Prime Creative Media Pty Ltd Website Terms and Conditions (“Terms”)
These Terms apply to the use of this website. This website is owned and operated by Prime Creative Media Pty Ltd, ABN 51 127 239 212. In using this website, you agree to be bound by these Terms. If you do not accept these Terms, you must refrain from using this website. We reserve the right to amend these Terms from time to time. Amendments will be effective immediately upon notification on this website. Your continued use of this website following such notification will represent an agreement by you to be bound by the Terms as amended.
In these Terms,
“Website” means www.railexpress.com.au/;
“Content” means Online Content and/or Print Content as the context requires;
“Online Content” means online articles available, in accordance with these terms, to subscribers via Website;
“Print Content” means print magazines;
“Subscription Fees” means fees published on the Website payable by subscribers for access to the Online Content and/or cost and delivery of Print Content, as the case may be;
“you” and “your” means the subscriber to the Content named in the online registration form;
“us”, “we” and “our” are references to Prime Creative Media Pty Ltd, ABN 51 127 239 212.
1. The Website and the Content
1.1. If payment of your Subscription Fees is up-to-date, and subject to the provisions in the following clause, we will (depending on your subscription):
provide you with access to the Online Content via Website; and/or
deliver Print Content to the address nominated by you within timeframes and in the manner specified on our Website.
The following sub-clauses apply to this.
1.2. We do not guarantee that access to Online Content will be uninterrupted or error free. Access may be affected by our network or equipment capacity, connection availability, scheduled or unscheduled downtime for maintenance purposes or interruptions which generally affect the Internet. If interruptions or errors occur due to circumstances within our control, we will try to resolve them in a timely way in order to restore your access.
1.3. We will use reasonable endeavours to deliver Content to you within timeframes specified on our website, however such timeframes are estimate only and they may be affected by various factors outside of our control. The time is not of the essence in these Terms.
1.4. You agree that your access to the Website and Content is for the sole purpose of your own use and not for re-sale or other types of trading or commercialisation.
1.5. You agree that you will not exercise any other access to or intellectual property rights in the Website or the Content and that as between us and you, all intellectual property rights in the Website and the Content are solely owned by us. Without limiting that obligation, you will not:
disclose the Content to anyone else;
remove any information which gives notice of any person’s (including our) rights in the Website or Content;
create any database which includes, in whole or in part, Content made available by us;
modify the Content;
make any uses or disclosures of the Website or the Content which is contrary to law or anyone’s rights. This obligation includes an obligation not to allow any uses or disclosures of the Website or the Content to be made available which may result in an infringement of any person’s intellectual property rights; or
allow anything else to be done in respect of the Website or the Content which is not expressly permitted by these express clauses.
We collect the Content from a number of sources. While we require anyone who provides us with Content to agree that they are legally able to do this for the purpose of us providing you with access under these clauses, we cannot guarantee that such clearances in fact exist. You accept the risk of this. You also accept that on becoming aware that anything will do to make the Website or the Content available to you under these terms, or your access to the Website or the Content, may be contrary to any applicable law or may infringe anyone’s rights, we may terminate or suspend your access under these terms in whole or in part. We will tell you about this using the email address you have given us as soon as reasonably practicable.
1.6. We do not give you any assurances that the Content will be suitable for your purposes or that the Content will be error free. You agree that you will not rely on the Content or its availability and that any reliance you make will be on your own independent assessments with the aid of qualified independent advice where appropriate.
1.7. The Content may include links to websites other than ours or to content other than content developed by us. We will try to make all such links transparent to you, but otherwise the provisions set out in clause 1.6 apply to access to Content derived from sources other than us.
1.8. You accept that we may cease making parts of the Content available where that is appropriate in our reasonable commercial judgment (for example because it has become out of date, because there is some problem with it or because appropriate rights clearances have ceased or are not available).
2.1. To access the Website and the Online Content, you agree that certain facilities will be necessary. This clause relates to those facilities.
2.2. Your username and password: we will make these available to you if we accept your subscription registration. Your username and password is personal to the individual named on the application form. You will ensure that the username and password are not made available to any person other than that individual and will ensure security measures are in place to support this. You will only allow the Online Content to be accessed via the Website and that username and password.
2.3. Your equipment and connection: you are solely responsible for the equipment used to access the Website and the Online Content and for arranging all connections to the Website. To the extent we have reasonable grounds for believing that your equipment or facilities for connection to the Website or the Online Content may cause problems with any of our facilities (including the Website and the Content); we may terminate or suspend access to those facilities. We will endeavour to tell you about this, using the emailed address you have given us, as soon as reasonable practicable and you will do what you reasonably can to fix those aspects of your facilities which may be the cause of the problem.
