Terms and Conditions – (SaaS)

 

  1. Acceptance

You accept this Agreement by the earlier of:

  • signing and returning this Agreement to us, including by email or any electronic executions platform acceptable to us;

  • confirming by email that you accept this Agreement;

  • instructing us (whether orally or in writing) to proceed with the provision of the Services; and

  • making part or full payment of the Fees.

  1. Services

2.1      In consideration of your payment of the Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel. 

2.2      We will not be responsible for any Services unless expressly set out in the inclusions in the Schedule.

2.3      If this Agreement expresses a time within which the Services are to be provided, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only, and creates no obligation on us to provide the Services by that time.

2.4      Subject to any other provisions of this Agreement, we will commence providing the Services within a reasonable time after the Commencement Date, or as otherwise agreed between the Parties in the Schedule or otherwise. 

  1. SaaS Licence

3.1      In consideration of your payment of the SaaS Solution Fee, we will supply you with the SaaS Solution in accordance with the Schedule.

3.2      During the Term, and subject to your compliance with this Agreement, we grant you and your Authorised Users a non-exclusive, non-transferable, non-sublicensable and revocable licence to access and use the SaaS Solution solely for your business purposes and as contemplated by this Agreement (SaaS Licence).

3.3      You agree that the SaaS Licence permits you to access and use the SaaS Solution in accordance with the SaaS Conditions, as set out in the Schedule.

  1. Authorised Users

4.1      We agree to provide each Authorised User with access to the SaaS Solution in accordance with the Authorised User Permissions.

4.2      You will ensure each Authorised User complies with the terms of this Agreement. 

4.3      Each Authorised User must agree to our End User Licence Agreement in order to access the SaaS Solution.

  1. SaaS Licence – Additional Conditions of Use

You must not (and you must ensure that each Authorised User does not):

  • access or use the SaaS Solution except as permitted by the SaaS Licence, or other than through the interface that is provided by us;

  • access or use the SaaS Solution in any way that is improper or breaches any Laws, infringes any person’s rights (including Intellectual Property Rights and privacy rights), or gives rise to any civil or criminal liability;

  • interfere with or interrupt the supply of the SaaS Solution or our System, or any other person’s access to or use of the SaaS Solution;

  • introduce any Harmful Code into the SaaS Solution or our System;

  • directly or indirectly use, copy, decompile or reverse engineer the SaaS Solution;

  • allow others to access or use your Account (or in the case of Authorised Users, their login details), including any password or authentication details;

  • use the SaaS Solution to carry out security breaches or disruptions of a network;

  • attempt to access any data or log into any server or account that you are not expressly authorised to access;

  • circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or

  • access or use the SaaS Solution to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.

  1. Rewards Points

    • During the Term, we will work with you to determine the Rewards Journey and each Rewardable Event, which will trigger the release of Rewards Points to your Authorised User.

    • We will collaborate with you to determine the relevant Rewards Points to allocate to a Rewardable Event. Any decision by us regarding the number of Rewards Points to be allocated to a Rewardable Event is final.

    • Where your Rewards Points are reduced to 0, we will automatically add 100,000 Additional Rewards Points to your Account, which will be billed to you in accordance with the Additional Rewards Points rates set out in the Schedule and are payable in accordance with the Payment Terms.

    • If you would like to change any part of the Rewards Journey, including a Rewardable Event, during the Term, you may contact us to discuss and implement these changes.

  2. Availability

7.1      Once you have been provided access to the SaaS Solution, we will use our best endeavours to make the SaaS Solution available at all times during the Term. 

7.2      From time to time, we may perform such reasonable scheduled and emergency maintenance and updates in relation to the SaaS Solution in order to continue to supply the SaaS Solution to you and our other customers (Scheduled or Emergency Maintenance). You agree that access to, or the functionality of all or part of the SaaS Solution, may need to be suspended for a time in order for us to perform Scheduled or Emergency Maintenance, and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the SaaS Solution as a result of any Scheduled or Emergency Maintenance.

7.3      We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the SaaS Solution. 

8.         Third Party Inputs

  • You acknowledge and agree that the Services may interact with, or be reliant on, certain Third Party Inputs, including your operating system, web browser, and CRM.

  • You acknowledge and agree that, unless we have expressly agreed to provide the services described in this clause 2 in the Schedule:

(a)                        you are responsible for obtaining and managing all licences for the relevant Third Party Inputs;

(b)                        you are responsible for paying all fees related to the Third Party Inputs; and

(c)                         you agree to comply with terms and conditions applicable to the relevant Third Party Inputs at all times.

  • We do not make any warranty or representation in respect of any Third Party Inputs.

  • 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 caused or contributed to by, arising from or connected with any Third Party Inputs, subject to clause 5.

  • Should any unavailability, error or change to a Third Party Input have a substantial and adverse impact on your use and enjoyment of the Services:

  • you agree to notify us in writing within 5 days of the change coming into effect; and

  • following receipt of such notice by us, the Parties will use all reasonable endeavours to work together to resolve the matter.

    • This clause 8 will survive the termination or expiry of this Agreement.

  1. Additional Services

9.1      You may request Additional Services, including support and assistance on a consultancy basis, by providing written notice to us. 

9.2      We may, at our discretion, provide you with written notice in the form of a statement of work, setting out (among other things) the Additional Services requested and any further fee required for us to undertake the Additional Services (Statement of Work). 

9.3      If you agree to the Statement of Work for the Additional Services, we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees. 

