Section 1: Australia Post Mandatory Recipient Terms

 

1. Definitions

Capitalised Definitions 

Meanings apply to capitalised terms used in this Agreement as specified in this provision, unless the context otherwise requires. 

“AMAS” means the Australia Post Address Matching Approval System, which is the AMAS Program.  

“AMAS Approved Software” means the version of software produced by the Supplier that encapsulates or uses the PostConnect Data and approved by Australia Post in accordance with AMAS which (when used in conjunction with the PAF) can Validate, match and correct address files, and append correct DPIDs, the software shall include any modifications to that software or new releases or versions of that software approved by Australia Post. 

“Claim” means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether at Law, in equity, under statute or otherwise. 

“Corporate Group” means a group of Single Legal Entities consisting of the Corporate Group Owner and up to nine nominated Subsidiaries (as defined in the Corporates Act) of the Corporate Group Owner. 

 “Corporate Group Owner” means a Single Legal Entity that is the Holding Company (as defined in the Corporations Act) of each of the other entities of the Corporate Group. 

“Delivery Point Identifier” or “DPID” means an eight character code which has been developed by Australia Post to enable delivery points to be uniquely identified. 

“Existing Address Database” means an address owned or provided by the Recipient or a third party (including but not limited to an address which may be provided in a database, list, file or similar or provided as part of an interactive address capture process described as a “rapid” product as described in the AMAS Developers Guide) but which expressly excludes the PostConnect Data. 

“List Creation” means the use of the Supplier Solution by the Recipient to create a new record or records containing address information or to enter a new address for an existing record provided that:  

1. the Recipient only uses the Supplier Solution to Validate the address information for the record on or about the same time as the address is collected and entered into the Recipient’s records; 
2. the records created by the Recipient this way must not include any information from the PostConnect Data (including but not limited to DPID) other than the address information; and 
3. the Recipient must not represent that its records have been verified against the PostConnect Data.  

“Loss” includes any cost (including reasonable legal costs on a solicitor and client basis, whether incurred by or awarded against the relevant party), expense, loss, damage, charge or liability; 

"Permitted Purpose" and "Prohibited Purpose" are defined in Clauses 15 and 16, respectively, of this Schedule 5.3, Section 1.

 “Personal Information” has the meaning given to that term in the Privacy Act 1988 (Cth). 

“Postal Address File” or “PAF” or “PAF Basic” means the Postal Address File which is a database created by Australia Post containing information on addresses to which Australia Post may deliver mail, the information associated with each address record on the PAF consists of:  

1. a DPID; and AUSTRALIA POST 
2. the address details in a correct address format; and 
3. reference files that contain common variations to the address details.

“PostConnect Data” 

 means each data set which is supplied and licensed to the Supplier by Australia Post, and licensed by the Supplier to the Recipient, as specified in this Schedule. 

“Privacy Law” means the Privacy Act 1988(Cth) and any legislation from time to time in force in any Australia affecting privacy ,Personal Information or the collection, handling, storage, processing, use or disclosure of Personal Information. 

“Recipient” means the Customer of the Supplier.

“Related Body Corporate” has the meaning set out in section 50 of the Corporations Act 2001.  

“Single Legal Entities” means an individual person, body corporate or other legal entity. 

“Solution” 

 means the Supplier’s solution (including software, products and / or services) which incorporates, reproduces, embodies or utilises the PostConnect Data or its derivative works, and is licensed to the Recipient under this Agreement.  

“Supplier” means GB Group Plc or any related body corporate for the purpose of delivery of the Solution.

“Validate” means matching, correcting (including adding missing data to an existing address), manipulating, sorting, comparing and/or validating an Existing Address Database, and Validation and Validating have corresponding meanings 

 

