Terms and Conditions

1. Website Use Terms and Conditions

2. General User T&Cs

3. Professionals T&Cs

 

1. Website Use Terms & Condititions

Last Updated: 20 February 2016

Thank you for visiting our website. This website is owned and operated by The Crimson Bride Pty Ltd (ABN 92 601 159 040). By accessing and/or using this website and related services, you agree to these Terms and Conditions, which include our Privacy Policy (Terms).

You should review our Privacy Policy and these Terms carefully and immediately cease using our website if you do not agree to these Terms.

We reserve the right to amend the Terms at any time at our sole discretion. Your continued access to and use of our website after such change constitutes your acceptance of any amendments.

In these Terms, 'us', 'we' and 'our' means The Crimson Bride Pty Ltd.

 

1          Registration

You must be a registered member to access certain features of our website. You can register as either a User (someone who is planning a wedding) or a Professional (someone who is providing professional wedding services). In order to register, you will need to carefully read and agree to either the Terms and Conditions for Users (User Terms) or the Terms and Conditions for Professionals (Professional Terms).

If you register as a User, the User Terms forms a legally binding contract between you and us. To the extent of any inconsistency or ambiguity between these Terms and the User Terms, the User Terms will prevail.

If you register as a Professional, the Professional Terms form a legally binding contract between you and us. To the extent of any inconsistency or ambiguity between these Terms and the Professional Terms, the Professional Terms will prevail.

When you register and activate your account, you will provide us with personal information such as your name, postal address, email address and telephone number. You must ensure that this information is accurate and current. We will handle all personal information we collect in accordance with our Privacy Policy.

When you register and activate your account, we will provide you with a user name and password. You are responsible for keeping this user name and password secure and are responsible for all use and activity carried out under this user name.

To create an account, you must be:

•          at least 18 years of age;

•          possess the legal right and ability to enter into a legally binding agreement with us; and

•          agree and warrant to use the website in accordance with these Terms.

 

2          Collection Notice

We collect personal information about you in order to process your registration, respond to your enquiries, provide you with services as set out in the User Terms or Professional Terms (if you have agreed to those terms) and for purposes otherwise set out in our Privacy Policy.

We may disclose that information to third parties that help us deliver our services (including information technology suppliers, communication suppliers and our business partners) or as required by law. If you do not provide this information, we may not be able to provide all of our services to you. We may also disclose your personal information to recipients that are located outside of Australia, including to professionals located in India.

Our Privacy Policy explains: (i) how we store and use, and how you may access and correct your personal information; (ii) how you can lodge a complaint regarding the handling of your personal information; and (iii) how we will handle any complaint. If you would like any further information about our privacy policies or practices, please contact us at hello@thecrimsonbride.com .

By providing your personal information to us, you consent to the collection, use, storage and disclosure of that information as described in the Privacy Policy and these Terms.

 

3          Accuracy, completeness and timeliness of information

The information on our website is not comprehensive and is intended to provide a summary of the subject matter covered. While we use all reasonable attempts to ensure the accuracy and completeness of the information on our website, to the extent permitted by law, including the Australian Consumer Law, we make no warranty regarding the information on this website. You should monitor any changes to the information contained on this website.

We are not liable to you or anyone else if interference with or damage to your computer systems occurs in connection with the use of this website or a linked website. You must take your own precautions to ensure that whatever you select for your use from our website is free of viruses or anything else (such as worms or Trojan horses) that may interfere with or damage the operations of your computer systems.

We may, from time to time and without notice, change or add to the website (including the Terms) or the information, products or services described in it. However, we do not undertake to keep the website updated. We are not liable to you or anyone else if errors occur in the information on the website or if that information is not up-to-date.

 

4          Promotions and competitions

For certain campaigns, promotions or contests, additional terms and conditions may apply. If you want to participate in such a campaign, promotion or contest, you need to agree to the relevant terms and conditions applicable to that campaign, promotion or contest. In case of any inconsistency between such terms and conditions and these Terms, those terms and conditions will prevail.

 

5          Standard professional profiles

We may create profiles on our website for professionals who have not yet entered into the Professional Terms with us (Standard Professional Profile). Standard Professional Profiles will be created using publically available information and/or information submitted by Users. We will clearly identify any such Standard Professional Profile on our website.

If you are a professional and you wish to claim your Standard Professional Profile, you should contact us at professionals@thecrimsonbride.com . You will be required to enter into the Professional Terms in order to claim your Standard Professional Profile.

If you do not agree to the Professional Terms, or if you do not wish your Standard Professional Profile to appear on our website, you should contact at us at professionals@thecrimsonbride.com and we will remove your Standard Professional Profile within a reasonable period of time.

We may require you to provide documentation in order for us to verify your identity and allow you to either claim a Standard Professional Profile or to remove a Standard Professional Profile at your request.

