The Website and the Software are owned and operated by Us. The Website and Software are made available to you, a retailer, for your use on the condition that you agree to these Terms and Conditions (“Terms”). References to Us/We/Our includes our related bodies corporate and associates as those terms are defined in the Corporations Act 2001 (Cth) and references to “You” means you, a retailer using our Website and the Software.
By accessing or using the Website or Software, You agree to be bound by these Terms. The Terms constitute the entire agreement between Us and You concerning the Website and Software and for services provided. Acting reasonably, We may modify the Terms from time to time, and such modifications shall be effective immediately upon posting the modified Terms on the Website. Your continued use of the Website and/or Software constitutes your agreement to be bound by any such update to the Terms.
We create the Software that allows Consumers to visualise and personalise Product from You via their phone, tablet, PC or MAC on web browsers including Chrome, Firefox, Safari and Edge (excluding Internet Explorer). You are a supplier or manufacturer of the Product to Consumers. You would like us to transform your Product into 2D and/or 3D digital models that are compatible with our Software. Consumers will be able to browse, view customise and/or personalise your Product when using the Software.
The following definitions will apply for the purposes of these Terms:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Asset means a 2D and/or 3D model of your Product, developed by us or uploaded by You and compatible with our Software and downloadable by you through the Software; being the subject of the Services, as further particularised in the Order and includes, but is not limited to, graphics, sounds, music, animations, textures or any other form of digital information required to visually, audibly and informatively represent the Product.
Bespoke Fee means fees quoted to You on an as-required basis, for:
(a) creative services, being when We are engaged by You to create any Asset or Assets for your website; or
(b) custom development, being any bespoke elements that You want built into our Software for Your use.
Business Day means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.
Commencement Date means the date these Terms are accepted by You.
Confidential Information includes information which:
(a) is disclosed to the Receiving Party in connection with these Terms at any time;
(b) is prepared or produced under or in connection with these Terms at any time;
(c) relates to the Disclosing Party’s business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,
whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.
Consequential Loss includes any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Consumer means your customer or potential customer.
Design File ID means the metadata of the Asset created by the Consumer.
Disclosing Party means the party disclosing Confidential Information to the Receiving Party.
Force Majeure means an unforeseeable event beyond the control of a party which occurs without fault or negligence of the affected party, including acts of God, war, riot, insurrection, vandalism, sabotage, strike, lockout, ban, limitation of work or other industrial disturbance, law, rule or regulation of any government or governmental agency and executive or administrative order or act of general or particular application, and the consequences of epidemics and pandemics (including COVID-19).
Improvements means any development, modification, adaptation or improvement of any New Materials made by or on behalf of either party (or any of their respective Personnel), or in respect of which Intellectual Property rights are acquired by either party.
Insolvency Event means any of the following events or any analogous event:
(a) a party disposes of the whole or any part of the party’s assets, operations or business other than in the ordinary course of business;
(b) a party ceases, or threatens to cease, carrying on business;
(c) a party is unable to pay the party’s debts as and when they fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the party’s assets, operations or business;
(e) any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a party’s creditors or any class of a party’s creditors; or
(f) any steps are taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a party’s assets, operations or business.
Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing. Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property. Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties), including, but not limited, to you (or your Personnel):
(a) copying, altering, enhancing, adapting or modifying any of our Intellectual Property;
(b) creating derivative works from our Intellectual Property;
(c) providing or disclosing our Intellectual Property to, or allowing our Intellectual Property to be used by, any third party;
(d) assigning or transferring any of our Intellectual Property Rights or granting sublicenses of any of our Intellectual Property Rights, except as expressly permitted in these Terms;
(e) reverse engineering or decompiling any of our Intellectual Property Rights, except where permitted by Law; or
(f) using or exploiting our Intellectual Property for purposes other than as expressly stated in these Terms (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with these Terms or the provision of the Services.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of Us or You or any of your or Our respective Personnel in connection with these Terms or the provision of the Services (including any Assets).
Order means an order placed by you, for the provision of the Services, in accordance with these Terms.
Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that We may provide to You under these Terms, and which may contain material which is owned by or licensed to Us, and is protected by Australian and international laws.
Payment Terms means the payment terms specified in an Order and/or on the Website.
Personal Property and Securities Register (or PPSR) means the register established under the PPSA where security interests can be registered in accordance with the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth).
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
Price includes the Bespoke Fees, Transaction Fee and Subscription Fee.