2.     Licence

1. Supplier grants to the Recipient a non-exclusive, non-transferable, revocable licence for the Licence Term to use the Solution solely for the Permitted Purposes in respect of each applicable Schedule in accordance with the terms and conditions set out in this Agreement and the applicable Schedule, subject to any conditions and restrictions specified in the Permitted Purpose.
2. If a Schedule includes other terms and conditions, then those terms and conditions will apply, but only in respect of that Schedule.
3. Any rights not specifically granted to the Recipient under this Agreement are reserved to the extent permitted by law.  Without limiting the previous sentence, the Recipient must not use the Solution for any Prohibited Purpose.  To the extent that a particular purpose falls within the definition of both a Permitted Purpose and a Prohibited Purpose in a Schedule, such purpose is considered a Prohibited Purpose for the purposes of that Schedule.
4. For the avoidance of doubt, the Recipient shall not:
   1. (a) reproduce, copy, modify, amend, assign, distribute, transfer, sub-license, reverse assemble or reverse compile, merge or otherwise deal with, exploit or commercialise the whole or any part of the PostConnect Data (or directly or indirectly allow or cause a third party to do the same) including by using the PostConnect Data to derive other solutions (including software, products and/or services) unless expressly stated otherwise in this Agreement; and
   2. (b) create a Product (as defined below) or other derivative works from the PostConnect Data to commercialise as their own, unless that Product is solely for one of the Permitted Purposes.  "Product" means anything produced by the Recipient which consists of, incorporates or is created using any part of the PostConnect Data and which may be produced in any form, including any device, solution, software or database and which may be in written form or produced electronically.
5. This Clause 2 (and the Prohibited Purposes) does not prevent the Recipient from disclosing PostConnect Data to the extent that it is required or authorised by law to disclose the PostConnect Data, provided that the Recipient uses all reasonable and legal means to minimise the extent of disclosure, and require the recipient to keep the PostConnect Data confidential.

 

3. Warranties and Acknowledgements

1. The Recipient represents and warrants that:

1. 1. it has full capacity, power and authority to enter into this Agreement;
   2. it will fully and completely comply with all of the terms and conditions of this Agreement;
   3. it will only use the Solution for the Permitted Purposes and in accordance with the terms and conditions set out in this Agreement;
   4. it will not use the Solution for any Prohibited Purpose;
   5. it will not make any representation, statement or promise in respect of Australia Post, and has no authority to do so; and
   6. it has not relied on any representation made by Australia Post in entering into the Agreement.
2. Without limiting this clause, the Recipient acknowledges that Australia Post has not made and does not make any representation or warranty as to the accuracy, content, completeness or operation of the PostConnect Data or to them being virus free.  
3. The Recipient acknowledges and accepts that the PostConnect Data is not complete and it may contain errors.  
4. The Recipient acknowledges that the PostConnect Data may include data sourced from third parties.  The Recipient agrees to comply with third party terms and conditions which apply to the third party data referenced in this Agreement to the extent that the Recipient has been notified of those terms and conditions and has consented to comply with them.

 

4.        Confidentiality and Security

1. The Recipient must ensure that while the Solution is in its possession or control:

1. 1. it provides proper and secure storage for the Solution; and
   2. use the same level of security to protect the Solution that it uses to protect its own confidential information (but no less than the level of security a reasonable person would take to protect the confidential information);
   3. it takes all reasonable steps to ensure that the Solution is protected at all times from unauthorised access, misuse, damage or destruction.
2. Confidentiality and security obligations apply to all forms of media upon which the Solution is kept or transmitted.
3. The Recipient will ensure that all copies of the Solution are dealt with in accordance with the Supplier’s or Australia Post’s reasonable directions.
4. This Clause 4 will survive termination or expiry of the Agreement.

 

5.      Privacy 

1. The parties acknowledge that while the Solution may not, on its own, constitute Personal Information, its use may result in the identity of individuals being reasonably ascertainable.
2. The Recipient agrees:
3. 1. that it is responsible for ensuring that its exercise of rights under this Agreement and the use of the Solution do not infringe any Privacy Law;
   2. to use or disclose Personal Information obtained during the course of this Agreement only for the purposes of this Agreement;
   3. to take all reasonable measures to ensure that Personal Information in its possession or control in connection with this Agreement is protected against loss and unauthorised access, use, modification, or disclosure;
   4. not to do any act or engage in any practice that would breach any Privacy Law;
   5. to immediately notify the Supplier if the Recipient becomes aware of a breach or possible breach of any of the obligations contained in, or referred to in, this clause whether by the Recipient, its Related Body Corporate or any of its Representatives;
   6. to cooperate with any reasonable demands or inquiries made by Australia Post on the basis of the exercise of the functions of the Office of the Australian Information Commissioner (OAIC) under Privacy Law or the Postal Industry Ombudsman under the Australian Postal Corporation Act 1989;
   7. to ensure that any person who has access to any Personal Information is made aware of, and undertakes in writing, to observe Privacy Law and other obligations referred to in this clause;
   8. to comply, as far as practicable, with any policy guidelines issued by the OAIC from time to time relating to the handling of Personal Information; and
   9. to comply with any direction given by Australia Post to observe any recommendation of the OAIC or the Postal Industry Ombudsman relating to acts or practices of the Recipient that the OAIC or the Postal Industry Ombudsman consider to be in breach of the obligations in this clause.
4. This Clause 5 will survive termination or expiry of the Agreement.

