Terms & conditions
Part 1: Term
- Start date – These terms and conditions will start applying to you, on the *start date.
- Termination by you – You can end your agreement with us by giving us 10 business days’ written notice to end the agreement. If you end your agreement with us, you will be asked to immediately stop using our system. You will also be asked to return all hardware in your possession to us and/or fulfill all terms of your fixed term contract (including payment for the balance of the term of your contract). If our hardware is faulty or damaged, then you may be asked to compensate us in full for the *cost of hardware. You agree that even if this agreement is ended, you will be required to honour any orders placed by customers on our system and to follow certain clauses in these terms and conditions which are intended to survive the termination of your agreement with us.
- Termination by us – Irrespective of your type of contract with us, we can end your agreement with us, with immediate effect, for any reason, at our discretion. We will provide you with written notice of our wish to end our agreement with you. We are not bound in any way whatsoever to continue our contract with you. We can end our agreement with you at any time we wish without paying you any compensation for the termination. If we terminate our agreement with you, you may still be required to honour orders placed by customers on our system and to follow certain clauses in these terms and conditions which are intended to survive the termination of your agreement with us. All payments you owe us or we owe you will still remain to be paid. You will also be asked to return to us all hardware in your possession. If our hardware is faulty or damaged, then you may be asked to compensate us in full for the *cost of hardware.
- End date – If the agreement between you and us is never terminated by you or us, then it will continue on these same terms and conditions, as varied from time to time.
- Application of terms & conditions – These terms and conditions, as varied from time to time, will apply to you for the full term of our agreement with you.
Part 2: Our services
- Opening an account – You must first open an account with us, before you are able to use our services and/or our system. During registration, we will ask you for information including your name and other personal information. You must provide accurate and complete information in response to our questions. We may also visit your business premises before deciding whether or not we will allow you to open an account with us.
- Services offered – Once you have opened an account with us, we can offer you the following services:
- list, market, advertise and promote any of your goods and services on our website, hardware and software, as you wish. Customers will be able to search on our system for goods and services they wish to buy;
- provide you with the necessary software, for customers to be able to place live orders to you;
- provide you with any hardware, you may request, to provide you a more functional ordering or full payment business solution;
- payment processing services; and
- discount and promotional vouchers to attract customers to your business.
Not all of the above services will always be included in your monthly fee, additional charges may apply.
- Support services – During ordinary business hours and ordinary business days in the jurisdiction, we will offer telephone and email support services to you, at our discretion. You may also email us for any technical and sales support you may require. Our details for contacting us are available on our website and hardware.
- Provision of services – We will be free to choose how we offer you our services. We can choose to whom we market your goods or services. We can offer your goods and services to all of our customer base or to only part of our customer base. Also, we can choose whatever distribution or method of advertising and promotion we wish (eg internet, email, mobile applications, other types of electronic offerings and other platforms or distribution channels). We can decide the period of any promotion we run for any of the goods or services of your business. Even though we will offer you our services, we do not guarantee to you in any way any increase in revenue or profits from using our services. The provision of our services to you may or may not increase your revenue and/or profits.
- Our rights – It is entirely up to us whether or not we offer your goods or services to customers on our system. We are not under any obligation whatsoever to offer any of your goods or services for sale on our system. We can end or change your offering, at any time and for any reason, at our discretion. We can also stop advertising completely your products and services on our system and end all advertising of your business, at any time. You will not be compensated in any way for us no longer advertising or promoting your goods or services or your business on our system.
Part 3: Our system
- Our system – Our system comprises of our software, website, mobile application and hardware. We will always make our best efforts to ensure that our system is working at all times. However, we will not be held responsible or accountable for any failure of our system to work or work properly, at any particular time. In addition, our system may be temporarily down for maintenance, upgrading and software updates. If our system is to be maintained, upgraded or updated during a particular time, we will give you notice of our planned maintenance, upgrade or update work, by email to you.