We may also remove any or all Standard Professional Profiles at our sole discretion and, to the extent permitted by law including the Australian Consumer Law, without notice or liability to you or any third party.

 

6          Purchases

You may seek to purchase goods and services through our website. Any purchases are subject to the applicable terms of the User Terms or the Professional Terms.

 

7          Linked sites

Our website may contain links to websites operated by third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those linked websites and have no control over or rights in those linked websites.

 

8          Intellectual property rights

Unless otherwise indicated, we own or license from third parties all rights, title and interest (including copyright, designs, patents, trademarks and other intellectual property rights) in this website and in all of the material (including all text, graphics, logos, audio and software) made available on this website (Content).

Your use of this website and use of and access to any Content does not grant or transfer any rights, title or interest to you in relation to this website or the Content. However we do grant you a licence to access the website and view the Content on the terms and conditions set out in these Terms and, where applicable, as expressly authorised by us and/or our third party licensors.

Any reproduction or redistribution of this website or the Content is prohibited and may result in civil and criminal penalties. In addition, you must not copy the Content to any other server, location or support for publication, reproduction or distribution is expressly prohibited.

All other use, copying or reproduction of this website, the Content or any part of it is prohibited, except to the extent permitted by law. However, you are permitted to make one copy of the Content for the purpose of viewing the Content for your own personal use.

 

9          No commercial use

This website is for your personal, non-commercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, create derivative works from, transfer, or sell any Content, software, products or services contained within this website. You may not use this website, or any of its Content, to further any commercial purpose, including any advertising or advertising revenue generation activity on your own website.

 

10       Unacceptable activity

You must not do any act that we would deem to be inappropriate, is unlawful or is prohibited by any laws applicable to our website, including but not limited to:

•          any act that would constitute a breach of either the privacy (including uploading private or personal information without an individual's consent) or any other of the legal rights of individuals;

•          using this website to defame or libel us, our employees or other individuals;

•          uploading files that contain viruses that may cause damage to our property or the property of other individuals;

•          posting or transmitting to this website any non-authorised material including, but not limited to, material that is, in our opinion, likely to cause annoyance, or which is defamatory, racist, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our systems or a third party's systems or network security.

If we allow you to post any information to our website, we have the right to take down this information at our sole discretion and without notice.

 

11       Warranties and disclaimers

To the maximum extent permitted by law, including the Australian Consumer Law, we make no warranties or representations about this website or the Content, including but not limited to warranties or representations that they will be complete, accurate or up-to-date, that access will be uninterrupted or error-free or free from viruses, or that this website will be secure.

We reserve the right to restrict, suspend or terminate without notice your access to this website, any Content, or any feature of this website at any time without notice and we will not be responsible for any loss, cost, damage or liability that may arise as a result.

 

12       Liability

To the maximum extent permitted by law, including the Australian Consumer Law, in no event shall we be liable for any direct and indirect loss, damage or expense – irrespective of the manner in which it occurs – which may be suffered due to your use of our website and/or the information or materials contained on it, or as a result of the inaccessibility of this website and/or the fact that certain information or materials contained on it are incorrect, incomplete or not up-to-date.

 

13       Termination

These Terms will continue to apply until terminated by either you or us as set out below:

(a)       if you are registered as a User , these Terms will be terminated upon termination of the User Terms;

(b)      if you are registered as a Professional , these Terms will be terminated upon termination of the Professional Terms;

(c)       we may, at any time, terminate these Terms if:

(i)        you have breached any provision of these Terms or have acted in manner which clearly shows that you do not intend to, or are unable to, comply with any provision of these Terms; or

(ii)       we are required to do so by law or valid order of a court government authority.

 

14       Jurisdiction and governing law

Your use of the website and these Terms are governed by the law of New South Wales and you submit to the non-exclusive jurisdiction of the c courts exercising jurisdiction in New South Wales.

 

 

2. User Terms & Conditions

Last Updated: 20 February 2016

 

These Terms and Conditions (the Agreement) are a legally binding contract between you (you or the User) and The Crimson Bride Pty Ltd (ABN 92 601 159 040), registered at 425-429 Bourke Street, Surry Hills NSW 2010 (TCB).

TCB provides a platform that enables you to organise and obtain information regarding all aspects of an Indian wedding in Australia (including fashion, decor and event inspiration), and allows Professionals to list their services (the Platform). TCB helps to connect Professionals and Users, but only provides the Services as set out in this Agreement and does not provide Professional Services

Please read the terms and conditions of this Agreement carefully. Certain features of the Services may be subject to additional guidelines, policies, terms or rules, which will be provided to you in conjunction with this Agreement. All such additional guidelines, policies, terms and rules are incorporated by reference into this Agreement.

