The information on this website is indicative and illustrative only, and does not form part of the firm's offer to its client institutions. All institutions that subscribe to comparator’s business benchmarking studies will enter into an agreement that defines mutual obligations and expectations. By way of summary only, the terms under which comparator’s services are delivered include obligations and expectations pertaining to: intellectual capital, copyright, reproduction of materials, confidentiality, anonymity, data integrity, delivery timetables and deadlines, representations and warranties, liabilities and commercial terms. The firm's General Terms and Conditions are:
1.1 This Agreement will commence on the Commencement Date and continue for the Term or until terminated in accordance with this Agreement.
1.2 In consideration for the Fees, Comparator will supply, provide access to or deliver the Study in accordance with the terms of this Agreement.
1.3 By providing the Participant Data, the participant is deemed to have accepted the terms of this Agreement with effect on the Commencement Date.
1.4 The Participant acknowledges and agrees that:
(a) the Study may be provided by Comparator and its Related Bodies Corporate; and
(b) Comparator remains solely liable for the provision of the Study in accordance with this Agreement.
1.5 Comparator hereby grants to the Participant and its Permitted Users a perpetual, non-exclusive, non-transferable and non-sub-licensable, limited license to use the Study in the Australia solely for the Permitted Purpose.
1.6 The Participant acknowledges and agrees to use the Study solely for the Permitted Purpose and in accordance with all Laws.
1.7 The Participant will provide the Participant Materials specified in the Letter. All expenses and costs in relation to the provision of the Participant Materials as requested by Comparator will be at your own cost.
1.8 The Participant hereby grants Comparator a revokable, non-exclusive, non-transferable limited license to use the Participant Materials, during the Term, for the purposes of:
(a) providing the Study to the Participant and its Permitted Users,
(b) subject to clause 1.9, aggregating the Participant Materials on a de-identified basis for the purposes of providing the Study to other participants of the Study.
1.9 Comparator must only use Participant Materials for the purposes permitted in clause 1.7 above and must not use the Participant Materials for any other purpose, without the prior written consent of the Participant.
1.10 Participants acknowledge and agree that:
(a) all participants in the Comparator Study will know the names of the other participants.
(b) Comparator will use its best endeavours to minimise the opportunity for the identification by other parties and/or participants of your data or outputs;
(c) Comparator may in general publish and reveal statistical analysis of the Study to third parties who are not participants on a de identified and/or aggregated bases.
1.11 Except as expressly permitted under this Agreement, or to the extent permitted by Law, the Participant will not and will not attempt to or encourage, aide, abet, incite or otherwise permit any other person to:
(a) use, access or store the Study for any purpose other than the Permitted Purpose;
(b) use, reproduce, publish, modify, adapt, or publicly communicate, the Comparator Materials in any way other than in accordance with this Agreement;
(c) resell, distribute, disclose, loan, sublicense, assign, transfer or otherwise commercially exploit for profit or gain any part of the Comparator Materials to any third party other than in accordance with this Agreement
(d) create any derivative works based upon the Comparator Materials or incorporate or combine any part of the Comparator Materials with any other data, work, material, product, service or database other than in accordance with this Agreement;
(e) use the Comparator Materials on behalf of or for the benefit of any third party other than in accordance with this Agreement.
1.12 The Participant acknowledges and agrees that:
(a) Comparator and its licensors are and remain the sole and exclusive owners of all right, title and interest (including all Intellectual Property Rights) subsisting in and to the Comparator Materials (current or future) and any modifications vest in Comparator upon creation; and
(b) nothing in this Agreement assigns or transfers to the Participant any rights, title or interest (including any Intellectual Property Rights) subsisting in the Comparator Materials.
1.13 The Participant and its licensors are and remain the sole and exclusive owners of all right, title and interest (including all Intellectual Property Rights) subsisting in and to the Participant Materials (current or future).
1.14 The Study derives its content from the Participant Materials provided by you and by other participants in the Study. In the event that you do not provide the Participant Materials or if other tasks are not completed in a timely manner, Comparator reserves the right to conclude and to publish the Study without including your Participant Materials.