- Training – We will offer you initial training on how to use our system. We will not charge you any fees for the initial training we provide you. However, if you need additional training on our system, from time to time, then we may charge you a reasonable fee for that additional training. It will be your responsibility to train your employees, contractors and agents, from time to time.
- Basic software – We will offer a basic version of our software, which will be available for downloading from our website. Our software may operate on Android and Apple based systems. The application will be available for downloading from various applications stores, for free or for a fee. The free application will only perform basic functions, such as ordering of goods and services. You will be responsible for obtaining your own internet connection for accessing the application and your own electronic device to use the software. From time to time, you may need to update the software you use, to ensure that our software works on your device.
- Hardware purchase or lease – You can either buy or lease the 2 different types of hardware (noted in the table) from us. Details of the 2 options available are as follows:
- purchase option – under the purchase option:
- you can buy outright the hardware from us, for the *cost of hardware. Together with the hardware, you will receive a free version of the software we supply, for no extra fee to you. The software provided to you will have limited functions only. If you buy the hardware device from us, you may, subject to our other terms and conditions, obtain an account to access our system. All hardware we sell, comes with a 12 month standard manufacturer’s warrant (which excludes misuse and/or accidental damage); and
- you will obtain a 12 month subscription to our software, for no extra fee to you. Also, you will receive online and telephone support, as noted in clause 8 above. After the 12 month manufacturer’s warranty has ended, it will be your sole responsibility to ensure that the system still works. While we will make all reasonable efforts to ensure that the system operates on your hardware beyond 12 the initial 12 month warranty period, it will be your sole responsibility to ensure that the system continues to operate beyond the 12 months. We will not be held responsible in any way for any malfunction or failure of the hardware beyond its first 12 months of operation; and
- leasing option – under the leasing option:
- you will not have to pay us any upfront fee for the supply of the hardware to you. We will supply both the hardware and the software to you as a package and charge you the *monthly fee;
- you will not become the owner of the hardware, you will only have a licence to use the hardware, for the term of this agreement. If and when this contract ends, you must return the hardware to us in good condition. We make no guarantee whatsoever that any of your information on the hardware will be saved or transferred, at the end of this contract. It will be your sole responsibility for ensuring that all information on the hardware is saved, before this contract ends. We may, for an additional fee, however, arrange for all of your information on the hardware to be transferred and/or saved once this agreement ends;
- we will maintain and ensure that both your hardware and your software is in good working condition for the full term of the lease, for no extra fee to you, except for misuse and/or accidental damage.
- purchase option – under the purchase option:
- Consumables – We will not supply you with any consumables for your use of the hardware. This includes, without limitation, printing paper, ink, replacement batteries and/or any other items required for the use of the hardware.
- Responsibility & liability – While we will use all reasonable efforts to protect your interests and property, you agree that we will not be held responsible or liable for the following:
- any delays in orders, missing orders or changes to orders;
- any errors or malfunctions of our system and/or other network difficulties;
- any viruses transferred to your mobile phone, tablet, computer and/or other electronic device by our system;
- any damage caused to your mobile phone, tablet, computer and/or other electronic device by our system;
- any interruptions in your use of our system; or
- any other issues or difficulties you may confront in your business or devices by using our system or us for the promotion, advertising and marketing of your business.
- Interference – You agree not to change our system in any way. You must not try to disable or interfere with any of the security features of our system. This includes, but is not limited to:
- downloading any data;
- downloading and/or changing the source code;
- sending us malicious programs or viruses; or
- interfering with our operating systems.
- Website – Our website may contain links to other websites. You agree that we are not:
- endorsing the products or services offered on party sites that our website links to;
- responsible for the content and/or the privacy policies of any third party sites; or
- responsible for any viruses downloaded on to your phone, tablet, computer and/or other electronic device from any third party sites.