In order to use the Services, you must agree to the terms of this Agreement. Upon your execution (electronic or otherwise) of this Agreement, you agree to be bound by the terms of this Agreement. If you do not agree with any of the terms and conditions of this Agreement, you must not use the Platform or the Services. We recommend that you print and keep a copy of this Agreement for future reference.

If you are entering into this Agreement on behalf of an entity or organisation, you represent and warrant that you have the full authority as at the time of entering into this Agreement to bind that entity or organisation to the terms of this Agreement. You will provide evidence of such authority on request by TCB.

 
You agree as follows.

 

1          Services

(a)       TCB provides the following services:

           (i)        it makes the Platform available to User; and

           (ii)       any Additional Services pursuant to clause 2,

           (collectively, the Services).

(b)      User acknowledges and agrees that TCB is a technology services provider and does not provide any Professional Services.

 

2          Additional services

(a)       TCB may offer User the opportunity to receive other additional services to be notified by TCB to User from time to time (Additional Services).

(b)      Additional Services may incur additional fees and charges.

(c)       Additional Services may be subject to additional terms and conditions, which will be deemed to be accepted by User upon payment of any applicable fees and              charges.

 

3          User Accounts

(a)       To access and use the Services, User must have a registered account (User Account).

(b)      A User Account is personal to User and can only be accessed and used by the individual registered to that account.

(c)       TCB has sole discretion as to whether to provide User with a User Account.

(d)      Once a User Account has been activated by TCB, User will also be provided with Access Credentials. User must keep their Access Credentials secure and confidential. User must not use another person's Access Credentials.

(e)       All activity, including activity in breach of the provisions of this Agreement, undertaken using User's Access Credentials will be deemed to be the activity of User.

(f)       User must notify TCB immediately if it becomes aware of any unauthorised use, or suspected unauthorised use, of the User Account.

(g)      TCB may suspend or deactivate a User Account, either permanently or temporarily in TCB's sole discretion, in the following circumstances:

           (i)        a material breach of the terms of this Agreement by User;

           (ii)       failure to make any payment due under this Agreement or for the provision of Professional Services, including any payment for a Professional Fee or Cancellation Fee; or

           (iii)      User uses the Services to be connected to a Professional and then obtains or attempts to obtain Professional Services independently of the Platform, in order to intentionally circumvent the Platform, User's obligation to pay any Professional Fees or for any other reason, or User attempts to encourage a Professional to circumvent the Platform.

(h)     For clarity, suspension or deactivation under clause 3(g)(ii) does not relieve User of the obligation to make any payment due under this Agreement.

 

4       Using the Platform

4.1    Obtaining Professional Services

(a)     Professionals and Users can interact with each other using the Platform.

(b)     Users can order Professional Services on such lawful terms as may be determined by Professional (including, without limitation, terms in relation to requirements for any deposit prior to the provision of any Professional Services, cancellation timeframes and refund policies). Any such terms between a Professional and User are expressly not incorporated into the terms of this Agreement.

(c)     Professional will determine the appropriate Professional Fee and any applicable Cancellation Fee, and must notify and agree each with User prior to payment.

(d)     Professional will issue User with a tax invoice setting out the Professional Fee and any applicable Cancellation Fees (the Invoice).

(e)     TCB will collect payment for the provision of Professional Services in accordance with clause 6.

(f)       User agrees and acknowledges that the Professional will be solely responsible for any and all liability which results from the provision of the Professional Services, including any Loss, damage, injury or delay.

 

4.2       Damage and injury claims

(a)       User will notify TCB of any damage to property or injury caused or incurred in the course of obtaining Professional Services as soon as practicable after the damage or injury occurs.

(b)      Without limiting clause 4.1(f), User agrees and acknowledges that Professional will be responsible for any damage to property or injury caused or incurred in the course of providing Professional Services and will need to resolve any Claim directly with Professional or a third party (including any dispute over insurance coverage).

(c)       User agrees to fully co-operate with the Professional and/or TCB to resolve any damage or injury claims as quickly as possible.

 

4.3       Disputes between Users and Professionals

(a)       Users must carry out their own research in relation to any Professionals from whom it intends to obtain Professional Services. To the extent permitted by Law, and without limiting any other term of this Agreement, TCB disclaims any liability in relation to any information available on the Platform.

(b)      The provision of Professional Services is subject to the terms and conditions agreed between User and the Professional. In the event of a dispute between User and a Professional, TCB will use reasonable endeavours to assist the parties to resolve the dispute (including mediating between the parties), but does not undertake or accept any additional liability in relation to the subject of the dispute.

 

5          Ratings and reviews

(a)       User may be requested to give a rating or review of Professional in relation to the provision of Professional Services (Professional Ratings).

(b)      Professional Ratings will be used by TCB to monitor and improve the standard of the Services.

