Geni by Stockland | Data Sharing Agreement - Retailers

1 Background
(a) A member of the Stockland Group owns or is a co-owner of the Centres.
(b) The Retailer has physical retail operations in at least one Centre.
(c) Stockland has developed an App that will be available on certain smartphones, allowing the user to create shopping and to-do lists.  The App will then match items on those lists to special prices and offers available in the Centres (including Offers that match items on the End User’s list).  End Users will be able to create and manage multiple shopping and other to-do lists, by adding items as free form text or selecting from pre-defined categories.  A dynamic facility matches these list items with offers from stores across an End User’s nominated Centre, which the End User can browse and save to its list if desired.  When in a Centre, End Users can sort their lists via store to tick purchased items off or add more items as they shop. Lists can also be shared with other users to facilitate collaboration between families and friends.  
(d) Stockland and Retailer have agreed that the Retailer will provide the Data to Stockland and Stockland will use reasonable endeavours to provide details of relevant Offers to End Users via the App.

2 Definitions
App means the mobile application that allows an End User to create shopping and to-do lists and matches items on those lists to offers from retailers in the Centres, as further described in the App Description, as updated by Stockland from time to time.
App Description means the description of the App in clause 1(c), as updated by Stockland from time to time.
Centre means any shopping centre owned (or co-owned) by a member of the Stockland Group at which the Retailer has a physical retail presence and in relation to which the App is available.
CMS means the content management system made available to the Retailer for the purpose of uploading Data, as updated by Stockland from time to time.
Commencement Date means the date the Retailer acknowledges acceptance of these terms, unless a different Commencement Date is agreed between Stockland and the Retailer in writing.
Confidential Information of a party (Discloser) means all information relating to that party or its business or operations which is disclosed or otherwise made available to the other party (Recipient) under or in connection with this agreement, but excludes Excluded Information. 
Corporations Act means the Corporations Act 2001 (Cth).
Data means data about the Retailer’s Offers which meets the requirements and has the attributes as advised by Stockland from time to time.
Discloser means the party disclosing Confidential Information.
End User means an end user of the App.
Excluded Information means information which:
(a) is in or becomes part of the public domain other than through breach of this agreement or an obligation of confidence owed to the Discloser;
(b) is already known to the Recipient at the time of disclosure by the Discloser (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); 
(c) is independently developed by the Recipient without reference to the Confidential Information of the Discloser; or
(d) the Recipient acquires from a source other than the Discloser or any of its representatives where such source is entitled to disclose it.
Intellectual Property Rights means all intellectual property rights throughout the world including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, invention and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967 as amended from time to time, and any right to apply for registration of, or any application for, such rights.
Offer means any discounts, promotions, or special offers in relation to goods or services offered for sale in the Centre(s) by the Retailer.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).
Prohibited Content has the meaning given in Schedule 7 of the Broadcasting Services Act 1992 (Cth). 
Recipient means the party receiving Confidential Information.
Relevant Law means any statute, ordinance, code or other law including regulations under them and any code of practice, membership rules or standards issued by relevant regulators or industry bodies, whether or not having the force of law, applicable to this agreement, the App, CMS or any other obligations performed under this agreement. 
Required Format means the format of the Data required by Stockland to allow for the uploading and storage of the Data and display of Offers on the App, as advised by Stockland from time to time. 
Retailer means the retailer at the Centre(s) on whose behalf this agreement is entered into.
Stockland means Stockland Development Pty Limited (ABN 71 000 064 835).
Stockland Group means Stockland Corporation Ltd (ABN 43 000 181 733) and all of its Subsidiaries.
Subsidiary of an entity means another entity which is a subsidiary of the first within the meaning of Part 1.2 Division 6 of the Corporations Act or is a subsidiary or otherwise controlled by the first within the meaning of section 50AA of the Corporations Act or any approved accounting standard.  A trust may be a subsidiary and an entity may be a subsidiary of a trust if it would have been a subsidiary had the trust been a corporation.  A subsidiary also includes for this purpose a trust or a corporation in respect of which two or more members of the Stockland Group on or after the Commencement Date:
(a) together hold more than one-half of the issued units in that trust or the issued share capital in that corporation; or
(b) otherwise together control that trust or corporation within the meaning of section 50AA of the Corporations Act (provided that section 50AA(3) will not apply when determining if the members of the Stockland Group together control that trust or corporation).
The Term commences on the Commencement Date and continues until this agreement is terminated.

3 Consideration
3.1 Consideration
In consideration for the Retailer providing the Data in accordance with the terms of this agreement, Stockland will use reasonable endeavours to make relevant Offers available to End Users as described in the App Description and permit the Retailer to access CMS for the purpose of uploading Data, in accordance with the terms of this agreement.