- Difficulties with system – You agree that you will use all reasonable efforts first to try and discover and fix any problems you are having with our system, before you contact us for assistance. Only after you have made all reasonable efforts to try and fix any problems, will you contact us to help you. We will use our best efforts to help you fix any problems. If the problem relates to our system, then we will aim to fix it for you, without charging you any fee. Whereas if the problem was due to your negligence, lack of care or deliberate act or omission, then we may at our discretion charge you a reasonable fee for fixing the problem.
Part 4: Discount & promotional vouchers
- Discount or promotional vouchers – We will allow you to offer promotional or discount vouchers to customers. These vouchers may be designed to attract more customers to your business. You will be required to honour these vouchers in the same manner as you honour the orders of any other customers. It will be entirely your responsibility to ensure that any vouchers issued for your business comply with the law.
- Equal treatment – Customers who place an order for discounted or promotional goods and services should be treated in the same manner as customers placing any other type of order, irrespective of whether they use our system or not. That is, you should treat all customers in the same way.
Part 5: Orders
- Placing orders – A customer may place an order on our website, at any time. You will be required to accept or reject the customer’s order, within 1 business day of the order being made. If you reject the customer’s order, then the customer will not be required to pay for the order they placed. If you accept the customer’s order, then the customer will be required to pay, in full, for their order. Once an order has been placed, accepted by you, and paid for by the customer in full, you must honour the order. You should not accept any order placed by a customer unless you can fulfill them to the customer’s satisfaction and within the required timeframe.
- Satisfying orders – You should make your best efforts to meet all orders to the best of your ability. You should provide prompt and polite customer service to all customers who place orders. Since you are provided with the opportunity to reject an order placed by a customer, you will generally be required to meet the order. We will only allow you to provide a refund to customer, in exceptional circumstances, at our absolute discretion. You cannot under any circumstances charge any additional fee or other charge to a customer, after a customer has placed an order on our system. A customer who places an order on our system can only be charged the amount noted on our system, no other fees, taxes or other charge may be imposed on the customer. In addition, you also cannot impose any limit or change the basis for the redemption of a customer’s order, after their order has been confirmed and placed. You should always honour orders in the manner the order has been advertised on our system. You should always provide us with accurate information for customers about when, where and how to obtain their goods and services. If there are any changes to any of the details to ensure an order is met, then you should make your best efforts to inform the customer of the change.
- Refund – You may offer a full refund of the cost of the goods and services ordered by a customer in exceptional circumstances only. The opportunity for offering a refund to a customer will only be available in the event of an *uncontrollable event or otherwise at our discretion.
- Returns policy – You agree to accept goods returns on the terms of any applicable law. Your returns policy should be identical to that which applies to customers who do not use our system and should allow a customer to return any defective good or good or service which does not meet its description or intended use.
Part 6: Payments
- Credit check – Before we agree to advertise, promote and/or market your goods and services on our system, you agree to allow us to run any type of credit check or other type of check we wish on you and/or your business. You agree to assist us by providing any required details for us to run our checks on your and your business. We will, for instance, need to confirm that you are authorized to contract on behalf of your business. We may refuse to offer you our services and/or access to our system on the basis of the results of our checks, including our credits checks, on you or your business. Alternatively, we may request from you further written evidence of your authority and financial viability before allowing you to use our system.
- Free trial – For the *free trial period:
- you will not need to pay any monthly fee to us;
- you will be able to use our system and/or our hardware, for no fee;
- we will not be responsible in any way and nor do we warrant or represent in any way the safety, operation and/or functionality of the system. You will be solely responsible for your use of the system, during the free trial period; and
- if you end your agreement, you will be bound by the terms of clause 2 of these terms and conditions. In particular, you only be responsible for any damage to the hardware you cause.