 

6          Financial terms

6.1       Payment

(a)       The parties agree and acknowledge that Users will be charged the Professional Fee and/or any applicable Cancellation Fee.

(b)      User must pay all Invoices properly issued to User within 30 days of receipt.

(c)       TCB collects payment from Users for the Professional Fee and any applicable Cancellation Fee as a collection agent for Professional.

 

6.2       GST

(a)       If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.

(b)      Unless otherwise stated, all amounts referred to in this Agreement are stated on a GST exclusive basis.

(c)       Any reference in this Agreement to value, sales, revenue or a similar amount is a reference to that amount exclusive of GST.

(d)      Where any indemnity, reimbursement or similar payment under this Agreement is based on any cost, expense or other liability, it shall be reduced by any input tax credit entitlement, or notional input tax credit entitlement, in relation to the relevant cost, expense or other liability.

(e)       If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.

(f)       If required to provide an invoice, a party shall provide proper tax invoices if GST is applicable.

(g)       This clause will not merge upon completion and will continue to apply after expiration or termination of this Agreement.

(h)      Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 shall have that meaning in this Agreement.

 

7          Use of Platform and Services

(a)       (licence restrictions) User must:

           (i)        not copy the Website except where such copying is incidental to normal use of the Website;

           (ii)       not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Website;

           (iii)      not make alterations to, or modifications of, the whole or any part of the Website, or permit the Website or any part of it to be combined with, or become incorporated in, any other programs;

           (iv)      not disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Website or attempt to do any such thing;

           (v)       not provide or otherwise make available the Website in whole or in part (including object and source code), in any form to any person without the prior written consent of TCB; and

           (vi)      comply with all technology control or export laws and regulations that apply to the technology used or supported by the Website.

(b)      (acceptable use restrictions) User must:

           (i)        not use the Platform or Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Platform or any operating system;

           (ii)       not infringe TCB's Intellectual Property Rights or those of any third party in relation to User's use of the Platform or Services;

           (iii)      not transmit or submit using the Platform or Services any material or User Content that is defamatory, offensive or otherwise objectionable;

           (iv)      not use the Platform or Services in a way that could damage, disable, overburden, impair or compromise TCB's systems or security or interfere with other users; and

           (v)       not collect or harvest any information or data, or attempt to decipher any transmissions to or from the servers used by TCB.

(c)       TCB may, at any time and in TCB's sole discretion, prohibit, suspend or otherwise restrict User from accessing the Platform or the Services for any reason whatsoever.

 

8          Intellectual Property Rights

8.1       Platform and Services

(a)       (ownership) The parties acknowledge that all rights, title and interest in the Platform and Services, including in any improvements to the Platform and Services (including any Intellectual Property Rights in the Platform and Services, and any improvements to them) remain with TCB and/or its licensors at all times and nothing in this Agreement is intended to transfer such right, title or interest to User.

(b)      (licence) Subject to clause 9.1(c) and User's compliance with the terms of this Agreement, TCB grants to User a non-transferable and non-exclusive licence to view, use and display the Website during the Term for personal and business purposes (to the extent that the business purpose is solely and directly related to the obtaining of Professional Services) only.

(c)       The licence granted under clause 9.1(b) does not include a right to sub-license or otherwise provide the Platform or Services to any third party.

 

8.2       Feedback

(a)       User agrees and acknowledges that any feedback, suggestions, bug reports, system errors and other information or ideas in relation to the Platform or the Services (Feedback) may be used by TCB in any manner it deems appropriate (and will not be regarded as being confidential or proprietary information).

(b)      User will ensure that any existing or future Intellectual Property Rights in any Feedback vest in TCB absolutely. User agrees to assign, and procure the assignment of, such Intellectual Property Rights in any Feedback to TCB immediately on their creation.

 

8.3       User Content

(a)       User agrees and acknowledges that it is solely responsible for any User Content submitted by User. To the extent permitted by Law, including the Australian Consumer Law, TCB will not be responsible for any User Content and provides no guarantees regarding the accuracy, currency, suitability or quality of any User Content.

(b)      User grants TCB a perpetual, worldwide, transferable, non-exclusive right to access, use, adapt, modify, reproduce, reformat, transform, process, commercialise and exploit, and create Derivative Materials from, User Content submitted by User to the extent necessary to undertake such activities.

(c)       TCB reserves the right (but does not undertake, except as required by Law, any obligation) and has the sole discretion to remove or edit at any time any User Content that TCB determines:

           (i)        breaches any applicable Law or is fraudulent;

           (ii)       amounts to unauthorised advertising;

           (iii)      contains viruses or any other harmful programs;

           (iv)      contains any defamatory, obscene or offensive material;

           (v)       promotes violence or discrimination;

           (vi)      infringes the Intellectual Property Rights of another person;

           (vii)     breaches any legal duty owed to a third party (such as a duty of confidence);

           (viii)    promotes illegal activity or invades another individual's privacy; or

           (ix)      is otherwise objectionable or may expose TCB or any third parties to any harm or liability of any type, or for any other reason.

