MRG Terms of Use
1. Application of the Terms of Use
The terms and conditions (Terms) set out in this document together with any additional terms, conditions and information contained in the "MRG Subscriber Agreement Contract Details" (including its schedules) between you (the Subscriber) and The Media Resource Group Pty Limited ABN 97 079 302 873 (MRG) (Contract Details) form the agreement between you and MRG for the supply of certain services and content by MRG to you through the MRG Newscentre Web Portal operated by MRG (referred to in this document as this agreement).
By entering into or using any services provided by the MRG Newscentre Web Portal, you are agreeing to these terms and conditions, except that clauses 3, 4 and 6 do not apply, and have no effect, if you have not entered into any Contract Details with MRG.
2. Dictionary and Interpretation
The Dictionary set out below defines some of the terms used in this agreement. A reference to "Services" in this agreement is only a reference to the Services selected in Part C of the Contract Details. Subscriber is only entitled to use the Services selected in Part C of the Contract Details (Selected Services) and must use those Selected Services in accordance with the terms of this agreement that apply to those Selected Services.
3. Supply and use of Services
3.1 Print Monitoring
3.2 Broadcast Monitoring and Internet Monitoring
MRG grants to Subscriber a non-exclusive, non-transferable licence to access and use the Broadcast Monitoring Service and the Internet Monitoring Service in Australia during the Term only and on the terms of this agreement:
3.3 Broadcast Monitoring
In addition to the rights granted to the Subscriber for the Broadcast Monitoring Services in clause 3.2 above, provided that Subscriber complies with the terms of this agreement and in consideration of payment of the applicable Usage Charges, MRG grants to Subscriber a non-exclusive, non-transferable right to listen to audio clips and to view video clips and to download such clips from the Broadcast Monitoring Service Material during the Term and for Subscriber's internal business purposes only.
3.4 All Services
4. Redistribution - Print Monitoring Service Material
4.1 Except for Print Monitoring Service Material derived from FBM Publications, Subscriber may:
4.2 Subscriber must immediately advise MRG of any change in the number of employees receiving or who are able to access the Print Monitoring Service Material where such change impacts on the Charges as specified in Schedule 3 of the Contract Details.
5. Copyright
5.1 Broadcast Monitoring Service Material
5.2 Copyright Fees
Subscriber acknowledges and agrees that:
6. Access and Restrictions on Use
6.1 The Subscriber will obtain access to the Services via the MRG Newscentre Web Portal. Unless stated otherwise in relation to any material in any particular subject matter area of the Services (in which case the restrictions there stated will apply to that material), Subscriber may:
6.2 Unless otherwise specified by MRG and subject to clause 7, Subscriber and Authorised Users may maintain archives or historical database of Broadcast Monitoring Service Material and Internet Monitoring Service Material for a period of not more than 30 days from the date on which the information is first available to Subscriber as part of the relevant Service. These archives or historical databases must be deleted immediately following expiry of that period or termination of this agreement, whichever first occurs.
6.3 Except as expressly allowed under this agreement, Subscriber agrees it must not reproduce, modify, distribute, transmit, publish or otherwise transfer, or commercially exploit, the Services or Service Material, or provide copies of Service Material to third parties.
6.4 Subscriber agrees that it will allow access by MRG to Subscriber's premises, upon giving reasonable prior notice and during business hours, to review permissions by Subscriber of authorised recipients of the Service Material and whether Service Material has been made available by Subscriber on an intranet or otherwise in a manner not permitted by MRG.
7. Third Party Information
7.1 The Services will include Third Party Information. Certain Third Party Information may be subject to particular restrictions as to use, storage or otherwise. These restrictions will be notified by MRG to Subscriber in relation to that Third Party Information and apply to that Third Party Information as though those restrictions were a term of this agreement and the Subscriber agrees to comply with all such restrictions.
8. Acknowledgments and Warranties by Subscriber
8.1 Subscriber acknowledges and agrees that:
8.2 Subscriber warrants (and indemnifies MRG for loss or damage suffered by MRG as a result of any breach of this warranty) that:
9. Charges
9.1 In consideration of MRG providing the Services, Subscriber must pay MRG the Charges.
9.2 MRG will invoice Subscriber for the Charges as follows:
9.3 Subscriber must pay each invoice not more than thirty (30) days from the date of statement. Late payments of any invoice will attract interest.
9.4 MRG may, by not less than sixty (60) days prior written notice to Subscriber, adjust the Charges.
9.5 If MRG notifies Subscriber of an increase in the Charges (other than on account of GST or to the Copyright Fees) that is more than CPI (for the weighted average of 8 capital cities for the previous calendar year) plus 2%, then Subscriber may terminate this agreement in its entirety by giving not less than thirty (30) days prior written notice to MRG.