9.4      Each Statement of Work will be subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties in writing. To the extent of any ambiguity or discrepancy between a Statement of Work and this Agreement, the terms of this Agreement will prevail. 

  1. Security

10.1    Subject to the terms of this Agreement, both Parties will establish and maintain appropriate, reasonable technical and organisational security measures in accordance with good industry practice when using or providing the Services.

  1. Security Incidents

11.1    If either Party becomes aware of or reasonably suspects that a security incident has occurred arising from our provision of the Services, such that Your Data has or may have been compromised (for example, unauthorised access) (each a Security Incident), that Party must promptly notify the other Party and we agree to, within a reasonable time:

(a)                        conduct an investigation to determine whether a Security Incident has occurred, and where one has, the cause and impact of it on Your Data; and 

(b)                       where a Security Incident is deemed to have occurred, remediate the Security Incident to the extent that this is operationally, commercially and technically feasible.

11.2    You agree that we may suspend the Services where a Security Incident has or may have occurred and this is considered necessary or prudent (as determined by us, at our reasonable discretion) to address or deal with the Security Incident.

11.3    We will bear our costs in conducting any investigation or remediation required under this clause, unless the incident triggering the Security Incident was caused or contributed to by you (or any Authorised User), in which case, you will be liable for those costs reasonably and necessarily incurred by us arising from the Security Incident. 

  1. Variations

12.1    You may request a variation or change to the Services, including the timing for the provision of the Services, or a change to the SaaS Conditions (including any change to the Authorised User numbers or Authorised User Permissions) (Variation), by providing written notice (including by email and our online portal) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with this Agreement as varied by any Variation Request accepted in writing. 

12.2    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 and accepted by us in accordance with this clause 12.

12.3    We will advise you if you are exceeding the relevant SaaS Conditions, and inform you whether you are required to upgrade to a different SaaS Solution Tier, in line with the appropriate SaaS Conditions.

12.4    Any Variation will apply within a reasonable time after our acceptance of your Variation Request, and if applicable, any increase to the Fees will be charged on a pro-rata basis if such increase occurs during the then-current Fee period.

  1. Your Obligations and Representations

13.1    You agree: 

  • to comply with this Agreement and all applicable Laws;

  • to provide all assistance, information, documentation, and other things reasonably necessary to enable us to comply with our obligations under this Agreement or at Law;

  • to ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked;

  • to make any changes to your Systems, such as System upgrades, that may be required to support the delivery and operation of any Services;

  • to ensure that any Systems used in connection with the Services have all necessary approvals and comply with all Laws;

  • that you have reviewed and understand the terms of this Agreement (including our Privacy Policy), and that you (and Authorised Users) will use the Services in accordance with them; and

  • to notify us of any breach or suspected breach of this Agreement by you (or an Authorised User), within 48 hours of becoming aware of any such breach or suspected breach.

13.2    You acknowledge and agree that:

  • the technical processing and transmission of the Services, including Your Data, may be transferred unencrypted and involves transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices; and

  • the Services are provided to you and your Authorised Users, solely for your and your Authorised Users’ 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; and

  • you will not alter or modify the Services in any way that is not contemplated by the purposes of the Services.

  1. Payment

14.1    You agree to pay us the Fees, and any other amount payable to us under this Agreement, in accordance with the Payment Terms.

14.2    If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):

  • after a period of 5 Business Days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so, and/or

  • charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.

14.3    You agree that we may vary the Fees by providing written notice to you of such variation. Where we provide this notice, the new Fees will take effect on and from the end of the Initial Term or the then Renewal Period. If you do not agree to any Fee variation:

  • you agree to notify us in writing within 14 days of the Fee variation coming into effect; and

  • following receipt of such notice by us, the Parties will use all reasonable endeavours to work together to resolve the matter.

14.4    If: 

  • you have provided us with the notice in accordance with clause 3(a); and

  • the Parties are unable to resolve the matter pursuant to clause 3(b),

you may elect to terminate the Agreement prior to the end of the Initial Term or the then Renewal Period in accordance with the notice period in the Schedule, and in which case, clause 23.3 will apply.

14.5    To the maximum extent permitted by law, there will be no refunds or credits for any unused Services (or part thereof).

14.6    You agree that we may set-off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us (whether under this Agreement or otherwise).

  1. Warranties

15.1    We agree:

(a)                        that we are properly constituted and have the right and authority to enter into this Agreement;

(b)                       that we will use reasonable efforts to ensure all of our obligations under this Agreement will be carried out by suitably competent and trained Personnel and in an efficient and professional manner;

(c)                        that we have legal authority to grant you the SaaS Licence;

(d)                       that all pre-existing Intellectual Property Rights in the Services (with the exception of the property rights in any Third-Party Inputs) will be owned, held or licensed by us;

(e)                        that the provision of the Services does not and will not infringe any other person’s Intellectual Property Rights; and

(f) that the Services will operate and be provided in accordance with this Agreement.

15.2    You represent, warrant and agree that:

  • you will provide us with any information that we require in order to provide the Services to you (for example, information that we need to set up the Accounts or get you onboarded;

  • there are no legal restrictions preventing you from entering into this Agreement;

  • all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;

  • you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;

  • you are not and have not been the subject of an Insolvency Event;

  • if applicable, you hold a valid ABN which has been advised to us; and

  • if applicable, you are registered for GST purposes.