Product means any product produced and sold by you that You would like to be modelled as an Asset by Us in accordance with these Terms.
Receiving Party means the party receiving Confidential Information from the Disclosing Party.
Services means the services that we agree to perform under these Terms (including the creation of any Assets), as further particularised in any Order.
Software means the virtual reality software we have created, which has the capability to display items (including Assets) to Consumers.
Subscription Fee means the monthly fee payable by You in return for Us performing the Services, as set out on Our Website (https://spiff3d.com/pricing-packages).
Terms means these terms and conditions of trade between You and Us.
Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.
Transaction Fee means the fee charged by Us to You each time a Consumer makes a purchase with You using our Software, as set out on Our Website (https://spiff3d.com/pricing-packages).
Transaction ID means the data relating to the transaction between You and a Consumer involving the use of the Software.
Us/We/Our means Spiff Pty Ltd ACN 612 460 885.
Website means both www.spiff.com.au and www.spiff3d.com.
You means you, the user of the Website.
Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of You or your Personnel before the Commencement Date and/or developed by or on behalf of You or your Personnel independently of these Terms.
1. ACCEPTANCE OF TERMS AND TERM
1.1 You accept these Terms by the earlier of:
(a) confirming by email that you accept these Terms;
(b) confirming that you accept these Terms via the platforms or applications through which we provide these Terms to you, including on Our Website;
(c) instructing Us in writing to proceed with the provision of Services; or
(d) making part or full payment of the Bespoke Fee or Subscription Fee.
1.2 These Terms will commence on the Commencement Date and will continue until the date the provision of Services to you ceases by agreement or termination.
2.1 In consideration of your payment of the Price, we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.
2.2 You agree that We may amend the Services or Price at any time, by providing written notice to You. If You do not agree to any amendment of the Services or the Price, You may terminate Our Services by providing 10 Business Days’ notice in writing to Us.
2.3 You agree and accept that We may increase the Price each year by the Consumer Price Index (CPI).
3.1 We will commence the provision of the Services within a reasonable time after the later of:
(a) the Commencement Date and/or receipt of the relevant Order;
(b) receipt or payment of the Price in full;
(c) provision of all relevant Data;
(d) the satisfaction of any other conditions precedent contemplated by these Terms; and
(e) the completion of the Software in which your Product will be displayed.
4.1 You may request a variation or change to the Services, including the timing for the provision of the Services, by providing written notice (including by email) to Us, with details of the variation or change, (Variation Request).
4.2 We will not be obliged to comply with a Variation Request unless We:
(a) accept the Variation Request, including any variation to the Price to effect the Variation Request (Price Variation), in writing; and
(b) the Price has been adjusted to reflect the Price Variation.
4.3 If We consider that any instruction or direction from You constitutes a variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued in accordance with these Terms.
4.4 Subject to your approval, where the Services are varied or changed, or the costs of providing the Services increases, (Variation Event) and the cause of that Variation Event relates to, or is connected with, an event or circumstance beyond Our reasonable control, You agree to pay Us Our reasonable additional costs and expenses that We may suffer or incur as result of the Variation Event, as a debt due and immediately payable.
4.5 We may substitute any Services or any component of such Services prior to access being provided if, in Our reasonable opinion, the substitution will not adversely affect the performance or capacity of the Services in a material respect. If We make such a substitution, We will notify You of that fact, and provide You with amended specifications at or prior to access being provided.
4.6 We reserve the right to discontinue the supply of any Services, or to make changes to those Services from time to time, for any reason, without any obligations to replace or repurchase any Services that have been delivered or agreed to be delivered to You under an Order, including to a particular category of Services. Changes to the Services under this clause 4 may include changes to the functionality or other material aspects of the Services. We will use Our best endeavours to give reasonable notice to You of any material changes to the Services or any decision to discontinue the supply of any of the Services before access is provided, however, it is your responsibility to assess whether any replacement or change to the Services is suitable for yours or any Consumer’s purposes.
