1. REFERENCES
1.1 The use of we us or our in this document
refers to MyGuestList.com.au (Syntac
Ventures Pty Ltd ACN: 131 517 961) or where appropriate our Personnel.
1.2 The use of you or your in this document
refers to the Client.
1.3 All other terms are defined and used as
set out in Schedule 1
2. THE AGREEMENT
2.1 We will provide the Services to you
during the Term.
2.2 Our agreement with you is governed by:
(a) this document;
(b) your Application; and
(c) our Directions.
2.3 Our agreement with you will come into effect
when we notify you that your Application has been accepted.
2.4 From time to time, MyGuestList
may amend this Agreement, in its sole discretion, by posting updated versions
of the Agreement at www.myguestlist.com.au or by
notifying Customer by other means. All such modifications to the Agreement
shall become effective upon the posting of the revised Agreement to www.myguestlist.com.au or by the receipt of notification of
a change to the Agreement by the Customer. Continued use of the service after
such time that amendments are posted on www.myguestlist.com.au
signify the Customer’s agreement to the amendments.
3. OUR OBLIGATIONS
3.1 We will:
(a) make the Services available to you during the Term; and
(b) provide other information in relation to the Services as you may reasonably
request for the purpose of using the Services.
3.2 From time to time, we may provide you
with Documentation for your use.
4. SECURITY AND ACCESS
4.1 To enable you to use access the Services,
we will provide you with personalised Security
Details.
4.2 At all times, you will be responsible for
the use, supervision, management and control of the Security Details. You must
use your best endeavours to safeguard the Security
Details and prevent the Services from use by unauthorised
third parties.
4.3 You will be responsible for any (authorised or unauthorised) use
or access to the Services by a third party using your Security Details.
4.4 You must immediately notify us in writing
if you become aware of any actual or potential unauthorised
use of the Security Details.
4.5 We may have to restrict or prohibit your
use of the Services at various times in our absolute discretion including for a
breach of this clause. You must abide by all restrictions or prohibitions on
access which are imposed by us.
5. TELEPHONE NUMBERS
5.1 Where necessary for use of the Services,
we will provide you with the Telephone Numbers.
5.2 We may change the Telephone Numbers and
the terms and conditions on which the Telephone Numbers are made available to
you from time to time.
5.3 If we change the Telephone Numbers, we
will:
(a) provide you with notice and inform you of the proposed dates from which the
changes will apply; and
(b) use our reasonable endeavours to ensure that
replacement Telephone Numbers are made available to you provided that the total
number of Telephone Numbers made available and the costs for your use accords
with the total number of Telephone Numbers approved for your use.
6. YOUR USE OF THE SERVICES
6.1 You will arrange for:
(a) your own internet access and any other equipment or services required by
you to access the Services;
6.2 You must immediately notify us in writing
if you become aware of you being unable to access the Services.
7. FEE
7.1 You will pay us the Fee:
(a) upfront and prior to us providing the Service; or
(b) within 7 days of us sending a Tax Invoice;
whichever we request.
7.2 You will pay us interest on any overdue
amounts owing to us at the Rate.
7.3 We can alter the Fee and the Rate at any
time by providing you with 30 days written notice. After the end of that
period, you will be bound by that alteration unless you terminate our agreement
in accordance with this document.
7.4 We can, in our absolute discretion, set
off any amount you pay us against any amount you owe us.
7.5 If payment is not made in full by the due
date you will be liable for any and all legal and or collection costs.
7.6 With your consent, we may alter the
Services provided to you and in that case, you agree to pay our additional fees
associated with that alteration.
7.7 If requested by us, you
will provide us with Security to secure any amounts you owe or will owe us.
7.8 You must provide us with a valid credit
card number belonging to you with available credit sufficient to pay the
applicable Service Fees. You authorize us, from time to time, to make all
charges described in this Agreement to your credit card account. In the event
that you cancel this credit card or it is otherwise terminated, you must
immediately provide us with a new valid credit card number. You authorise us, from time to time, to undertake steps to
determine whether the credit card number you have provided to us is a valid
credit card number. In the event that you do not provide us with a current
valid credit card number with sufficient credit upon request during the
effective period of this Agreement, you will be in violation of this Agreement,
and we may terminate this Agreement with You. In the event that you provide us
with a debit card number instead of a credit card number, you authorize us to
make all charges described in this Agreement to your debit card account.
8. INTELLECTUAL PROPERTY
8.1 We own the MyGuestList
Intellectual Property.
8.2 We will use the MyGuestList
Intellectual Property to provide you with the Services.
8.3 You are not licensed to use the MyGuestList Intellectual Property in any way.
8.4 Despite anything else in our agreement,
the MyGuestList Intellectual Property remains our
property in all respects regardless of any modification by you or a third
party.