- Our monthly fee – For each month or part of a month, you will be required to pay us our *monthly fee, for our services. The monthly fee will be automatically debited from the bank account you allow us to debit on the first day of each month. It is your sole responsibility to ensure that your bank account always has sufficient funds for our fees to be processed and that all amounts are processed correctly. Any fees charged for funds not being available will be your responsibility. If you fail to pay us our monthly fee at any time, we may deduct or offset our fee (and any costs charged to us) from payments due from orders made by customers. We may also end or suspend your use of our system, if you do not pay us our fees, in full or in part, at any time. You will not be able to use our system until you have paid us, in full, all amounts owing (including interest). We will not lower your monthly fee, if for any reason you were unable to obtain access to our system for any part of a given month. You agree that we may change our fees, at any time at our discretion. You will need to start to pay the new monthly fee, once we have given you at least 1 month’s notice of our proposed increase in our monthly fee. We are not required to provide you with a refund of your monthly fee under any circumstances or for any reason, unless we decide to at our discretion. In addition, we may charge you a reasonable extra fee, for our technical support and/or other services, if for any reason you decide to leave our system within the first 6 months of joining our system;
- Fixed term contract – If your agreement with us is for a fixed term, then you will be required to pay the total due for the term in equal monthly instalments. You will need to pay the total due, irrespective of whether or not you use our system for the full term. That is, you will forfeit to us any balance of the unused term under your contract. For fixed term contracts, we are bound to keep our monthly fee as the same amount for the entire fixed term. We are not allowed to increase our monthly fee for a fixed term contract.
- Access to our system – We will only provide you with access to our system, once you have paid us, in full, at least 1 month’s licence fee, in advance. Once you have paid 1 month’s licence fee, in advance, we will provide you with a username and temporary password for access to our system. You will need to change the password into another password to use our system. You must not provide or sell your username and/or password to anyone, without first obtaining our written permission. You must, at all times, take all measures, precautions and actions to protect the privacy and confidentiality of your username and password. You must inform us of any authorized use of your account or password, immediately, upon becoming aware of such use. We will not be responsible for any loss you suffer as a result of any unauthorised use of your username and password.
- Orders – You will only be paid from orders placed by customers immediately upon the customer placing the order. However, the actual receipt of payment in your account may take up to 5 business days to be processed by financial institutions. Until you fulfill an order, in full, however, you will be holding the customer’s payment on trust for us or the customer. Once the customer’s order has been met in full, the payment will then become yours. If at any time, you fail to pay our monthly fee, we are entitled to withhold payment from any customer for any order they place on the system.
- Cards accepted – We will work with any Australian-issued and most non-Australian issued credit, debit, prepaid or gift cards with a Visa, MasterCard or American Express logo. We may remove or add cards that we accept at any time without having to give you any notice. We will generally only process cards that receive an authorisation from the applicable network or card issuer. You understand that there may be times when the customer may not be the authorised user of the card or that a customer may otherwise contest the transaction. You will always assist us and provide us with any funds required for us to meet our obligations to card companies. You will also help us resolve any issues relating to payments with customers, if required.
- Customer refunds – If a customer requests a refund of their moneys, before an order is met, then you agree to return to the customer directly, upon our request, any amount paid to you previously for that order.
- Failure to follow terms & conditions – We are not required to pay you any amount, from customer orders we have received, unless and until you are following these terms and conditions, including the payment of our monthly fee on time. If we reasonably believe that you have not followed these terms and conditions, we can offset, delay, withhold, or suspend any payments to you, as we wish. In addition, we may also take such measures and precautions as are available at law to recover any amounts you owe either to us or to customers.
- Taxes – If any goods and services tax (GST) or other tax is applicable to any sale made using our system, you will be solely responsible for the collection and remittance of that tax to the relevant tax authority. If, we are requested or demanded by any tax authority to pay amounts on account of your tax obligations, then we will lower your future payments from customers, on account of any such amounts requested by the tax authorities, in compliance with the law. If we need to charge the goods and services tax on our monthly fee or any other fee or payment we receive from you, then you agree to pay us an additional amount on account of any GST applicable. We will issue you with a tax invoice on account of the GST applicable.