5. YOUR OBLIGATIONS
5.1 You agree to:
(a) comply with this Agreement, our reasonable requests or requirements, and all applicable Laws
(b) provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable Us to comply with Our obligations under these Terms or at Law;
(c) collect any samples of the Products at the time and location nominated by Us and to pay any costs We may suffer or incur if You do not collect any samples of the Products in accordance with this clause 5.1 including, but not limited to, any storage or disposal costs;
(d) be solely responsible for the sale of any Products, including the sale of any Products through the Software;
(e) provide Us, within 30 days of the Commencement Date or the date of any Order, the relevant data that We request in order to supply the Services (including to produce the Asset), including:
(i) advertising copy, website links, software, images, 2D or 3D drawings and/or samples of the Product to facilitate the imaging of the Product;
(ii) full textual detail regarding each Product to be modelled that may assist with the modelling of the Product; and
(iii) any other information, technical descriptions, or images of Product and materials which in your opinion may further assist us in modelling the Product and supplying the Services (including producing the Asset), (Data).
5.2 You grant Us a non-exclusive, irrevocable, non-sublicensable and non-transferable licence in the territories to which You have rights to copy, transmit, store, publish, distribute, back-up or otherwise access your Data, solely for Us to exercise or perform the rights and obligations contemplated under these Terms.
5.3 In agreeing to these Terms, You consent to Us displaying your name and logo on Our Website for advertising purposes.
5.4 You represent and warrant that any and all Data supplied by You or otherwise accessed by Us through the provision of the Services is:
(a) the sole and exclusive property of You or You have secured any and all authorisations and rights to use the Data as applicable; and (b) true, complete and correct and are not misleading or deceptive. You will notify Us in immediately in writing upon becoming aware that any Data supplied by You is untrue, incomplete, incorrect, misleading or deceptive.
5.5 This clause 4 will survive termination or expiry of these Terms.
6.1 We agree to take all reasonable steps to use your Data to produce an Asset that is visually reflective of your Product. You agree that:
(a) the visual representation of the Assets within the Software is partially dependent on the quality, detail and accuracy of the Data provided by You to us;
(b) the Assets within the Software may contain visual variances to the Products provided by You; and
(c) if the parties cannot reasonably agree on the visual accuracy of the Asset, then either party may terminate the provision of the Services by giving the other party 10 Business Days’ notice in writing.
6.2 We specifically do not warrant that the visual representation of the Assets is or will be an exact representation of the physical form of the Product and You acknowledge that We are not liable for any deviation or inaccuracy arising from the use of the Software.
6.3 You acknowledge that any and all Assets developed under this Agreement will be stored electronically, including stored electronically by third parties that may be located, or that may store data, outside of Australia.
6.4 You authorise Us and You provide all authorities, consents and permissions necessary to allow Us to place the Assets in our Software.
6.5 You acknowledge and agree that Our Software (including any Assets) may be accessible through various platforms, including on the internet or on other programs or applications that are accessible through hardware, including computers, laptops, tablets, smartphones or any other electronic device.
6.6 You acknowledge that where You or a Consumer do not have the latest device specifications or your device does not support the latest version of compatible web browsers, You or Your Consumer may not be able to use the Software effectively.
6.7 You acknowledge that We rely on third party providers in order to provide the Software. Where a third-party provider is not able to provide the services to Us, we may not be able to provide the Software to you.
6.8 We retain the right to retain for Our purposes any Asset following termination of this Agreement.
6.9 We are not liable for any error of a Consumer in creating an Asset from your Product.
6.10 We reserve the right to choose not produce or display any Asset that contains imagery or wording that is explicit, sexual, vulgar, obscene, profane, which may harass or cause distress of any person or is unlawful.
6.11 You acknowledge that while We offer profanity filters which are monitored and maintained by You, We do not have access to, or control of, any such profanity filter used by You and are not in any way liable for any loss or damage caused to anyone, including You, by application of the profanity filter.
7. TRANSACTION AND DESIGN FILE ID
8.1 You agree to pay Us the Price and any other amount payable to us in accordance with these Terms.
8.2 If any payment has not been made in accordance with the Payment Terms (Outstanding Payment), we may (at our absolute discretion):
(a) prevent the output files from coming through to You from Your Consumers; and/or
(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.
8.3 In the event that the Outstanding Payment has not been rectified after a period of 30 days from the date the Outstanding Payment was due, we may immediately cease providing the Services to you, and recover, as a debt due and immediately payable from You, our additional costs of doing so.
8.4 Electronic funds transfers made in respect of payments under these Terms are non-cancellable and non-changeable, unless otherwise permitted by Us in writing. In the event that We permit a change or cancellation to electronic funds transfer particulars, You agree to pay any additional fees associated with that change or cancellation.