  1. Intellectual Property

Our Intellectual Property Rights

16.1    As between the Parties, you acknowledge and agree that we own all Intellectual Property Rights in:

  • Our Materials;

  • New Materials or Improvements; and

  • any Feedback,

and as between the Parties, these Intellectual Property Rights will at all times vest, or remain vested, in us, and nothing in this Agreement constitutes an assignment or transfer of such Intellectual Property Rights. To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

16.2    In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel and your Authorised Users do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.

16.3    You also agree that:

(a)                        we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback;

(b)                       you must not whether directly or indirectly, without our prior written consent:

  • copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any part of the Services or otherwise attempt to discover any part of the source code of the SaaS Solution;

  • use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the SaaS Solution;

  • unless authorised under this Agreement, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;

  • rent or sublicence the use of the Services to any third parties, without our prior written consent or as otherwise permitted under this Agreement;

  • take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise;

  • remove or deface any confidentiality, copyright or other proprietary notice placed on the Services; or

  • use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing.

Your Intellectual Property Rights

16.4    As between the Parties, you will continue to own all Intellectual Property Rights in Your Materials.

16.5    You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, and as otherwise contemplated by this Agreement.

16.6    If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

Your Data

16.7    As between the Parties:

(a)                        Your Data is and will remain your property; and

(b)                       you retain any and all rights, title and interest in and to Your Data, including all copies, modifications, extensions and derivative works.

16.8    You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data during the Term (and for a reasonable period after the Term), to:

(a)                        supply the Services to you and your Authorised Users (including to enable you and your Personnel to access and use the Services), and otherwise perform our obligations under this Agreement;

(b)                       diagnose problems with the Services;

(c)                        enhance and otherwise modify the Services;

(d)                       perform Analytics;

(e)                        develop other services, provided we de-identify Your Data; and

(f) as reasonably required to perform our obligations under this Agreement.

16.9    You acknowledge and agree that:

(a)                        we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel; and

(b)                       we assume no responsibility or Liability for Your Data. You are solely responsible for Your Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up Your Data.

16.10  You represent, warrant, acknowledge and agree that:

(a)                        you have obtained all necessary rights, releases and permissions to provide or have Your Data provided to us and to grant the rights granted to us in this Agreement;

(b)                       Your Data (and its transfer to and/or use, collection, storage or disclosure by us as contemplated by this Agreement) does not and will not violate any Laws (including those relating to export control and electronic communications) or the rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and

(c)                        the operation of the Services is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Services.

16.11  This clause 16 will survive termination or expiry of this Agreement.

 

  1. Analytics

17.1    You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

(a)                        does not contain any identifying information; and

(b)                       is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.

17.2    We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

17.3    We may use and disclose to our service providers anonymous data about your access and use of the SaaS Solution for the purpose of helping us improve the SaaS Solution. Any such disclosure will not include details of your, or any Authorised User’s, identity or personal information.

  1. Confidential Information

18.1    Each Receiving Party agrees:

  • not to disclose the Confidential Information of the Disclosing Party to any third party;

  • to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

  • 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.

18.2    The obligations in clause 18.1 do not apply to Confidential Information that: 

  • is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;

  • is authorised to be disclosed by the Disclosing Party;

  • is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or

  • must be disclosed by Law or by a regulatory authority, including under subpoena.

18.3    Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 18.  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 18. 

18.4    This clause 18 will survive the termination of this Agreement. 

  1. Privacy

19.1    For the purposes of this clause, Personal Information and Sensitive Information have the meanings given in the Privacy Act 1988 (Cth), and also include any similar terms as defined in any other privacy law applicable to you.

19.2    You must, and must ensure that your Personnel and your Authorised Users, at all times comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement (Privacy Laws).

19.3    Without limiting this clause 19, you must ensure that:

(a)                        you have collected, used, stored and otherwise dealt with Your Data in accordance with all Privacy Laws; and

(b)                       we are capable of collecting, using, storing and otherwise dealing with Your Data, in the manner contemplated by this Agreement, without infringing any third party rights or violating any Privacy Laws.

19.4    Without limiting this clause 19, you agree to only disclose Your Data, to the extent it contains Personal Information if: 

(a)                        you are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by this Agreement; 

(b)                       you have informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties; and 

(c)                        where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates. 

19.5    We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under this Agreement, and in accordance with any applicable Laws and our Privacy Policy.

 

 

  1. Australian Consumer Law

20.1    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 (Consumer Law Rights).

20.2    If the ACL applies to you as a consumer, nothing in this Agreement excludes your Consumer Law 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 this Agreement. 

20.3    Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.

20.4    This clause 20 will survive the termination or expiry of this Agreement.

  1. Exclusions to liability

21.1    To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with: 

  • any interruptions or downtime to the SaaS Solution as a result of any Scheduled or Emergency Maintenance;

  • your Computing Environment;

  • your, your Authorised Users, or your Personnel’s acts or omissions;

  • any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;

  • 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;

  • any Third Party Inputs; and/or

  • any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Your Data).

21.2    This clause 21 will survive the termination or expiry of this Agreement.

  1. Limitations on liability

22.1    Despite anything to the contrary, to the maximum extent permitted by law: 

  • neither Party will be liable for Consequential Loss;

  • a Party’s liability for any Liability under this Agreement 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), including any failure by the other Party to mitigate its loss; and

  • our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

22.2    This clause 22 will survive the termination or expiry of this Agreement.

  1. Termination

23.1    You may terminate the Services at any time, by providing written notice to us. You will continue to have access to the Services (and agree to pay us for the Services) for the remainder of the Initial Term, or subsequent Renewal Period, as the case may be. Following your notice of termination, upon expiry of the relevant Initial Term or Renewal Period, your access to the Services will be terminated.

