|1.1||This Agreement is between Kidzcationz Pty Limited t/a Petcationz ABN 44606248524 (referred to as “we”, “us” or “our”), and the individual or entity (referred to as “you” or “your”) who uses any of our advertising services (Services) available at www.petcationz.com (Site), and collectively referred to as “the Parties” and each “a Party”.|
|1.2||You agree and accept that our Services are provided to you on these Terms and Conditions (Terms).|
|1.3||These Terms form the agreement under which we supply Services to you. Please read these Terms carefully. If you have any questions, please contact us using our contact details provided at the end of these Terms before you purchase any of our Services.|
|2.1||To use our Services, you will be required to register on our Site for an account (Account). It is your responsibility to keep the details of your Account confidential. You are liable for all activity on your Account.|
|2.2||We agree to perform the Services set out on the Site with due care and skill.|
|2.3||We may provide the Services to you using our employees and contractors, and they are included in these Terms.|
|2.4||Suppliers of third party services who are not an employee or our direct contractor (Third Party Services) will be your responsibility. We are not responsible for the quality of service provided by suppliers of Third Party Services. You must make direct arrangements with them.|
|3.1||We enable businesses to place advertisements on our Site (Ads).|
|3.2||If you place any Ads on our Site, you acknowledge and agree that you are responsible for your Ad and that your Ads and any related information can be viewed by the general public.|
|3.3||We reserve the right, at any time and without prior notice, to remove any Ads for any reason, including Ads which we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms or otherwise harmful to our Site and Services.|
|3.4||The terms of this Agreement apply to the Ads, including clause 4 Your Obligations, clause 5 Intellectual Property and clause 6 Confidential Information.|
4. YOUR OBLIGATIONS AND WARRANTIES
|4.1||You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.|
|4.2||You warrant that throughout the term of this Agreement that:
there are no legal restrictions preventing you from agreeing the Terms;
you will cooperate with us and provide us with information and comply with requirements in a timely manner, as requested by us from time to time, that are reasonably necessary to enable us to perform the Services;
the information you provide to us is true, correct and complete;
you will not infringe any third party rights in working with us and receiving the Services;
you will inform us if you have reasonable concerns relating to our provision of Services under the Terms, with the aim that we and you will use all reasonable efforts to resolve the concerns;
you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you;
if applicable, you have a valid ABN which has been advised to us; and
if applicable, you are registered for GST purposes.
5. YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
|5.1||You agree to provide information including Intellectual Property to us to enable us to provide the Services. You:
warrant that you have all necessary rights to provide the Intellectual Property to us;
grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable right and licence to use the Intellectual Property in any way we require to provide the Services to you; and
consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
|5.2||If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
irrevocably consent to any amendment of the Intellectual Property in any manner by us for the purposes of providing Services to you;
irrevocably consent to us using or applying the Intellectual Property for the purposes of providing Services to you without any attribution of authorship;
agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.
6. CONFIDENTIAL INFORMATION
|6.1||We, including our employees and contractors, agree not to disclose your Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you and not for any other purpose|
|6.2||You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.|
|6.3||These obligations do not apply to Confidential Information that:
is authorised to be disclosed;
is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
is received from a third party, except where there has been a breach of confidence; or must be disclosed by law or by a regulatory authority including under subpoena.
|6.4||The obligations under this clause will survive termination of these Terms.|
7. FEEDBACK AND DISPUTE RESOLUTION
|7.1||Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact any member of our staff.|
|7.2||If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure.
The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
|7.3||Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.|
|8.1||If you wish to remove your Ad, you are required to provide us with 30 days’ notice in writing.|
|8.2||Either party may terminate the Terms, if there has been a material breach of these Terms, subject to following the dispute resolution procedure.|
|8.3||We may terminate the Terms immediately, in our sole discretion, if:
we consider that a request for a Service is inappropriate, improper or unlawful;
you fail to provide us with clear or timely instructions to enable us to provide the Services;
we consider that our working relationship has broken down including a loss of confidence and trust;
for any other reason outside our control which has the effect of compromising our ability to perform the Services required within the required timeframe;
we terminate our business; or (f) you fail to pay an Invoice within fourteen (14) days of the payment date.
On termination of these Terms you agree that the any payments made are not refundable to you, and you are to pay all invoices for Services rendered to you.
On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
On completion of the Services, we will retain your documents (including copies) as required by law or regularity requirements. Your express or implied agreement to the Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
9. LIMITATION OF LIABILITY AND DISCLAIMERS
|9.1||ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).|
|9.2||Our liability is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.|
|9.3||Except for your Statutory Rights, all material and work is provided to you without warranties of any kind, either express or implied; and we expressly disclaim all warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose.|
|9.4||Services: If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us resupplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.|
|9.5||Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in this estimated period, which is affected by your delay in response, incomplete or incorrect information.|
|9.6||Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.|
|9.7||Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees, warranties and terms relating to the Services and this agreement, except those set out in this agreement, including but not limited to:
implied or express guarantees, warranties, representations or conditions of any kind, which are not stated in the Terms;
our Services being unavailable; and
any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with the inability to access or use the Services, and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
|9.8||This clause will survive termination of these Terms.|
|10.1||You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
any breach of these Terms; and
any misuse of the Services from or by you, your employees, contractors or agents.
You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of our Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
The obligations under this clause will survive termination of these Terms.
|11.1||Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.|
|11.2||Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you 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.|
|11.3||GST: If and when applicable, GST payable on our Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.|
|11.4||Relationship of parties: The Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.|
|11.5||Assignment: The Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).|
|11.6||Severance: If any provision (or part of it) of the Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of the Terms are valid and enforceable.|
|11.7||Notices: Any notice required or permitted to be given by either party to the other under these conditions will be in writing addressed to you at the address you provide. Our address is set out in these Terms. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.|
|11.8||Jurisdiction & Governing Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.|
|12.1||Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.|
|12.2||GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.|
|12.3||Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.|
For questions or notices, please contact us at:
Kidzcationz Pty Limited t/a Petcationz ABN 44606248524
PO Box 914 Dubbo NSW 2830
As at 4 May 2016