End User Agreement – IPCA

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Terms of Use

  1. POSmusic Pty Ltd (ABN 88 616 975 627) (POSmusic, us, our) has developed the “POSmusic Platform”, (the Platform), and provides the PROplayer device (Hardware) and related services to you under the Subway® Radio Program.
  2. You agree that by receiving delivery of the Hardware, you have entered into an agreement with Independent Purchasing Company (Australasia) Limited (IPCA) in respect of the Subway® Radio Program are bound by that agreement.
  3. The Platform, Hardware and related services are provided to you by POSmusic on the following terms (Terms of Use). By accepting these Terms of Use, or otherwise accessing the Platform, you agree to be bound by the Terms of Use.

Licence and restrictions

  1. Subject to payment of the licence fee paid by IPCA on your behalf and subject to clause 7, POSmusic grants you a non-exclusive, non-transferable, revocable licence to use the Platform (Licence) in accordance with these Terms of Use for the period commencing on the date you accept these Terms of Use and continuing until such a time that POSmusic, IPCA or you validly terminates these Terms of Use (Term).
  2. You must not:
    1. use the Platform for any purpose or in any manner other than accessed through the Hardware using the instructions provided and as otherwise consistent with the licences you will obtain under clause 7. The Platform is not to be used otherwise under any circumstances. You agree to indemnify POSmusic and IPCA for any use of the Platform and its content outside of the purposes permitted;
    2. use the Platform in any way that could damage the reputation of POSmusic or the goodwill or other rights associated with the Platform;
    3. remove, alter, obscure or cover up any of the trade marks, copyright or proprietary notices placed on the Platform, Hardware or any documents supplied to you by or on behalf of POSmusic
    4. permit any third party outside of the users registered on the Platform to use the Platform;
    5. use the Platform in any matter or for any purpose that violates any law or regulation, promotes illegal activities, violates third party rights or terms of service, violates any right of any person, including but not limited to intellectual property rights, rights of privacy, or in any manner inconsistent with these Terms of Use;
    6. except to the extent that applicable laws, including the Copyright Act 1968 (Cth), prevent us restraining you from doing so:
      1. reproduce, make error corrections to, de-compile, disassemble or otherwise reverse engineer the Platform or create any derivative works based upon the Platform or permit any third party to do so;
      2. distribute the content of the Platform for other than for the purposes permitted under these Terms of Use.
  3. You must:
    1. comply with all reasonable directions, instructions, specifications, policies and documentation that POSmusic may notify or provide in relation to the use, delivery and development of the Platform and the Hardware from time to time;
    2. notify POSmusic immediately on becoming aware of any unauthorised acts as detailed in clause 5.

Requirement to obtain public performance licences

  1. You are required to pay the licensing fees and tariffs and continually comply with the licence terms relating to the public performance of the content accessed through the Platform (which terms may be updated from time to time), including:
    1. the collection of all relevant licensing fees and tariffs for payment directly to PPCA and APRA|AMCOS and ONEMUSIC and ONEMUSICNZ;
    2. the payment of all relevant licensing fees and tariffs direct to PPCA and APRA|AMCOS and ONEMUSIC and ONEMUSICNZ;
    3. PPCA Licensing agreements: http://www.ppca.com.au/; and
    4. APRA|AMCOS licensing agreements: http://apraamcos.com.au/music-customers/, and
    5. ONEMUSIC licensing agreements: https://www.onemusicnz.com/licence-info/which-licence/,

(as applicable to the territory in which your premises are situated (Australia or New Zealand).

Store requirements

  1. In order to access the Platform and use the Hardware, as a minimum you must have:
    1. an available general power outlet;
    2. internet and Wi-Fi connectivity; and
    3. a 30Wamplifier and 15W speakers or equivalent.
  2. You acknowledge and agrees that it is your responsibility to obtain and maintain at your cost all other necessary hardware, software, IT equipment and Internet connectivity required to access and use the Platform.
  3. POSmusic will not be responsible for any interruptions to the service in connection a failure of your internet connection, electricity or power supplies or anything else that is out of POSmusic’s control.
  4. POSmusic will provide you (the subscriber) and each individual user registered to your account with an on-line account enabling you to manage the content and scheduling music and registered users to ‘like’ and ‘dislike’ songs in real-time from another device when connected properly. You are responsible for the security of these on-line accounts and must protect the login details associated with those accounts.

Intellectual Property

  1. You acknowledge and agree that:
    1. all intellectual property rights (including all copyright, patents, trade marks, design rights trade secrets, domain names, know how any other rights of a similar nature, whether registrable or not and whether registered or not) (Intellectual Property Rights) and other proprietary rights in the Platform, and any modifications, updates or new releases of the Platform, and the source code of the Platform are owned or licensed exclusively by POSmusic;
    2. you have no right, title or interest in the Platform other than the rights as licensee under these Terms of Use;
    3. POSmusic may in its absolute discretion deal with the Platform (including all Intellectual Property Rights) as the exclusive owner or licensee;
    4. there is no transfer of title or ownership to you of the Platform or any modifications, updates or new releases of the Platform or the source code of the Platform; and
    5. if you learn that a third party is infringing the Intellectual Property Rights in the Platform, you will promptly notify POSmusic in writing.
  2. You warrant that in using the Platform, you will:
    1. act at all times to protect the value in the Platform and ensure that the Intellectual Property Rights and other proprietary rights in the Platform are not infringed in any way; and
    2. comply with the directions of POSmusic in relation to the use of the Platform.