8.5 You must immediately notify us in writing
if you become aware of any actual or potential unauthorised
use of the MyGuestList Intellectual Property.
9. YOUR WARRANTIES
9.1 You represent and warrant as at the date
of this document and at all times during the Term, that:
(a) you have the power and authority to enter into and perform your obligations
under this document;
(b) you have taken all necessary action to authorise
the signing, delivery and performance of this document;
(c) by the signing and in and during the performance of this document, you will
not violate:
(i) any law, authorisation,
ruling, consent, judgment, order or decree of any governmental agency or other
body;
(ii) your constitution, rules, by-laws and other governing documents,
directives and resolutions;
(iii) any contractual obligation; or
(iv) any intellectual property rights of any person;
(d) you will comply with all laws (including
Privacy Laws and SPAM laws) and all laws associated with and all reasonable
directions provided by us associated with your access to and use of the
Services and the Telephone Numbers;
(e) you will not copy, reproduce, modify, alter, reverse assemble or reverse
compile the MyGuestList Intellectual Property other
than provided for in our agreement;
(f) you and your Personnel will not do anything which is of an offensive,
illegal, fraudulent or defamatory nature which may bring disrepute or harm to
us, our Personnel, the Services and our Facilities;
(g) you will not:
(i) transmit
computer worms, viruses or any other malicious material or content;
(ii) create or send any electronic messages to third parties fraudulently
claiming to be or representing any business or entity;
(iii) create or send any electronic message which contains any obscene,
sexually explicit, racist, abusive or defamatory material or any material which
breach any law;
(h) the information
contained in the Application:
(i) is true and
correct and will remain true and correct during the Term; and
(ii) does not mislead or deceive; and
(i) you will do
everything necessary (including providing us with any information) if we
request for any purpose associated with providing the Services (including for
the purpose of undertaking credit checks);
(j) you will verify and amend the Documentation to ensure it protects your
interests and complies with all laws;
(k) you understand that third parties may use the Services during the Term; and
(l) you understand that provision of the Services and the Telephone Numbers are
based upon services provided by third parties and accordingly, our ability to
provide the Services and the Telephone Numbers will be affected by those third
parties.
10. OUR WARRANTIES
10.1 We warrant that:
(a) we have the power and authority to enter into and perform our obligations
under this document;
(b) by entering into and complying with our obligations under this document,
neither us nor our Personnel will be in breach of any agreement or undertaking
with any other person.
10.2 To the maximum extent permitted by law,
we do not warrant that:
(a) the Services are fit for or suitable for any particular purpose or of
merchantable quality;
(b) the Documentation is up-to-date or contains all the necessary information
required to satisfy all laws;
(c) you will have uninterrupted and fault-free access to the Services and the
Telephone Numbers;
(d) all electronic messages will be transmitted or delivered successfully or in
a timely manner.
10.3 Subject to clause 10.4, any condition or
warranty which would otherwise be implied in our agreement is excluded.
10.4 Where legislation implies in our
agreement any condition or warranty, and that legislation avoids or prohibits
provisions in a contract excluding or modifying the application of or exercise
of or liability under such condition or warranty, the condition or warranty
shall be deemed to be included in our agreement. However, our liability for any
breach of such condition or warranty will be limited, at our absolute option,
to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent
goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent
goods;
(iv) the payment of the cost of having the goods repaired; or
(v) the refund of any Fee paid; and
(b) if the breach relates to services:
(i) the supplying of the services
again;
(ii) the payment of the cost of having the services supplied again; or
(iii) the refund of any Fee paid.
11. INDEMNITY AND RELEASE
11.1 You release us and our Personnel from
all Claims associated with:
(a) any acts or omissions of you or your Personnel in relation to your use and
access to the Services (including the sale or provision of any content to third
parties);
(b) your breach of this document;
(c) the infringement of the MyGuestList Intellectual
Property or the intellectual property rights of any third party by any act or
omission of you or your Personnel;
(d) any reliance by you on the Documentation and any representations made by us
or our Personnel in connection with the Services and the Documentation (unless
otherwise stated in this document).
11.2 You also release us and our Personnel
from any loss of profits or consequential or indirect loss or damage resulting
from:
(a) any access to or use by you of the Services;
(b) any disruption to your facilities, corruption or loss of data,
inconvenience or damage to your business or trade associated with your access
to or use of the Services.
11.3 You indemnify us and our Personnel from
all Claims associated with the matters set out in clauses 11.1(a) to (d)
(inclusive) and clauses 11.2(a) and (b).
12. TERMINATION
12.1 Without limiting the generality of any
other clause in this document, either party may terminate our agreement
immediately by notice in writing if:
(a) a party breaches any of its obligations under this document in
circumstances where the breach is not capable of rectification;
(b) a party breaches any of its obligations under this document, and then fails
to rectify the breach within 10 Business Days of it receiving a notice from the
other party identifying the breach; or
(c) a party becomes or resolves to become subject to any form of insolvency
administration, dissolution or winding-up.