23.2    This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

  • the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or

  • the Defaulting Party is unable to pay its debts as they fall due.

23.3    Upon expiry or termination of this Agreement:

  • we will immediately cease providing the Services;

  • we will be entitled to anonymise or permanently delete all Your Data within 60 days from expiry or termination of this Agreement;

  • without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;

  • 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 this Agreement; and

  • upon request by us, you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or Intellectual Property owned by us that is in your possession or control, subject to clause 16.

23.4    We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

23.5    Where this Agreement is terminated by us pursuant to clause 23.1 you agree to pay us:

  • the Fees for the remainder of the Term; and

  • our additional costs, reasonably incurred, and which arise directly from such termination.

23.6    Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it. 

23.7    This clause 23. will survive the termination or expiry of this Agreement.

  1. GST

24.1    If GST is payable on any supply made under this Agreement, 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 this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, 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.

24.2    If an adjustment event arises in respect of any supply made under this Agreement, 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.

24.3    If the recipient is required under this Agreement 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.

24.4    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).

  1. General

25.1    Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services. 

25.2    Advertising and linked websites: The SaaS Solution may contain links to websites of third parties. You acknowledge and agree that we do not endorse, and we are not responsible for the content contained on, any such linked websites or any hyperlink contained in a linked website. Your access to or use of any linked website is at your own risk.

25.3    Amendment: This Agreement may only be amended by written instrument executed by the Parties.

25.4    Assignment: Subject to clause 25.5, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

25.5    Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.

25.6    Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.

25.7    Disputes: You agree to notify us should you have concerns relating to our performance of the Services. A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (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. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

25.8    Entire agreement: Subject to your Consumer Law Rights, this Agreement contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

25.9    Force Majeure: A Party will not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.

25.10  Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.

25.11  Governing law: This Agreement is governed by the laws of Victoria. 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. 

25.12  Illegal Requests: We reserve the right to refuse any request for or in relation to any Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with this Agreement.

25.13  Notices: Any notice given under this Agreement 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 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

25.14  Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

25.15  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.

25.16  Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

25.17  Severance: If a provision of this Agreement 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 this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

  1. Definitions

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, and:

Authorised User Account means an account accessible to an Authorised User to use the Services, including, the SaaS Solution.

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.

Additional Services means any Services not set out in the Services description in the Schedule which we agree to provide to you.

Agreement means these terms and conditions and any documents attached to, or referred to in, each of them.

Authorised User, if applicable, means a user permitted to use and benefit from the Services, as further particularised in the Schedule.

Business Day means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.

Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.

Confidential Information includes information which:

  • is disclosed to the Receiving Party in connection with this Agreement at any time;

  • is prepared or produced under or in connection with this Agreement at any time;

  • relates to the Disclosing Party’s business, assets or affairs; or

  • relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

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 consequential loss, indirect loss, 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. The Parties acknowledge and agree that your obligation to pay us the Fees under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.

Consumer Law Rights has the meaning given in clause 20.1.

Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

End User Licence Agreement means the terms and conditions an Authorised User must agree to, before signing up to the SaaS Solution, available at: https://loyaltyrepublic.com.au/terms-and-conditions/

Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel and your Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.

Fees means the price set out in the Schedule, as adjusted in accordance with this Agreement.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Harmful Code means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alternation, denial of service, unauthorised access to or disclosure, destruction or corruption of information or data.

Improvements means any development, modification, adaptation or improvement of Our Materials or 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 during the Term.

Insolvency Event means any of the following events or any analogous event:

  • 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;

  • a Party ceases, or threatens to cease, carrying on business;

  • a Party is unable to pay the Party’s debts as the debts fall due;

  • 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;

  • 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

  • any step is 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 copyright, registered or unregistered designs, patents or trade mark rights, 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 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 using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

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.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement 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 this Agreement or otherwise.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, and services that we may provide to you under this Agreement, and which may contain material which is owned by or licensed to us, and is protected by Australian and international laws.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Privacy Laws has the meaning given in clause 19.2

Privacy Policy means any privacy policy available on the SaaS Solution;

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Rewardable Event means a trigger event for the release of Reward Points from you to your Authorised User, as decided by us and informed to you.

Rewards Journey means a series of Rewardable Events as a data set, as decided by us.

Reward Points means a point/s earned by an Authorised User on the Platform, at a Rewardable Event, as decided by us and informed to you.

Schedule means the schedule to this Agreement. 

Services means the services that we agree to perform under this Agreement, as further particularised in the Schedule.

System means all hardware, software, networks, telecommunications and other IT systems used by a Party from time to time, including a network.

Terms and Conditions means these terms and conditions, as attached to the Schedule, and together forming the Agreement.

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.

Your Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel and your Authorised Users into the Services or stored by or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with this Agreement. Your Data does not include the Analytics, or any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.    

Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned or licensed by you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.

27.      Interpretation

In this Agreement, unless the context otherwise requires:

(a)              a reference to this Agreement 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 (including 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)              words like including and for example are not words of limitation;

(h)              a reference to time is to local time in Victoria; and

(i)               a reference to $ or dollars refers to the currency of Australia from time to time.