 

6.       Intellectual Property Rights

1. The Recipient agrees that all intellectual property rights in the PostConnect Data are and shall remain the sole property of Australia Post or its Suppliers.  
2. The Recipient must notify the Supplier as soon as practicable if it becomes aware of any actual, suspected or anticipated infringement of intellectual property rights in the Solution or in the PostConnect Data.
3. The Recipient must render all reasonable assistance to the Supplier and/or Australia Post in relation to any actual, suspected or anticipated infringement referred to in Clause 6.2. 
4. If a third party makes a IP Claim against the Recipient alleging that the Solution infringes the Intellectual Property Rights of the third party, the Recipient must immediately allow the Supplier (or Australia Post, if Australia Post directs) the right to control the defence of the claim and any related settlement negotiations. 
5. This Clause 6 will survive termination or expiry of the Agreement.

 

7.     Audit 

1. Recipient shall provide Australia Post and/or its agents reasonable accompanied access upon reasonable prior notice, during 9am and 5pm on a Business Day, to its premises, accounts and records relevant to the Agreement, for the purpose of verifying and monitoring the Recipient’s obligations under the Agreement (the “Audit”) and shall provide all reasonable cooperation and assistance in relation to the Audit.  
2. If it is identified (through the Audit or otherwise) that the Recipient has not complied with an obligation under this Agreement, then without limiting any other rights or remedies, upon the request of Supplier, the Recipient will promptly take all necessary steps to rectify and / or remedy such non-compliance.
3. The cost of any Audit carried out under Clause 1 shall be borne by Australia Post unless the Audit reveals a material breach by the Recipient of its obligation under this Agreement, in which case Australia Post shall be entitled to be reimbursed by the Recipient for all reasonable costs of the Audit (including any agent’s fees) and the Recipient shall so reimburse Australia Post within twenty (20) Business Days of such request.
4. For the avoidance of doubt, a “material breach” for the purposes of this Clause 7 includes, without limitation, any breach of Australia Post’s Intellectual Property Rights or any breach of material terms. 
5. Where the Recipient does not grant access to Australia Post and/or any of its agents for the purposes of an Audit in accordance with Clause 7.1 then the Recipient must pay Australia Post all reasonable costs incurred by Australia Post in connection with such attempted Audit within twenty (20) Business Days of the date of Australia Post’s invoice in respect of the same, and Australia Post may by written notice immediately suspend the supply and the Recipient’s use of the Solution.

8.     Liability

Australia Post not liable 

1. To the extent permitted by law, Australia Post is not liable to the Recipient for any Claim or Loss whatsoever suffered, or that may be suffered as a result of or in connection with this Agreement, and the Recipient releases Australia Post irrevocably releases and discharges Australia Post from all such Claims and Losses.
2. Without limiting Clause 8.1 and to the extent permitted by law, Australia Post will not be liable to the Recipient for any loss of profit, revenue or business, indirect, consequential, special or incidental Loss suffered or incurred by the Recipient arising out of or in connection with this Agreement, whether in contract, tort, equity or otherwise. This exclusion applies even if those Losses may reasonably be supposed to have been in contemplation of both parties as a probable result of any breach at the time they entered into this Agreement.

9.      Indemnity 

1. The Recipient must defend and indemnify Australia Post and its Representatives (those indemnified) from and against all Losses suffered or incurred by and of those indemnified to the extent that those Losses are suffered as a result of, whether directly or indirectly, of:
2. 1. any breach of a Material Term by the Recipient or its Representatives;
   2. any unlawful act by the Recipient or its Representative in connection with this Agreement;
   3. any illness, injury or death to any person arising out of or in connection with the performance of this Agreement and caused or contributed to by the negligent or wrongful act or omission of the Recipient or its Representative; or
   4. any loss or damage to any property of any person, arising out of or in connection with the performance of this Agreement and caused or contributed to by the negligent or wrongful act or omission of the Recipient or its Representative,
   5. except to the extent that the Loss is caused by the negligence or wrongful act or omission of those indemnified.   
   6. This Clause 9.1 will survive termination or expiry of the Agreement.