- Interest – You agree that interest will apply to any late payment of our monthly fee at the Reserve Bank of Australia’s published rate, plus a premium of 4%. Interest will accrue and compound daily from the due date for payment until the actual date of payment. The interest we charge you is a genuine pre-estimate of the damage and loss we suffer as a result of your late payment of any amounts due to us.
Part 7: Communications
- Correct & up-to-date information – When you sign up to an account with us, and on an ongoing basis, you will be solely responsible for providing us with accurate and up-to-date information about your business. This includes, a correct business name, Australian Business Number (ABN) or Australian Company Number (ACN), bank account details, address, telephone number, contact person, mobile number and email address. We will communicate with you about our system, by email or by automatically generated mobile message. You should always check your mobile device or email, for any communications from us. You should always ensure that there is enough storage space in your email and/or in your mobile device to receive our communications. You agree that we are not responsible for any losses you suffer because you did not receive any communication from us.
- Feedback – We may, from time to time, seek your feedback or input on our system. This feedback is for our purposes only and we may or may not take it into account in the provision of our services or the operation of our system. Once you have provided us with any feedback, we will have a right to use that feedback, for no fee, in the provision of our services and the operation of our system.
Part 8: Customer relations
- Your responsibility – Your relations with customers are solely your responsibility. At all times, you will be solely responsible for ensuring that you provide excellent service to your customers, including customers who use our system. You agree that we are not responsible in any way for:
- resolving any disputes between you and any customer;
- any information provided to you by a customer;
- any loss or damage you suffer or costs you have to pay as a result of a customer’s actions or failures to act;
- any content that a customer publishes about your business;
- anything that a customer posts about your business; and/or
- any breach of your confidentiality by a customer.
- Protecting your information – We will keep all information we have about you and your business on a secure server. Our website has a secure domain and has security measures in place (including encryption and Secure Socket Layers to protect your information from loss, misuse, unauthorized access, modification or disclosure). We will take all reasonable measures to destroy or de-identify your information if we no longer need it. However, you agree that we do not need to guarantee or ensure the complete security of information provided to us. You agree that any information provided to us is provided at your own risk. You agree that we are not responsible for any tampering with, or hacks to our system by third parties.
- Australian Privacy Principles – We agree to follow the Australian Privacy Principles in the Privacy Act 1988 (Cth). Those principles deal with the collection and disclosure of information regarding individuals in Australia.
- Personal information – Personal information is any information that can be used to identify, contact or locate the person whom that information is about. Personal information does not include information collected anonymously. We collect personal information about you that you voluntarily provide to us or authorise us to collect from third parties. This includes, but is not limited to:
- information from your basic user profile;
- your name, address, telephone number and/or email address;
- your financial details;
- your interests;
- IP addresses; and
- other personal details you provide to us, while using our system and/or services.
- Credit card details – We never have access to, nor do we collect or store, your credit card details. If a credit card is used, the information is processed by our credit card provider through a secure facility, which we do not control.
- Collection of personal information – We collect your personal information:
- to help us provide our services and system to you;
- to personalise your user experience;
- to improve our system and/or services;
- for billing, investigating or resolving any disputes about our services or system;
- to inform you about any updates;
- to answer specific queries about our services and/or system;
- for analysis, planning, research, product development and strategic, financial and other business purposes relating to our activities;
- to gather broad, demographic information; and
- to monitor and/or evaluate our services and/or system.
- Use of personal information – We will not use your personal information for any purpose that you would not reasonably expect us to use your personal information for.
- Destruction of personal information – We will make all reasonable efforts to destroy any personal information we store, once we no longer need it.
- Access to personal information – Our employees, contractors or agents can only access your personal information to provide our services to you. All of our employees, contractors and agents are familiar with our security policy and the practices we use to protect your personal information. We check our security policy and practices on a regular basis, to ensure that your personal information remains protected. If personal information needs to be sent through the internet, it will be sent through a secure service using up to date encryption technology. The encryption technology we use meets current industry standards.
