Date: 1st November 2018
If you intend to use the Pam Wayfinding Platform to provide a solution to any third-party customer, you hereby consent to Mediabank contacting your customer directly to explain the benefits of the Pam Wayfinding Platform and the ongoing maintenance options which Mediabank offers after the solution has been implemented.
1 PAM WAYFINDING Platform
1.1 License to Pam Wayfinding Platform
(a) Mediabank grants you and your Authorised Users a personal, non-exclusive, non-transferable, non-assignable, non-sublicensable license to access and use the Pam Wayfinding Platform during the Term in accordance with your current Subscription and otherwise as set forth in this Agreement.
(b) You acknowledge that your use of the Pam Wayfinding Platform, and access to particular functionality or support services, is limited to your current Subscription.
1.2 New Versions; New Features
You acknowledge that Mediabank is constantly improving and updating the Pam Wayfinding Platform, and that this Agreement applies to only the current version of the Pam Wayfinding Platform. Mediabank will provide you with access to all new features of the Pam Wayfinding Platform that it makes generally available to its other customers during the Term. If Mediabank charges its other customers a fee for such additional features of the Pam Wayfinding Platform, you shall only be entitled to such additional features upon payment of an agreed additional fee to Mediabank. You understand that Mediabank does not have an obligation to improve, update or otherwise develop the Pam Wayfinding Platform for you or Mediabank’s customers generally, and that Mediabank will only undertake product development of the Pam Wayfinding Platform for you if agreed in writing.
1.3 User Access to Pam Wayfinding Platform; Manager Accounts; User Accounts
(a) You will select:
(i) a unique corporate user identification name for access to and use of the Pam Wayfinding Platform (Client ID); and
(ii) a unique user identification name and password for access to and use of the Pam Wayfinding Platform by each Authorised User who is designated by you as a Manager and permitted under your then current Subscription Package (Manager ID).
(b) You are permitted to grant limited access to other Authorised Users who are not Managers as specified in your Subscription Package. You must ensure that each such additional Authorised User creates a unique user account which can only be accessed through a username and password (User ID).
(c) You must ensure that you maintain the safety and security of your Client ID, and that each Authorised User maintains the safety and security of their Manager ID or User ID (as applicable). You will be solely responsible for designating the scope of access for each Authorised User within the Pam Wayfinding Platform as permitted under your then current Subscription Package. Licensee must maintain a current list of all Authorised Users and provide it to Mediabank on request.
(d) You must notify Mediabank immediately if any Manager ID or User ID is lost, stolen or compromised. Mediabank will, within 24 hours after notification that any Manager ID or User ID has been lost, stolen or compromised, suspend access to the Pam Wayfinding Platform through the notified Manager ID or User ID until a new ID can be issued. In the event that any person makes unauthorised use of any Manager ID or User ID, you will notify Mediabank immediately and Mediabank will suspend access to the Pam Wayfinding Platform for the notified Manager ID or User ID (as applicable). The parties agree to work together to minimise the impact and consequences of the unauthorised use and to recommence access to the Pam Wayfinding Platform as expeditiously as possible.
(e) You acknowledge that you are fully responsible for all liabilities incurred through use of any Client ID, Manager ID or User ID (whether lawful or unlawful) and that any transactions completed under a Client ID, Manager ID or a User ID will be deemed to have been completed by you.
1.4 Availability of Pam Wayfinding Platform
Mediabank will use commercially reasonable efforts to ensure the Pam Wayfinding Platform is available and performs in all material respects in accordance with Pam Support. You must notify Mediabank if the Pam Wayfinding Platform suffers a loss of core functionality. Mediabank will respond to any such notification promptly and will rectify the loss of core functionality as soon reasonably practicable. Notwithstanding the foregoing, you acknowledge and agree that there will be circumstances where the Pam Wayfinding Platform may be unavailable, or its availability may be limited. This may be due to factors including (without limitation) (i) routine or emergency maintenance; (ii) updates, upgrades or other development activity; or (iii) technical malfunctions of the underlying software, equipment, services or infrastructure (e.g. telecommunications connectivity, network congestion or delays) of Mediabank or third party provider. In addition, Mediabank may temporarily limit or suspend the availability of the Pam Wayfinding Platform to you or one or more of your Authorised Users if in Mediabank’s reasonable opinion (i) you, or an Authorised User, breach the terms and conditions of this Agreement; or (ii) limitation or suspension is necessary for reasons of public safety, security or maintenance of the Pam Wayfinding Platform, interoperability, data protection or to perform work that is necessary for operational or technical reasons.