4 Retailer obligations
4.1 General obligations
The Retailer must: 
(a) upload the Data using CMS (unless another method of providing Data is notified by Stockland (acting reasonably), in which case the Retailer must provide it in accordance with that method);
(b) if Stockland gives the Retailer an administrative login and password for CMS or any other system, keep those login details secure and not disclose the details to any person other than authorised personnel of the Retailer;
(c) immediately update the information in CMS so that all information about the Offer is accurate and not misleading or deceptive or reasonably likely to mislead or deceive;
(d) update the Data sufficiently frequently to ensure that the Data includes the current offers on the Retailer’s website or other Retailer marketing material; 
(e) ensure all Offers clearly list any terms relating to the relevant Offer (for example validity periods or minimum spend);
(f) ensure that the Data does not: contain any Prohibited Content or pornographic or other offensive material; promote the sale of alcohol; promote the use or sale of knives, firearms or explosives; promote illegal activity; include content that is either libellous or that infringes upon the rights of any person and/or the making available of which infringes any Relevant Law (including any advertising standard or code of conduct); 
(g) pay any taxes (including any withholding taxes), duties, charges or levies imposed on the Retailer in connection with this agreement and the supplies made under it; and 
(h) provide the Data to Stockland in the Required Format.  The Retailer is responsible for any costs of converting the Data into the Required Format.
4.2 Acknowledgements
The Retailer acknowledges and accepts that:
(a) the Retailer is solely responsible for and bears all risk and liability for the promotion of Offers and its goods and services; 
(b) Stockland may without notice to the Retailer delete or remove from the App or CMS any Offer or other Data which in the opinion of Stockland contains any of the material listed in clause 4.1(f) above;
(c) Stockland may modify the functionality offered by the App or CMS from time to time, and Stockland makes no representation and gives no warranty that the App or CMS will continue to have any particular functionality; 
(d) the Retailer may not be able to access the App or CMS without minimum hardware and software requirements, and access to the internet.  Stockland may notify the Retailer of new minimum hardware and software requirements as the App and CMS are modified and updated from time to time, and Stockland will act reasonably when determining varied minimum requirements; 
(e) Stockland is not required to list any Offer on the App;  
(f) Stockland is solely responsible for and has complete control over the design and creation of the App and CMS including the selection and use of any written text, sound, materials or graphics, business categories, promotions, key words, search criteria and other functionality.  Without limitation Stockland is not restricted in any way from incorporating in and including as part of the App or CMS:
(i) other retailers or retailer products or offers which may be selected at Stockland’s absolute discretion; or
(ii) any advertising, marketing or promotional activities, the revenue for which is the absolute property of Stockland; 
(g) no representation was made by Stockland or any of its representatives in relation to the potential profitability of the Retailer’s business in respect of its participation in the App and CMS.  The Retailer has entered into this agreement relying on its own enquiries and advice; 
(h) access to the App and CMS is offered on an “as is” and “as available” basis only and will not be continuously available; 
(i) Stockland’s provision of the App and CMS and any associated deliverables and services is not exclusive to the Retailer; 
(j) other tenants, retailers and other businesses may have content hosted on the App and/or CMS and those other tenants may be competitors of the Retailer; 
(k) any member of the Stockland Group may make applications or systems similar to the App and CMS available to retailers in other shopping centres or retail outlets in which the Retailer may or may not have a presence; and
(l) Data will only be hosted on the CMS and the App while the Retailer is a tenant of the Centre.

5 Making Offers available
5.1 Stockland’s obligations
Stockland will use reasonable endeavours to ensure that the Offers included in Data provided by the Retailer that comply with this agreement are available to be viewed by End Users on the App as described in the App Description.  To avoid doubt, End Users will only be shown details of Offers that match items on an End User’s list, as described in the App Description.
5.2 Data
(a) Stockland is not responsible for and has no obligation to review the Data or the details of any Offer and Stockland gives no advice in respect of its legality, appropriateness or compliance with the terms of this agreement.
(b) Stockland may update content on the App or CMS in its sole discretion.
(c) Stockland reserves the right to not make any Offers available on the App, or to remove any Offers or other Data from the App or CMS at the Retailer’s cost, if Stockland reasonably believes that the Data is or includes Prohibited Content or that the Data or making it available or hosting it:
(i) may result in a breach of the warranties in clause 7.1; or
(ii) may impair, interfere with or damage all or any part of the App, CMS or any other hardware, software, network or system associated with the App or CMS, or any other content hosted on the App or CMS.
(d) Without limiting any other right or remedy available to Stockland under this agreement, Stockland may immediately remove references to the Retailer and the Offers without prior notice to the Retailer if it reasonably believes there is a reasonable risk that they could cause loss to the Retailer, Stockland or any other person, or are or are likely to be in breach of law or the rights of any third party.  
(e) Stockland may combine Data with data or content of other retailers.
(f) Stockland may operate tags/cookies to collect data tracking Offers made available to End Users (and that data will be Stockland’s Confidential Information, unless it is Excluded Information). 

