Terms and Conditions


Agreement


These Terms and Conditions govern the use of this system (‘Acuity™’). PLEASE READ THEM CAREFULLY. By using Acuity™ you agree to be bound by these Terms and Conditions. If you do not agree to these Terms and Conditions, do not use Acuity™.


Definitions


In these Terms and Conditions, and in any instrument created pursuant to or in accordance with them, unless the context otherwise indicates or requires: “PDM” means Prime Digital Media (Aust) Pty Limited ABN 65 118 351 198; “Products” means the Software and the Specifications, and any products supplied to you relating to the Software and the Specifications, and all material and information included in, or accessible through, the Software, Specifications and related products; “Software” means the software products of PDM, including Acuity™; and “Specifications” means the mechanical specifications for the Software set out in Part B of the Special Terms and Conditions.


General Terms and Conditions


1 Charges
In consideration for use of Acuity™ and any other related products and services of PDM, you agree to pay PDM’s standard charges from time to time and be bound by PDM’s standard terms of trade from time to time, as notified by PDM to its customers. Unless otherwise expressly indicated:

  • PDM’s stated charges are exclusive of GST (and any other State or Federal tax); and
  • PDM reserves the right to increase its charges so that the amount PDM receives after payment of GST (and any other State or Federal tax) is equal to the stated charge.

2 License

  • PDM grants you a licence to use Acuity™ as an end-user in accordance with the Specifications and these Terms and Conditions (the “Licence”).
  • The Licence is non-transferable and non-exclusive.
  • The Licence is limited to a maximum of one (1) computer at the premises at which Acuity™ is to be used (the “Location”). If Acuity™ are subsequently installed on additional computers and/or at any place other than the Location, you will require a new licence and you agree to pay all charges under the new licence in addition to the charges payable under this Licence.

3 Ownership

  • PDM retains ownership of all right, title and interest (including copyright) in Acuity™.
  • You will not:
    • modify the whole or any part of any Product or combine or incorporate the whole or any part of any Product in any other program or system (although you acknowledge that PDM will have ownership of all right, title and interest in any such modifications or combinations);
    • reverse engineer any Product or separate any Product into component parts;
    • cause or permit any third party to use, copy or install any Product; or
    • transfer or resell the Licence to any third party, or assign any of your rights, benefits or obligations under the Licence or these Terms and Conditions to any third party.
  • You also undertake and acknowledge that:
    • PDM retains ownership of all right, title and interest in all copies of Acuity™ and the media in or on which such copies are contained;
    • you will be responsible for ensuring that Acuity™ is used in accordance with the Specifications;
    • you will be responsible for protecting Acuity™ at all times from unauthorised access, use or damage;
    • you will immediately notify PDM on becoming aware of any unauthorised use of Acuity™;
    • you will maintain the confidentiality of Acuity™ at all times; and
    • you will not be involved (whether directly or indirectly) in any act, omission or thing that will or may decrease the value of Acuity™ or the intellectual property in Acuity™.

4 Indemnities

  • PDM is not responsible for the content of any material created, altered, compiled, transmitted or published using Acuity™ and you indemnify PDM against any and all liabilities, claims, losses or expenses arising by reason of such material being:
    • an infringement of any intellectual property rights (including copyright) of any third party;
    • defamatory;
    • in breach of any trade practices or other consumer protection legislation; or
    • otherwise an infringement of law or any rights of any third party; or otherwise arising in respect of such material.
  • Without limiting the generality of the prohibition on modifications under clause 3(b)(iv), you will indemnify PDM against any liabilities, claims, losses or expenses arising by reason of such modifications being:
    • an infringement of any intellectual property rights (including copyright) of any third party; or
    • otherwise an infringement of law or any rights of any third party.

5 Risk

Risk of loss or damage to Acuity™ will pass to you upon access to Acuity™ and from this time:

  • you will be solely responsible for the supervision, management and control of Acuity™; and
  • you will ensure that Acuity™ is protected at all times from unauthorized access or use by a third party or physical misuse, damage or destruction by any person.