10.      Suspension and Termination 

1. The Supplier may limit, suspend or terminate the Recipient’s rights under this Agreement at any time upon notice when, and for the duration of the period during which:
   1. the Recipient contravenes (or is believed on reasonable grounds to be in possible contravention of) any law of the Commonwealth or of a State or Territory; 
   2. the Recipient breaches the terms of the Agreement and the breach is not remedied within 14 days after receipt of notice from the Supplier specifying the breach and its intention to terminate the Agreement by reason of such breach; or
   3. the Recipient commits a material breach of the Agreement which is not remediable; or
   4. in the reasonable opinion of the Supplier, the Recipient is acting in a manner or providing a Solution which has the effect or potential to damage the reputation of Australia Post which is not remedied within 14 days after receipt of notice from Australia Post or the Supplier specifying the issues; or
   5. the licensed right granted by Australia Post to the Supplier for the licensing of the PostConnect Data has been suspended or terminated. Any such termination by the Supplier pursuant to this Clause 10.1e) will result in a pro-rata refund to the Recipient of any Fee which the Recipient has paid to the Supplier in advance.
2. The Recipient acknowledges that the Supplier may exercise its rights under this clause in accordance with the directions of Australia Post. 
3. The termination, surrender or expiry of this Agreement for any reason will not extinguish or otherwise affect:
   1. any rights of either party against the other which accrued before the termination, surrender or expiry and which remain unsatisfied; or 
   2. any other provisions of this Agreement which are expressly stated to, or which by their nature, survive termination, surrender or expiry of this Agreement.
4. If this Agreement is surrendered, terminated or expires, for any reason whatsoever, then the following provision of this clause will apply notwithstanding such surrender, termination or expiry the Recipient must cease using the Solution and the PostConnect Data and undertakes that it will destroy all copies, reproductions or adaptations of the Solution and PostConnect Data, or any part thereof made, held or controlled by it and, promptly upon written request from the Supplier, deliver a statutory declaration sworn by an authorised representative of the Recipient confirming that all copies, reproductions or adaptations of the Solution and PostConnect Data, and any part thereof, have been destroyed. 

 

11.       Variation

1. Pursuant to the agreement between the Supplier and Australia Post under which the Supplier is granted a licence to the PostConnect Data, Australia Post reserves the right to vary the terms of the agreement from time to time in certain circumstances. To the extent that those variations require a corresponding variation to the terms of this Agreement, the Supplier may do so, provided that the Supplier gives the Recipient reasonable prior notice of such variation (having regard to the period of notice received by the Supplier).  The Recipient undertakes to do all things (including executing and entering into such amendment or restatement deed) as reasonably required by the Supplier to formalise and give effect to any and all variations made by the Supplier under this Clause 11.1. 

12. Changes in Legislation

1. Notwithstanding any other provision of this Agreement, the Recipient acknowledges and agrees that Australia Post and  or the Supplier must comply with any future legislation and / or Government policy which imposes binding restrictions or limitations on Australia Post’s or the Supplier’s use of the PostConnect Data, including any restrictions or limitations relating to the supply of PostConnect Data or elements thereof to any person, and the terms of this Agreement, and the Recipient’s agreements with any other parties, will be varied accordingly.

13.    General

1. The Recipient shall not, without the Supplier’s prior written consent which must not be unreasonably withheld, assign or sub-contract any of its rights and obligations under this Agreement.  
2. The Supplier holds the benefit of all of the provisions of this Agreement that refer to Australia Post on trust for the benefit of itself and Australia Post, and the Supplier may enforce those provisions on behalf of Australia Post.
3. The Agreement is governed by the law in Victoria, Australia and each party submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them.

