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RateCity Awards Licence Terms and Conditions
Terms and Conditions applicable as of 22 January 2024
BETWEEN:
RateCity Pty Limited A.B.N 12 122 743 542 of Level 3/52 Alfred St S, Milsons Point NSW 2061 (“RateCity")
AND:
The Client as specified in the invoice (“Client”)
BACKGROUND:
A.RateCity reviews and rates financial products and services of financial institutions based on information collected from those financial institutions from time to time;
B.Client is the recipient of a RateCity Award given by RateCity in relation to the Financial Service;
C.Client wishes to obtain a licence to use the RateCity Trademarks identified in the invoice
D.Client and RateCity have agreed to enter into this agreement which records the terms on which RateCity will provide a licence to Client for the use of the RateCity Trademarks.
OPERATIVE PART:
1.RateCity agrees to license Client to use the RateCity Trademarks upon these terms and conditions, and Client accepts the licence upon these terms and conditions as set out below.
1. LICENCE TERM
1.1 This licence for use of RateCity Trademarks begins on the Commencement Date and continues for the Licence Term or until terminated sooner in accordance with the terms of this agreement.
2. FEES AND PAYMENT
2.1 The Client will pay the Fees to RateCity in advance for the Licence Term (subject to clause 2.5).
2.2 Fees are exclusive of GST, unless expressly stated otherwise.
2.3 RateCity will render a Tax Invoice for Fees on the date of this agreement, or as soon as practicable afterwards.
2.4 The Client will pay RateCity’s invoice within 14 days after the date of issue.
2.5 If either party notifies the other of a reasonable, good faith dispute with respect to any amount in an invoice, the disputed portion of the invoice may be withheld until a resolution of the dispute, but any undisputed portion shall be paid as provided in this clause.
3. GST
3.1 Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as ‘GST inclusive’, does not include an amount on account of GST.
3.2 Despite any other provision in this agreement, if a party (‘Supplier’) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as ‘GST inclusive’):
(a) the consideration payable or to be provided for that supply under this agreement but for the application of this clause (‘GST exclusive consideration’) is increased by, and the recipient of the supply (‘Recipient’) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
(b) the amount by which the GST exclusive consideration is increased shall be paid to the Supplier by the Recipient without set-off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
3.3 If GST is levied or imposed on or in respect of any supply made under or in connection with this agreement for which the consideration is a non-monetary payment, the Supplier and the Recipient agree that they will each exchange Tax Invoices of equal amount for the consideration in relation to any such supply.
4. GRANT OF LICENCE
4.1 SUBJECT TO CLAUSE 2.1, RateCity grants and the Client accepts a non-exclusive, non-transferable, licence for the Licence Term to use the RateCity Trademarks in Australia to promote the Ratecity Award in relation to the Financial Service on the terms of this agreement.
4.2 Subject to clause 4.1, the Client may undertake any of the Authorised Promotional Activities and Media using a RateCity Trademark as specified in the invoice in relation to the Financial Service.
4.3 The Client must not use the RateCity Trademarks in relation to any products which are not the Client’s Financial Services.
4.4 The rights and permissions granted to the Client are personal to the Client. The Client may not assign, sublicense or otherwise deal with the licences granted to it by this agreement and must not in any way whatsoever purport to permit any other person to use or enjoy the rights granted under it.
4.5 The Client acknowledges that:
(a) The RateCity Trademarks are of importance and value to RateCity and all right, title and interest (whether registered or not) in and to the RateCity Trademarks and the Common Law Rights are owned absolutely by and vested absolutely in RateCity;
(b) Save for the licences and authorisations granted to it by this agreement, the Client has no right, title or interest (whether registered or not) in or to the RateCity Trademarks or the Common Law Rights;
(c) This agreement is the only source of the Client’s right to use the RateCity Trademarks; and
(d) RateCity may in its absolute discretion alter, amend or vary the RateCity Trademarks or the Common Law Rights at any time.
4.6 The Client acknowledges and agrees that all goodwill and any other right, title and interest arising from the Client’s use of the RateCity Trademarks vests in and accrues solely for RateCity’s benefit.
4.7 In consideration of the matters in this agreement:
(a) Client must provide RateCity with any Financial Service Data reasonably requested by RateCity, along with updated information if the Financial Service Data originally provided by Client (if applicable) is no longer correct; and
(b) RateCity may use the Financial Service Data in connection with the review of Financial Services and may disclose the Financial Service Data to third parties.
