This document is a legal agreement between the Commonwealth of Australia represented by Geoscience Australia ("Geoscience Australia") and you ("the Licensee") in relation to the Product enclosed in this package. By using the Product you indicate your acceptance of the licence conditions ("the Conditions"). In the event that you do not agree with any of the terms in the Conditions, you must refrain from using the Product and return it to the place of purchase within seven (7) days of purchase to obtain a full refund.
In this Agreement the following terms have the following meanings:
"Commercialise", in respect of the Product or a product or service derived from the Product, includes distributing, giving away, selling, letting for hire, or by way of trade, offering or exposing for sale or hire any article embodying the Product or any product or service derived from or incorporating the Product.
"Data" means the data embodied in machine readable media in this data package but does not include the 250K Data.
"250K Data" Data means the Topo-250K Raster Data embodied in machine readable media in this data package.
"Derivative Product" means a distinct product in which the 250K Data is altered, abridged or supplemented, and/or which incorporates additional functionality.
"End-user" means a third party to whom the Licensee (or any sub licensee) supplies the 250K Data or a Derivative Product.
"Fee" means the amount (inclusive of GST) which the Licensee has paid Geoscience Australia as consideration for the Product.
"Intellectual Property" includes all copyright, and all rights in relation to registered and unregistered trademarks (including service marks), registered designs and confidential information (including trade secrets and know-how), and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
"Product" means the Data, the 250K Data, and the RASTER VIEWER and includes any documentation, forms and packaging provided along with them.
"RASTER VIEWER" means all the machine readable software code, either as html, compiled or otherwise, embodied in this Product.
2.1 The Agreement commences on the earlier of:
(a) the date when the Licensee first uses the Product; and
(b) the date which is seven (7) days following the date of purchase of the Product, and continues in force indefinitely unless terminated in accordance with the termination provisions below.
2.2 Geoscience Australia grants to the Licensee:
(a) a non-exclusive, non-transferable licence to access, display and print the Data and Raster Viewer, and combine them with other data held by the Licensee subject to the terms of this Agreement; and
(b) a royalty-free, non-exclusive, non-transferable licence to:
(i) use, reproduce, adapt, modify, commercially exploit and communicate the 250K Data (including by development and distribution of a Derivative Product); and
(ii) sublicense the Licensee's right to use, reproduce, adapt, modify, commercially exploit and communicate the 250K Data
subject to the terms contained in this Agreement.
3.1 The Licence granted in clause 2.2(a) is limited to personal use of the Data and Raster Viewer or use within the Licensee's organisation only. Geoscience Australia warrants to the best of its actual knowledge the grant of the Licence does not infringe the Intellectual Property rights of any person. All rights not expressly granted to the Licensee are reserved.
The Licensee shall not:
(a) Commercialise the Data and Raster Viewer or any product or service derived from or incorporating the Data and Raster Viewer, or
(b) make the Data and Raster Viewer available to third parties including via external access such as the World Wide Web, without the prior consent in writing from Geoscience Australia (copyright@ga.gov.au). Geoscience Australia may grant or refuse consent in its absolute discretion and subject to any condition whatsoever, including the payment of royalties.
The Licensee must include a notice in the metadata supplied to End-users with the 250K Data or Derivative Product, to make End-users aware that the 250K Data was sourced from Geoscience Australia and is used under licence and to disclose the nature of any modification the Licensee has made to the 250K Data. The following copyright statement must be displayed with, attached to or embodied in (in a reasonably prominent manner) any 250K Data or Derivative Product provided to an End-user:
(a) where the 250K Data is provided in unaltered form:
© Commonwealth of Australia (Geoscience Australia) 2008. The Commonwealth gives no warranty regarding the data's accuracy, completeness, currency or suitability for any particular purpose.
(b) where a Derivative Product is provided, including any digital publication:
This (insert Derivative Product name) incorporates data which is © Commonwealth of Australia (Geoscience Australia) 2008. The data has been used in (insert Derivative Product name) with the permission of the Commonwealth. The Commonwealth has not evaluated the data as altered and incorporated within (insert Derivative Product name), and therefore gives no warranty regarding its accuracy, completeness, currency or suitability for any particular purpose.
(c) where a Derivative Product is provided and is a simple publication (that is, one page or less, such as a map or a web page), but not including digital products, the Licensee may elect to use the following short form notice: This (insert Derivative Product name) incorporates data which is: © Commonwealth of Australia (Geoscience Australia) 2008.
Except as permitted by clause 4 the Licensee must not remove, obscure or interfere with any copyright statement, acknowledgment, attribution, trade mark, warning or disclaimer statement affixed to, incorporated in or otherwise applied in connection with the Product.
6.1 All rights not expressly granted to the Licensee are reserved. The Licensee acknowledges that the Product is a special, unique and valuable product in which the copyright and other applicable Intellectual Property rights vest in Geoscience Australia. Subject to clause 6.2, Geoscience Australia retains ownership of the Product and of the Intellectual Property rights therein.