6 Intellectual Property Rights and licence
6.1 Ownership and use of Intellectual Property Rights
The parties agree that, other than as provided in this clause 6.1, nothing in this agreement transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party. 
6.2 Data licence
The Retailer grants to Stockland a worldwide, non-exclusive, royalty-free licence with the right to sub-license, for the Term to use, reproduce, communicate to the public, publish, adapt, modify (including by combining the Data with other data or content) or re-format the Data (including modifications of the Data) to enable:
(a) Stockland and other members of the Stockland Group and their agents and subcontractors to:
(i) reproduce and store Data on CMS, the App and Stockland’s or its agents’ or subcontractors’ other information technology infrastructure used in connection with CMS or the App;
(ii) convert the Data into different formats or any different protocols; and
(iii) exercise its other rights and perform its other obligations under this agreement;
(b) the Data to be provided to End Users; 
(c) End Users to access and use Data provided to them via the App; and
(d) Stockland to permit any person to assist Stockland do any of the things referred to in paragraphs 6.2(a) to 6.2(c) above.
6.3 Right to use CMS
(a) On and from the Commencement Date, Stockland grants the Retailer non-transferable, non-exclusive right for the Term to access and use CMS for the purpose of and to the extent necessary to upload Data onto CMS.
(b) Stockland may provide instructions or operational documents in relation to the use of CMS and uploading of Data from time to time.  The Retailer must comply with those instructions and operational documents. 
(c) The Retailer must not cause or permit copying, reproduction, disclosure or distribution of any portion of CMS.

7 Warranties and indemnity
7.1 Warranties
The Retailer warrants and represents on a continuing basis to Stockland that:
(a) the Data and any other material provided by the Retailer under this agreement and their use or exploitation in the manner contemplated by this agreement, do not and will not:
(i) infringe the Intellectual Property Rights or moral rights of any person;
(ii) breach any Relevant Law; 
(iii) constitute a misuse any person’s Confidential Information; or
(iv) do anything which would have the result that the Retailer or any Related Bodies Corporate (as defined in the Corporations Act) of the Retailer breach any obligation that it owes to any person;
(b) the Data and all Offers will:
(i) not be or include content of the type listed in clause 4.1(f);
(ii) not be misleading or deceptive or be reasonably likely to mislead or deceive;
(iii) not contain any immoral, threatening, abusive, libelous, harassing, blasphemous, defamatory, obscene, pornographic, profane, or otherwise objectionable material;
(iv) not contain any viruses or other harmful or surreptitious code; and
(v) not contain any Personal Information; and
(c) it has the capacity to fulfil all Offers.
7.2 Indemnity
The Retailer indemnifies each member of the Stockland Group and all of their, employees, agents, contractors, officers and directors (“Representatives”), against all losses, damages, liabilities, claims and expenses (including legal costs) incurred by Stockland and its Representatives, arising out of or in connection with: any claim which would, if true, constitute a breach of any of the warranties in clause 7.1; or any wilful breach or fraudulent act or omission by the Retailer or its personnel.  This indemnity is a continuing obligation, independent from the other obligations of the parties under this agreement and continues after this agreement ends.  It is not necessary for the Representatives to incur expense or make payment before enforcing their right of indemnity under this agreement.

8 Privacy
8.1 Compliance
If, as a result of this agreement, either party is able to access any Personal Information, then each party must comply with the Privacy Act 1988 (Cth) and all other applicable privacy laws and such other data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of information, including the Australian Privacy Principles, as if it were regulated by these laws.
8.2 Consents
If the Retailer provides Stockland with any Personal Information in connection with this agreement, the Retailer represents and warrants that it has obtained all necessary consents from, and provided all required information to, relevant individuals: 
(a) to allow the Retailer to provide that Personal Information to Stockland; and
(b) to permit Stockland to use that Personal Information for the performance of Stockland’s obligations under or in connection with this agreement and any purpose notified by Stockland to the Retailer prior to the Retailer providing that Personal Information to Stockland. 

9 Governing law
This agreement is governed by the law in force in New South Wales, Australia.  Each party submits to the non-exclusive jurisdiction of the courts of that place.

10 No representations or warranties
Each party acknowledges that in entering into this agreement it has not relied on any representations or warranties about its subject matter except as expressly provided by the written terms of this agreement.

11 Termination
Either party may terminate this Agreement on 7 days’ notice to the other party.  Clauses 2, 7, 8, 9 and 11 survive termination or expiry of this agreement for any reason.

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