2.1 The Participant must pay to Comparator the Fees set out in the letter within 7 days of the date of Comparator’s invoice.
2.2 Unless expressly stated otherwise, all Fees quoted in this Agreement are exclusive of GST.
2.3 If GST is payable on any supply made under this Agreement and the consideration is not expressly stated to include GST, the Participant agrees to pay Comparator an additional amount equal to the applicable GST rate multiplied by the applicable Fee, payable at the same time the Fees for the supply are payable.
3.1 To the maximum extent permitted by Law, all terms, conditions or warranties implied in or incorporated into this Agreement, whether by statute, common law or otherwise are hereby excluded.
3.2 Comparator hereby expressly disclaims and excludes all warranties:
(a) guaranteeing the achievement of any milestone, outcome or result in respect of the Study;
(b) that the Study will meet the Participant’s requirements, or is fit or suitable for the Participant’s purpose or intended use;
(c) that the Study will be error-free, correct, accurate, complete, reliable or otherwise.
3.3 To the extent that any Law implies any warranties under this Agreement, then Comparator’s liability in respect of such implied warranties is limited (at Comparator’s discretion) to any one of the following:
(a) to use commercially reasonable efforts to modify, correct or provide access to the relevant Study;
(b) the supplying of the Study again; or
(c) the payment of the cost of having the Study supplied again, except as expressly provided elsewhere in an Agreement.
3.4 Each Party warrants and represents to the other on a continuing basis that:
(a) it has the full legal capacity, power and authority to enter into this Agreement;
(b) it is able and willing to perform the obligations pursuant to this Agreement.
4.1 To the maximum extent permitted by law, Comparator’s maximum aggregate liability to the Participant or any other person (including any Participant Representatives) for any Claim or Loss (in aggregate) arising directly or indirectly in connection with this Agreement is the amount of fees actually paid in the previous 12 months by the Participant to Comparator under this Agreement.
4.2 Each Party’s liability under this Agreement (including under any indemnity) is reduced to the extent the other Party contributed to the Losses or Claims suffered or incurred.
4.3 To the maximum extent permitted by Law, Comparator will not be liable under or in connection with this Agreement for any Consequential Loss.
4.4 Comparator has no liability whatsoever to the Participant, the Participant’s Representatives or any other person, for any Loss or Claim arising directly or indirection in connection with:
(a) compliance by you with any Law governing the conduct of your business;
(b) your reliance on the Study;
(c) errors, faults or defects in the Study caused by any person (including the Participant) which are not within Comparator’s reasonable control.
5.1 Either Party has the right to terminate this Agreement by a written notice to the other Party specifying the event or events in relation to which the notice is given, if:
(a) the other Party commits a breach, or aides, abets, encourages or incites a third party to commit a breach, of this Agreement, and
(i) the breach is material and not capable of being cured, or
(ii) if the breach is capable of being cured and the defaulting Party fails to cure the breach within thirty (30) days of being notified in writing of the breach by the Party giving the notice; or
(b) the other Party becomes Insolvent.
5.2 The Participant acknowledges that Comparator’s ability to provide the Study is reliant on the provision of data from multiple participants. If, in Comparator’s reasonable opinion, insufficient data has been provided and/or insufficient participants have elected to participate in the Study, Comparator may, in its sole discretion, terminate the Study, in which event, the Participant’s sole remedy will be a refund of the Fees paid (if any).
6. Confidential Information
6.1 The Confidential Information of the Discloser must be kept confidential and must not be disclosed by the Recipient to any person or entity except:
(a) on a ‘needs to know’ basis to employees, officers, directors, agents, subcontractors, accountants, financial advisers, legal advisers, auditors and regulators of the Recipient:
(i) only to the extent such persons require the information for the purposes of this Agreement; and
(ii) who are bound by the confidentiality obligations imposed in this clause 6
(b) to the extent required by Law or the rules of any stock of securities exchange;
(c) to the extent required to do so in connection with legal proceedings relating to this Agreement; or
(d) as otherwise agreed in writing between the Parties.