9.6 Where the Subscriber is a Trial Subscriber (as indicated in Part B of the Contract Details) then the Charges payable during the Initial Term of 30 days will be calculated as though the Initial Term is one full calendar month.
10. Term and Termination
10.1 This agreement operates for a period (Initial Term) of twelve (12 months) from the Commencement Date provided that where the Subscriber is a Trial Subscriber (as indicated in Part B of the Contract Details) then the Initial Term shall be a period of thirty (30) days from the Commencement Date (Trial Period).
10.2 Subject to clause 10.3, this agreement will automatically renew for further period or periods (Further Term(s)) of twelve (12) months from the expiry of Initial Term or from the expiry of each subsequent Further Term unless either party gives the other not less than ninety (90) days notice in writing prior to the expiry of the Initial Term or any Further Term of its intention not to renew.
10.3 Where the Subscriber is a Trial Subscriber (as indicated in Part B of the Contract Details), this agreement will expire at the conclusion of the Trial Period and the Subscriber will cease to be entitled to access the Services after the expiry of that Trial Period.
10.4 MRG may terminate this agreement immediately on notice to Subscriber if:
10.5 Subscriber may terminate this agreement on immediate notice to MRG if:
10.6 A failure by MRG to include every relevant article or media item available in respect of Subscriber's Brief will not be a breach of material term of this agreement for the purposes of clause 10.5(a).
11. Additional Payments for Tax
11.1 Unless expressly included, the consideration for any supply made under or in connection with this agreement does not include GST (as defined in A New Tax System (Goods and Services Tax) Act 1999).
11.2 To the extent that any supply made under or in connection with this agreement is a taxable supply, the consideration for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply.
12. Liability
12.1 All express or implied representations, conditions, warranties and terms relating to the Services or this agreement (including use of the Services by the Subscriber or any authorised recipients) not contained in this agreement are excluded from this agreement to the extent permitted by law.
12.2 MRG and any Information Source are not liable to Subscriber or any other person for any failures (including but not limited to delays, omissions, interruptions) or faults in provision or operation of the Services, or any inaccuracies, omissions, or actionable matter in information included in the Services.
12.3 Nothing in this agreement excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by any statute or regulation if it cannot lawfully be excluded, restricted or modified.
12.4 If the law, including the Trade Practices Act 1974 (Cth) (as amended) or any similar legislation, implies or imposes a non-excludable condition or warranty which can be limited, the liability of MRG to Subscriber for breach of that condition or warranty will be limited - as MRG determines to:
12.5 MRG and any Information Source are not liable for any indirect, consequential, special or punitive loss or damage in respect of the Services or any act or omission on its part in relation to its obligations under this agreement or for any payments to third parties, loss of revenue, loss of profits, loss of goodwill or data however caused, whether or not:
12.6 Subject to clause 12.5, the total liability in all circumstances of MRG and any Information Source to Subscriber in contract, tort (including negligence) or otherwise for any loss or damage is limited to the Charges paid by Subscriber to MRG under clause 9 for three (3) months immediately preceding the month during which the breach occurs or the liability arises.
12.7 MRG is not liable to Subscriber or any other person if MRG terminates this agreement under clause 10.4, other than liabilities accrued or accruing up to the date of termination.
12.8 Subscriber agrees that this clause 12 is enforceable by and to the benefit of MRG, Information Sources and other third party suppliers. All restrictions on use, limitations of liability, and indemnities agreed by Subscriber under this agreement on Subscriber's own behalf and on behalf of each authorised recipient ensue to the benefit of providers of Third Party Information as third party beneficiaries as though each third party was a party to this agreement and Subscriber agreed such provision directly with that third party.
13. Indemnities and Release
13.1 MRG agrees to indemnify Subscriber against any liabilities, losses, expenses or other costs that Subscriber incurs in relation to any third party claim of infringement of copyright resulting from the use by Subscriber of Service Material in accordance with this agreement.
13.2 Subscriber agrees to indemnify MRG against any liabilities, losses, expenses or other costs that MRG incurs in relation to:
13.3 Subscriber agrees that Subscriber and any person claiming through Subscriber will not be entitled to make a claim against MRG as a result of any claim, action, proceeding or demand brought by any third party as a result of the supply (or failure to supply) or use of the Services and Subscriber releases MRG from and indemnifies MRG against any liabilities, losses, expenses or other costs associated with any third party claim. Where the Subscriber receives or becomes aware of a claim for infringement of copyright arising from use of the Service Material, the Subscriber must:
14. Force Majeure
MRG does not breach this agreement and is not liable to Subscriber or any other person for delay or failure to perform an obligation due to a Force Majeure Event. Where affected by a Force Majeure Event, MRG is granted a reasonable extension of time to perform the obligation, unless the delay or failure exceeds 60 days, in which case MRG may immediately terminate this agreement on notice to Subscriber.