1.5 Change to the Pam Wayfinding Platform
Mediabank reserves the right to change or modify the Pam Wayfinding Platform at any time and shall update Pam Support accordingly. If the change materially adversely changes the functionality of the Pam Wayfinding Platform, Mediabank will give you not less than thirty (30) days written notice of the change. If you do not wish to continue using the Pam Wayfinding Platform as a result of any such material adverse change, you may terminate this Agreement by notice in writing to Mediabank not more than thirty (30) days’ after Mediabank’s notice to you.
1.6 Third Parties
Mediabank may use third party software, hardware or services (including hosting services) in providing the Pam Wayfinding Platform and may change its providers from time to time. Mediabank will use reasonable efforts to ensure use of such third party software, hardware or services does not result in diminution of the quality of the Pam Wayfinding Platform, but will not have any responsibility for any such diminution arising from a defect or failure of such third party software, hardware or services.
Licensee is responsible for the maintenance and installation of all software directly or indirectly related to the Pam Wayfinding Platform (including the Pam Wayfinding Mobile Application onto the mobile device of any Authorised User) and ensuring that its computer systems meet or exceed the minimum system requirements published on the Mediabank Website.
Mediabank will provide you with access to Pam Support in electronic format on the Mediabank Website. The level of other support provided to you is as set out in your Service Level Agreement.
1.9 Additional Products and Services
Mediabank may provide you with additional products and services in conjunction with your use of the Pam Wayfinding Platform, including implementation services, training, branded signage, digital signage and other proprietary software or technology not otherwise included in the Pam Wayfinding Platform. These Terms shall govern your use of these additional products and services, other than pricing and any other special terms which shall be as agreed between the parties or set forth on the Mediabank Website (as applicable).
2 DATA and content
2.1 Licensee Data and Licensee Content
You are solely responsible for all Licensee Data and Licensee Content (regardless of whether such data or content is uploaded directly by Licensee, an Authorised User, or by Mediabank at the direction of Licensee), for complying with all related applicable laws and regulations, and for obtaining all necessary consents and licenses from third parties to the collection, processing, use and storage of the Licensee Data or Licensee Content, including any processing or use by Mediabank in connection with the Pam Wayfinding Platform. Licensee further acknowledges and agrees that Mediabank is not liable for any loss or damage arising from the Licensee’s failure to comply with this clause.
2.2 Rights in Licensee Data and Licensee Content
Other than to the limited extent provided in clause 2.4 below, you will have sole ownership over any and all Licensee Data and Licensee Content which you upload through the Pam Wayfinding Platform. However, your access to Licensee Data and Licensee Content is contingent on full payment of the Subscription Fee as and when due. Licensee hereby grants to Mediabank a non-exclusive, royalty-free, worldwide license during the Term to use Licensee Data and Licensee Content in any way solely on or in conjunction with the provision of the Pam Wayfinding Platform to Licensee in accordance with this Agreement.
2.3 Right of Removal
Mediabank and its designees shall have the right (but not the obligation) in their sole discretion to reject, remove or delete any Licensee Data, Licensee Content or other data or content that is available via the Pam Wayfinding Platform that violates any of the terms of this Agreement or any applicable law or regulation, or is, in the sole discretion of Mediabank, inappropriate, unlawful or not conforming with Mediabank’ standards or policies. Mediabank will notify Licensee as soon as possible of any such rejection, removal or deletion.