6.2 The Recipient must not use the Discloser’s Confidential Information except permitted under this Agreement and for the purpose of exercising its rights or performing its obligations under this Agreement.
6.3 The Parties acknowledges that due to the unique nature of the Confidential Information, any breach by the second Party of their obligations under this clause 6 could result in irreparable harm to the first Party for which there may be no adequate remedy; and therefore, upon any such breach or threat thereof, the first Party will be entitled to seek injunctive and other appropriate equitable relief (without the necessity of proving damages, or posting bond or other security), in addition to whatever remedies the first Party may have at Law.
6.4 Unless the subject of an unexpired licence, upon request by the Discloser, the Recipient must immediately (or in such other time frame as agreed) securely and permanently destroy from all systems (and if requested prior to destruction, return to Comparator) all copies, including all electronic copies, of any Confidential Information in the Recipient’s possession or control, other than one copy of any notes and other records that the Recipient is required to retain by Law.
7.1 This Agreement constitutes the entire agreement between the Parties about its subject matter and supersedes all prior agreements, representations, statements, understandings and negotiations on that subject matter, whether verbal or in writing.
7.2 If any clause or part of any clause is held by a court to be invalid or unenforceable, that clause, or part of a clause, is to be regarded as deleted from this Agreement and this Agreement otherwise will remain in full force and effect. This clause has no effect if the deletion alters the basic nature of this Agreement or is contrary to public policy.
7.3 The Participant must not assign, transfer, novate or subcontract or otherwise dispose of any benefits, rights, liabilities or obligations under an Agreement without Comparator’s written consent.
7.4 Comparator is permitted to assign its interests, and novate its obligations (without recourse by the Participant) under this Agreement by notice in writing to the Participant, and the Participant hereby consents to such assignment and novation.
7.5 This Agreement may be executed in a number of counterparts and all such counterparts taken together will constitute one and the same document.
7.6 This Agreement will be governed by and construed in accordance with the Laws in force in the Jurisdiction. Each Party submits to the non-exclusive jurisdiction of the courts of that place.
8.1 In this Agreement unless the context otherwise requires, the following capitalised terms have the meaning defined below:
Business Day means a day other than a Saturday, Sunday or gazetted public holiday in New South Wales and New Zealand.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whatsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at Law or otherwise.
Comparator Data means any facts, information, data, analytics, statistics or meta data, which is (at any time):
(a) is supplied or licenced by Comparator to the Participant directly or indirectly in connection with an Agreement;
(b) is held, collected, created, generated, acquired, licenced used or commercialised by Comparator, including by collection from the public domain or acquired from a third party by licence or assignment;
(c) is contained within, created, generated or derived by the Comparator Materials,
but excludes the Participant Materials.
Comparator Intellectual Property means all Intellectual Property Rights owned by Comparator or licenced to Comparator by a third party.
Comparator Materials means all Comparator Intellectual Property Rights, Comparator Confidential Information, the Comparator Data, the Study, databases, platforms and models, and any other data provided or supplied by Comparator to the Participant, or accessed by the Participant as a result of its use of the Study, and includes all modifications.
Confidential Information means all confidential, non-public or proprietary information (in any form) communicated or made available directly or indirectly by the discloser to the recipient before, on or after the date of this Agreement including such information which is (i) by its nature is confidential; (ii) is identified by either Party as confidential; or (iii) the other party knows, or ought to know, is confidential; and includes such information relating to or subsisting in: the terms of this Agreement, or the commercial arrangements between the parties; the business or other affairs of the Discloser or its Related Bodies Corporate; the Discloser’s Intellectual Property Rights, inventions, discoveries, know-how, trade secrets, ideas, concepts, systems, technology, databases, models, analytics, and documents; the Discloser’s industrial, operational, and marketing knowledge, financial data, economic, pricing and commercial knowledge, including information about business operations, customers, employees or contractors relating to the Discloser or its Related Bodies Corporate; in relation to Comparator: the Study, Comparator Materials, Comparator Intellectual Property; and in relation to the Participant: the Participant Materials; but the forgoing does not include the Excluded Information.