(d)      TCB may disclose User Content submitted by User to third party service providers, if TCB merges with or is acquired by a third party, or to comply with applicable Laws. TCB may also use User Content to investigate or prevent any breach or potential breach of any applicable Law or this Agreement.

 

8.4       Data and Derivative Materials

(a)       User grants TCB a perpetual, worldwide, transferable, non-exclusive right to access, use, adapt, modify, reproduce, reformat, transform, process, commercialise and exploit, and create Derivative Materials from, the Data to the extent necessary to undertake such activities.

(b)      User agrees and acknowledges that TCB intends to use and/or aggregate the Data in conjunction with other information collected or obtained by TCB, and User agrees that TCB is permitted to make full use of, commercialise and exploit the Data for those purposes.

(c)       User will ensure that any existing or future Intellectual Property Rights in any Derivative Materials immediately vest in TCB absolutely. User agrees to assign, and procure the assignment of, such Intellectual Property Rights in any Derivative Materials to TCB immediately on their creation.

(d)      Without limiting the foregoing, User agrees and acknowledges that TCB may disclose Data and Derivative Materials to any third party in its sole discretion.

 

9          Third party content

The Platform may contain links to third party websites, services or advertisements for third parties (Third Party Content). Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, TCB does not endorse and is not responsible for any Third Party Content and has no control over or rights in Third Party Content.

 

10       Confidentiality

10.1    Confidentiality

Subject to clause 11.2, a party must not disclose, or use for a purpose other than as contemplated by this Agreement, the existence of and terms of this Agreement or any other Confidential Information.

 

10.2    Permitted disclosure

A party may disclose any Confidential Information:

(a)       to the other party to this Agreement;

(b)      under corresponding obligations of confidence as imposed by this clause, to persons which control or are controlled by the party within the meaning of the Corporations Act, and the employees, legal advisors or consultants of such persons;

(c)       which is at the time lawfully in the possession of the proposed recipient of the Confidential Information through sources other than the other party, or a Related Body Corporate of the other party, to this Agreement;

(d)      in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement;

(e)       if required under a binding order of a Governmental Agency or under a procedure for discovery in any proceedings;

(f)       if required under any Law or any administrative guideline, directive, request or policy whether or not having the force of law;

(g)       as required or permitted by this Agreement;

(h)      to its legal advisers, its insurers and its consultants; or

(i)        with the prior written consent of the other party to this Agreement.

 

10.3    Publicity

(a)       User agrees that, notwithstanding this clause 11, TCB may use de-identified information about User in any marketing or other material used by TCB, including but not limited to case studies and testimonials regarding User's involvement with TCB.

(b)      TCB will not identify User in marketing material (including in case studies) without User's prior written consent.

 

11       Privacy

(a)       TCB may collect personal information about User in order to provide the Services and for other purposes set out in the Privacy Policy.

(b)      User agrees and acknowledges that personal information may be disclosed to third parties, and that the Privacy Policy sets out how TCB collects, uses, stores and discloses personal information and the consequences if that information is not provided.

(c)       User agrees and acknowledges that TBC may disclose User's personal information to recipients that are located outside of Australia, including to Professionals located in New Zealand, India, United States, United Kingdom.

(d)      The Privacy Policy sets out the manner in which User may access personal information, seek correction of personal information or complain about a breach of the Privacy Act. User may contact TBC using the details set out in the Privacy Policy to obtain further information.

(e)       User consents to the collection, use, storage and disclosure of User's personal information as described in the Privacy Policy and this Agreement.

 

12       Representations and warranties

(a)       Each party represents and warrants that:

           (i)        it has full power, authority and legal capacity to enter into this Agreement and perform its obligations under this Agreement;

           (ii)       execution and performance of this Agreement will not result in a breach of any terms or conditions of any instrument or agreement to which it is a party; and

           (iii)      it shall obtain and maintain all Consents applicable or necessary in order to perform its obligations under this Agreement.

 

13       Compliance

(a)       User must comply with all applicable Laws.

(b)      User must obtain and maintain all Consents necessary to enable it to perform its obligations under this Agreement without infringing any Law or the rights of any person.

 

14       Force Majeure

(a)       Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.

(b)      The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.

(c)       After 14 days (or earlier if agreed by the parties) of being given notice, either party may terminate the Agreement or negotiate to allow part fulfilment or deferment of the obligations of either party under this Agreement.

 

15       Variation

(a)       TCB may amend these terms and conditions from time to time to reflect changes in market conditions, changes in technology used to provide the products and services under this Agreement, changes in payment methods, changes in relevant Laws and regulatory requirements and changes in the capabilities of TCB's system.