2.4 Usage Data
Mediabank shall have the right to use for marketing, research and other lawful purposes anonymized, aggregated usage data derived from the Licensee’s use of the Pam Wayfinding Platform (Usage Data). Mediabank shall comply with all applicable laws and regulations regarding the collection, storage and disclosure of any personally identifiable information.
2.5 Responsibility for Licensee Data and Licensee Content
Mediabank shall not, in any circumstance, be responsible or liable for any loss of Licensee Data or Licensee Content, or any consequential loss or other damage suffered by you in respect of any data or content which is lost, damaged or corrupted by the Pam Wayfinding Platform.
2.6 Retention of Licensee Data and Licensee Content; Transfer and License to Licensee Client
Mediabank shall have the right to retain copies of all Licensee Data and Licensee Content for up to twelve (12) months after the Term. You hereby grant to Mediabank the right to transfer copies of the Licensee Data and Licensee Content to any client on whose behalf you have utilized the Pam Wayfinding Platform and a worldwide, perpetual, royalty-free, irrevocable license to grant any such client the unrestricted right to use the Licensee Data and Licensee Content in conjunction with such client’s use of the Pam Wayfinding Platform. Mediabank shall use reasonable endeavours to consult with you regarding any such transfer and grant of rights, but shall not require your consent to do so where such client needs such data and content in order to utilize the Pam Wayfinding Platform.
3 RESTRICTIONS ON USE
You acknowledge and agree, and shall ensure that your Authorised Users acknowledge and agree, as follows:
(a) You may only use the Pam Wayfinding Platform as permitted under the terms of your agreement with PAM and only for your own internal business purposes. For the avoidance of doubt, nothing in this Agreement restricts your ability to utilise the Pam Wayfinding Platform to provide design services to a third party customer.
(b) The Pam Wayfinding Platform is provided only for your benefit and the benefit of your Authorised Users, and not for use by your affiliates, partners, customers or any other person or entity. Notwithstanding the foregoing, you may permit your customers to access the Pam Wayfinding Platform solely in connection with the provision of design services by you to such customer.
(c) You shall not, and you shall ensure that your Authorised Users and other personnel do not:
(i) sublicense, transfer, sell, rent or otherwise provide access to the Pam Wayfinding Platform to any third party;
(ii) interfere in any manner with the Pam Wayfinding Platform, or any services associated therewith, including by uploading any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment;
(iii) reproduce, disclose, decompile, disassemble, reverse engineer or modify the Pam Wayfinding Platform, or any aspect of any of the foregoing, or be involved in development or commercialization of any product or service which competes with the Pam Wayfinding Platform (or any aspect thereof);
(iv) access or attempt to access any data on the Pam Wayfinding Platform which is not owned by, or provided on behalf of, the Licensee;
(v) infringe a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights; or
(vi) permit, encourage or take any action to facilitate any person to do any of the foregoing.
4 FEES AND PAYMENT
4.1 Evaluation Period
Mediabank may offer you a thirty (30) day initial evaluation period to all licensees who have not previously been allocated a Client ID (Evaluation Period). During the Evaluation Period, eligible licensees may experience the first thirty (30) days of the Pilot Subscription for free but you acknowledge and agree that your use of the Pam Wayfinding Platform shall be on an “as is” basis without any express or implied representations or warranties or commitments as to performance, and that Mediabank shall have no liability to you of any kind arising from your use of the Pam Wayfinding Platform during the Evaluation Period. The Evaluation Period begins from the moment Licensee is provided with a Client ID and continues until 11:59pm (AEST) on the date thirty (30) days thereafter. If you decide that you do not want to become a paying user of the Pam Wayfinding Platform once the Evaluation Period ends, you must terminate the Pilot Subscription before the end of the Evaluation Period in accordance with clause 6.2(b). If you do not terminate the Pilot Subscription before the end of the Evaluation Period or if your use during the Evaluation Period exceeds the scope permitted under the Pilot Subscription, then you agree that you will automatically transition to the Subscription Package which meets your level of usage and will be bound by these Terms, including being liable to pay the Subscription Fee.