- Disclosure to third parties – We will not disclose any of your personal information to a third party without your prior knowledge and written permission. However, we may disclose any information we collect about you to comply with the law. We will also disclose information we collect about you, if disclosure is reasonably necessary to protect ourselves and/or our registered customers.
- IP address – Your IP address is your device’s unique network address. Each device you use will have a separate IP address. Your IP address is sent automatically, every time you access an internet site, through a device. Your IP address only allows us to find out the geographic location of your device.
- Customer information – Both you and us may collect information about customers. You are only allowed to use information about the customers to meet your obligations under these terms and conditions. You cannot use the information about the customers for any other purpose. You also cannot provide the information about the customers to anyone else, unless allowed or required by law. However, you may be able to use information about the customers, in accordance with the law, if you obtain or previously obtained the information from the customer directly, with their permission, in a manner not covered by these terms and conditions.
- Unauthorised access to customer information – You agree to inform us immediately, if you believe that anyone has accessed information about a customer or any of our confidential information. You also agree to assist us with any investigation of such breach and reducing any damage. You will be solely responsible for all costs associated with us having to follow the law (including, but not limited to, any privacy laws) or arising from any unauthorized access or acquisition of any information about customers, while you have reasonable possession and control of the information.
- Destruction of customer information – Upon your relation with us coming to an end, you agree to immediately destroy or return to us all the customer data in your possession, unless the customer has agreed in writing to allow you to continue using their customer data. If the customer has provided you with permission to continue using their information, then you will need to provide us with the written proof that they have done this.
Part 10: Intellectual property rights
- Licence to use your IP rights – You agree to grant to us a non-exclusive, worldwide, royalty free, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform:
- your business name, logos, trademarks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by you; and
- any other party’s business name, logos, trademarks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by you.
- Use of IP rights – We can only use your intellectual property rights for the purpose of the promotion, sale/resale (as may be applicable) or distribution of the goods or services of your business. We can decide how we use the intellectual property rights, provided they are used solely for the purpose of promoting, marketing, advertising or selling the goods or services of your business.
- Our IP rights – You acknowledge and agree that, as between you and us, we own all interests in and to our system, information about the customers, our business name, logos, trademarks, domain names, social media identifiers, all data collected through or from the website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and/or any other content we create or at our direction, and any materials, software, technology or tools used or provided by us to promote, sell/resell (as may be applicable) or distribute the goods or services of your business. You agree to not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare any of our intellectual property rights, or use our intellectual property rights as a component of or a base for goods or services prepared for commercial use, sale, sublicense, lease, access or distribution, except if we grant you a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the term to use one copy of our software application on a single electronic device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes.
- Your use of our IP rights – You agree to keep our intellectual property rights strictly confidential. You are not allowed to prepare any derivative work based on our intellectual property rights or translate, reverse engineer, decompile or disassemble our intellectual property rights. You are also not allowed to take any action to challenge or object to the validity of our intellectual property rights and/or our ownership or registration of those rights. You are not allowed to use any of our intellectual property rights in any way, unless we allow you to do so in writing.
- Limited use – You are not allowed to include any trade name, trademark, service mark, domain name, social media identifier, of ours, or any similar name, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. You cannot use or display any of our intellectual property rights in a manner that may suggest an endorsement, relationship, affiliation with, or sponsorship between you or a third party and us.
Part 11: Representations & warranties
- Representations & warranties – You represent and warrant that:
- you are over 18 years old, mentally capable and have the right, power and authority to enter into a contract with us, on behalf of your business;
- you will meet all your tax and legal obligations for the supply of goods and services;
- you will honour orders in good faith, promptly and to the satisfaction of customers;
- you will always follow all laws applicable to your business, including those relating to the supply of goods and services and the acceptance of payments;
- you will treat customers fairly and like other customers of your business;
- our promotion, advertising, marketing and sale of your goods and services will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, trading name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity;
- your employees, contractors and/or agents have been trained to supply the goods and/or services and fulfill orders;
- all details you give us about your business are complete, accurate and current; and
- you are allowed to receive funds from us for the sale of goods and services.