Terms and Conditions – Consumer

Our disclosures to you:

Please read these Terms carefully prior to accepting Terms. By accepting these Terms, you agree that:

  • we may disclose your personal information to third parties as set out in our Privacy Policy;
  • the rates at which reward points accrue is determined by us and may change without notice to you;
  • we may change the rewards available on the mobile application or the amount of points required to redeem a reward;
  • subject to your consumer law rights, our liability arising from or in connection with these Terms will be limited to any recourse you may have under the Australian Consumer Law and we exclude our liability for consequential loss;
  • subject to your consumer law rights, we exclude our liability for any defect or error in the platform, including the removal of any partner from the platform; the platform being unavailable; any illness, injury or death result from use of the platform; any transaction entered into between you and any merchant; any rewards you redeem through the platform; and any rewards that are lost, altered, damaged, delayed or misdirected due to any reason beyond our reasonable control;
  • subject to your consumer law rights, you must indemnify us against any liability suffered by us arising from or in connection with your use of our platform or any breach of these Terms or any applicable laws by you;
  • we may, at any time, discontinue the platform or exclude any person from the platform, for which we will not be responsible for any loss or damage; and by accepting these Terms, you also agree to be bound by the Basiq Minimum User Terms, which are located at Appendix 1 to these Terms.

TERMS AND CONDITIONS

Acceptance

Thank you and welcome to Loyalty Republic! We offer a mobile application (Application) that allows you to earn points in a variety of interactions within the app (Points), which you can redeem for products and services, gift cards, attractions and even cash-equivalent rewards (Rewards) within our eMall. These points earning interactions are listed below:

  • Connecting your bank account and its associated debit card(s), from more than 70+ financial institutions across Australia, to earn points on purchase transactions
  • Uploading purchase receipts from selected major supermarket, department store, convenience store and petrol station retailers
  • Taking out a proprietary offer and/or promotion from our various marketplace partners
  • Purchasing and redeeming items from our eMall

Our Application is available on both the Apple App Store and Google Play Store, which is herein referred to as the Platform.

You accept these terms and conditions (Terms), including our Privacy Policy, which is available at www.loyaltyrepublic.com.au/privacy and any annexes and attachments included, or referred to, in these Terms, by downloading or using our Platform. These Terms will commence on the date on which you accept these Terms and will continue until the date these Terms are terminated in accordance with the Termination clause below (Term).

If you access or download our App from (1) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.

In these Terms, we, our or us means Points to Pay Pty Ltd t/a Loyalty Republic ABN 93 635 037 375.

Signing up to the Platform

To access the Application, you will need to create an account on the Platform (Account).

You must provide basic information when registering for an Account, such as your First Name, Surname, Email Address, Date of Birth and Postcode and you must choose a password. You must ensure that any information you give to us when creating an account, including personal information, is accurate and up to date.

You are responsible for keeping your Account details confidential and you will be liable for all activity on your Account, including purchases (if applicable), whether or not these were authorised by you, made using your Account details. You will immediately notify us of any unauthorised use of your Account. At our sole discretion, we may refuse to allow any person to register or create an Account.

Once you have created an Account, you will be given the option to connect your bank or financial institution, and associated debit card(s) account(s), to the Platform so that we can provide you with points for the purchase transactions you make (Connection). We provide this service through our financial data partner, Basiq Pty Ltd (Basiq). If you choose to connect your bank or financial institution, and your associated debit card(s) account(s), through Basiq, we will only receive your transaction data (including your financial service company name, account number and the date, time, store location and value of products you have purchased). For the avoidance of doubt, we will not receive any details that would enable us to process payments on or from these cards or accounts on your behalf. For more information on Basiq’s privacy practices, please review their applicable privacy policy at http://docs.basiq.io/en/articles/382581-basiq-privacy-policy.

While you may link your bank and your associated debit card(s) to the Platform, we are not a payment processor.

Loyalty Republic Collection Notice

We collect personal information about you in order to enable you to access and use the Platform, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.

We may disclose that information to third party service providers who help us deliver our App (including open banking platform providers, loyalty software providers, rewards procurement and fulfilment providers, information technology service providers, data storage, web-hosting and server providers, professional advisors, third party payment processors and our business partners) or as required by law. By using our Platform, you consent to us disclosing your personal information to third party service providers. If you do not provide this information we may not be able to provide you with access to our Platform. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.

Our Privacy Policy contains further information about: (1) how we store and use your personal information; (2) how you can access and seek correction of your personal information; (3) how you can make a privacy-related complaint; and (4) our complaint handling process.

By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.

Earning and Redeeming Points

For any purchases (including pending purchases and processed purchases, together Purchases), either on the Platform or, if applicable, through your bank or financial institution account(s) where you have set up a Connection to your Account, and your associated debit card(s), you will earn Points, which will be credited to your Account. Depending on the location and vendor of transactions that have been processed on your connected account(s) debit card(s) (Debit Card Purchases), you will accrue Points at different rates (Rates). We also have partners (Partners) and shops (Shops) that you can earn bonus points from. Each Shop and Partner has their own conditions around earning Points as well as different Rates which are outlined on the Platform and which may be updated from time to time. How the Rates are calculated and at what rate they accrue is outlined on the Platform. Rates are determined by us and may change without notice to you. You may not earn Points for transactions involving the use of coupons, discount codes or from specific product / SKU categories within specific Shop partners. The details of these scenarios, and for which Partner or Shop they relate to, are outlined on the Platform.