5. USE OF RATECITY TRADEMARKS
5.1 The Client agrees to use the RateCity Trademarks in accordance with any style requirements that may be notified to the Client from time to time.
5.2 The Client must ensure that the RateCity Trademarks are not used for any purpose other than those set out in this agreement, and are used only in accordance with the terms of this agreement.
5.3 The Client must not intentionally authorise or assist anyone else to do anything in relation to the RateCity Trademarks that is not expressly authorised by the terms of this agreement.
5.4 The Client agrees to include on its website, a URL link (as supplied by RateCity “the Link”), which links back to the RateCity website (as per the Link), and if no Link is provided by RateCity, then as a default link back to www.ratecity.com.au. The Client must ensure that the Link remains operational at all times during the Licence Term.
5.5 If requested by RateCity the Client must include in its advertisements in the press, electronic media and elsewhere such notification as may be required under the terms of RateCity’s Australian Financial Services licence.
5.6 The Client must if required by RateCity, provide reasonable information about how the Client uses the RateCity Trademarks.
5.7 The Client shall not use a RateCity Trademarks to directly compare a Financial Service to any third party’s Financial Services.
5.8 The Client must not use a RateCity Trademark unless it is displayed along with the Award Taglines shown beneath it and in accordance with any style requirements that may be notified to the Client from time to time. This is a fundamental term of this agreement.
5.9 The Client must not without the prior written approval of RateCity, use the RateCity Trademarks together with any other sign, trademark or other means of identification, other than with a) a representation of Client’s Brand set out in the invoice, and b) any logo or representation of an award held by the Client in regard to the Financial Services set out in the invoice, provided that the representation of the RateCity Trademark shall be published with equal prominence to any such other award logos or representations and in accordance with any style requirements that may be notified to the Client from time to time.
6. CLIENT’S UNDERTAKINGS
6.1 The Client acknowledges that the RateCity Trademarks and the Common Law Rights are of importance and value to RateCity and that any use of the RateCity Trademarks by the Client which does not strictly comply with the terms of this agreement may prejudice RateCity’s rights. The Client accordingly undertakes, for the benefit of RateCity, that it will not:
(a) challenge the registration of the RateCity Trademarks or RateCity's ownership of the RateCity Trademarks;
(b) use the RateCity Trademarks in a manner which is likely to prejudice the distinctiveness of the RateCity Trademarks or the Common Law Rights or the validity of any registration of them;
(c) use any trademark, trade dress or get up whether registered or unregistered, which is similar to, or so nearly resembles the RateCity Trademarks or the Common Law Rights as to be likely to deceive or cause confusion;
(d) seek registration of any name, including any word, trademark or domain name which resembles the RateCity Trademarks; or
(e) use the RateCity Award Logo in a way that is misleading or deceptive, or likely to mislead or deceive;
(f) denigrate the RateCity Award Logo;
(g) claim ownership of the RateCity Award Logo;
(h) assist, support, aid or conspire with any person to do any of the things set out in clause 6.1(a)-(g).
7. ACKNOWLEDGMENTS
7.1 The Client represents that all information provided by the Client or on its behalf to RateCity, including the Financial Services Data (if applicable) is, to the best of its knowledge, true and correct in all material respects.
7.2 The Client acknowledges and agrees that the Client did not rely upon any representation or warranty made to the Client by RateCity in entering into this agreement.
7.3 Each party warrants to the other that it has the full power to enter into and perform this agreement.
7.4 The Client acknowledges that, to the extent that the RateCity Award, may constitute general financial product advice; RateCity provides this advice under ASFL and Australian Credit Licence no. 316710. The information has been prepared without taking into account anyone’s individual investment objectives, financial circumstances or needs. Consumers may wish to obtain financial advice from a suitably qualified adviser before making any decision to acquire a financial product. Refer to RateCity’s FSCG for more information.