(b)      TCB will notify User of any amendment to this Agreement in writing. User must accept the amended terms in order to continue its use of the Services. If User does not agree to the amended terms, User will be deemed to have exercised its right to terminate the Agreement pursuant to clause 17.2(d) below.

 

16       Term and termination

16.1    Term

This Agreement commences on the Commencement Date and shall continue until terminated in accordance with its terms.

 

16.2    Termination

(a)       (for cause) Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if the other party:

            (i)        breaches any warranty in this Agreement or any other provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within seven days after receiving written notice from the terminating party requiring it to do so; or

            (ii)       on the occurrence of an Insolvency Event.

(b)      (termination for failure to comply with requirements) Without limiting clause 17.2(a)(i), TCB may suspend User's access to the Services or terminate this Agreement with immediate effect if User breaches clauses 7 or 14 of this Agreement.

(c)       (termination for Regulatory Event) If a Regulatory Event that, in the reasonable opinion of TCB, may affect the subject matter of this Agreement occurs or is likely to occur during the Term, TCB may immediately suspend the performance of this Agreement or terminate this Agreement without liability to User.

(d)      (termination for refusal of new terms) If User elects not to accept variations to these terms made pursuant to clause 16, User will be deemed to have terminated this Agreement with immediate effect.

(e)       (termination for convenience) Either party may terminate this Agreement for convenience and without incurring liability to the other party at any time by giving at least 30 days' written notice to the other party.

 

17       Consequences of termination

(a)       On termination of this Agreement for any reason:

            (i)        all rights granted to User under this Agreement shall cease;

            (ii)       any User Account will be deactivated and any User Content may be deleted; and

            (iii)      User must cease all activities authorised by this Agreement.

(b)      User must, within 20 Business Days of termination, pay to TCB all fees incurred and/or owing under this Agreement up to and including the date of termination or expiry.

 

18       Accrued rights and remedies and survival

Without limiting any other provision of this Agreement, clauses 7 (Use of Platform and Services), 9 (Intellectual Property), 11 (Confidentiality), 12 (Privacy), 18 (Consequences of termination), this clause 19 (Accrued rights and remedies and survival), 20 (Disclaimer), 21 (Indemnities), and any other clauses which should by their nature survive termination of this agreement, survive termination or expiration of this Agreement for any reason.

 

19       Disclaimer

User agrees and acknowledges that, to the extent permitted by Law (including the Australian Consumer Law if applicable), TCB:

(a)       does not represent, warrant or accept any liability in relation to the accuracy, currency, reliability or quality of the Platform or the Services;

(b)      does not represent or warrant that the Platform or the Services are free from errors or omissions, or that they are exhaustive;

(c)       without limiting clause 20(a) or 20(b), does not represent, warrant or accept any liability in relation to the information provided by Professionals on the Platform;

(d)      does not represent or warrant that the Platform or the Services will be available on an uninterrupted, timely or secure basis;

(e)       does not represent or warrant that the Platform or Services will be free of viruses or other harmful code; and

(f)       disclaims any warranties, representations or endorsements, express or implied, with regard to the Platform or the Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

 

20       Indemnities

20.1    Indemnity by TCB

TCB shall defend, hold harmless and indemnify User from and against any Loss suffered or incurred by User arising out of or in connection with any Claim that the Services infringe any Intellectual Property Right or other right of any third party, except to the extent that such Loss is caused or contributed to by an act or omission of User.

 

20.2    Indemnity by User

User shall defend, hold harmless and indemnify TCB and its Related Bodies Corporate and Personnel (the TCB Indemnified Parties) from and against any Loss suffered or incurred by the TCB Indemnified Parties arising out of or in connection with:

(a)       any breach of this Agreement or any applicable Laws by User;

(b)      the death or injury of any person arising out of or otherwise in connection with any negligence or wrongful act or omission of User;

(c)       any fraud (including intentional and/or fraudulent misrepresentation), criminal activity, negligence or wilful misconduct of User;

(d)      any Claim by any person in connection with any Feedback, User Content or data used or disclosed by TCB in connection with this Agreement;

(e)       any Claim by any person that is connected with any communications between Professional and a User or other user of the Platform, any arrangement agreed between Professional and a User, or the provision by Professional of Professional Services; or

(f)       any loss or damage to property arising out of or otherwise in connection with any wrongful act or omission of User.

 

21       Limitation of liability

(a)       To the extent permitted by Law, (including the Australian Consumer Law if applicable), and subject to clause 22(d), in no event will the aggregate liability of TCB for any Loss, direct or otherwise, exceed the Liability Cap, regardless of the cause or form of action. For the avoidance of doubt, the limitation of liability under this clause 22(a) is cumulative and not per incident or Claim.