6 Liability of PDM

  • You acknowledge the technical difficulty of engineering failsafe graphics transmission software, and you agree that PDM can give no, and that PDM does not give any:
    • guarantee that Acuity™ will work as desired on every (or substantially every) occasion; or
    • warranty regarding:
      • suitability of Acuity™ for the uses to which you put them;
      • suitability of any material altered by Acuity™ with the processes or the systems of publishers;
      • compatibility of any material altered by Acuity™ with the processes or systems of publishers;
      • compatibility of Acuity™ with any of the systems in conjunction with which you use them; or
      • accuracy or completeness of any database or other information included in Acuity™ or accessible through using Acuity™.
  • You warrant that you have not relied on any representation made by PDM in relation to Acuity™ other than as expressly set out in these Terms and Conditions.
  • To the maximum extent permitted by applicable law:
    • except to the extent set out in the Special Terms and Conditions below, PDM will not be liable for any damages (whether in negligence, contract or otherwise and including, without limitation, special, punitive, incidental, indirect or consequential damages and damages for economic loss or loss of profit, loss of confidential or other information, business interruption, personal injury, loss of privacy, failure to meet any duty (including of good faith or of reasonable care), negligence, and any other pecuniary or other loss whatsoever) or any other remedy (whether in negligence, contract or otherwise) in any way related to Acuity™ or any transmission, maintenance or other services supplied by PDM (or an agent or sub-contractor of PDM) in relation to Acuity™ or any material submitted through or altered by Acuity™, regardless of any fault of PDM (or an agent or sub-contractor of PDM) and even if PDM has been advised of the possibility of such damages;
    • all warranties and conditions implied by law (including, but not limited to, any in relation to title to Acuity™, non-infringement of third party rights, merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of information, results, lack of negligence, workmanlike effort, quiet enjoyment, quiet possession and correspondence to description) are expressly excluded; and
    • the entire risk arising out of use or performance of Acuity™ (including any alteration of material submitted through Acuity™) and any transmission, maintenance or other services supplied by PDM (or an agent or sub-contractor of PDM) in relation to Acuity™, remains with you.

7 Termination

  • The Licence may be terminated by PDM immediately if:
    • you are in breach, or threaten breach, of a material provision of these Terms and Conditions;
    • you breach any provision of these Terms and Conditions and fail to remedy that breach within fourteen (14) days after notice is given to you to do so; or
    • without limiting the generality of the foregoing, you fail to make any payment due to PDM within sixty (60) days after the due date for such payment.
  • The Licence may also be terminated by PDM immediately if:
    • an application is presented against you, an order made or a resolution passed, for your winding up;
    • an administrator, trustee, liquidator, provisional liquidator, receiver, receiver and manager or other insolvency administrator is appointed over all or any part of your assets;
    • you become insolvent or PDM believes, on reasonable grounds that you are, or may become, insolvent;
    • you become bankrupt or PDM believes, on reasonable grounds, that you are, or may become, unable to pay you debts as and when they fall due;
    • you cease to carry on your business or cease to pay debts or suspend payment generally; or
    • you enter into, or propose to enter into, any scheme, composition or arrangement with your creditors generally or with any class of your creditors; or a meeting is convened for any such purpose.
  • The Licence may be terminated by either party (for any reason and without cause) on one (1) month’s notice to the other party.
  • On termination of the Licence, you will:
    • immediately destroy all copies of Acuity™ held by you or return them to PDM (at PDM’s option), and remove Acuity™ from each and every computer or other machine on which they, or a copy of them, are installed; and
    • if requested by PDM, you will provide written certification that this has been done.
  • Clauses 3, 4, 6 and 7(d) of the General Terms and Conditions, clause 2 of the Special Terms and Conditions and Annexure A will survive termination of the Licence and will survive termination of these Terms and Conditions.

8 Miscellaneous

  • If PDM is delayed, interrupted in, or prevented from, performing its obligations under these Terms and Conditions by any cause beyond its control, PDM will not be in breach of these Terms and Conditions and the time for performance of its obligations will be extended by a period of time equal to the duration of the cause of the delay, interruption or prevention.
  • If any covenant, undertaking or condition of these Terms and Conditions is found to be void or unenforceable at law, that covenant, undertaking or condition will not affect any other covenant, undertaking or condition of these Terms and Conditions and, as far as is possible, will be read down to the extent required to make it enforceable.
  • These Terms and Conditions set out the entire agreement between the parties concerning all matters dealt with by them, and supersede any prior agreement between the parties in regard to those matters.
  • These Terms and Conditions can only be amended in writing, signed by the parties.
  • The waiver of a breach of any provision of these Terms and Conditions will not be a waiver of any other breach of that provision or the breach of any other provision.
  • PDM may assign its rights and obligations under the Licence and these Terms and Conditions to any other party on giving verbal or written notice to you.
  • All charges incurred by you in connection with Acuity™, or otherwise in connection with the Licence, will be incurred as principal and not agent.
  • These Terms and Conditions are governed by, and will be interpreted in accordance with, the laws of the State of New South Wales, Australia; and the parties submit to the jurisdiction of the Courts of New South Wales and the Commonwealth of Australia.

Special Terms and Conditions


1 Incorrect Transmission

If, during the term of the Licence, you use Acuity™ in the transmission of any material and the material is not transmitted properly in accordance with the Specifications, PDM will (at your option):

  • arrange proper retransmission of the material; or
  • refund any licence fee paid to PDM in respect of that particular transmission; but this will be the entire liability of PDM to you in such circumstances.

2 Mechanical Specifications

Without limiting the generality of the foregoing provisions of these Terms and Conditions, you acknowledge that PDM relies on the mechanical specifications, layout, format and other information provided to it by publishers and cannot and does not give any warranty as to the accuracy or completeness of that information. Further, if incorrect or incomplete information results in any type of failure or improper performance of Acuity™ or of any particular use of Acuity™, PDM will not be liable to compensate for any loss caused.



© Prime Digital Media 2010 version: 2.2.0.0