15. General
15.1 Notices
A notice or other communication given under this agreement must be by addressed post, by hand, by letter, by fax (and not by e-mail) to the Subscriber at the address or facsimile number set out on the cover page of the Contract Details, or to any other address or facsimile number a party notifies to the other under this clause and to MRG to the attention of the Managing Director, at the address indicated in the Contract Details with a copy to the General Counsel at facsimile number (02) 9322 8659.
15.2 Governing law and jurisdiction
This agreement is governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
15.3 Entire Agreement
This agreement supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties.
15.4 Amendments
MRG may amend these Terms from time to time by uploading the updated version of the Terms to the MRG Newscentre Web Portal. All such amendments will take effect from the date the updated Terms are uploaded to the MRG Newscentre Web Portal. If the Subscriber continues to use any of the Services or the MRG Newscentre Web Portal, then the Subscriber will be deemed to have accepted the amended Terms. The Subscriber agrees to regularly review the Terms for any changes.
15.5 Severability
If anything in this agreement is unenforceable, illegal or void then it is severed and the rest of the agreement remains in force.
Dictionary
Part 1
In this agreement:
AAIM means the Australian Association of Information Monitors who is licensed by Australian free-to-air television stations and certain Australian radio stations to grant to AAIM Members the right to reproduce the broadcasts made by such television and radio stations.
AAIM Licence Agreement means a licence agreement under which Australian Associated Press Pty Limited and its subsidiary MRG are given the right to monitor radio or television broadcasts and to provide Monitoring Reports to customers.
AAIM Member means a person with a business that monitors radio and television broadcasts and provides Monitoring Reports to customers and which belongs to AAIM and includes MRG.
Alerts means notifications that Service Material is available that matches Subscriber's Brief, sent by MRG to Subscriber.
Archive means Broadcast Monitoring Service Material that is older than 30 days and up to 180 days old.
Authorised Users means a person accessing one or more the Services by entering a user name and password associated with Subscriber.
Retainer Charges means the monthly fee for research, site and Subscriber's Brief maintenance payable by all Subscribers on a Basic Plan for the selected Service Items as specified in Schedule 2 of the Contract Details.
Usage Charges means the charges payable for Service Items acquired by a Subscriber as specified in the price list in Schedule 2 of the Contract Details, other than Retainer Charges.
Broadcast Monitoring Service means a media monitoring service which monitors certain radio and television media in Australia and which allows a Subscriber, among other things, to view and download audio (for radio) and video (for television) clips of recordings from such media.
Broadcast Monitoring Service Material means material (including information) received or accessed through the Broadcast Monitoring Service.
CAL means the Copyright Agency Limited.
CAL Licence Agreement means a licence agreement entered into with CAL in relation to the Print Monitoring Service Material.
Charges means the Charges for the Services as set out in the Contract Details (including Schedules 2 and 3 of the Contract Details), and is comprised of Retainer Charges, Usage Charges and the Copyright Fees applicable to the selected Services.
Commencement Date means the date that MRG first makes the Services available to Subscriber as specified in the Contract Details.
Copyco means Copyco Pty Ltd, which is licensed by the Information Sources for Print Monitoring Services to grant sublicences to reproduce and distribute Print Monitoring Service Material electronically.
Copyright Fees means the applicable copyright fees payable by Subscriber including those payable by MRG to CAL with respect to Print Monitoring Service Material and those payable by MRG to AAIM for Broadcast Monitoring Service Material, as specified in Schedule 3 of the Contract Details and as may be notified to Subscriber in writing from time to time.
Designated Delivery Address/es means the delivery address/es so specified in the Contract Details for the Print Monitoring Service.
Download means transferring audio and video file data from the MRG Newscentre Web Portal to another computer location.
FBM Publications means the following Fairfax Business Media publications: The Australian Financial Review, Boss Magazine, Financial Review Smart Investor and any other Fairfax titles notified to Subscriber from time to time.
Force Majeure Event means an event or circumstance beyond the reasonable control of a party including acts of God, war, flood, fire, explosion, civil disobedience, legislation not in force at the date of this agreement, labour disputes or delays by third parties, including subcontractors.
Free TV Australia means an industry body which represents Australia's commercial free-to-air television broadcasters.
GST means the GST as defined in the A New Tax System (Goods & Services Tax) Act 1999.
Information Source means a person who or which provides news or other information to MRG for inclusion in the Service.
Internet Monitoring Service means a media monitoring service which monitors certain websites within Australia and selected international websites according to areas of interest specified in Subscriber's Brief.
Internet Monitoring Service Material means material (including information) received or accessed through the Internet Monitoring Service.
Monitoring Report means a recording or a verbatim transcript of a television or radio broadcast made by an AAIM Member, the reproduction of which AAIM has been licensed to collect fees from AAIM Members.