Consequential Loss means any loss of income, loss of actual or anticipated profits, loss of business, loss of anticipated savings, loss or damage to or corruption of data, loss of goodwill, loss of reputation and any special, or indirect loss, whether arising from breach of Law, under (or in breach of) an indemnity or otherwise.
Discloser means the Party disclosing Confidential Information.
Excluded Information means that part of the Confidential Information to the extent which (i) it 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; or (ii) the Recipient can prove by contemporaneous written documentation:
(a) it was already known to it at the time of disclosure by the Discloser; or
(b) it independently developed by the Recipient without reference to the Confidential Information of the Discloser; or
(c) the Recipient acquires from a source other than the Discloser or any of its representatives, where such source is entitled to disclose it on a non-confidential basis.
GST has the meaning it has in the GST Act.
GST Act means, as the context requires; either:
(a) where the Jurisdiction is NSW: A New Tax System (Goods and Services Tax) Act 1999 (Cth); or
(b) where the Jurisdiction is New Zealand: Goods and Services Tax Act 1985 (NZ).
Insolvent means, with respect to an entity, that such entity is or states that it is insolvent, is unable to pay its debts as they come due, is in liquidation, is under administration or has a controller appointed to its property, ceases conducting business in the normal course, is subject to any arrangement to protect itself from creditors or dissolves.
Intellectual Property Rights means all industrial and intellectual property rights throughout the world protected by statute or common law including all current and future registered and unregistered rights (including any application or right to apply for the registration of any of the following rights) relating to: trade marks, business names and domains names, copyright works, circuit layouts, designs, patents, know-how, inventions and discoveries, and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967.
Jurisdiction means, as the context requires, either:
(a) the State of New South Wales, Australia where the Comparator contracting entity is RP Data Pty Ltd (NSW); or
(b) New Zealand, where the Comparator contracting entity is CoreLogic NZ Limited (New Zealand).
Law means all applicable common law, principles of equity, legislation, statutes, regulations, constitutional provisions, treaties, decrees, conventions, proclamations, ordinances, by-laws, ministerial declarations or the like, rules, regulatory principles and requirements, licensing requirements or conditions (whether statutory or not) or any mandatory codes, practices or industry standards of any industry body, and consolidations, amendments, re-enactments or replacements of any of them) as applicable to the Party required to comply with them.
Loss means all liabilities, losses, damages, outgoings, costs and expenses (including legal costs assessed on a Solicitor-client basis.
Participant Materials means any data, information, content and other materials provided or supplied to Comparator by the Participant in accordance with this Agreement.
Recipient means the Party receiving Confidential Information
Related Body Corporate means, as the context requires, either:
(a) where the Jurisdiction is NSW: a “Related Body Corporate” as that term is defined under the Corporations Act 2001 (Cth); or
(b) where the Jurisdiction is New Zealand: a “Related Company” as that term is defined under the Companies Act 1993 (NZ).
8.2 In this Agreement, unless the context otherwise requires:
(a) monetary amounts, $ or dollars is a reference to the lawful currency of the relevant Jurisdiction;
(b) headings in this Agreement are for convenience of reference only and will not affect interpretation;
(c) other grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
(d) words “include” and “including” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
(e) clause or schedule is a reference to a clause or schedule to this Agreement;
(f) words importing the singular number will include the plural and vice versa, and words importing the masculine gender include all other genders;
(g) an expression importing a natural person includes a partnership, joint venture, association, corporation, trading trust or other body corporate or government agency;
(h) a reference to any thing includes a part of that thing;
(i) a reference to any statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing them and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(j) a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
(k) a reference to a party to a document or this Agreement includes that party's successors and permitted assigns;
(l) where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.