8. TERMINATION
8.1 Either party may terminate this agreement immediately by giving written notice to the other:
(a) if the other party fails to comply with any of its obligations under this agreement and (where the breach is capable of remedy) fails to remedy the breach within fourteen (14) days after receiving notice requiring it to do so; or (where the breach cannot be remedied) fails to take steps to prevent the recurrence of the breach to the other party’s reasonable satisfaction;
(b) if the other party goes into liquidation, is wound up or dissolved (except for the purpose of reconstruction or amalgamation) or enters into a scheme of arrangement with its creditors or is placed under official management or in receivership or ceases to carry on business or ceases to be able to pay its debts as they become due.
8.2 This agreement will terminate immediately:
(a) at the end of the Licence Term; and/or
(b) if the Client no longer holds the RateCity Award subject of this agreement.
8.3 If this agreement is terminated for any reason all rights and licences granted to the Client under this agreement will terminate and RateCity will be under no further obligation to provide RateCity Trademarks to the Client.
8.4 Upon termination of this agreement for any reason, the Client must terminate its use of the RateCity Trademarks in circulation in any medium within the following timeframes:
(a) Magazines, newspapers, television, online media, radio – within 20 Business Days after the date of termination; and
(b) Brochures, billboards and all other media not otherwise specified – within 40 Business Days after the date of termination.
8.5 After this agreement has terminated or expired, but subject to clause 8.4, the Client agrees not to use or refer to the RateCity Trademarks in any advertising or promotion for the Client or its products, in any way, unless the Client enters into a new agreement with RateCity permitting the Client to do so.
8.6 The Client shall have no right to compensation from RateCity for (a) money expended by the Client for promotion in connection with the RateCity Award Logos; or (b) any goodwill the Client may have established in connection with the RateCity Award Logos, which good will shall remain the property of RateCity.
8.7 Termination of this agreement will be without prejudice to the rights of any party against the other party for any prior breach of this agreement.
8.8 Termination of this agreement will not affect any provision of this agreement which is expressly or by implication intended to come into force or continue on or after the termination and clauses 4.5, 5, 8, 9, 10 and 11 will continue to apply.
9. LIABILITY
9.1 Subject to clause 9.2, the liability of RateCity for any loss or damage, however caused (including by way of negligence), suffered by Client in connection with this agreement is limited in aggregate, to the value of total Fees that are paid over the Licence Term.
9.2 If the Competition and Consumer Act 2010 (Cth) or any other legislation implies a condition or warranty into this agreement in respect of goods or services supplied, and RateCity’s liability for breach of that condition or warranty may not be excluded but may be limited, clause 9.1 does not apply to that liability and instead RateCity’s liability for such breach is limited to, in the case of a supply of goods, RateCity replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, RateCity supplying the services again or paying the cost of having the services supplied again.
9.3 Subject to clause 9.4, the liability of the Client to RateCity in connection with this agreement is limited, in aggregate, to the sum of $300,000.
9.4 Clause 9.3 shall not limit the Client’s liability to RateCity in respect of a) infringement of RateCity’s or a third party’s Intellectual Property Rights, or b) fraud.
9.5 Client indemnifies RateCity against all liability, costs (including legal costs on a full indemnity basis) expenses, loss and damage suffered or incurred (or agreed to be paid by way of settlement or compromise) by RateCity, including third party claims against RateCity, as a result of Client’s fraud, wilful misconduct, defamatory publication, false advertising, misrepresentation or misleading or deceptive conduct.
9.6 RateCity indemnifies Client against all liability, costs (including legal costs on a full indemnity basis) expenses, loss and damage suffered or incurred (or agreed to be paid by way of settlement or compromise) by Client, including third party claims against Client, as a result of the RateCity Trademarks infringing any Australian trade marks or Australian copyright.
9.7 Subject to clause 9.2 and the Client’s obligation to pay the Fees, neither party shall be liable to the other for any Consequential Loss however arising or caused (including by reason of the negligence of a party), as suffered by a party in connection with this agreement.
10. GENERAL
10.1 The parties will comply with all legislative requirements in connection with the performing of this agreement and in particular any relevant requirements of the Privacy Act 1988 (Cth) (“Privacy Act”) relating to the collection, use and disclosure of private information.
10.2 The benefit of and obligations under this agreement shall not be dealt with in any way by the Client (whether by assignment or otherwise) without RateCity’s prior written consent.
10.3 This agreement may only be varied in writing signed by both parties.
10.4 This agreement will be governed by and construed according to the laws in force in the State of New South Wales. Each party unconditionally and irrevocably submits to the exclusive jurisdiction of Courts with jurisdiction in New South Wales and all appellate Courts from such Courts.