MRG Newscentre Web Portal means a web portal operated by MRG or Australian Associated Press Pty Limited ABN 88 006 180 801 for Newscentre services located at http://www.newscentre.com.au.
Permitted Use means solely for the personal use of Subscriber and not for modification, storage, copying, up or downloading, posting, transmission, republication, redistribution, redissemination, publication, broadcast, communication or exploitation (whether commercially or otherwise) by any person in any form using the Internet or by any method whatsoever.
Print Monitoring Service means the MRG eClips Service, which MRG may operate from time to time and which provides clippings, customised and from newspapers, news services and news magazines to subscribers in the form in which the material appears in those publications.
Print Monitoring Service Material means material (including information) received or accessed through the Print Monitoring Service. Redistribution Fees means the fees so specified in Schedule 3 of the Contract Details.
Service Items means the items for Print Monitoring Services, Broadcast, Monitoring Services and Internet Monitoring Services set out in the price list in Schedule 2 of the Contract Details.
Services means the services to be provided by MRG to the Subscriber pursuant to this agreement, being the Print Monitoring Service, the Broadcast Monitoring Service and/or the Internet Monitoring Service, as selected by Subscriber.
Service Material means material (including information) received or accessed through the Services and includes the Print Monitoring Service Material, the Broadcast Monitoring Service Material and the Internet Monitoring Service Material (as applicable).
Subscriber means the person entering into this agreement with MRG, and includes Subscriber's authorised representative.
Subscriber's Administrative Page means a page on the MRG Newscentre Web Portal to which Subscriber has access and on which Subscriber may update certain information relating to Subscriber.
Subscriber's Brief means the details of the media and the areas of interest that the Subscriber wishes MRG to monitor in providing the Services as specified in Schedule 1 of the Contract Details or as otherwise agreed in writing between the parties from time to time.
Syndication Advisory means notification that Broadcast Monitoring Service Material has been broadcast on specified syndicated radio or television stations or programmes in addition to the primary radio or television station or programme on which it was broadcast.
Term means the Initial Term and any Further Term(s).
Third Party Information means information included in the Services which is received or compiled from Information Sources.
Part 2. Glossary of Terms for Service Items in Price List for Charges
In Part A of Schedule 2 of the Contract Details, the terms are defined as follows:
Retainer - Archive: Retainer Charge for right to obtain access to Archive for Broadcast Monitoring Service Material.
Retainer - Audio/Video: Retainer Charge for Subscriber who wishes to acquire Broadcast Monitoring Services (Audio/Video)
Retainer - Audio/Video/Print: Retainer Charge for Subscriber who wishes to acquire Broadcast Monitoring Services (Audio/Video) and Print Monitoring Services.
Retainer - Print: Retainer Charges for Subscriber who wishes to acquire Print Monitoring Services.
Retainer - Internet: Retainer Charges for Subscriber who wishes to acquire Internet Monitoring Services.
Alert - Email: Charge for receiving an Alert by email.
Alert -SMS: Charge for receiving an Alert by SMS.
Audio Clip: Charge for audio file which matches Subscriber's Brief sent to Subscriber who receives the Broadcast Monitoring Services.
Audio Clip Syndication Advisory: Charge for Syndication Advisory about an audio file sent to Subscriber who receives the Broadcast Monitoring Service.
Audio Download: Charge for Subscriber's Download of audio file data.
Audio Summary: Charge for a two to four line summary of the content contained in an audio file sent to Subscribers who receive the Broadcast Monitoring Service.
Audio Transcript: Charge for a full transcript of the content contained in an audio file sent to Subscribers who receive the Broadcast Monitoring Service.
Internet Clip: Charge for a link to a webpage that contains an article that matches Subscriber's Brief sent to Subscribers who do not receive the Broadcast Monitoring Service.
Print - FBM Clip: Charge for a summary of an article from an FBM Publication sent to Subscribers who receive the Print Monitoring Service.
Print Clip (excluding FBM): Charge for a print article (from publications other than FBM Publications) that matches a Subscriber's Brief sent to Subscribers who receive the Print Monitoring Service.
Print - Wire Clip: Charge for a summary of an article from MRG's Newswire Service sent to Subscribers who receive the Print Monitoring Service.
Video Clip: Charge for video file which matches Subscriber's Brief sent to Subscriber who receives the Broadcast Monitoring Services.
Video Clip Syndication Advisory: Charge for Syndication Advisory about a video file sent to Subscriber who receives the Broadcast Monitoring Services.
Video Download: Charge for Subscriber's Download of video file data.
Video Summary: Charge for a two to four line summary of the content contained in a video file sent to Subscribers who receive the Broadcast Monitoring Service.
Video Transcript: Charge for each page of a transcript of the content contained in a video file sent to Subscribers who receive the Broadcast Monitoring Service.