(b)      To the extent permitted by Law, (including the Australian Consumer Law if applicable), under no circumstances will TCB be liable for any Consequential Loss.

(c)       The limitations and exclusions in this clause 22 shall apply whether the action, claim or demand arises from breach of contract, tort (including negligence) or under any other theory of liability.

(d)      Clause 22(a) does not apply to, and shall not limit, any party's liability:

            (i)        for death or personal injury caused by that party or its Personnel;

            (ii)       for fraud (including fraudulent misrepresentation); or

            (iii)      under any indemnity given in this Agreement.

 

22       Assignment

(a)       The contract between TCB and User is binding on the parties and their respective successors and assigns.

(b)      User must not transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, without TCB's prior written consent.

(c)       TCB may transfer, assign, charge, sub-contract or otherwise deal with this Agreement, or any of its rights or obligations arising under it, at any time during the term of the Agreement.

 

23       Dispute resolution

(a)       Neither party may commence any court or arbitration proceedings relating to a Dispute unless it has complied with the provisions of this clause 24, except to seek urgent interlocutory relief.

(b)      A party claiming that a Dispute has arisen must promptly notify the other party in writing by giving details of the Dispute. The parties must use reasonable endeavours to resolve any Dispute.

(c)       If the parties are not able to resolve the Dispute in accordance with clause 24(b) within 20 Business Days from the date of notification, either party may immediately refer the Dispute to mediation and the parties will use reasonable endeavours to resolve the Dispute following the ACDC Guidelines. Each party must bear its own costs in relation to complying with this clause 24(c), except for the costs and expenses of the mediation, which will be borne by the parties equally.

 

24       Notices

24.1    Provision of notices

Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:

(a)       must be in writing and signed by the sender or a person duly authorised by the sender;

(b)      must be addressed and delivered to the address, email address or fax number last notified by the intended recipient to the sender after the date of this Agreement; and

(c)       will be conclusively taken to be duly given or made when delivered, received or left at the above email address, fax number or address. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.

 

25       Relationship of the parties

User's relationship with TCB under this Agreement is solely one of service provider and service recipient (including, as part of that relationship, a licensor and licensee relationship). Nothing in this Agreement constitutes a relationship of employer and employee, partnership, joint venture or agency and, except as stated in this Agreement, neither party has any authority or power to:

(a)       bind the other; or

(b)      create a liability against the other.

 

26       General

26.1    Further assurances

Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.

 

26.2    Entire agreement

This Agreement contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. None of the parties has relied on or is relying on any other Conduct in entering into this Agreement and completing the transactions contemplated by it.

 

26.3    Waiver

No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

 

26.4    Remedies cumulative

The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.

 

26.5    No merger

The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.

 

26.6    Severability

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

 

26.7    Costs and duty

Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

 

26.8    Governing law and jurisdiction

This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of New South Wales and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.

 

26.9    Counterparts

This Agreement may be executed in any number of counterparts. All counterparts will be taken to constitute one agreement.

 

27       Definitions and Interpretation

27.1    Definitions

The following definitions apply unless the context requires otherwise.

Access Credentials means the necessary security measures provided by TCB to User to access the User Account.

ACDC means the Australian Commercial Disputes Centre Ltd (or, if that organisation ceases to exist, a similar organisation nominated by the party referring the Dispute to mediation).

ACDC Guidelines means ACDC Guidelines for Commercial Mediation (or if the ACDC ceases to exist, the guidelines for mediation of any similar organisation nominated by the party referring the Dispute to mediation) in force from time to time, the terms of which are incorporated into this Agreement.

Additional Services has the meaning given in clause 2(a).

Business Day means a weekday on which banks are open in Sydney, New South Wales.

Cancellation Fee means the fees charged to a User in the circumstances determined by Professional in the event of a cancellation.

Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.

Commencement Date means the date the parties enter into this Agreement.

Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement and includes, without limitation, any information and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property Rights of a party or dealings under this Agreement.

Consents means any licences, clearances, permissions, certificates, permits, authorities, declarations, exemptions, waivers, approvals or consents.

Consequential Loss means any:

(a)       loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, or loss of business; and

(b)      any loss, not arising naturally (that is according to the usual course of things), from the relevant breach, whether or not such loss is reasonably supposed to have been in the contemplation of both parties, at the time they made the Agreement, as the probable result of the relevant breach.

Data means data (excluding Personal Information) that User provides to TCB or its Personnel or that is otherwise obtained by or on behalf of TCB or its Personnel via the Platform or by any other means.

Derivative Materials means materials, data and insights derived or created by or on behalf of TCB or its Personnel in accordance with clause 9.4, which are based on, or created or derived from, the Data.

Dispute means a dispute between the parties arising in connection with this Agreement.