For Debit Card Purchases, the amount of Points you can earn will be capped at the amount specified on the Platform, which is available here. Conditions apply relating to the classification, merchant and nature of each individual transaction and whether or not it will earn points. These conditions can be found here. We are not a party to any transaction entered into between you and any merchant through which you earn Points and we have no control over the conduct of any merchant.

You may also earn Points via various other methods as outlined previously, such as by uploading purchase receipts from major retailers, taking out a marketplace partner offer or promotion, or purchasing from our eMall.

You must not use any fraudulent or unlawful means to accrue Points.

You may exchange your Points for Rewards via our eMall. We will display on the Platform the Rewards you may exchange your Points for and how many Points are required to redeem a Reward. We may change, without notice and at our discretion, the Rewards on the Platform or the Points required to redeem a Reward.

Where Points are used to redeem cash-equivalent Rewards, the cash-equivalent will be provided in the form a prepaid debit card or gift card.

Purchasing Points

You may purchase Points on the Platform with money. Purchasing of Points can be done via PayPal using details provided on the Platform and may include the associated cost of processing the transaction via PayPal.

We may, at any time and at our sole discretion, amend the cost to purchase Points on the Platform.

We do not accept refunds for any Points that are purchased for change of mind or other circumstances.

Unless otherwise stated on the Platform, the price for Points is stated in Australian Dollars.

You must not pay, or attempt to pay for the Points by fraudulent or unlawful means.

It is your responsibility to ensure that you use the correct payment details. We accept no responsibility for any lost or misdirected funds.

Rewards

If you receive any Rewards that are damaged, you must notify us within 8 days after you receive the Reward.

Prohibited conduct

You must not do, or attempt to do, anything that is unlawful; anything prohibited by any laws which apply to our Platform or which apply to you or your use of our Platform; anything which we would consider inappropriate; or anything which might bring us or our Platform into disrepute, including: (1) anything that would constitute a breach of an individual’s privacy (including uploading private or personal information without an individual’s consent) or any other legal rights; (2) using our Platform to defame, bully, harass, threaten, menace or offend any person; (3) interfering with any user using our Platform; (4) tampering with or modifying our Platform, knowingly transmitting viruses or other disabling features, or damaging or interfering with our Platform, including using trojan horses, viruses or piracy or programming routines that may damage or interfere with our Platform; (5) anything that might violate any local, state, national or other law or regulation or any order of a court, including privacy regulations; (6) using our Platform to send unsolicited email messages; or (7) facilitating or assisting a third party to do any of the above acts.

Intellectual Property Rights

We grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.

Unless otherwise indicated, we own or license all rights, title and interest (including Intellectual Property Rights) in our Platform. Your use of our Platform does not grant or transfer to you any rights, title or interest in relation to our Platform.

Unless otherwise agreed to by us, you must not, without our prior written consent: (a) copy or use, in whole or in part, any of our intellectual property; (b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or (c) breach any intellectual property rights connected with the Platform, including (without limitation) altering or modifying any of our intellectual property; causing any of our intellectual property to be framed or embedded in another website; or creating derivative works from any of our intellectual property. For the avoidance of doubt, this clause does not limit you from promoting our Platform in your social media feeds.

This clause will survive termination of these Terms.

User Data

You grant us a limited licence to copy, transmit, store and back-up or otherwise access the information, and other data provided by you to us or inputted by you into the Platform, stored by the Platform or generated by the Platform as a result of your use of the Platform (User Data) during the Term and for a reasonable period after the Term to: (1) supply our services (including for back-ups) to you (including to provide you with points); (2) diagnose problems with the Platform; (3) develop other services, provided we de-identify the User Data; (4) enhance and otherwise modify the Platform; (5) calculate any commission payable to us from merchants listed on the Platform that you have made a purchase from; and (6) as reasonably required to perform our obligations under these Terms.

Analytics

We may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics available to third parties, provided that it: (a) does not contain identifying information; and (b) is not compiled using a sample size small enough to make the underlying personal information you provide identifiable.

We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all intellectual property rights in the foregoing.

Feedback

You agree that: (1) all Intellectual Property Rights in any idea, suggestion, recommendation or request by you, whether made verbally, in writing, directly or indirectly, in connection with the Platform and/or Loyalty Republic (Feedback), will at all times vest, or remain vested, in us; and (2) we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback.

Consumer Guarantees

Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our App which cannot be excluded, restricted or modified (Statutory Rights).

Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. Any and all other warranties or conditions, which are not guaranteed by the ACL, are expressly excluded where permitted (including any suitability and fit for purpose warranties in relation to the App and our services), except to the extent such warranties and conditions are fully expressed in these Terms.

Notice regarding Apple

To the extent that you are using or accessing our App on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the App and any content available on the App.

Apple has no obligation to furnish you with any maintenance and support services with respect to our App.

If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.

Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.

Apple is not responsible for the investigation, defence, settlement and discharge of any third-party claim that our App infringes that third party’s intellectual property rights.

You agree to comply with any applicable third-party terms when using our mobile application.

Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.

You hereby represent and warrant that: (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.

Liability

In these Terms, 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.

