and Indemnity
12.1. Neither party to this agreement shall be in breach of this agreement
nor liable for delay in performing, or failure to perform, any of its
obligations under this agreement if such delay or failure result from
events, circumstances or causes beyond its reasonable control.
12.2. Prenax is not liable for losses which arise as a result of interrupted
access to Prenax Online or any other electronic information provided, or for
loss which arises as a result of an interruption, fault or shortcoming in
telecommunications or other form of communication or communications equipment
or for another similar reason. Provided that Prenax shall use its reasonable
endeavours to ensure the security and integrity of any electronic
communications or information sent or received by Prenax in connection
with this agreement and to check e-mail correspondence and other electronic
information with the latest appropriate anti-virus software, Prenax shall
not be liable for losses arising as a result of a message not arriving or
becoming corrupted or from manipulation by an outsider to Prenax's website
or arising from properties of the customer's own data and communications
equipment, software or internet subscription.
12.3. No compensation will be paid by Prenax for loss which arises in other
cases if Prenax has exercised normal care. In no event will Prenax be liable
to Customer for any consequential or indirect loss (including without
limitation any loss of profits). Notwithstanding the above, either party’s
liability under this agreement whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, shall not exceed the amount of the
Product Fee for the Product in question (and the Management Fee payable to
Prenax under this agreement) during the period of twelve (12) months prior
to the date that the applicable claim is made. This provision shall have no
application in relation to Customer’s obligations under clause 12.9 to any
liability for death or personal injury or arising as a result of fraud nor
to any liability which cannot lawfully be excluded or limited.
12.4. Unless otherwise specified at order point, all products in all formats
are supplied for individual use. The Customer may not otherwise copy, edit,
vary, reproduce, publish, display, distribute, store, transmit, commercially
exploit, disseminate in any form whatsoever or use any Product or any materials,
articles, information or data reproduced in any Product without the applicable
publisher’s or producer’s or other rights owner’s express permission. Without
limiting the foregoing, the Customer must not frame or link to any subscribed
website without the publisher’s or producer’s permission.
12.5. Subscriptions, Publications or databases supplied in connection with
Products may include facts, views, opinions and recommendations of individuals
and organisations. Prenax is not responsible for any of the same and does not
warrant this information for accuracy, completeness of, timeliness of or
otherwise endorse the views, opinions or recommendations of others.
12.6 Customer acknowledges and agrees that Prenax has no liability to Customer
whether in contract, tort (including negligence), breach of statutory duty,
or otherwise, with respect to any acts or omissions of any publisher or any
producer of any Product howsoever or with regards to any Product or any
materials, articles, information or data reproduced in any Product.
12.7 Customer warrants and represents that it is entitled to enter in to
this agreement and to fully perform its obligations under it.
12.8 Customer warrants and represents that its use of the Publications
and the materials, articles, information, databases and data reproduced in
any Product under this agreement will not: (i) infringe the rights of any
third party including without limitation any publisher or producer of any
Product; (ii) breach the terms and conditions of this agreement or any
applicable terms and conditions of any publisher or producer of any
Product under this agreement; and (iii) contravene any law or regulation.
12.9 Customer shall indemnify Prenax and hold it harmless from and against
any and all claims, liabilities, costs, expenses, damages or losses
(including any direct or indirect consequential losses, loss of profit,
loss of reputation and all interest, penalties and legal and other
reasonable professional costs and expenses) arising out of or in
connection with Customer´s negligence, default or breach of this agreement.
This indemnity shall cover (but is not limited to) Prenax’s liability to
third parties arising out of or in connection with Customer’s use of any
Product or any materials, articles, information, data or databases
reproduced in any Product.
13. Duration of agreement and cancellation
This agreement is valid until terminated by either party for any reason
by giving no less than ninety (60) days' prior written notice of termination.
Except as provided in this clause 13 neither party to this agreement shall
have any further obligation to the other under this agreement following
its termination. Clauses 6, 7, 8 (insofar as it relates to any right of
Customer to receive a refund) and 12 shall survive termination of this
agreement and continue in full force and effect. Termination of this
agreement shall not affect any rights, remedies or obligations of the
parties that have accrued or become due prior to termination.
14. Assignment
The Customer is not entitled, without the prior written consent of Prenax,
to assign or transfer wholly or in part its rights or obligations under
this agreement.
15. Changes to Prenax's general terms and conditions
Changes to these provisions shall take effect in relation to the customer
from the thirtieth (30) calendar day after Prenax has sent the customer
by post or e-mail notification of the change. Customer retains the right
not to accept changes but must notify Prenax within 30 days of receiving
the above notice.
16. Disputes
This agreement and any dispute arising out of or in connection with it or
its subject matter shall be governed by and construed in accordance with
the law of Australia and the courts of Australia shall have exclusive
jurisdiction over any claim or matter arising out of or in connection
with this agreement.
© Prenax Pty Ltd 2010. This agreement is protected under Australian Law.
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