4.2 Subscription Fee
(a) During the Term, you will pay to Mediabank the Subscription Fee corresponding with your Subscription.
(b) If, at any time, your use of the Pam Wayfinding Platform exceeds:
(i) the number of signs under management;
(ii) the number of Manager accounts; or
(iii) the number of sites,
permitted by your then current Subscription, your Subscription will automatically be upgraded to a Subscription appropriate for your level of use. You acknowledge and agree that you will be responsible for payment of additional charges associated with that upgraded Subscription Package. We will notify you of any such upgrade within fourteen (14) days.
(c) If, at any time, your use of the Pam Wayfinding Platform is less than:
(i) the number of signs under management;
(ii) the number of Manager accounts; and
(iii) the number of sites,
that comprise the threshold to your then current Subscription Package, your Subscription Package will automatically be downgraded to the Subscription Package appropriate for your level of use. Your subscription fee will immediately be reduced to reflect your new level of usage and a credit will be given for the unused cost of your current Subscription Package. We will notify you of any such downgrade within fourteen (14) days.
4.3 Changes to Subscription Fee
Mediabank may increase the Subscription Fee at any time upon not less than ninety (90) days’ notice in writing to you. You will be deemed to have accepted such increase for the remainder of the Term unless you give Mediabank written notice of non-acceptance within thirty (30) days, in which case this Agreement shall automatically terminate. Notwithstanding the foregoing, from time to time Mediabank may also periodically charge you an additional amount in excess of the Subscription Fee by notice in writing to you to the extent the cost of providing the Pam Wayfinding Platform is affected by an increase in costs charged by third parties for services utilized by Mediabank in providing the Pam Wayfinding Platform (such as web hosting or data services).
Unless otherwise indicated, the Subscription Fee payable to Mediabank excludes all applicable sales, goods and services, use and other taxes, and you will be responsible for payment of all such taxes (other than taxes based on Mediabank’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Pam Wayfinding Platform.
4.5 Invoicing and Payment
Mediabank shall invoice Licensee by email for the Subscription Fees, which shall be payable in advance within thirty (30) days from the date of the invoice.
5 INDEMNIFICATION; Disclaimer; LImitation of LIability
(a) Licensee shall defend, indemnify and hold harmless Mediabank, its directors, officers, employees and agents, from and against any and all loss, damages, and liability (including attorney’s fees) of any kind arising from Licensee’s breach of this Agreement, the use or misuse of any Client ID or User ID under this Agreement, the use or misuse of the Pam Wayfinding Platform by any third party customer under clause 3(a) or 3(b), or any bona fide claim in writing that the Licensee Data (or any use thereof) infringes the Intellectual Property Rights or other rights of a third party or has caused harm to a third party.
(b) Mediabank shall defend, indemnify and hold harmless Licensee, its directors, officers, employees and agents, from and against any and all loss, damages, and liability (including attorney’s fees) of any kind arising from Mediabank’s breach of this Agreement or any bona fide claim in writing that the Pam Wayfinding Platform infringes the Intellectual Property Rights or other rights of a third party or has caused harm to a third party.