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 caused or contributed to by, arising from or connected with: (1) your acts or omissions; (2) any use or application of the Platform by a person other than you, or other than as reasonably contemplated by these Terms; (3) any works, services, goods, materials or items which do not form part of the Platform; (4) any interaction between you and any merchant or third party listed on the Platform; (5) any defect, error, omission or lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Platform, including the removal of any partner featured on our Platform; (6) the Platform being unavailable, or any delay in us providing our Platform to you, for whatever reason; (7) any illness, injury or death resulting from use of the Platform; (8) any transaction entered into between you and any merchant; (9) any Rewards that you redeem through the Platform; (10) any Rewards that are no longer available, lost, stolen, altered, damaged, delayed or misdirected (whether or not after their receipt by you) due to any reason beyond our reasonable control; (11) any tax liability you may incur; and/or (12) any event outside of our reasonable control (including for a Force Majeure Event).

This clause will survive the termination or expiry of these Terms.

For the purposes of this clause Force Majeure Event means any causes beyond our control, including acts or omissions of government or military authority, acts of God (including earthquakes and floods), shortages of materials, explosions, embargoes, telecommunications failures (including any systemic internet failures and any interruptions in services to service providers), transportation delays, fires, labour disturbances, riots or wars.

Limitations on Liability

Despite anything to the contrary, to the maximum extent permitted by law and whether under statute, contract, equity, tort (including negligence), indemnity or otherwise: (1) our maximum aggregate Liability arising from or in connection with these Terms will be limited to any recourse you may have under the Australian Consumer Law and we will have no further liability to you under these Terms, at law or otherwise; and (2) we will not be liable to you for any indirect or special loss, incidental loss, consequential loss, loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data whether under statute, contract, equity, tort (including negligence).

This clause will survive the termination or expiry of these Terms.

Third Party Inputs

You agree that the provision of the Platform may be contingent on, or impacted by, third parties or any goods and services provided by third parties, including third parties that provide us with IT services, end users, merchants, suppliers, or other subcontractors which the provision of the Platform may be contingent on, or impacted by (Third Party Inputs). Despite anything to the contrary, to the maximum extent permitted by law, we will not be responsible and will have no Liability for any default or breach of these Terms or any law if such default or breach was caused or contributed to by any Third Party Inputs.

To the extent that any Third Party Inputs are required by us in order to be able to provide the Platform to you: (1) we agree to, where applicable, obtain and maintain the required licences for access and use of any Third-Party Inputs (at no additional cost to you); and (2) you agree to: (i) where these are notified to you, adhere to the terms and conditions of any such Third-Party Input licences, including the Basiq Minimum User Terms attached at Appendix 1 of these Terms; and (ii) comply with our reasonable instructions and directions and the directions of the third-party provider.

You agree that the benefit of the Third Party Input’s interface, or interoperation with, the Platform, is subject to your compliance with this clause.

Warranties and Indemnities

You represent, warrant and agree that: (1) you have full legal capacity, right, authority and power to enter into these Terms and to perform your obligations under these Terms; (2) these Terms constitute a legal, valid and binding agreement, enforceable in accordance with its terms; and (3) to provide all assistance, information and documentation necessary to enable us to provide the Platform and that all information you provide to us in connection with the Platform will be true, accurate and complete.

You acknowledge and agree that: (1) you use the Platform at your own risk; and (2) we do not guarantee that the Platform will be secure, timely, uninterrupted or error or virus free or that it will meet your expectations or requirements.

You agree that, to the maximum extent permitted by law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.

Indemnity: To the maximum extent permitted by law, you must indemnify us, and hold us harmless, against any Liability suffered by us arising from or in connection with your use of our Platform or any breach of these Terms or any applicable laws by you. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end. You agree that it is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under these Terms.

This clause will survive the termination or expiry of these Terms.

Termination

You may terminate these Terms at any time via the “delete your account” (or similar) feature in your Account.

At our sole discretion, we may suspend your Account or terminate these Terms immediately with notice to you if you are in material breach of these Terms, any applicable laws, regulations or third-party rights or for any other reason at our sole discretion.

If we suspend your Account or these Terms are terminated, we will immediately cease providing the Platform and our services to you, and you will not be able to access your Account.

Where your Account is deleted, any unredeemed Points will be forfeited. If you delete your Account, you may reactivate your Account at any time, however, any forfeited Points will remain forfeited and will not be credited to your reactivated Account.

General

Assignment: You may not assign, transfer or delegate your rights and obligations under the Terms without our prior written consent. We may without restriction assign, transfer or delegate our rights and obligations under these Terms with 30 days prior notice.

Changes to the Platform and Terms: You agree that we may amend these Terms and the features of our Platform at any time. If we amend these Terms, or we make any changes to our Platform that will have a material adverse effect on you, we will provide you with written notice. By continuing to use the Platform, you agree to the amended terms. If you do not agree to the amendment, you must terminate these Terms in accordance with the Termination clause.

Competitors: You are prohibited from using our Platform in any way that competes with our business. If you breach this term, we will hold you responsible for Liability we suffer, and hold you accountable for any profits that you may make from non-permitted use.

Discontinuance: We may, with written notice to you, discontinue our Platform, in whole or in part. We may also exclude any person from using our Platform, at any time at our sole discretion. We are not responsible for any loss, damage or expense, howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent you may suffer arising from or in connection with any such discontinuance or exclusion.

Disputes: In the event of any dispute arising from, or in connection with, these Terms (Dispute), the party claiming there is a Dispute must give written notice to the other Party setting out the details of the Dispute and proposing a resolution. Within 7 days after receiving the notice, the parties must meet at least once to attempt to resolve the Dispute or agree on the method of resolving the Dispute by other means, in good faith. All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged. If the parties do not resolve the Dispute or (if the Dispute is not resolved) agree on an alternate method to resolve the Dispute, within 21 days after receipt of the notice, the Dispute may be referred by either Party (by notice in writing to the other Party) to litigation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause will survive the termination or expiry of these Terms.