Hardware

  1. In consideration of the payment of the licence fees by IPCA on your behalf:
    1. POSmusic agrees to lease to you for the Term, the Hardware for each of your nominated Stores.
    2. You agree to take proper care of the Hardware, in accordance with the manufacturer’s instructions and maintain the Hardware in the same state as its condition at the time the Hardware is installed (normal wear and tear excepted).
    3. POSmusic will be responsible for repairing any defects of a technical nature in any Hardware installed, other than defects resulting from a breach of these Terms of Use including the instructions provided. Such claims must be processed through TechNet, POSmusic will not respond to any individual store requests made directly to it.
    4. You acknowledge that:
      1. you have no right or property in or to any Hardware and no interest in any Hardware or these Terms of Use that is assignable at law;
      2. you do not have any right or obligation to purchase from POSmusic any Hardware leased to you under these Terms of Use; and
      3. the Hardware is at your risk while in the possession or control of you or your personnel (including from the time it is delivered to your store and where you arrange delivery of the Hardware to TechNet or IPCA or POSmusic as applicable).
      4. if the Hardware is lost or damage due to your fault or whilst the Hardware is at your risk, you may be liable to pay a replacement cost under the terms of your agreement with IPCA.

Confidentiality

  1. You acknowledge that the Platform and any documentation provided to you by POSmusic are commercially valuable assets which contain Intellectual Property Rights and confidential information (including the Platform, the outputs produced by the Platform, all information provided by POSmusic about the Platform) (Confidential Information).
  2. You agree to protect and not to disclose the Confidential Information unless it:
    1. becomes available to the public (other than because of your breach of these Terms of Use);
    2. was in your possession prior to receipt from POSmusic; or
    3. is required to be disclosed to the Licensee’s authorised agents or by law.

Privacy

  1. POSmusic maintains a policy of strict confidence concerning personal information it may collect in the provision of its services under these Terms of Use. Any collection, storage, use and dissemination of personal information will be in accordance with POSmusic’s Privacy Policy which can be found at www.posmusic.com/privacy and as otherwise permitted under the Privacy Act 1988 (Cth) (Privacy Act). Your details will be shared with IPCA for the purposes of administering the services under these Terms of Use. Both parties agree to comply with their obligations under the Privacy Act.

Liability

  1. To the extent permitted by law, POSmusic’s liability against any and all costs, claims, losses, liabilities and expenses that may arise out of or in connection with use of the Platform or the Hardware or any services provided in connection with these Terms of Use is limited to the licence fee paid by IPCA on your behalf. This limitation excludes any loss suffered by you that is directly attributable to POSmusic’s failure to obtain the licences and permissions it needs to provide the Platform (which exclude the licences to be obtained by you under clause 7 of these Terms of Use).

Indemnity

  1. You will be at all times (including upon expiry or termination of these Terms of Use) liable to POSmusic for, and must indemnify and keep POSmusic, and its respective officers, employees and agents, indemnified from and against, any loss (including legal costs and expenses), damages, claims or liability incurred or suffered by POSmusic or its respective officers, employees and agents in connection with:
    1. any breach by you or your personnel of these Terms of Use; or
    2. any suit, action or proceeding by any person against POSmusic where such loss or liability was caused by your negligent or wilful act or omission or your personnel’s negligent or wilful act or omission in connection with these Terms of Use.

Termination

  1. POSmusic may terminate these Terms of Use immediately by written notice if you breach these Terms of Use:
    1. in a manner capable of remedy, and do not remedy that breach within 14 days of being requested by POSmusic in writing to do so; or
    2. where that breach is not capable of remedy, such as where you use the Platform or any of its content outside of the permitted purposes.
  2. You may terminate these Terms of Use by written notice if POSmusic breaches these Terms of Use and POSmusic does not remedy that breach within 30 days of being requested by you in writing to do.
  3. Where these Terms of Use are terminated for the reasons outlined in clause 20 or 21 above or by IPCA, including for reason that the term of the agreement between IPCA and POSmusic has expired:
    1. the Licence granted to you will automatically terminate and POSmusic may prevent you from accessing the Platform (including by deactivating all and/or any part of the Platform and/or changing any access codes);
    2. you will be instructed to return the Hardware to IPCA, TechNet or POSmusic as appropriate within 14 days of termination and in good working order; and
    3. Clauses 16, 18, and 19 are intended to survive the termination or expiration of these Terms of Use.

General

  1. The following general clauses apply in relation to this these Terms of Use:
    1. These Terms of Use constitute the entire agreement between the parties and supersede any prior representations, understandings or arrangements made between the parties, whether orally or in writing.
    2. POSmusic may vary these Terms of Use at any time. If the variation will materially affect your use of the Platform, POSmusic will notify you of the variation. Otherwise, your continued use of the Platform will constitute acceptance of that variation.
    3. A right created by these Terms of Use cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.
    4. If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms of Use without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
    5. Nothing in these Terms of Use creates a joint venture, partnership, or the relationship of principal and agent, or employee and employer between the parties; and no party has the authority to bind any other party by any representation, declaration or admission, or to make any contract or commitment on behalf of any other party or to pledge any other party’s credit.
    6. You warrant that you are authorised to enter into these Terms of Use on behalf of the nominated legal entity.
    7. The laws applicable in Victoria govern these Terms of Use. The parties submit to the non-exclusive jurisdiction of the courts of Victoria and any courts competent to hear appeals from those courts.
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