MACQUARIE DICTIONARY PUBLISHERS an imprint of PAN MACMILLAN AUSTRALIA PTY LIMITED

MACQUARIE CUSTOMER AGREEMENT

Effective starting: 13 September, 2018 (view archived versions)

This Agreement is between you and Macquarie Dictionary Publishers an imprint of Pan Macmillan Australia Pty Limited (“Macquarie”) of Level 25, 1 Market St, Sydney NSW 2000, ACN 001 184 014. If you are agreeing to this Agreement not as an individual, but on behalf of your company, then “you” or “your” means your company, and you are binding your company to this Agreement. Macquarie may modify this Agreement from time to time, subject to terms in Section 17 (Changes to this Agreement) below.

By ticking the box you agree at the time of your Order, or by using or accessing Macquarie Products, that you accept the terms of this Agreement.

1. SCOPE OF AGREEMENT

1.1. This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement consists of this Macquarie Customer Agreement, our Privacy Policy and any Order documents.

2. TYPES OF MACQUARIE PRODUCTS

2.1. This Agreement governs (a) Macquarie’s commercially available dictionary and thesaurus content (“Materials”) and (b) Macquarie’s hosted web database (“Subscription”). The Materials and Subscription are referred to as “Products”. Section 6 (Licence Terms) applies specifically to Materials, and Section 8 (Subscription Terms) applies specifically to your Subscription, but unless otherwise specified, other provisions of this Agreement apply to all Products.

2.2. Your permitted scope of use of the Products (“Scope of Use”) is further described below under your applicable Subscription type:

(a) Individual User. For the Term you may access, use, print and/or download individual articles and other items from searches for research and private study purposes. You may also create a hypertext to any part of the Materials provided that no other person other than you may use such hypertext.

(b) Institution/Business. For the Term you may permit Authorised Users to use the Materials as provided for under the Scope of Use for an Individual User, using one (1) or multiple IP addresses (“Network”) at the premises (“Site”). You may also permit Authorised Users to reproduce single copies of individual articles from the Materials for distribution without charge in hard copy form (but not electronically) to individual libraries of not for profit, non-commercial organisations in accordance with fair usage guidelines. You may also access usage statistics regarding the Products for your private internal use, as permitted by law.

(c) School/University. For the Term you may permit Authorised Users to use the Materials as provided for under the Scope of Use for an Institution/Business Subscription, using the Network at the Site and/or as specified in the Order.

(d) Public Library. For the Term you may permit Authorised Users to use the Materials as provided for under the Scope of Use for an Institution/Business Subscription, using the Network at the Site and/or as specified in the Order.

(e) No-Charge and Discount Products. We may offer certain Products to you at no charge or discount, including trial use and access (“No-Charge and Discount Products”). Your use of No-Charge and Discount Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge and Discount Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge and Discount Products at any time and for any reason at our sole discretion. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge and Discount Products, including any warranty and indemnity obligations.

3. ACCOUNT REGISTRATION

3.1. You will need to create an online Macquarie account (“My Account”) in order to access the Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send you notices, statements and other information to you by email or through your My Account. You are responsible for all actions taken through your My Account.

4. ORDERS

4.1. Documentation for ordering and purchasing Macquarie Products (“Order”) will specify your type of Subscription, which may include:

(a) the number and type of Authorised User(s) that can use and access the Products;

(b) further restrictions and/or scope for acceptable access and usage; and

(c) billable units.

4.2. The term Order also includes any applicable quotations, schedules, subscription renewal notices, or purchases made to change your Subscription.

4.3. The terms of the Order are confidential. No party may disclose or permit to be disclosed either directly or indirectly the terms of the Order except to their respective legal or financial advisers or to the extent required by law.

5. AUTHORISED USERS

5.1. Only you or the specific number of individuals specified in your Order and for whom you have paid the required fees (“Authorised Users”) may access and use the Products. You may increase the number of Authorised Users permitted to access your Subscription by written consent from Macquarie. In all cases, you must pay the applicable fee for the increased number of Authorised Users. You are responsible for compliance with this Agreement by all Authorised Users. All use of Products by you or your Authorised Users must be within the applicable Scope of Use.

6. CERTIFICATIONS AND AUDITS

6.1. At our request, you agree to provide a signed certification that you are using all Products pursuant to the terms of this Agreement. You agree to allow us, or our authorised agent, to audit your use of the Products through the Macquarie servers, so as to monitor compliance with this Agreement. If you exceed your Scope of Use, we may invoice your use outside the Scope of Use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Macquarie at law or equity or under this Agreement.

7. LICENSE TERMS

7.1. Grant of Rights. Subject to the terms and conditions of this Agreement, Macquarie grants you a non-exclusive, non-sublicensable and non-transferable licence to access and use the Materials during the applicable Licence Term. The term of your licence to access and use the Materials (“Licence Term”) will be specified in your Order. Your Licence Term will end upon any termination of this Agreement or on the expiry date of the Subscription Term. You acknowledge that the content of the Materials is subject to change without notice.

