Terms of Use

DEFINITIONS

"application form" customer particulars and first part of agreement together with part two these terms and conditions.

"customer" natural person or company or business entity identified and nominated on the application form accompanying this Customer Service Agreement.

"current published documentation" additional requirements or variations, instructions or specifications listed as provided by BIZ-E-NEWS as pertaining to its services.

"effective date" date of the application form.

"exclusive publications" any published material provided by the customer, whereby the customer provides the material and claims to be author and owner of such material shall be for their exclusive use or purpose.

"initial term" from the date of the application for a 12 month period or for another period either longer or shorter as mutually otherwise agreed by all parties.

"BIZ-E-NEWS" Biz-e-News

"BIZ-E-NEWS Website" www.bizenews.com

"Minimum commitment" twelve (12) month period unless otherwise agreed.

"Monthly Subscription Fee" the amount paid each month by the customer for the "services"

"Services" Biz-e-News communications services.

1.0 SERVICES

1.1 BIZ-E-NEWS ("BIZ-E-NEWS") will provide its Biz-e-News data communications services ("Services"), to the BIZ-E-NEWS customer ("Customer") nominated in the Application Form accompanying this Customer Service Agreement from time to time, in consideration of payment based on the rates specified herein, and the terms and conditions contained in the Application Form.

1.2 Services shall be provided to Customer in accordance with Customer's instructions that are properly formatted and transmitted by the Customer in accordance with BIZ-E-NEWS' "current published documentation" which, in addition to the terms hereof, shall be located at www.bizenews.com  (the "BIZ-E-NEWS Web Site").  BIZ-E-NEWS is not responsible, and disclaims any intention to provide or comply with any special instructions, additional specifications, or requirements not listed in published documentation pertaining to the Services.

1.3 EXCLUSIVE MATERIAL. If The Customer provides ‘exclusive publications' those publications may be used exclusively for the purposes outlined in the Customer's application form and agreed to  by BIZ-E-NEWS and the Customer shall indemnify, defend and hold  BIZ-E-NEWS it's officers, directors, employees, and affiliates harmless from any claims losses, damages, penalties or costs ( including without limitation reasonable legal fees) arising out of:-

1. Customer's exclusive publications
2. Customer's violation of or alleged violation of any applicable laws or regulations with respect to the exclusive publication material including but not limited to BIZ-E-NEWS's distribution of such material, and to any claims that Customer has violated the rights of any third party (including claims relating to content provided by the Customer.

2.0 TERM AND MINIMUM COMMITMENT

2.1 This Agreement is effective upon the date (the "Effective Date") shown on the Application Form and shall continue for a minimum term of twelve (12) months, unless otherwise agreed and another term is specified ("Initial Term")

2.2 Customer agrees to a minimum twelve (12) monthly commitment for use of the Services as specified herein for each twelve (12) month period during the term of the Agreement (the "Minimum Commitment"). In the event Customer does not meet its Minimum Commitment in any given month, BIZ-E-NEWS shall issue a tax invoice for, and Customer shall pay, upon receipt of invoice, the shortfall equal to the difference between the monthly Minimum Commitment, less any payments for actual usage made by Customer during each applicable month during the term of the Agreement.

2.3 Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement in any material respect and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Notwithstanding the foregoing, BIZ-E-NEWS may terminate this Agreement and/or suspend the provision of Services immediately for illegal, fraudulent or improper use of the Services (including without limitation, Customer's use of the Services in contravention of Article 5 or 7) or if deemed reasonably necessary, by BIZ-E-NEWS, to prevent interruption or disruption to BIZ-E-NEWS's network, its business or other customers, if any portion of an account remains unpaid when due (including without limitation any Minimum Commitment shortfall amount) or for breach, not subject to cure.  BIZ-E-NEWS shall not be liable to Customer or any third party should BIZ-E-NEWS exercise its right to discontinue Services, in whole or in part, or terminate this Agreement pursuant to this Section 2.3.  In the event of termination of this Agreement, Customer shall pay to BIZ-E-NEWS as liquidated damages, but not as a penalty, the shortfall resulting from Customer's failure to meet its Minimum Commitment, which amount shall equal the difference between the monthly Minimum Commitment multiplied by the number of months remaining in the term, less any payments for actual usage made by Customer during the term of the Agreement and shall represent a reasonable estimate of the probable loss to BIZ-E-NEWS.

3.0 INSTALLATION AND TRAINING

BIZ-E-NEWS shall provide Initial demonstration and training of service, and additionally an email or call facility to BIZ-E-NEWS to identify procedures for usage. Further Installation and /or training after the initial training is the sole responsibility of the Customer unless purchased separately from BIZ-E-NEWS.