(a) MEDIABANK DOES NOT REPRESENT THAT LICENSEE’S USE OF THE PAM WAYFINDING PLATFORM WILL BE SECURE, TIMELY, AVAILABLE, UNINTERRUPTED, BUG-FREE OR ERROR-FREE OR THAT THE PAM WAYFINDING PLATFORM WILL MEET LICENSEE’S REQUIREMENTS OR THAT ALL ERRORS IN THE PAM WAYFINDING PLATFORM OR RELATED DOCUMENTATION PROVIDED (IF ANY) WILL BE CORRECTED OR THAT THE PAM WAYFINDING PLATFORM WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PAM WAYFINDING PLATFORM IS PROVIDED AS IS AND MEDIABANK HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. LICENSEE ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE PAM WAYFINDING PLATFORM OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR LICENSEE’S PURPOSES.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INDIRECT DAMAGES OF ANY TYPE OR KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3 Limitation of Liability
(a) THE MAXIMUM AGGREGATE LIABILITY OF MEDIABANK TO LICENSEE ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION SHALL IN NO CASE EXCEED THE AMOUNT OF LICENSE FEES PAID UNDER THIS AGREEMENT DURING THE PERIOD OF TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
(b) THE MAXIMUM AGGREGATE LIABILITY OF LICENSEE TO MEDIABANK ARISING OUT OF OR IN THE CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM BREACH OF AGREEMENT, NEGLIGENCE, TORT OR ANY OTHER LEGAL CAUSE OF ACTION BUT EXCLUDING ANY LIABILITY ARISING OUT OF ACTUAL OR ALLEGED INFRINGEMENT OF MEDIABANK’S INTELLECTUAL PROPERTY RIGHTS BY LICENSEE OR A THIRD PARTY CUSTOMER OF LICENSEE, SHALL IN NO CASE EXCEED THE AMOUNT OF LICENSE FEES PAID UNDER THIS AGREEMENT DURING THE PERIOD OF TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
5.4 Non-Excludable Guarantees
TERMS, CONDITIONS, WARRANTIES AND GUARANTEES IMPLIED BY LAW (INCLUDING THE COMPETITION AND CONSUMER ACT 2010 (CTH)) MAY APPLY TO THIS AGREEMENT TO THE EXTENT REQUIRED BY THOSE LAWS (NON-EXCLUDABLE GUARANTEES). NOTHING IN THIS AGREEMENT RESTRICTS, EXCLUDES OR MODIFIES, OR PURPORTS TO RESTRICT, EXCLUDE OR MODIFY, ANY NON-EXCLUDABLE GUARANTEE.
6 TERM, TERMINATION AND EFFECTS
This Agreement shall commence on the date you are issued with a Client ID (Commencement Date) and continue for an initial term ending on the expiry of your selected billing period (Initial Term). This Agreement shall automatically renew for additional periods equal to your selected billing period (each a Renewal Term) unless terminated by either party not less than thirty (30) days prior to the end of the Initial Term or Renewal Term (as applicable). Collectively, the Initial Term and any Renewal Term are referred to herein as the Term.
(a) You may terminate this Agreement by providing written notice to Mediabank for any reason within the first thirty (30) days of the Initial Term, in which case Mediabank will refund any pre-paid Subscription Fee payments made by you within thirty (30) days of the termination of this Agreement. Notwithstanding the foregoing, if you have subscribed for an Initial Term of twelve (12) months or more, Mediabank shall have no obligation to refund any pre-paid Subscription Fee payments made by you or to waive any unpaid Subscription Fees in respect of such Initial Term.
(b) You may terminate this Agreement during the Evaluation Period (if applicable), immediately on written notice to Mediabank and at any time during the Term if Mediabank materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Licensee.
(c) Mediabank may terminate this Agreement:
(i) during the Evaluation Period, immediately on written notice to you;
(ii) at any time during the Term
(A) for convenience upon not less than ninety (90) days written notice to you;
(B) if you breach this Agreement and do not cure the breach within fourteen (14) days after receiving written notice thereof from Mediabank; and
(C) immediately by notice in writing to you if you breach clause 1.1 (License), 3 (Restriction on Use), 7 (Proprietary Rights), 8 (Confidentiality).
(d) Without limiting Mediabank’s rights under clause 6.2(c), Mediabank may suspend this Agreement (and all access and use of the Pam Wayfinding Platform) if at any time you fail to make payment of any Subscription Fees by the due date for payment.