Jurisdiction: Your use of our Platform and these Terms are governed by the laws of Victoria. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.

Partners: Sometimes we are offered a fee or incentive to promote particular stores or products on our Platform. Where we receive a fee for promoting a particular store, product or brand, we will strive to clearly indicate this on our Platform. If you have any questions about how we make money you can also contact us at the email provided below.

Severance: The provisions of these Terms are severable and if any provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Taxes: You agree any tax liabilities you may incur as a result of redeeming Rewards are solely your liability.

Third party information: Our Platform may contain information provided by, or links to websites operated by, third parties. Unless expressly stated otherwise, we do not control, endorse or approve and are not responsible for the content on those websites. You should make your own investigations with respect to the suitability of those websites.

Transfer: You are not permitted to transfer any Points earned on the Platform to any other person.

For any questions and notices, please contact us at:

Points to Pay Pty Ltd t/a Loyalty Republic ABN 93 635 037 375

Email: legal@loyaltyrepublic.com.au

Last update: 1st October 2021

© LegalVision ILP Pty Ltd

 

APPENDIX 1 – BASIQ MINIMUM USER TERMS

1 Provide Accurate Information

1.1 Each person who uses our services (User) agrees to provide and warrant that all information provided or otherwise submitted via the Services is true, accurate and complete.

1.2 Each User acknowledges and agrees that it is responsible for its use of the Services and that:

    • each User uses the Services at their own risk;
    • the Services will only be used for the User’s own lawful purpose in accordance with this Minimum User Terms; and
    • if there are any unauthorised access or use of the Services or any breach of security, the User must immediately notify Points to Pay Pty Ltd of such activity.

2 Proprietary Rights

2.1 The User represents and warrants it is permitted to use content delivered to the User via the Services. The User may not copy, reproduce, distribute or create derivative works from this content. The User agrees not to reverse engineer any of the source code or technology associated with the Services.

3 Content and Data

3.1 Your use of the Services supplied by Points to Pay Pty Ltd is subject to interoperation of services supplied by third party websites or applications. By using the services, you appoint Points to Pay Pty Ltd as your limited agent authorised to: access such third party websites or applications, servers, documents and information as designated by you; use your information; and perform all acts as required for Points to Pay Pty Ltd and Basiq to supply Services to you.

3.2 Each User is licensing to Points to Pay Pty Ltd and its service providers (including but not limited to Basiq) (Service Provider) any information, data, materials or other content the User provides through or to the Services (Content), the right to use, modify, display, manipulate and create derivative works using such Content and provide the Services to the User.

3.3 Each User acknowledges and agrees a Service Provider may also use, sell, license, reproduce, distribute and disclose aggregate, non-personally identifiable information that is derived through the User’s use of the Services.

4 Disclaimers

4.1 Each User acknowledges and agrees that:

  • its use of the Services and all information, products or content are provided to such User in good faith on an “as is” and “as available” basis. To the fullest extent permitted by law, the User and Service Providers expressly disclaim all warranties of any kind as to the Services and all information, products and other content (including that of third parties) included in or accessible from the Services;
  • the User is responsible for determining the suitability of any Services and such User relies on any Content or other information provided via the Services at its own risk;
  • use of the Services, Content and other information provided by Points to Pay Pty Ltd and Service Providers is at their own risk and the restrictions applicable to Points to Pay Pty Ltd are equally applicable to the User;
  • Points to Pay Pty Ltd and Basiq makes no warranty that:(i) the Services will meet the User’s requirements; (ii) the quality of the Services will meet the User’s expectations; (iii) the Services will be uninterrupted or error-free; (iv) any information, product or content obtained via the Services will be accurate or reliable; and (v) any errors in the software or technology will be corrected.
  • the User downloads or otherwise obtains through the use of the Services the material or data at its own discretion and risk and that the User will be solely responsible for any infections, contaminations or damage to their computer, system or network; and
  • Points to Pay Pty Ltd and Basiq are not responsible or liable for delays, inaccuracies, errors or omissions arising out of any User’s use of the Services, any third party software, services or operating system.

5 Limited Warranties

5.1 The user warrants that:

  • it has the power, right, authority and entitlement to execute these Terms and perform its obligations under these Terms;
  • it has full corporate power to execute, deliver and perform its obligations under these Terms;
  • these Terms constitute a legal, valid and binding obligation of it enforceable in accordance its terms by appropriate legal remedy; and
  • in entering into and performing its obligation under these Terms it has not and will not be in breach of any relevant law or any obligation owed to another person.

6 Indemnity

6.1 Each User agrees to be liable for and to indemnify, defend and hold Basiq harmless from 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 violation of these Terms or of any intellectual property or other right by the User;
  • any use or misuse of the Services, Content or data from or by the User, its employees, contractors or agents or any third party; and
  • any breach of law, regulation or licence by a User. Each User agrees that Basiq is a third party beneficiary to the above provisions, with all rights to enforce such provisions as if Basiq is a party to these Terms.

7 Basiq A Party

7.1 Each User acknowledges and agrees that:

  • the User enters into these Terms with Points to Pay Pty Ltd who, for the purposes of accepting these Terms, is acting as limited agent for Basiq; and
  • each User agrees that Basiq is a third party beneficiary to the above provisions, with all rights to enforce such provision as if Basiq were a party to these Terms.