9.1 You acknowledge that:
(a) the Services’ operation will not be uninterrupted or error-free;
(b) the performance of the Services (including response times) will depend on factors outside the parties’ control including the design and performance of yours or any Consumer’s systems, the state of the relevant telecommunications networks and their interconnections and network congestion;
(c) although We will implement reasonable security procedures, We do not make any warranties with regard to unauthorised access to information or data; and (d) We are not creative design experts and information We provide to You is not to be taken as creative design advice in any circumstance.
9.2 You represent, warrant and agree that as far as You are aware:
(a) there are no legal restrictions preventing You from entering into these Terms;
(b) all information and documentation that You provide to Us in connection with these Terms is true, correct and complete;
(c) You have the right to use any images or photographs provided to Us by You in order for Us to provide the Services to You;
(d) the Services are provided to You solely for your benefit and You will not (or You will not attempt to) disclose, or provide access to, Our Services to third parties without our prior written consent;
(e) You will be responsible for the use of any part of the Services, and You must ensure that no person uses any part of the Services:
(i) to break any Law or infringe any person’s rights (including Intellectual Property Rights);
(ii) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(iii) in any way that damages, interferes with or interrupts the supply of the Services;
(f) You are not and have not been the subject of an Insolvency Event;
(g) if applicable, You hold a valid ABN which has been advised to Us;
(h) if applicable, You are registered for GST purposes;
(i) there are no actions, claims, proceedings, demands or investigations that are ongoing, pending or threatened against You or by You which may have an adverse impact on Our provision of the Services; and
(j) all information supplied by You is, and will be in all material respects, true and correct and that You will promptly inform us in writing, giving details of any changes to such information.
9.3 We represent, warrant and agree that as far as We are aware:
(a) there are no legal restrictions preventing Us from entering into these Terms;
(b) all information and documentation that We provide to You in connection with these Terms is true, correct and complete;
(c) the Services are provided to You solely for your benefit and We will not (or We will not attempt to) disclose, or provide access to, the Services to third parties without your prior written consent;
(d) to the extent that We will be responsible for the use of any part of the Services, We must use reasonable endeavours to ensure that no person uses any part of the Services:
(i) to break any Law or infringe any person’s rights (including Intellectual Property Rights);
(ii) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
(iii) in any way that damages, interferes with or interrupts the supply of the Services;
(e) We are not and have not been the subject of an Insolvency Event;
(f) We hold a valid ABN which has been advised to You; and
(g) We are registered for GST purposes.
9.4 We may charge You an additional fee to identify or rectify a problem, to the extent that the problem is caused or contributed to by an external cause, including a fee for any additional work or resources required to rectify a problem caused by:
(a) operation of the Services other than in accordance with operating requirements or instructions provided by Us or in any applicable documentation;
(b) any actual or attempted modification or repair made by You or a third party not approved or authorised by Us;
(c) external causes including accident, neglect, misuse, vandalism, ingress of water, power surge or spike;
(d) use with, or connection of the Services to items not approved by Us; or
(e) failure to maintain the Services in accordance with requirements or instructions provided by Us.
We may also charge You an additional fee if, on inspection, no material fault is found in the Services.
10. INTELLECTUAL PROPERTY
10.1 You acknowledge and agree that:
(a) We own or license all Intellectual Property Rights in Our Materials;
(b) You own or license all Intellectual Property Rights in Your Materials;
(c) nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials; and
(d) You will only use our Intellectual Property in accordance with these Terms.
10.2 Ownership of all Intellectual Property Rights in any Assets that have been created for You by us (other than the Software) or created by a Consumer will at all times vest, or remain vested, in You upon creation.
10.3 You grant us a non-exclusive, irrevocable, non-sublicensable and non-transferable right and licence, in the territories to which you have rights, to use Your Materials provided to Us, and the New Materials and Improvements, solely for the purposes for which they were developed and for the performance of Our obligations or exercise of Our rights under these Terms, as contemplated by these Terms (including in accordance with clause 5.4).
10.4 Without limiting any other terms of these Terms or any separate licensing terms, You must not, and must not allow any other person to:
(a) use, copy, modify or create any derivative works from Our Intellectual Property, except to the extent permitted in these Terms;
(b) decode, reverse-engineer, disassemble, modify or decompile the Software (including any code) consisting or forming part of Our Intellectual Property, except to the extent not excludable by applicable law; or
(c) transfer, loan, lease or sublicense Our Intellectual Property;
except to the extent expressly permitted under this Agreement.