4.0 PAYMENT TERMS AND RATES

4.1 BIZ-E-NEWS will charge the customer, and the customer shall pay for the "services" at the rate nominated in the customer's application form.  The services shall include the set-up of the service, the on-going monthly costs of provision of the services and additionally for any alteration or change to the services.

4.2 BIZ-E-NEWS will charge the customer the set-up fee nominated in the customer's online application form.  After receipt the set-up fee work will commence to produce the services.  The monthly fee will commence immediately.

4.3 The provision of Services under this Agreement is subject to credit verification and acceptance by BIZ-E-NEWS. BIZ-E-NEWS may cancel or re-schedule orders if BIZ-E-NEWS determines, in its sole discretion, that Customer's financial condition or previous payment record warrants such change.

4.4 Customer must notify BIZ-E-NEWS of any charge disputed in good faith, with supporting documentation, within thirty (30) days from receipt of the invoice, or Customer will be deemed to agree to such charges and no adjustments to charges or invoices will be made. Customer shall continue to be liable to pay for the undisputed charges on the invoice by the due date.

4.4 Past-due balances shall be subject to an interest charge of 10% per month computed from the due date of each invoice previously issued, or the NSW Supreme Court interest rate applicable at the time whichever is less.

4.5 Customer shall pay any collection costs, including reasonable lawyer's fees, and other expenses incurred by BIZ-E-NEWS to collect any sums due under this Agreement.

4.6 Customer shall pay, and BIZ-E-NEWS reserves the right to collect in arrears, all sales, use, excise or other taxes, fees or charges of any nature whatsoever, now or hereafter imposed or assessed on BIZ-E-NEWS, by federal, state, or local government authority upon or with respect to the Services provided.

4.7  BIZ-E-NEWS will charge three (3) times the customer's monthly fee in the event the contract is terminated for whatever reason for the term of the contract.

5.0 CUSTOMER LEGAL COMPLIANCE AND INDEMNIFICATION

5.1 Customer acknowledges that BIZ-E-NEWS has no control over some of the content of information and/or distribution lists provided by Customer and transmitted through the Services and that BIZ-E-NEWS does not examine the use to which Customer puts the Services or the nature of the information Customer or Customer's users send or receive.  Customer agrees not to transmit content through use of the Services that infringes any third party's intellectual property rights or that is unlawful, threatening, abusive, harassing, deceptive, fraudulent, invasive of another's privacy, vulgar, obscene or otherwise contains objectionable material of any kind or nature. Customer also warrants to BIZ-E-NEWS that any and all distribution lists provided by Customer to BIZ-E-NEWS:

1. are based upon permission or an established business relationships.
2. have not been obtained through Internet harvesting methods or any other unlawful electronic collection of addresses or any other public or private source; and
3. are complete, accurate and updated for any opt-outs, as applicable and required by law. Customer is responsible for maintaining the confidentiality of, and shall not transfer sell or assign, access numbers, passwords and user names provided by BIZ-E-NEWS solely for use by Customer. It is the sole responsibility of Customer to use Services in accordance with all applicable local, state, federal and foreign laws and regulations, including but not limited to, laws and regulations pertaining to telemarketing, facsimile advertising, commercial email, personal data privacy and export control.

CUSTOMER ACKNOWLEDGES THAT THE ADVERTISING OF GOODS, PRODUCTS OR SERVICES BY THE TRANSMISSION OF UNSOLICITED VOICE MESSAGES, FACSIMILES, EMAIL OR TEXT MESSAGES MAY BE IN VIOLATION OF FEDERAL, STATE AND FOREIGN LAWS AND REGULATIONS AND MAY SUBJECT THE ADVERTISER TO PENALTIES.
Customer also agrees to comply with BIZ-E-NEWS's Privacy and SPAM Policies, located at the BIZ-E-NEWS Web Site and incorporated herein by this reference; as such policies may be amended from time to time during the term of this Agreement. Breach by Customer of this Section 5.1 is grounds for immediate suspension of Services by BIZ-E-NEWS and termination of this Agreement. Compliance with this Section 5.1 requires, among other things, that all messages sent by Customer utilising the Services, in whatever medium, contain the valid name and required contact information for Customer, and that Customer shall comply promptly with any "do not call" or "do not send"  request. Customer further acknowledges, and notwithstanding confidentiality provisions herein, that BIZ-E-NEWS may disclose usage information about Customer's use of Services to satisfy any law, regulation, government agency request, court order, subpoena or other legal process.

5.1.1 BIZ-E-NEWS warrants to the Customer that it is the legal owner of all intellectual property used to provide services to the Customer and shall abide by all applicable local, state, federal and foreign laws and regulations and further acknowledges that it is not in breach and does not intend to breach any third party intellectual property rights. BIZ-E-NEWS therefore indemnifies the Customer for any breach either directly or indirectly of any third party property.