6.3 Effects of Termination
(a) Upon termination or expiration of this Agreement for any reason:
(i) any amounts owed to Mediabank under this Agreement before such termination or expiration will be immediately due and payable, including payment of the Subscription Fee on a pro-rata basis;
(ii) all rights, including rights of access to the Pam Wayfinding Platform, granted in this Agreement will immediately cease, and Mediabank will cease making the Pam Wayfinding Platform available to Licensee;
(iii) the Licensee must promptly discontinue all use of the Pam Wayfinding Platform, the Client ID and any Manager ID or User ID;
(iv) upon Mediabank’s receipt of all payments from Licensee, Mediabank will, within three (3) months return to Licensee all copies of Licensee Data and Licensee Content within its possession and control using an appropriate electronic medium (subject to Mediabank’s rights to grant rights to your clients under section 2.6); and
(v) Mediabank reserves the right, in its sole discretion, to delete Licensee’s Data within thirty (30) days after the Agreement is terminated. It is the sole responsibility of the Licensee to retain records of information used in conjunction with the Service.
(b) Sections 3 (Restriction on Use), 5.3 (Limitation of Liability), 6.3 (Effects of Termination), 7 (Proprietary Rights), 8 (Confidentiality) and 10 (General Provisions) will survive expiration or termination of this Agreement for any reason.
7 PROPRIETARY RIGHTS
(a) As between you and Mediabank, you agree that all rights, title and interest in and to all Intellectual Property Rights in the Pam Wayfinding Platform are owned exclusively by Mediabank. All rights not expressly granted to you in this Agreement are reserved by Mediabank.
(b) Mediabank shall have and you hereby grant and agree to grant a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use, share, commercialize, exploit and incorporate into the Pam Wayfinding Platform any suggestions, enhancement requests, recommendations or other feedback provided by you or any of your Authorized Users or other personnel, relating to the Pam Wayfinding Platform.
(c) Any copyright in any software or code developed by Mediabank or the Pam Wayfinding Platform to generate customized versions of signs included in the Pam Wayfinding Platform shall be owned by Mediabank upon creation. To the extent such copyright is not automatically owned by Mediabank, you hereby assign all right, title and interest in such copyright to Mediabank and shall upon request do all things necessary to give effect to such assignment (including execution of appropriate documentation at Mediabank’s costs).
(d) Mediabank will not have any rights in any trademarks or service marks used by you in connection with your business and developed independent of your usage of the Pam Wayfinding Platform.
Each party agrees to maintain in confidence all Confidential Information of the other party and not to use or disclose the other party’s Confidential Information without the express written consent of the other party. Each party will protect any Confidential Information it receives with the same standard of care that party uses to protect its own confidential information, but in no event less than a reasonable degree of care. As used herein, Confidential Information means all information (including the existence and subject matter of this Agreement) of a confidential nature in any form or medium that is not publicly available, and you acknowledge and agree that this includes business and technical information incorporated into the Pam Wayfinding Platform or any software or other technology contained therein.
9 PUBLICITY; BRANDING
With Licensee’s written permission in each instance (not to be unreasonably withheld) Mediabank may promote its relationship with Licensee in its marketing and promotional activities and Licensee in turn agrees to promote Mediabank as one of its key partners. In addition, Licensee will, upon request by Mediabank, co-brand any and all work product, screen shots and other output generated by use of the Pam Wayfinding Platform and used for external marketing, promotional or networking purposes, with the “Pam Wayfinding” brand in a reasonably prominent but not dominant manner. Mediabank hereby grants Licensee a limited, revocable license to undertake such co-branding on terms consistent with Mediabank’s branding guidelines available on the Mediabank Website and otherwise on terms agreed with Mediabank.
10 GENERAL PROVISIONS
(a) Independent contractors
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.
Licensee may not assign this Agreement (by operation of law or otherwise) without Mediabank’s prior written consent (which consent Mediabank may grant or withhold in its sole discretion); provided however that Licensee may assign this Agreement to an entity which it controls, is controlled by or is under common control with, with the prior written consent of Mediabank (not to be unreasonably withheld).
The rights granted to Licensee to use the Pam Wayfinding Platform are personal and non-exclusive, and nothing shall prevent Mediabank from providing the Pam Wayfinding Platform or any other product, software, goods or services to any third party.