10.5 This agreement constitutes the entire agreement between the parties. Any prior arrangements, agreements, representations or undertakings are superseded. No modification or alteration of any clause of this agreement will be valid except in writing signed by each party.
10.6 If any provision of this agreement is held invalid, unenforceable or illegal for any reason, this agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.
10.7 The Client declares that it is not a “small business” for the purposes of section 23 of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). A “small business” is defined as one that employs fewer than 100 employees or has a turnover for the last income year of less than $10,000,000.
10.8 No right under this agreement shall be deemed to be waived except by notice in writing signed by each party.
10.9 This agreement may be executed in any number of counterparts and all counterparts taken together constitute one instrument. Notices under this agreement may be delivered by hand, by mail or by facsimile transmission to the signatories of this partnership.
10.10 Notice will be deemed given:
(a) in the case of hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
(b) in the case of posting, 3 days after dispatch;
(c) in the case of facsimile transmission, upon completion and upon confirmation of transmission by the sender’s facsimile machine of all pages of the notice; and
(d) in the case of email transmission, upon confirmation of delivery by the recipient’s email service.
11. DEFINITIONS AND INTERPRETATIONS
In this agreement, unless the context otherwise requires or the contrary intention appears, the following terms have the meanings respectively assigned to them:
11.1 “agreement” means this agreement, any Schedules or attachments and any other documents incorporated by reference;
11.2 “Award Taglines” means the words as shown in the invoice which must appear within the RateCity Award Logo in accordance with the terms of this agreement;
11.3 “Authorised Promotional Activities and Media” means the activities and media described in the invoice..
11.4 “Business Day” means a day on which banks are open for business in Sydney, New South Wales, and excluding Saturdays, Sundays and gazetted public holidays.
11.5 “RateCity Award” means the award described in the invoice given by RateCity in respect of a Financial Service from time to time.
11.6 “RateCity Award Logo” means each Award logo image set out in the invoice , as amended from time to time.
11.7“RateCity Name Mark” means the RateCity Name Mark set out in the invoice as amended from time to time.
11.8 “RateCity Trademarks” means the RateCity Award Logos and the RateCity Name Mark, collectively or individually as the context requires.
11.9 “RateCity Website” means websites owned or operated by RateCity.
11.10 “Commencement Date” means the commencement date set out in the invoice
11.11 “Common Law Rights” means the RateCity corporate look and feel, including brand colour, fonts, layout and presentation.
11.12 “Consequential Loss” means:
(a) indirect, special, incidental, consequential, punitive damages or loss;
(b) loss of revenues;
(c) loss of reputation;
(d) loss of profits;
(e) lost opportunities, including opportunities to enter into
arrangements with third parties; or
(f) loss or damage in connection with claims against the Client by
third parties.
11.13 “Fees” means the licence fees payable for the Licence Term, in the amount and as otherwise set out in the invoice;
11.14 “Financial Service” means the financial service of the type described in the invoice
11.15 “Financial Service Data” means the non-confidential Client information relating to the Financial Service, provided by the Client to RateCity in response to a request pursuant to clause 4.
11.16 “GST” means the Goods and Services Tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related Acts of the Commonwealth (“the GST Law”);
11.17 “Intellectual Property Rights” includes all present and future rights in relation to copyright, trademarks, designs, patents, trade, business names whether created before or after the date of this agreement and whether existing in Australia or otherwise;
11.18 “Licence Term” means the term of this agreement set out in the invoice
11.19 “Tax Invoice” has the meaning given by the GST Law.
11.20 In this agreement unless the context otherwise requires:
(a) reference to a person includes a corporation, trust, partnership, unincorporated body and any other entity recognised by law and vice versa;
(b) the singular includes the plural and vice versa;
(c) words importing one gender include every gender;
(d) a reference to ‘a party’ means a reference to a party to this agreement;
(e) any reference to any of the parties by their defined terms includes that party's executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;
(f) the verb 'include' (in all its parts, tenses and variants) is not used as, nor is it to be interpreted as, a word of limitation;
(g) clause headings are for reference purposes only;
(h) reference to a statute, ordinance, code, or other law includes regulations and other instructions under it and consolidations, amendments, re-enactments, or replacements of it.