5.2 In the event Customer utilises Services to conduct telemarketing activities or disseminates materials offering the availability of goods or products or services, Customer specifically warrants to BIZ-E-NEWS:

1. that it will undertake all required actions necessary to comply with applicable federal, state or foreign "Do Not Call" and telemarketing registration statutes and regulations; and
2. Customer will not utilise the Services in a manner which results in a violation of any applicable laws or regulations with respect to such Services.

5.3 Customer shall indemnify, defend and hold BIZ-E-NEWS, its officers, directors, employees, and affiliates harmless from any claims, losses, damages, penalties or costs (including, without limitation, reasonable Lawyer's fees) arising out of:

1. Customer's use of the Services;
2. Customer's violation of or alleged violation of any applicable laws or regulations with respect to the Services, including but not limited to, any claims that Customer's use of the Services violated the rights of any third party (including those claims relating to the content provided by Customer or BIZ-E-NEWS's use of Customer's distribution lists on behalf of Customer), claims relating to the transmission of unsolicited documents, or the attempted transmission of a document to a residence telephone or for any errors in data or distribution information provided by Customer; or
3. infringement of any intellectual property rights of any third party.

6.0 DISCLAIMERS AND LIMITATION OF LIABILITY

6.1 BIZ-E-NEWS DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BIZ-E-NEWS' TOTAL LIABILITY FOR DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT, WHETHER TO CUSTOMER OR ANY OTHER PARTY AND REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO AN AMOUNT EQUIVALENT TO THE CHARGES BY BIZ-E-NEWS TO CUSTOMER FOR THE PARTICULAR SERVICE PERFORMED BY BIZ-E-NEWS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF EVENT, ACT OR OMISSION GIVING RISE TO THE LIABILITY.

6.2 IN NO EVENT SHALL BIZ-E-NEWS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR OTHER MONETARY LOSS; LOSS OR INTERRUPTION OF DATA OR COMPUTER TIME; ALTERATION OR ERRONEOUS  TRANSMISSION OF DATA; ACCURACY OF DATA; UNAUTHORIZED ACCESS TO OR USE OF DATA PROCESSED OR TRANSMITTED BY, TO OR THROUGH THE SERVICE; PROGRAM ERRORS; OR PATENT, TRADE SECRET OR COPYRIG HT INFRINGEMENT) EVEN IF BIZ-E-NEWS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

7.0 INTELLECTUAL PROPERTY

7.1 The Customer acknowledges that BIZ-E-NEWS's product offerings are derived from data provided to BIZ-E-NEWS by its employees and/or third party suppliers.

7.2 BIZ-E-NEWS represents and on this basis the Customer acknowledges that the BIZ-E-NEWS's product and service offerings were developed, compiled, prepared, revised, selected and arranged by BIZ-E-NEWS and others (including certain information sources) through the application of certain business processes and standards of judgment developed and applied through the expenditure of substantial time, effort and financial means.

7.3 BIZ-E-NEWS represents and on this basis the customer acknowledges that BIZ-E-NEWS owns or is entitled to all proprietary rights in or in respect of the BIZ-E-NEWS's product or service offerings and all relevant copyrights, trademark, patents, business processes, innovations brands and other intellectual property relating to BIZ-E-NEWS's product and service offerings, this does not include any material provided Customer to BIZ-E-NEWS.

7.4 The Customer agrees that the content of the BIZ-E-NEWS's product or service offerings, used in part or in full by the Customer, will be attributed by the Customer to BIZ-E-NEWS whenever used by the Customer and that the underlying quantitative data on the managed funds will be attributed to Morningstar and/or Lonsec research bodies as advised by BIZ-E-NEWS (unless otherwise advised by BIZ-E-NEWS and notwithstanding clause 7.3)

7.5 The Customer may not reverse engineer, decompile or disassemble BIZ-E-NEWS's product or service offerings without BIZ-E-NEWS's express written consent.

7.6 BIZ-E-NEWS's product and service offerings may not be used in a manner inconsistent with these terms.

8.0 GENERAL

8.1 Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining terms of this Agreement shall not be affected or impaired thereby.

8.2 The failure of either party to enforce any term or condition of this Agreement shall not constitute a waiver of either party's right to enforce each and every term and condition of this Agreement.

8.3 This Agreement shall not be assigned by Customer without the prior written consent of BIZ-E-NEWS.

8.4 This Agreement shall be binding upon and inure to the benefit of the parties' successors, legal representatives and authorised assigns.

8.5 Articles 4.0, 5.0, 6.0 and 7.0 and 8.0 shall survive termination of this Agreement.

8.6 This Agreement shall be interpreted and governed by the laws of the State of New South Wales without regard to its rules governing conflicts of law, and the parties agree to submit to the exclusive jurisdiction of the State or Federal courts located in or with responsibility for New South Wales to resolve any disputes arising hereunder.