Part 12: Indemnities
- Your indemnity to us – To the maximum extent allowed by law, you agree to fully indemnify and hold us, and any of our officers, directors, agents and employees, harmless from and against any claims, penalties, damages, losses or expenses (including but not limited to legal costs) arising out of or relating to any of the following:
- any breach or alleged breach by you of these terms and conditions;
- any claim for any of your taxes from the sale and/or the satisfaction of an order;
- any claim by any Government authority for breach of any laws, including but not limited to any claims for penalties and interest;
- any claim arising out of any breach of the law;
- any claim by a customer or anyone else arising out of or relating to products and/or services you provide, including but not limited to, any claims for false advertising, product defects, personal injury, death or property damage;
- any claim by a customer for an amount they paid for an order;
- any claim arising out of your misuse of information about a customer, or any violation of an applicable privacy law; and
- any claim arising out of your negligence, fraud or wilful misconduct.
- Defence – We have the right to control our own defence of any claim and to choose and appoint our own legal representatives to assist us. Your duty to defend and indemnify us includes the duty to pay for all our reasonable legal fees and costs.
Part 13: Limitation of liability
- Limitation of liability – Apart from the indemnities provided in clause 61 above, in no circumstances are we or you responsible to each other or any third party for any lost profits, lost business, special, incidental, exemplary, consequential, punitive, or indirect damages regardless of the form of action, whether in contract, tort or otherwise, even if informed of the possibility of any such damages in advance.
- Our liability to you – Our sole and complete liability to you for any claims arising out of or relating to these terms and conditions, or any errors, omissions or misplacements of any order is limited to the amount of monthly fees we earn from our arrangement with you for the previous 6 months after final calculation and reconciliation of all refunds. This limitation of liability applies to the maximum extent allowed by law.
- Claim time limit – Any claim by or on your behalf relating to any payment you make, including, but not limited to, claims alleging that you were underpaid, must be made in writing to us within 90 days from the date you let us know of the payment at issue.
Part 14: Personal Property Securities Act
- Security interest – You acknowledge and agree that in these terms and conditions you are granting security interests to us and you acknowledge that these terms and conditions and any resulting agreement between you and us constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).
- Registration of interest – You agree to assist us in doing anything reasonably required by us to enable us to register our security interests on the Personal Property Securities Register established under PPSA s 147, with the priority we need and to maintain the registrations. Also you acknowledge that we may perfect our security interests by lodging financing statements on the PPSR.
- Secured property – The security interests attach to the secured property when you have rights in the secured property and the parties confirm that they have not agreed that the security interests attach at any later time.
- Enforcement provisions – If required, all of the enforcement provisions in PPSA Ch 4, apply to all of the security interests created under these terms and conditions.
- Notice – We do not need to give you any notice under the PPSA, (including a notice of a verification statement) unless the notice is required by the PPSA, and that requirement cannot be excluded.
- Disclosure – Both you and us agree that neither party will disclose to an ‘interested person’ (as defined in s 275(9) of the PPSA) or any other person, any information of the kind described in section 275(1) of the PPSA. You will not authorise the disclosure of any information of the kind described in section 275(1) of the PPSA.
Part 15: Other general terms
- Breach – You agree that we are not responsible in any way for any loss or damage you suffer or costs you have to pay because you have not followed these terms and conditions. You agree to pay us in full for all costs and damages we suffer as a result of you not following these terms and conditions.
- Risk – Unless otherwise stated in these terms and conditions, you will be using the system entirely at your own risk. You may wish to obtain insurance for your business and/or your use of the system in your business. Unless otherwise stated in these terms and conditions, we will be not be held responsible in any way, for your use of the system in your business.
- International use – If you are using our system from outside the *jurisdiction, you will be fully responsible for following all of the laws of the jurisdiction in which you are using our system. Some of our terms and conditions may not apply in those countries. Also, some terms and conditions may be implied into your agreement with us, by the laws of those countries. To that extent, the terms and conditions which apply to you will be varied in accordance with the laws of the jurisdiction in which you are using the system.