7.2. Copyright Acknowledgment. In any use of the Materials, you must include the copyright notice attributing Macquarie.

8. SUBSCRIPTION TERMS

8.1. Subscription Access. Subject to the terms and conditions of this Agreement, Macquarie grants you a non-exclusive right to access and use the Subscription during the applicable Subscription Term. You acknowledge that you access our Products on a subscription basis and that we may make changes to the Subscription from time to time.

8.2. Subscription Terms and Renewals. Subscriptions are provided for a set term specified in your Order (“Subscription Term”). If specified in your Order, all subscriptions will automatically renew for a period of one (1) year (and you will be charged at the then-applicable rate) unless you cancel your subscription through your My Account. If you cancel your subscription, your licence and subscription will terminate immediately, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

8.3. Credentials. You must ensure that all Authorised Users keep their user ID(s) and password(s) for the Subscription strictly confidential and do not share such information with any unauthorised person. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Macquarie of any unauthorised use of which you become aware.

8.4. Your Responsibility. You must ensure that use of the Products is at all times compliant with this Agreement and all applicable local, state, federal and international laws and regulations.

9. CUSTOMER SUPPORT

9.1. Macquarie will provide support and maintenance services for the Products (“Helpdesk”) via phone, 1800 645 349 (toll free) or +61 2 92859100, and email at macquarie@macmillan.com.au. The hours of coverage for the Helpdesk include 9am – 5pm (UTC+10) on a day other than a Saturday, Sunday or public holiday (“Business Day”). Tickets will be handled in the corresponding order they are submitted to the Helpdesk.

10. FINANCIAL TERMS

10.1. Payment. You agree to pay all fees in accordance with each Order. All amounts are non-refundable, non-cancellable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current Subscription Term. If you add Authorised Users during your Subscription Term, we will charge you for the increased number of Authorised Users pursuant to the then-currently applicable rates in any subsequent Subscription Term. You acknowledge that, unless you notify us within 3 business days of the renewal date that you want to cancel or do not want to auto renew your Subscription, you understand your subscription will automatically renew and you authorise us to collect the then-applicable subscription price and any taxes, using any credit card we have on record for you.

10.2. Taxes. All amounts payable under this Agreement will be exclusive of any sales use, GST or value added or similar taxes.

11. RESTRICTIONS

11.1. Except as otherwise expressly permitted by this Agreement, you will not:

(a) sell, distribute, license, rent or otherwise exploit the Products for a commercial purpose;

(b) make the Products available to persons other than Authorised Users;

(c) use the Products for the benefit of any third party;

(d) incorporate any Products into a product, database or service you provide to a third party;

(e) interfere with or circumvent any mechanisms in the Products intended to limit access or use;

(f) reverse engineer, disassemble, decompile, translate, or otherwise seek to alter, obtain or derive content or Materials of any Products, except as permitted by law;

(g) remove or obscure any proprietary or other notices contained in any Products, including in hard-copy print-outs; or

(h) publically disseminate, make mass, automated or systematic extractions from or hard copy storage of Products.

12. OWNERSHIP

12.1. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Macquarie retains all right, title and interest, including all intellectual property rights, in and to the Products (including No-Charge and Discount Products).

13. TERM AND TERMINATION

13.1. This Agreement is in effect for the period of any Licence Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not remedy the breach within 30 days after written notice of the breach.

13.2. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.

13.3. You may terminate this Agreement at any time with notice to Macquarie, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Products.

13.4. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

13.5. Once the Agreement terminates, you (and your Authorised Users) will no longer have any right to use or access the Products, or any information or materials that we make available to you under this Agreement. You are required to delete any of the foregoing from your systems as applicable and provide written certification to use that you have done so at our request. The following provisions will survive termination or expiration of this Agreement: 2.2(e) (No-Charge and Discount Products) (disclaimers and use restrictions only), 6 (Certifications and Audits), 10.1 (Payment), 10.2 (Taxes), 11 (Restrictions), 12 (Ownership), 13 (Term and Termination), 14 (Warranty Disclaimer), 15 (Limitation of Liability), 16 (Governing Law) and 18 (General Provisions).

14. WARRANTY AND DISCLAIMER

14.1. Due Authority. Each party represents and warrants that it has legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

14.2. Warranty Disclaimer. All products are provided “as is”, and Macquarie expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law. Macquarie shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of Macquarie. To the maximum extent permitted by law, Macquarie disclaims any representation, warranty or guarantee as to the reliability, timeliness, satisfactory quality, suitability, truth, availability, accuracy or completeness of any products or any content therein or generated therewith, or that:

(a) the use of any Products will be secure, timely, uninterrupted or error-free;

(b) the Products will operate in combination with any other hardware, software, system, or data;

(c) the Products (or any products, services, information, or other material purchased or obtained by you through the products) will meet your requirements or expectations);

(d) errors or defects will be corrected; or

(e) the Products (or any server(s) that make a hosted service available) are free of viruses or other harmful components.