14.     Corporate Group Owner

1. This Clause 14 applies if the Recipient is a Corporate Group Owner.
2. The Corporate Group for the purposes of this Agreement consists of the following entities [#Party to insert the entities (up to 10 in total, including the Corporate Group Owner) forming the Corporate Group]. 
3. The Recipient must ensure, and warrants that:
   1. each entity of the Corporate Group is a Subsidiary of the Recipient at all times during the term of this Agreement; and
   2. each entity of the Corporate Group is a Single Legal Entity
4. The Recipient may permit any or all members of the Corporate Group to enjoy the benefit of the licence granted to the Recipient under Clause 1 of this Schedule 5.3, Section 1, subject to the following conditions:

1. 1. the Recipient must ensure that all of the Corporate Group members comply with this Agreement, and do not do or omit to do anything that, if done by the Recipient, would be a breach of this Agreement;
   2. the Recipient is responsible for all acts and omissions of the Corporate Group members as if they were acts and omissions of the Recipient; and
   3. all uses of the Solution and PostConnect Data by the Corporate Group members are deemed to be uses by the Recipient.

 

15.      Recipient Permitted Purpose and Prohibited Purpose 

1. Permitted Purposes 

1. 1. Each of the purposes set out in this Clause 15.1 is a “Permitted Purpose” in respect of the use of the PostConnect Data by an Recipient under an Recipient Agreement:  
   2. use the Supplier’s AMAS Approved Software for evaluation purposes, for a maximum period of 3 months; 
   3. use the Supplier’s AMAS Approved Software to Validate addresses and append DPIDs in an Existing Address Database solely owned by the Recipient for the internal business purpose of the Recipient; 
   4. use the Supplier’s AMAS Approved Software to Validate addresses in Existing Address Database solely owned by the Recipient for the purpose of joining and/or appending data or attributes from one database to the other for the internal business purpose of the Recipient; 
   5. use the Supplier’s AMAS Approved Software to Validate addresses and append DPIDs in Existing Address Databases owned by other Recipients for the strict purpose of preparation the addresses for mail lodgement for the internal business purpose of the Recipient. No part of the Validated addresses or any derived information resulting from the address validation may be passed back to the owner of the address database unless it is strictly related to the barcoding of mail. 
   6. use the Supplier’s AMAS Approved Software for List Creation and disclose the records created pursuant to List Creation to any person, on the condition that: 

1. 1. 1. the Recipient does not use the Supplier’s AMAS Approved Software to perform List Creation on behalf of another person, or as a part of data entry services that the Recipient offers to another person; and 
      2. the Recipient does not systematically use the Supplier’s AMAS Approved Software to create a list or set of records that is substantially similar or competitive to the PostConnect Data; and 
      3. disclose the Validated addresses (created through one of the Permitted Purposes and in accordance with the Recipient Agreement) to another person (including subsidiaries, agents and franchisees of the Recipient), on the condition that: 
      4. The recipient will not (and agrees not to) disclose the Validated addresses to any other person; and 
      5. the recipient will only use the Validated addresses for purposes that are directly related to the internal business purpose of the Recipient and not any other purpose. 

16.        Prohibited Purposes 

Each of the purposes set out in this Clause 16 is a “Prohibited Purpose” in respect of the use of the PostConnect Data by the Recipient:  

1. 1. sell, transfer, supply or otherwise deal with the Supplier’s AMAS Approved Software; 
   2. use the PostConnect Data other than through the permitted functionalities of the Supplier’s AMAS Approved Software; 
   3. use the Supplier’s AMAS Approved Software to Validate addresses and or/append DPID’s to an Existing Address Database which is not owned by the Recipient and the purpose of it is not for mail lodgement for the internal business purpose of the Recipient; 
   4. use the Supplier’s AMAS Approved Software to Validate addresses and/or append DPID’s to an Existing Address Database, whether owned by the Recipient or not, for the purpose of on selling or commercial gain (including commercial gain from any derive insights), but this paragraph does not prohibit the Recipient from using the AMAS Approved Software for List Creation in accordance with Clause 15.1e); 
   5. use the Supplier’s AMAS Approved Software for List Creation other than in accordance with Clause 15.1e); 
   6. provide Validated addresses to third parties unless those third parties are contracted to carry out some work on behalf of the Recipient strictly in accordance with the Recipient’s Permitted Purpose or except as permitted by Clause 15.1e) or 15.1f) or where authorised or required by applicable law; and 
   7. to reverse engineer, disassemble, alter or modify the Supplier’s AMAS Approved Software.