Subject to the Customer complying with the terms of this agreement, Bowerbird grants to the Customer a non-exclusive, worldwide, revocable, non-sublicensable, and non-transferable licence to access and use the Software for the Term.

(a) Bowerbird’s Services with respect to the issue of Take Down Notices are limited to:

(i) using automated tools to identify Hotel Property Images for each Hotel Property;

(ii) using automated tools to routinely monitor websites in respect of the Hotel Property Images;

(iii) identifying websites and their hosts which have published Hotel Property Images;

(iv) issuing Takedown Notices to hosts of websites on instruction from the Customer (which may be in the form of phone email, or notification via the Software’s online portal; and

(v) reporting on successful Takedown Notices.

(b) The Customer acknowledges and agrees that, whilst Bowerbird endeavours to monitor all available websites, in some circumstances it may not be possible to identify all websites or to issue Takedown notice on some websites for reasons that are outside of Bowerbird’s control.

(c) Bowerbird’s Services with respect to the issue of Take Down Notices do not include:

(i) issuing notices under or in respect of laws other than the Takedown Laws;

(ii) providing legal advice;

(iii) responding to any notices or communications received in response to any Takedown Notice or otherwise; or

(iv) engaging in legal proceedings.

(d) To the fullest extent allowable at law, Bowerbird makes no representation and provides no warranty, whether express, implied, statutory, or otherwise:

(i) that the Software and Services will be error free;

(ii) that the Software and Services will meet any requirements or be fit for any particular purpose not set out in this agreement; or

(iii) that the Software will be uninterrupted, or available at all times.

(a) The Customer agrees to:

(i) irrevocably appoint Bowerbird as the Customer’s agent to issue Takedown Notices during the Term (Appointment); and

(ii) provide a signed copy of an Agent Authority to Bowerbird upon request;

(iii) sign other documents and provide any assistance and information reasonably necessary to enable Bowerbird to provide the Services.

(b) The Customer authorises Bowerbird to scrape the Hotel Property Images from the website(s) for each Hotel Property.

(c) the Customer acknowledges it is responsible for determining if it has granted identified websites and their hosts a licence to use a Hotel Property Image.

(a) This agreement commences on the Commencement Date and continues for the Initial Period and any subsequent Rollover Period, unless terminated earlier in accordance with clause 7.

(b) Either party may terminate this agreement by giving at least 30 days’ notice to the other party before the expiry of the Initial Period or a Rollover Period (as applicable), in which case the termination is effective immediately upon the expiry of that period.

(c) Prior to the expiry of the Initial Period or a Rollover Period (as applicable), Bowerbird will review the terms and applicable fees and give the Customer written notice at least 25 days before the expiry of that period of any changes to apply to the subsequent Rollover Period.

(d) Unless notice is given under clause 7.1(c), this agreement will continue in force for the Rollover Period on the same terms beyond the expiry of the then-current period save as varied under clause 11(a).

(e) Notwithstanding the above, where a trial licence is granted, and such trial licence is not converted to a full licence, this agreement will automatically terminate on expiry of such trial.

(a) Bowerbird may terminate this agreement immediately by written notice to the Customer if the Customer breaches clause 3.2, or purports to revoke the Appointment or the Appointment ceases for any reason.

(b) Either party may terminate this document immediately by written notice to the other party if the other party:

(i) breaches any provision of this document that materially prejudices the interests of the terminating party and fails to remedy the breach within 7 days of receiving written notice from the terminating party in respect of the breach, including particulars of the breach; or

(ii) is in breach of this document and the breach is incapable of remedy.

On termination of this agreement:

(a) subject to any rights the Customer may have at Law, it will not be entitled to any refund of Fees paid in respect of any portion of the Services or Term not used;

(b) accrued rights or remedies of a party are not affected;

(c) the Customer must cease all use of the Software;

(d) all of Bowerbird’s obligation with respect to the Services and Take Down Notices issued prior to termination shall immediately cease, including maintaining or monitoring such Take Down Notice, and acting as agent with respect to such Take Down Notices;

(e) Bowerbird will rescind any pending Take Down Notices with immediate effect; and

(f) each party must, promptly on request by the other party, return to the party or destroy all Confidential Information and Trade Secrets of the other party except to the extent such Confidential Information and Trade Secrets is required to be retained by a party for the purposes of complying with an applicable law.

Unless otherwise prohibited at Law and subject to clauses 8.2 and 8.3, Bowerbird’s aggregate liability to the Customer arising out of or in connection with this agreement (whether under contract, in tort, under statute or otherwise at law or in equity) is limited to an amount equal to the Fees paid to Bowerbird by the Customer in the preceding 12 months.

Subject to clause 8.3, neither party is liable for any Consequential Loss however caused (including by the negligence of the party), suffered or incurred by the other party in connection with this agreement.

(a) If the Australian Consumer Law applies to the supply of any products or services under this agreement, Bowerbird acknowledges that its products and services come with a guarantee that cannot be excluded under the Australian Consumer Law, and that the following mandatory notice applies:

Our products and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

(i) to cancel your service contract with us; and

(ii) to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with products. If a failure with the products or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the products and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the products or service.