2.4. Software and documentation: we may make any software or documentation available to you to assist you to access the Website or the Online Content during a subscription period. You have a personal, non-exclusive license to execute a single copy of the software in object code form only for that purpose only and will ensure that no other use (whether reproductions, communications, adaptations or otherwise) is made, and that no disclosures are made, of that software. You may download one copy of any user documentation we make available to you but may not make any other uses or disclosures of that documentation. You agree that as between you and us, all intellectual property rights in the software and documentation are solely owned by us. This subclause does not preclude you from using or disclosing the software in ways which any applicable law precludes us from prohibiting, for example in respect of computer programs, in ways which are described in ss 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth).
3. Subscription Fees
3.1. You agree to pay the Subscription Fees in consideration for our obligations under this contract. Subscription Fees are calculated and payable in advance for the duration of your subscription period and in the manner set out on the Website. If your subscription:
specifies that it is a renewable subscription, at the end of your subscription term your subscription will be automatically renewed for a period of a similar duration to the previous subscription term;
does not specify that your subscription will automatically renew, at the end of your subscription term your subscription will automatically terminate unless we agree to renew your subscription.
3.2. If your subscription is renewed under sub-clause 1, you must pay the Subscription Fees applicable to any subsequent periods in accordance with clause 3.1 and our then current Subscription Fees.
3.3. Subscription Fees for any annual period are fixed. We do not vary them during the course of any current paid up term.
3.4. Subscription Fees are inclusive of GST (goods and services tax).
4.1. In addition to the termination or suspension rights provided in this contract, either of us may terminate this contract if the other is in breach of it. We may do this by giving not less than forty-eight (48) hours’ notice to the email addresses respectively set out in the registration form. If we have terminated this contract for no fault of yours and due to circumstances within our control, we will provide you with a credit or rebate for Subscription Fees paid by you for the period of suspension or termination. Subject to the provisions of clause 6 regarding liability which we cannot, by law, exclude, our liability to provide you with such a credit or rebate will not, in any event, exceed Subscription Fees applicable to the subscription period in which the termination or suspension occurred.
4.2. On termination of this contract, you will cease all use and access to any of our facilities (including the Website, the Content and any software or documentation we have made available to you).
6.1. The express clauses of this contract set out certain limits and risks in using our services. Some applicable laws require that certain terms are implied into our contract with you and that we cannot exclude them. Other than for such required implied terms, you and we agree that there are no terms of our contract, express or implied, oral or in writing, which are not expressly set out in these clauses. Notwithstanding any other provision of these terms, neither party shall have liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to the other party for loss of use, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs or for any special, indirect or consequential loss. Otherwise, we agree that subject to the following sentence, your (and our) liability is limited to the current year’s Subscription Fee. That limitation does not apply:
to any act or omission by you which is contrary to anyone’s (including our) intellectual property rights;
to your (or our) respective liability for damages unavoidably and reasonably incurred in managing and meeting any third party claim which would not have been made but for your (or, as required, our) breach of this contract; or
to limit our liability for remedies for breach of terms implied into our contract with you by law which we cannot, by law, exclude.
7.1. If you have any complaints about our services under this contract, or are otherwise in dispute with us, we agree to a dispute resolution procedure. This is that any dispute or difference whatsoever arising out of or in connection with this contract shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.
8.1. Force majeure: neither of us will be liable for any delay or failure to perform its obligations pursuant to this contract if such delay is due to a Force Majeure Event. If a delay or failure to perform is caused or anticipated due to a Force Majeure Event, the performance of the affected party’s obligations will be suspended. If a delay or failure to perform due to a Force Majeure Event exceeds thirty (30) business days, the affected party may immediately terminate the contract on providing notice in writing to the other. In this subclause, “Force Majeure” means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations (other than a payment obligation) under this contract and that is beyond the reasonable control of that party, including forces of nature, infectious diseases, industrial action and action or inaction by a government agency.
8.2. Survival of contract: Subject to any provision to the contrary, this contract will ensure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but will not ensure to the benefit of any other persons.
8.3. Contract post-termination or expiry: the covenants, conditions and provisions of this contract which are capable of having effect after the expiration of the contract will remain in full force and effect following the expiration of the contract.
8.4. Governing law & jurisdiction: this contract is governed by the law in force in NSW Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in NSW Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with this contract, and waives any right it might have to claim that those courts are an inconvenient forum.
8.5. Severability: if any provision of this contract is held to be invalid, unenforceable or illegal for any reason, this contract will remain otherwise in full force apart from such provision which will be deemed deleted.