15. LIMITATION OF LIABILITY

15.1. Neither party shall be liable for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise. Neither party’s aggregate liability to the other shall exceed the amount actually paid by you to us for products and support and maintenance in the 12 months immediately preceding the claim. Notwithstanding anything else in this Agreement, our aggregate liability to you in respect of No-Charge and Discount Products shall be $20. This clause 15 (Limitation of Liability) shall not apply to:

(a) amounts and obligations owed by you under any Orders;

(b) either party’s express indemnification obligations in this Agreement; or

(c) your breach of clause 11 (Restrictions).

15.2. The parties agree that the limitations specified in this clause 15 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

15.3. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.

16. GOVERNING LAW

16.1. The Agreement is governed by and construed in accordance with Australian Law and the parties agree to submit to the exclusive jurisdiction of the Australian courts.

17. CHANGES TO THIS AGREEMENT

17.1. We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (by, for example, sending an email to the account admin or billing contact you designate in the applicable Order or your My Account. If we modify the Agreement during your Subscription Term, the modified version will be effective upon your next renewal of a Subscription Term. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge and Discount Products, accepting the updated Agreement is required for you to continue using the No-Charge and Discount Products. You may be required to click through the updated Agreement to show your acceptance. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge and Discount Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

17.2. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation).

18. DISPUTE RESOLUTION

18.1. If a dispute arises out of or relates to this Agreement (“Dispute”) (including any dispute as to breach or termination of the Agreement or as to any claim in tort, in equity or pursuant to any statute) a party to the Agreement may not commence any court, arbitration or other proceedings relating to the dispute unless it has complied with the following paragraphs of this clause (except where the party seeks urgent interlocutory relief).

18.2. A party to this Agreement claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other party clearly identifying the details of the Dispute prominently headed “Notice of Dispute”.

18.3. The parties to this Agreement must endeavour to resolve the Dispute in good faith within 20 Business Days after receipt of a Notice of Dispute.

18.4. If the Dispute is not resolved within 20 Business Days, the parties must endeavour in good faith to resolve the Dispute using informal dispute resolution techniques such as mediation, expert evaluation or determination or other similar techniques agreed by them. If the parties are unable to agree on the dispute resolution technique, timetable and independent person required for such technique within 20 Business Days, the parties must mediate the Dispute in accordance with the Mediation Rules of the Law Society of New South Wales and the President of the Law Society of New South Wales or the President’s nominee will select the mediator and determine the mediator’s remuneration. The parties agree that the cost of the mediator’s remuneration will be shared equally by the parties (or in such other proportions as the parties may agree).

18.5. The Publisher may, in its absolute discretion, decide not to attempt to resolve the Dispute using informal dispute resolution techniques pursuant to clause 18.4.

19. GENERAL PROVISIONS

19.1. Notice. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your My Account. Our notices to you will be deemed given upon the first Business Day after we send it. You may provide notice to us by post to Macquarie Dictionary Publishers, Level 25, 1 Market Street, Sydney, NSW 2000, Australia, Attn: General Counsel or via email to the Helpdesk. Your notices to us will be deemed given upon our receipt.

19.2. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

19.3. Privacy. All Personal Information, as defined under the Privacy Act 1988 (Cth), exchanged between the parties will be dealt with in accordance with the principles set out in the Privacy Act and our Website Privacy Policy.

19.4. Anti-corruption. Neither party (i) has directly or indirectly: (a) paid, provided, offered or authorised any payment, gift, inducement or other benefit to any person including any governmental or regulatory entity or official in any territory for the purpose of improperly obtaining, retaining or directing business or to secure or obtain any improper business advantage; nor (b) received, accepted or authorised any such benefit from any such person for any such purpose; nor (ii) shall directly or indirectly do any of the foregoing at any time whilst you continue to provide services to Macquarie. Notwithstanding any other provision of this Agreement, any breach by you of this clause may be regarded by Macquarie as incapable of remedy and permitting Macquarie, without prejudice to its other rights and remedies, to terminate this Agreement on immediate written notice.

19.5. Assignment. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent.

19.6. Entire Agreement. This Agreement is the entire agreement between you and Macquarie relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement.

19.7. Severability. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

19.8. Relationship. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party. The parties are independent contractors.

19.9. Interpretation. In this Agreement, unless the contrary intention appears:

(a) words denoting the singular include the plural and vice versa;

(b) a reference to any one of an individual, corporation, partnership, joint venture, association, authority, trust or government includes (as the context requires) any other of them;

(c) the symbol $ is a reference to Australian dollars and Australian currency;

(d) a reference to any legislation or instrument (such as a deed, agreement or document) is to that legislation or instrument (or if required by the context, to a part of it) as amended, novated, substituted or supplemented at any time from time to time; and

(e) “including” is not a word of limitation.