12.2 We may suspend the Services and/or
terminate our agreement immediately by notice in writing if you:
(a) fail to pay Fee when it falls due;
(b) you breach the terms of this document;
(c) in our absolute discretion, you or your Personnel do anything to compromise
the technical integrity, operation or viability of our Services.
12.3 If we terminate our agreement due to
your default, we can retain any part of the Fee you have paid prior to the
termination and the balance of the Fee (if any) not paid at the date of
termination will become immediately due and owing.
12.4 You agree to enter into a 12 month
contract and must pay the outstanding balance if you choose to terminate the
service before the term is complete.
12.5 Upon termination of our agreement:
(a) we will immediately cancel your Security Details and access to the Services
and Telephone Numbers;
(b) you will immediately return to us all information and material provided by
us to you under our agreement;
(c) we may extract and provide you with the Data upon payment of all
outstanding Fees and a further extraction fee (if any) nominated by us at our
sole discretion.
12.6 Any termination under this clause is
without prejudice to any other rights, liabilities or obligations accrued at
the date of termination.
13. VARIATION AND CANCELLATION BY US
13.1 From time to time, we may modify our
Services and in that case, we use our reasonable endeavours
to ensure that such modification does not adversely affect you.
13.2 If, for any reason, we cannot make the
Services available to you during the Term, we will:
(a) provide you with written notice of that as soon as practicable; and
(b) use our reasonable endeavours to make another
comparable services available to you during the Term on the same terms.
13.3 We may cancel your use of the Services
if, in our absolute discretion providing the Services becomes unlawful or will
cause a breach of law.
14. DATA
14.1 You own the Data and you grant us a
non-exclusive perpetual and royalty free licence to
use the Data:
(a) to provide the Services to you; and
(b) for other purposes in accordance with clause 14.2.
14.2 We may:
(a) use the Data to create a personalised experience
for providers of the Data who are contacted through the Services;
(b) aggregate the Data in order to improve performance and the nature of the
Services;
(c) use the Data to produce generic depersonalised
profiles (such as the preferences of customers) to enhance the provision of the
Services;
(d) analyse the Data to various purposes such as
benchmarking, market research and product analysis generic to industries.
in relation to both your and our other clients’ use of
the Services.
14.3 Both we and you must:
(a) comply with the Privacy Laws and SPAM Laws; and
(b) notify all persons from whom you collect the Data that that information
will be used by us in accordance with clauses 14.1 and 14.2.
(c) allow the providers of the Data to alter the data
in any way required, including but not limited to permanent deletion.
14.4 We will never:
(a) distribute your data to third party organizations without your prior
written consent.
14.5 In extreme circumstances (such as to
notify a person of an error), we may directly contact the persons from whom you
collect the Data.
15. CONFIDENTIAL INFORMATION
15.1 Either party must not, without the prior
written approval of the other party, disclose the other party’s Confidential
Information.
15.2 A party will not be in breach of clause
15.1 in circumstances where it is legally compelled to disclose the other
party’s Confidential Information.
15.3 Each party must take all reasonable
steps to ensure that its Personnel do not make public or disclose the other
party’s Confidential Information.
15.4 Notwithstanding any other provision of
this clause, either party may disclose the terms of our agreement (other than
Confidential Information of a technical nature) to related companies,
solicitors, auditors, insurers or accountants, and will ensure that every
person to whom that disclosure is made uses that information solely for the
purposes of advising or reporting directly to that party.
15.5 This clause will survive the termination
of our agreement.
16. FORCE MAJEURE
16.1 Neither party will be liable for any
delay or failure to perform its obligations pursuant to this document if such
delay is due to Force Majeure.
16.2 If our delay or failure to perform our
obligations due to Force Majeure exceeds a reasonable
period as we determine, we may immediately terminate the document on providing
written notice to you.
17. GST
17.1 All amounts stated in the Application
are exclusive of GST unless otherwise stated.
17.2 If GST is payable on a Taxable Supply
made or required to be made under this document by us, you must pay the amount
of the GST to us as an additional amount when we provide a Tax Invoice to you
for the relevant Taxable Supply.
18. NOTICES
18.1 All notices given under this document
must be in writing and may be delivered in person or by mail or email or sent
by facsimile transmission to their Address. You may change your particulars for
service by notice in writing to us.
18.2 A notice sent by post will be deemed
received three days after posting.
18.3 A notice sent by facsimile transmission
will be deemed received on the date stated on the facsimile transmission report
produced by the machine sending the facsimile.
18.4 A notice sent by email transmission will
be deemed received on the date stated on the email transmission.
19. GENERAL
19.1 Governing Law
This document will be construed in accordance with the laws in force in
19.2 Stamp Duty and Legal Fees
Each party will bear its own legal and other costs and
expenses relating to this document. You must pay any stamp duty.