10.5 If You or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, You agree to (and agree to ensure that your Personnel) consent to Our use or infringement of those Moral Rights for the purposes of these Terms.
10.6 In the use of any Intellectual Property Rights in connection with this Agreement, each party must not (and must ensure that its Personnel do not) commit any Intellectual Property Breach.
10.7 You agree to indemnify Us and Our licensors from and against any claims, suits, losses, damages, liabilities or costs brought about by a third party arising from:
(a) any Intellectual Property Breach by You, your Personnel or any of your representatives; or
(b) an infringement by You or any Consumer of Our Intellectual Property Rights, our licensors or any other party.
10.8 You must notify Us of any suspected or actual infringement of our Intellectual Property by a Consumer or any other person, or any claim asserting such an infringement, immediately after becoming aware of the infringement or claim. In the event of any such infringement or claim, You will provide to Us such assistance and information as reasonably requested by Us in relation to that infringement or claim, at Our cost.
10.9 This clause 9 will survive termination or expiry of these Terms.
11. CONFIDENTIAL INFORMATION
11.1 Each Receiving Party agrees:
(a) not to disclose the Confidential Information of the Disclosing Party to any third party;
(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and
(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.
11.2 The obligations in clause 10.1 do not apply to Confidential Information that:
(a) is required to be disclosed in order for the parties to comply with their obligations under these Terms;
(b) is authorised to be disclosed by the Disclosing Party;
(c) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
(d) must be disclosed by Law or by a regulatory authority, including under subpoena.
11.3 Each party agrees that monetary damages may not be an adequate remedy for a breach of this clause 10. A party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 10.
11.4 This clause 10 will survive the termination of these Terms.
12. AUSTRALIAN CONSUMER LAW
12.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer You with rights, warranties, guarantees and remedies relating to the provision of the Services by Us to You which cannot be excluded, restricted or modified (Statutory Rights).
12.2 Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, You are entitled:
(a) to cancel these Terms with Us; and
(b) to a refund for the unused portion, or to compensation for the reduced value of the Services provided to You.
You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure You are entitled to have problems with the Services rectified in a reasonable time and, if this is not done, to terminate these Terms and obtain a refund for the unused portion of the Services.
12.3 If the ACL applies to You as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that Our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms.
12.4 We warrant that the Services will be fit for the purposes of these Terms.
12.5 This clause 11 will survive the termination or expiry of these Terms.
13. PERSONAL PROPERTY SECURITIES ACT (PPSA)
1.2 By entering into these Terms, You acknowledge and agree that any agreement formed under these Terms constitutes a security agreement for the purposes of the PPSA and until full payment has been made, creates a security interest in all of your present and after-acquired goods, materials, equipment or parts forming a part of the Services (the Goods) supplied by Us.
13.1 You will:
(a) promptly sign any further documents and provide any further information that We may reasonably require to register a financing statement, financing change statement or any other required document on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse Us for all expenses incurred in registering a financing statement, financing change statement or any other required document on the Personal Property Securities Register or releasing any Goods charged thereby; and
(c) not register, or permit to be registered, a financing change statement or a financing change statement in respect of a security interest without Our prior written consent.
13.2 The parties agree that nothing in sections 130(1)(a) and 143 of the PPSA will apply to this Agreement. You:
(a) waive your rights as a debtor under sections 92, 93, 94, 95, 97, 118, 121, 132, 135, 137, 140 and 142 of the PPSA;
(b) waive your right to receive a verification statement in accordance with section 157 of the PPSA (unless otherwise agreed to in writing by Us);
(c) agree that where We have rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply; and
(d) agree that this clause 12 will survive termination of these Terms or any agreement hereunder for the sale or provision of Services.
14. EXCLUSIONS TO LIABILITY
14.1 Despite anything to the contrary, to the maximum extent permitted by law, We will not be liable for, and You waive and release Us from and against, any Liability to the extent caused or contributed to by, arising from or connected with:
(a) your or your Personnel’s acts or omissions;
(b) a Consumer’s acts of omissions;
(c) any use or application of the Services by a person or entity other than You, or other than as reasonably contemplated by these Terms;
(d) any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by Us;
(e) any Third Party Inputs;
(f) a failure to use electronic devices, hardware, software or an application that are not updated in order to be compatible with the Software; or
(g) any event outside of Our reasonable control.