(b) If the Australian Consumer Law or any other legislation states that there is a guarantee in relation to any good or service supplied by Bowerbird in connection with this agreement, and Bowerbird’s liability for failing to comply with that guarantee cannot be excluded but may be limited, clauses 8.1 and 8.2 do not apply to that liability. Instead Bowerbird’s liability for that failure is limited (at Bowerbird’s election) to, in the case of a supply of goods, Bowerbird replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Bowerbird supplying the services again or paying the cost of having the services supplied again.

In this agreement, terms defined in the Contract Details have that meaning, and:

Agent Authority means a document that provides Bowerbird with authority to act as the Customer’s agent in respect of this agreement.

Appointment has the meaning set out in clause 3.1(a)(i).

Bowerbird Materials means:

(a) the Software;

(b) all Materials owned or licensed by Bowerbird which are created or derived independently of this agreement by Bowerbird (or a third party of behalf of Bowerbird); and

(c) all Improvements to anything set out in (a) and (b).

Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland, Australia.

Commencement Date means the commencement date as set out in the Proposal.

Confidential Information means all information other than Trade Secrets (regardless of its form or the medium on which it is stored) of a confidential, non-public, or proprietary nature which relates to the business or affairs of a party, any stakeholder, employee, customer, supplier, or related entity of a party, including without limitation:

(a) information communicated by a party in connection with this agreement;

(b) information which the Discloser designates as confidential;

(c) information which by its nature is confidential;

(d) information the Recipient knows or ought to know is confidential; and

(e) know-how and other commercially valuable information of a party,

but does not include information which is or becomes public knowledge other than through a breach of this agreement, or information the Recipient can prove was rightfully received from a third party free of any obligation of confidence.

Consequential Loss means loss of revenues, loss of reputation, consequential loss, indirect loss, loss of profits, loss of bargain, loss of actual or anticipated savings, lost opportunities, including opportunities to enter into arrangements with third parties, and loss or corruption of data.

Customer Materials means:

(a) the Hotel Property Images;

(b) all Materials owned or licensed by the Customer which are created or derived independently of this agreement by the Customer (or a third party of behalf of the Customer); and

(c) all Improvements to anything set out above.

Electronic Signature means an electronic method of signing that identifies the person and indicates their intention to sign the agreement.

Fees means the licence and establishment fees set out in the Proposal, and any other fees payable by the Customer to Bowerbird in connection with this agreement.

Force Majeure Event means a matter beyond the reasonable control of a party and includes without limitation an act of god, national emergency, terrorist act, sabotage, flood, storm, earthquake, fire, explosion, epidemic, pandemic, civil disturbance, insurrection, riot, war, industrial action, lockout, rebellion, quarantine, embargo and other similar governmental action or a general and continued energy shortage, power or utilities interruption.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Hotel Property means a Customer’s hotel property which it has nominated for Bowerbird to carry out the Services.

Hotel Property Images means photographs, logos, trade marks, graphics and other images associated with each of the Hotel Properties.

Initial Period means 12 months or otherwise as set out in the Proposal.

Intellectual Property Rights means any current and future intellectual and industrial property rights and interests throughout the world, including any:

(a) patents, copyrights and related rights, utility models, designs, trade marks, service marks, rights in relation to circuit layouts and databases;

(b) rights in relation to discoveries, trade secrets, and know how;

(b) rights in relation to discoveries, trade secrets, and know how;

(c) trade, business, or company name, indication, source or appellation of origin;

(d) applications for, or rights to apply for registration of any of those rights;

(e) rights under licences and consents in relation to any of them; and

(f) any other forms of protection of a similar nature or having equivalent or similar effect to any of them now or in the future,

whether registered or unregistered, for the duration of the rights and interests.

Materials means material in whatever form, including

(a) documents, manuscripts, specifications, designs, plans, reports, products, equipment, information, data, tables, schedules, databases, concepts, samples, inventions, tools, devices, procedures, processes, methods, formulae, calculations, sequences, scientific and technical information, studies, know-how, graphic layouts, logos, images, photographs, videos, films, sound recordings, audio recordings, charts, drawings, diagrams, source code, object code, executable code, software, test cases; and

(b) novel combinations of any of the above.

Recipient means a party who receives Confidential Information or Trade Secrets from the Discloser.

Rollover Period means, unless stated otherwise in a Proposal, subsequent 1 month terms following the expiration of the Initial Period.

Services means the provision of the Software and assisting with protecting the intellectual property rights of its customers, including issuing Take Down Notices as contemplated by this agreement.

Software means the software product known as IP Protect developed and owned by the Bowerbird, and includes all upgrades, improvements and modifications to such software.

Takedown Laws means any of the following:

(a) Copyright Act 1968 (Cth);

(b) Copyright Regulations 2017 (Cth); and

(c) Digital Millennium Copyright Act (USA).

Takedown Notice means a notice to remove infringing material issued under the relevant Takedown Laws.

Term means the term contemplated by clause 7.1.

Trade Secret means any information, including a formula, pattern, compilation, program, device, method, technique, or process that:

(a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can derive economic value from its disclosure or use; and

(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.