- Negative comments – Both you and us will never make any negative comments about each other, their past or present directors, or the business each operates. This includes making negative comments on any social media (whether public or private).
- Confidentiality – You and we both agree to keep each other’s *confidential information a secret. The disclosure of confidential information is only allowed if required to be made by law or the disclosure is to *professional advisors. This term will apply to you and us indefinitely. Confidential information includes all confidential, non-public or proprietary information regardless of how the information is stored or delivered, including:
- these terms and conditions; and
- all customer information including the names, email addresses, mobile and land line, trade secrets, business plans, financial information, marketing, systems, ideas, concepts, know how, techniques, strategies, agreements, goods services and products of you or us.
- Dispute resolution – If a dispute between you and us arises, you agree to use your best efforts to resolve that dispute with us, in a friendly and co-operative manner, without resorting to Court or Tribunal action of any sort. If the dispute cannot be resolved within 10 business days of us trying to solve the issue with you, a mediator may be appointed to resolve the dispute. Mediation will be conducted by an independent mediator appointed by us and you agreeing or, if no agreement is reached within 5 business days, a person appointed by the President of the Institute of Arbitrators and Mediators, Australia. You will be solely responsible for all of the costs of mediation.
- Uncontrollable events – You agree that we are not responsible for not performing our obligations or any delays in performing our obligations due to reasons out of our control, including but not limited to riots, industrial action, terrorism and natural disasters.
- Relationship – Our relationship with you is one of independent contracting. Nothing in these terms and conditions is creates a joint venture, partnership, franchise or an agency relationship between you and us. Neither party has the authority, without first obtaining the other party’s written permission, to bind or commit the other in any way.
- Assignment – You are not allowed to transfer or assign your rights or obligations under these terms and conditions, whether by operation of law or otherwise, without first obtaining our written permission. We are allowed to transfer or assign our rights and obligations under these terms and conditions to anyone we wish, with or without notice to you.
- Entire agreement – You agree that these terms and conditions include everything that applies to the relationship between you and us. No other warranties, brochures, promotional and/or other material forms part of our contractual arrangement between you and us. If, however, the law provides us with greater protection from liability than these terms and conditions, then we will be given the benefit of the greater protection offered by law.
- Independent advice – You warrant to us that you have read and understood these terms and conditions and had the opportunity to obtain independent legal, tax, accounting and financial advice. A failure to obtain such advice is at your own risk and cannot be relied upon to set aside any of these terms and conditions.
- Governing law & jurisdiction – This agreement is governed only by the laws of the *jurisdiction. You agree to submit exclusively, absolutely and irrevocably to the Courts and Tribunals of the jurisdiction.
- Governing language – If these terms and conditions are translated into a language other than English, then the English version of these terms and conditions will prevail to the extent of any inconsistency.
- Australian Consumer Law – Nothing in these terms and conditions is intended to exclude, restrict or modify the rights which you may have under the Australian Consumer Law. If you are a consumer, we acknowledge that the consumer guarantees in Division 1 of Part 3-2 of the Australian Consumer Law will apply to the supply of goods or services (or both) under these terms and conditions.
- Interpretation – In these terms and conditions, unless the contrary intention is clear:
- words in the singular include the plural and vice versa;
- a reference to a party or person includes a reference to that party or person and its successors, substitutes, executors, administrators and assigns;
- references to a clause/party refer to a clause/party in these terms and conditions;
- where any clause contains sub-clauses or paragraphs each sub-clause and paragraph is to be read separately and independently of any other;
- headings are for guidance only and do not affect the interpretation of these terms and conditions;
- no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these terms and conditions; and
- any invalid provisions are to be removed from these terms and conditions and any provisions necessary by law are to be taken to be included in these terms and conditions, from the date they are first required to be removed or included.
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