14.2 This clause 13 will survive the termination or expiry of these Terms. v
15. LIMITATIONS OF LIABILITY
15.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) neither party will be liable for Consequential Loss;
(b) a party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other party (or any of its Personnel); and
(c) Our aggregate liability for any Liability arising from or in connection with these Terms will be limited to Us resupplying the Services to You or, in Our sole discretion, to Us repaying you the amount of the Price paid by You to Us in respect of the supply of the relevant Services to which the Liability relates; and
(d) We will not be liable for any loss caused to You or any third party caused by errors in the information provided to Us by You with respect to any Product of yours appearing on our Software.
15.2 This clause 14 will survive the termination or expiry of this Agreement.
16.1 Either party may terminate these Terms at any time by giving 30 days’ notice in writing to the other party.
16.2 These Terms will terminate immediately upon written notice by:
(a) Us, if:
(i) You (or any of your Personnel) are in breach of a material provision of these Terms and that breach has not been remedied within 20 Business Days of being notified by Us;
(ii) You or your Personnel tamper with, modify or attempt to tamper with or modify the code associated with the Software; or
(iii) any reason outside Our control has the effect of frustrating our ability to perform Our obligations pursuant to these Terms.
(b) You, if We:
(i) are in breach of a material term of these Terms, and that breach has not been remedied within 20 Business Days of being notified by You; or
(ii) are unable to pay Our debts as they fall due.
16.3 Upon expiry or termination of these Terms:
(a) We will immediately cease providing the Services;
(b) You agree that any payments made by You to Us are not refundable to You (including for any payments made for any Assets that have been produced and provided to You in accordance with these Terms) and if termination arises from or in connection with your breach You are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to You, and all other amounts due and payable under these Terms;
(c) You agree not to disparage or otherwise make any unfavourable statements or comments regarding Us, Our Personnel or Our clients, either directly or by implication, verbally or in writing.
16.4 Unless otherwise agreed between the parties, if these Terms are terminated, then any current Order will also terminate on the date of termination.
16.5 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for Us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of these Terms.
16.6 Termination of these Terms will not affect any rights or liabilities that a party has accrued under it.
16.7 This clause 15 will survive the termination or expiry of these Terms.
17.1 If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
17.2 If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
17.3 If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
17.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Costs: Each party must pay its own costs in relation to that party performing any action complying with any liability arising under these Terms, unless these Terms provide otherwise.
Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other party to seek (in good faith to resolve the Dispute). This meeting is to occur within five (5) Business Days of a party giving notice of the Dispute to the other party. If within twenty (20) Business Days of the meeting referred to above, the Dispute is not resolved, either party may refer the matter to a mediator who is independent of the parties. If the parties cannot agree on a mediator, either party may ask the Law Institute of Victoria to appoint an independent mediator. The mediator will decide the time, place and rules for mediation. The parties shall use their best endeavours to ensure mediation takes place as soon as practicable following the expiration of the twenty (20) Business day period following the meeting of the parties’ representatives. The parties agree to attend mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties. If the Dispute has not been resolved following mediation, the parties shall be free to exercise their rights at law pursuant to these Terms. Nothing in this clause operates to prevent a party from seeking urgent injunctive or equitable relief from a court of competent jurisdiction.
Email: The parties agree to sending and receiving electronic mail. Each party releases the other from any Liability it may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer. Entire agreement: These Terms contain the entire understanding between the parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.
Force Majeure: A party will not be liable for any delay or failure to perform its obligations under these Terms if such delay is due to any circumstance beyond its reasonable control. Governing law: These Terms are governed by the laws of Victoria, Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 4 Business Days in the case of post, or at the time of transmission in the case of transmission by email.
Publicity: You agree that We may advertise or publicise the broad nature of our provision of the Services to You, including on Our website or in Our promotional material. Software performance errors: Any errors with the performance of the Software are to be directed to https://spiffassist.freshdesk.com/support/solutions.
We will use Our best endeavours to respond to any report of a problem within 24 hours and to resolve the error within 48 hours. We will use Our best endeavours to treat the rectification of errors impacting upon your ability to trade, with urgent priority (dependent on factors outside Our control).
Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
Waiver: Any failure by a party to exercise any right under these Terms does not operate as a waiver. The single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that Party.
19.1 In these Terms unless the context otherwise requires:
(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(d) no clause will be interpreted to the disadvantage of a party merely because that party drafted the clause or would otherwise benefit from it;
(e) a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(g) a reference to $ or dollars refers to the currency of Australia.