Upon at least five (5) business days advance, written notice and no more frequently than once per calendar year, Mediabank shall have the right, at its own expense, to examine the records of Licensee during ordinary business hours to the extent reasonably necessary to confirm compliance by Licensee with the terms and conditions of this Agreement. Licensee shall maintain all records relating to its use of the Pam Wayfinding Platform during the Term for a period of four (4) years thereafter.
Except as otherwise set forth in this Agreement, Mediabank may modify the terms of this Agreement by notice in writing to you, and shall simultaneously post the modified terms on the Mediabank Website. You will be deemed to have accepted the modified terms of this Agreement unless you give Mediabank written notice of non-acceptance within thirty (30) days of such notice from Mediabank.
(g) Governing Law
This Agreement, and any disputes arising out of or in connection with this Agreement, shall be governed by and construed in accordance with the laws of New South Wales, Australia. The parties unconditionally submit to the non-exclusive jurisdiction of the courts located in New South Wales, Australia to adjudicate any disputes arising out of or in connection with this Agreement.
In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction,
(i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and
(ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
(i) No waiver
No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
(j) Entire Agreement
The foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including any quotations or proposals submitted by the parties.
A notice, demand, consent, approval or communication under this Agreement (Notice) must be (i) in writing, in English and signed by a person duly authorised by the sender; and (ii) hand delivered or sent by prepaid post or email to the recipient’s address for Notices as set forth on the first page of this Agreement, as varied by any Notice given by the recipient to the sender.
(l) Execution; Adoption
This Agreement may be executed in counterparts which, taken together, shall be regarded as one and the same instrument.
In this Agreement, except where the context otherwise requires: headings are inserted for convenience only and do not affect the interpretation or construction of this Agreement; the singular includes the plural and vice versa; a reference to a clause or schedule is to a clause of, or schedule to, this Agreement, and a reference to this Agreement includes any schedule; another grammatical form of a defined word or expression has a corresponding meaning;; a reference to a party is to a party to this Agreement; a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it.
In this Agreement:
Authorised User means individuals (including employees, consultants and contractors of the Licensee and its wholly-owned subsidiaries) who are permitted to access the Pam Wayfinding Platform under Licensee’s then current Subscription in accordance with written roles and responsibilities issued by the Licensee.
Intellectual Property Rights means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights of similar nature or having similar effect to any of these rights as now exist or may hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of Australia or any other state, country or jurisdiction throughout the world, as well as applications, and rights to apply, for any of the forgoing.
Licensee Content means all content (including plans, images, proprietary branding) that Licensee and its Authorised Users upload to the Pam Wayfinding Platform or otherwise make available via the Pam Wayfinding Platform.
Licensee Data means all data that Licensee and its Authorised Users upload to the Pam Wayfinding Platform or otherwise make available via the Pam Wayfinding Platform.
Manager means an Authorised User designated by you that has the role of manager allocated to them in the Pam Wayfinding Platform.
Mediabank Website means the website at www.pam.co, and includes without limitation the Pam Support.
Pam Support means the manual setting forth the features of the Pam Wayfinding Platform set forth on the Mediabank Website, as may be updated at any time and from time to time by Mediabank.
Pam Wayfinding Mobile Application means the Mediabank software application, which allows Authorised Users to access and operate the Pam Wayfinding Platform.
Pam Wayfinding Platform means the current, hosted version of the Mediabank proprietary physical asset management solution (as updated from time to time) and includes PAM OS, PAM Studio, PAM 360, and all proprietary APIs, software, innovations, methodologies and technology which is embodied in, or used by Mediabank to provide PAM OS, PAM 360 and PAM Studio.
Pam 360 means the signage designs, fonts, formats and related signage design software and technology made available as part of the Pam Wayfinding Platform.
Subscription Fee means the fee payable by the Licensee which corresponds with the Licensee’s then current Subscription Package.
Subscription means the Evaluation Subscription or other subscription selected by you in the proposal document for the relevant project for which the Pam Wayfinding Platform will be used.