8.7 Each party enters into this Agreement solely for its own benefit and purpose. This Agreement in no way confers any rights upon, or imposes obligations on either of the parties toward, any third party, including but not limited to any receipt of messages transmitted through the Services.

8.8 If BIZ-E-NEWS elects to issue a press release pertaining to this Agreement, BIZ-E-NEWS and Customer agree to cooperate in a joint press release, subject to both parties' prior review and approval, announcing the execution of this Agreement. Customer agrees to allow BIZ-E-NEWS to name Customer as a client of BIZ-E-NEWS in any marketing material BIZ-E-NEWS may create from time to time. BIZ-E-NEWS will not use Customer Marks, other than the corporate name of Customer, in any such materials without the prior written consent of Customer, which consent shall not be unreasonably withheld.

8.9 Each party acknowledges that, in the course of performing its duties under this Agreement, it may obtain information relating to the business, the Services and to the other party that is of a confidential and proprietary nature ("Proprietary Information"). Such Proprietary Information may include, but is not limited to, trade secrets, know-how, inventions, techniques, processes, computer programs, schematics, data, customer lists, financial information and sales and marketing plans. Without limiting the foregoing, this Agreement and the pricing terms referenced herein shall be considered Proprietary Information of BIZ-E-NEWS. Each party and its employees and agents shall at all times, during the term of this Agreement and thereafter, keep in trust and confidence all Proprietary Information and shall not use such Proprietary Information other than in the course of their duties under this Agreement, nor shall either party or its employees and agents disclose any of such Proprietary Information to any person without the other party's prior written consent. Each party acknowledges that any such Proprietary Information received by the other party shall be received as a fiduciary of the other party. Each party further agrees to immediately return to the other party or destroy all Proprietary Information in the its possession, custody or control in whatever form held (including all copies of all written documents relating to that) upon termination of this Agreement or at any time, or from time to time, upon the request of the other party.

8.10 This Agreement, including any schedules or exhibits, or amendments thereto (including amendments pursuant to Section 8.11 hereof), constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes all other agreements between the parties relating to the matters discussed herein, whether written or verbal. Other than this Agreement, there are no verbal agreements, representations, warranties, undertakings or other agreements between the parties.

8.11 BIZ-E-NEWS may amend at any time the provisions of this Agreement relating to Customer's compliance with laws and BIZ-E-NEWS' Privacy and SPAM Policies by, at BIZ-E-NEWS' election:

1. posting revised terms and conditions ("Amended Terms") on the BIZ-E-NEWS Website; or
2. delivering the Amended Terms to Customer at the address, fax or email address provided herein (such delivery may be included in invoices for the Services delivered to Customer). All Amended Terms shall automatically be effective thirty (30) days after such amendment is posted on the BIZ-E-NEWS Website or delivery to Customer as provided above. CUSTOMER AGREES TO BE RESPONSIBLE FOR REGULARLY REVIEWING THE BIZ-E-NEWS WEBSITE TO OBTAIN TIMELY NOTICE OF ANY SUCH AMENDED TERMS AND BIZ-E-NEWS' THEN-CURRENT TERMS AND CONDITIONS AND PRIVACY AND SPAM POLICIES. BY USING THE SERVICES AFTER POSTING OR DELIVERY OF AMENDED TERMS, CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY SUCH AMENDED TERMS. No such amendment by BIZ-E-NEWS shall serve to constitute a default or termination by BIZ-E-NEWS of this Agreement, nor shall such amendment serve to be a basis for Customer's termination of this Agreement. Except as otherwise provided in this Section 8.11, this Agreement may only be amended or modified, in whole or in part, by a written instrument signed by the parties to this Agreement.

9.0 ASSIGNMENT

9.1 Biz e News is entitled and authorised by the customer without the need of having to obtain the customer's written consent to assign to a third party it's entitlements, benefits and obligations that arise under this agreement.

9.2 To effect the directors of Biz e News are similarly authorised to do all such things and sign all such documents necessary and incidental to the carrying out of such assignment.

9.3 Biz e News is absolved from an obligation if any, to give to the customer prior notice of it's intention to assign.

10 COMPLAINTS

BIZ-E-NEWS is serious about providing to you a quality service and if you have a complaint about any of the services provided to you, then you should take the following steps:-

1. Contact BIZ-E-NEWS Tel: 1300 761 330 and tell them about your complaint.
2. If your complaint is not satisfactorily resolved within 14 days then BIZ-E-NEWS shall appoint a mediator registered with the Australian Commercial Disputes Centre (ACDC) for resolution of any dispute.

These Terms and Conditions were last revised April 2010 and are subject to periodic revisions and updates.