6.2 Ownership of the Intellectual Property rights contained in any part of a Derivative Product which is not the Product will vest in the Licensee provided that nothing in this Agreement transfers any Intellectual Property rights in the Product.
The Licensee shall keep the Product in a secure location so as to prevent any access to the Product not authorised by this Agreement. The Licensee shall take all reasonable steps to ensure that any person given access to the Product is aware of these Conditions and uses the Product only in accordance with the Agreement.
Subject to clause 2.2(b)(ii), the rights granted under the Licence are restricted solely to the Licensee and may not be assigned, transferred or sub-licensed without the prior written consent of Geoscience Australia (copyright@ga.gov.au). Geoscience Australia may grant or refuse consent in its absolute discretion and subject to any condition whatsoever.
9.1 Geoscience Australia cannot guarantee that the Product is free from errors, and does not warrant the accuracy, completeness, currency or suitability of the Product for any purpose. The Licensee assumes responsibility for selection of the Product to achieve any intended results, and for its installation and use. The Licensee assumes responsibility for the interpretation of any results obtained from use of the Product, and must exercise all appropriate precautions before placing reliance on those results. If the Product is found significantly defective and is returned to Geoscience Australia with proof of purchase within ninety days (90) of delivery specifying details of the defect, Geoscience Australia may, at its option:
(a) replace the Product; or
(b) refund the price paid by the Licensee for the Product.
9.2 No other warranties, either express or implied, are given or offered for the Product except as provided in this condition and clause 3.1.
9.3 Where any statute implies into the Agreement any condition or warranty, and that statute prohibits provisions excluding or modifying the application or exercise of, or liability under, such condition or warranty, such condition or warranty shall be deemed to be included in the Agreement. Geoscience Australia's liability for any breach of such statutory condition or warranty shall be limited, at its option, to:
(a) the replacement of the Product or the supply of an equivalent Product; and/ or
(b) the repair of the Product.
10.1 The Licensee must register the Product online on Geoscience Australia's internet site or print, complete and sign the digital registration card contained in the Product, and forward it to Geoscience Australia, within thirty (30) days of the date of commencement.
10.2 Geoscience Australia provides easy to follow self-help resources for the Licensee. The User Guide contains useful trouble shooting tips and a list of frequently asked questions. The Geoscience Australia internet site also provides more trouble shooting advice and the Licensee is encouraged to seek solutions from these sources. However, if the Licensee continues to encounter problems or cannot resolve a problem, Geoscience Australia offers a limited telephone support service during Geoscience Australia's business hours for a period of one year from the date of purchase for Products which have been registered in accordance with clause 10.1.
Geoscience Australia has advised the Licensee of the minimum and recommended system requirements that are necessary to operate the Product by setting out these details on the packaging of the Product. If the Licensee's operating system does not meet, or is incompatible with, the minimum or recommended system requirements, the Licensee acknowledges that it may:
(a) be unable to operate the Product, or
(b) experience functional problems when using the Product. In such cases, Geoscience Australia is not required to provide support, advice or assistance of any kind and Geoscience Australia will not be liable for costs or losses of any kind that may be incurred by the Licensee using the Product. Geoscience Australia is not responsible for maintaining the Product or for updating, modifying or configuring the Product to suit the Licensee's system requirements.
12.1 The Licensee releases and indemnifies Geoscience Australia, the Commonwealth and its employees and agents and third party data suppliers in respect of all claims, expenses, losses, damages and costs arising, directly or indirectly from:
(a) the Licensee's or any other person's (including, without limitation, any sublicensee's) use of Product supplied to the Licensee or any Derivative Product;
(b) any breach of this Agreement by the Licensee;
(c) any negligent act or omission or wilful misconduct of the Licensee in connection with this Agreement.
12.2 This clause 12 survives the expiration or termination of this Licence.
Geoscience Australia may, at any time, terminate this Agreement, with immediate effect by giving 90 days notice to the Licensee.
If the Licensee breaches any of these Conditions, Geoscience Australia may terminate the Agreement immediately by notice in writing to the Licensee.
Termination of the Agreement by Geoscience Australia shall be without prejudice to the rights of either party accrued under the Agreement prior to termination. The Licensee shall cease using the Product for any purpose from the date of termination of the Agreement and shall return the Product and any copies made of it to Geoscience Australia within 30 days of the date of termination.
No forbearance, delay or indulgence by a party in enforcing the provisions of the Agreement shall prejudice or restrict the rights of that party, nor shall waiver of those rights operate as a waiver of any subsequent breach.
The Agreement supersedes all prior agreements and understandings between the parties relating to the Product and constitutes the entire agreement between the parties. No addition to or modification of any provision of the Agreement shall be binding unless in writing signed by both parties. The Agreement shall be governed by and construed in accordance with the laws for the time being in force in the Australian Capital Territory. Any reading down or severance of a particular provision does not affect the remaining provisions of the Agreement.
Where Geoscience Australia and the Licensee are agencies of the Commonwealth of Australia, such that neither is permitted to enter into a binding legal agreement except as the Commonwealth, then the Conditions shall be read as giving rise merely to an arrangement.