19.3 Amendments
We may amend this document at any time in our absolute
discretion by providing you with notice. You may not amend this document unless
it is in writing and signed by both you and us.
19.4 Joint and Several
An obligation of two or more persons under this document binds them jointly and
severally and every expressed or implied agreement or undertaking by which two
or more persons derive any benefit in terms of this document will take effect
for the benefit of those persons jointly and severally.
19.5 Severability
If any provision in this document is invalid or unenforceable this document
will remain otherwise in full force apart from such provision, which will be
deemed deleted.
19.6 Waiver
The failure of a party to this document to enforce a provision or the granting
of any time or indulgence will not be construed as a waiver of the provision
nor of a waiver of the right of the party at a later time to enforce the
provision.
19.7 Assignment
You may not assign your rights or obligations under
this document without our prior written consent which consent we may give or
withhold or give on conditions in our absolute discretion. We may assign our
rights or obligations under this document at any time in our absolute
discretion.
SCHEDULE 1
DICTIONARY
In this document:
Address means your address and our address as set out in the
Application.
Application means the written application or on-line purchase
order prepared by you and submitted to us for your use of our Services.
Business Days means a day when the banks are open for business
in
Client means the person or entity set out in the Application.
Claim means in relation to a person, a claim, demand, remedy,
suit, injury, damage, loss, cost, liability, action, proceeding, right of
action, claim for compensation or reimbursement or liability incurred by or to
be made or recovered by or against the person, however arising and whether
ascertained or unascertained, or immediate, future or contingent.
Data means all personal information collected by you from
individuals including your customers, potential customers, employees and
contractors.
Documentation means any standard documentation provided by us
online or offline for use in your business including privacy statements and
terms and conditions.
Directions means all lawful directions we give to you or your Personnel.
Facilities means all our software,
hardware and other facilities associated with provision of the Services.
Fee means the fee set out in the Application.
Force Majeure means circumstances
beyond the reasonable control of a party which results in that party being
unable to perform an obligation of this document on time or at all, and
includes but is not limited to:
(a) acts of God,
lightning strikes, earthquakes, floods, storms, explosions, fires and any other
natural disasters;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion and
sabotage; and
(c) strikes or other industrial action or disputes not involving employees,
members or participants of the party seeking to rely on the Force Majeure event.
GST has the same meaning as in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax)
Act 1999.
MyGuestList means Syntac Ventures Pty Ltd trading as MyGuestList
MyGuestList Intellectual
Property means any Intellectual Property Rights owned or used by us
under licence including the registered and
unregistered trade marks of us including all names, logos, graphics, domain
names and URLs of us and any variant of them.
Intellectual property rights include:
(a) inventions, discoveries and novel
designs, whether or not registered or registrable as
patents or designs, including developments or improvements of equipment,
products, technology, processes, methods or techniques;
(d) copyright (including future copyright) throughout the world in all literary
works, artistic works, computer software, and any other works or subject matter
in which copyright subsists and may in the future subsist;
(e) trade secrets; and
(f) trade marks.
Rate means the rate of 1.25% per calendar month calculated
daily.
Personnel in relation to a party means
the party’s officers, office-holders, committee, members, employees and
contractors.
Privacy Laws means all applicable privacy laws including the
Privacy Act 1988 (Cth) and the National Privacy
Principles.
Services means the services offered
by us to you from time to time and as set out in the Application.
Security means any enforceable obligation to secure amounts
owed by you to us from time to time.
Security Details
means a log-in identification and password to enable you to access the
Services.
SPAM Laws means all applicable laws relating to the sending of
electronic communications. including the Spam Act 2003
(Cth)
Taxable Supply has the same meaning as in the GST Act.
Tax Invoice has the same meaning as in the GST Act.
Telephone Numbers means the telephone number(s) which we
notify you of from time to time.
Term means the date of the Application until this agreement is
terminated.
Construction
In this document:
(g)
words in the singular include the plural and vice versa;
(h) words indicating any gender indicate the appropriate gender;
(i) where a word or phrase is given a particular
meaning, other parts of speech and grammatical forms of that word or phrase
have corresponding meanings;
(j) a reference to a person is to be construed as a reference to an individual,
body corporate, unincorporated association, partnership, joint venture or
government body;
(k) any reference to a party includes that party's executors, trustees,
administrators, successors in title and assigns;
(l) references to any document (including this document) include references to
the document as amended, consolidated, supplemented, novated
or replaced and includes all Schedules and Annexures
to this document;
(m) a reference to a Statute includes a reference to or citation of all
enactments amending or consolidating the Statute and to an enactment
substituted for the Statute;
(n) monetary references are references to Australian currency; and
(o) headings are included for convenience only and do not affect interpretation
of this document.