Feedback has the meaning given in clause 9.2(a).

Force Majeure Event means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

(a)       act of God, lightning, storm, flood, fire, earthquake or explosion;

(b)      strike, lockout or other labour difficulty;

(c)       act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;

(d)      the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;

(e)       embargo, power or water shortage, lack of transportation, lack of public or private telecommunications networks; and

(f)       breakage or accident or other damage to machinery.

Governmental Agency means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.

Insolvency Event means where:

(a)       a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;

(b)      a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(c)       a party becomes or is (including under legislation) deemed or presumed to be insolvent;

(d)      a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;

(e)       any composition or arrangement is made with any one or more classes of its creditors;

(f)       except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;

(g)       a party enters into liquidation whether compulsorily or voluntarily; or

(h)      any analogous or comparable event takes place in any jurisdiction.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi-conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

Invoice has the meaning given in clause 4.1(d).

Law means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct, writs, orders, injunctions and judgments.

Liability Cap means the amount equal to the fees paid by User in the preceding six month period from the time the event occurred that gave rise to the Claim.

Loss means any loss, liability, Claim, damage, cost, charge, expense or diminution in value, however arising, and whether present or future, fixed or unascertained, actual or contingent.

Personal Information means "personal information" as defined in the Privacy Act that either party has collected, received or otherwise has access to in connection with this Agreement.

Personnel means in respect of a person any employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any sub-contractors.

Platform means the platform that enables Users to organise and obtain information regarding all aspects of an Indian wedding in Australia (including fashion, decor and event inspiration), and allows Professionals to list their services. For clarity, the Platform includes the Website.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy means the privacy policy of TCB available at https://www.thecrimsonbride.com/privacy, as amended from time to time.

Professional means an individual or entity who is listed on the Platform as being able to offer Professional Services.

Professional Fee means the fees charged to a User for the provision of Professional Services.

Professional Rating has the meaning given in clause 5(a).

Professional Services means any services provided by Professional to a User. For clarity, Professional Services may be subject to terms and conditions as between the Professional and a User, and TCB is not a party to such terms.

Regulatory Event means:

(a)       an amendment, repeal or change in Law, the enactment of a new Law, or a change in the interpretation or application of a Law (including Privacy Laws); or

(b)      a direction, notice or order of a Governmental Agency which is binding on TCB or User.

Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).

Tax includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding that is levied or imposed by a Governmental Agency, and any related interest, penalty, charge, fee or other amount.

Term means the period described in clause 17.

Third Party Content has the meaning given in clause 10.

User Account has the meaning given in clause 3(a).

User Content means any and all information, data and other content that a Professional or User submits to, or uses with, the Platform or Services.

Website means TCB's website, and includes any mobile/tablet versions of that website and any mobile/tablet application.

 

27.2    Interpretation

The following rules apply unless the context requires otherwise:

(a)       headings are for convenience only and do not affect interpretation;

(b)      the singular includes the plural, and the converse also applies;

(c)       nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it;

(d)      if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(e)       a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;

(f)       a reference to a clause or Schedule is a reference to a clause of, or Schedule to, this Agreement;

(g)       a reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;

(h)      a reference to a party to this Agreement or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);

(i)        a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

(j)        a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in visible or tangible form;

(k)       a reference to conduct includes an omission, statement or undertaking, whether or not in writing;

(l)        a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;

(m)     mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;

(n)      a reference to dollars and $ is to Australian currency or such other currency set out in the relevant Order; and

(o)       a month means a calendar month.

 

 

3. Professionals Terms & Conditions

Last Updated: 20 February 2016

 

These Terms and Conditions (the Agreement) are a legally binding contract between you (you or the Professional) and The Crimson Bride Pty Ltd (ABN 92 601 159 040), registered at 425-429 Bourke Street, Surry Hills NSW 2010 (TCB).

TCB provides a platform that enables individuals (Users) to organise and obtain information regarding all aspects of an Indian wedding in Australia (including fashion, decor and event inspiration), and allows Professionals to list their services (the Platform). TCB helps to connect Professionals and Users, but only provides the Services as set out in this Agreement and does not provide Professional Services.

Please read the terms and conditions of this Agreement carefully. Certain features of the Services may be subject to additional guidelines, policies, terms or rules, which will be provided to you in conjunction with this Agreement. All such additional guidelines, policies, terms and rules are incorporated by reference into this Agreement.

In order to use the Services, you must agree to the terms of this Agreement. Upon your execution (electronic or otherwise) of this Agreement, you agree to be bound by the terms of this Agreement. If you do not agree with any of the terms and conditions of this Agreement, you must not use the Platform or the Services. We recommend that you print and keep a copy of this Agreement for future reference.

If you are entering into this Agreement on behalf of an entity or organisation, you represent and warrant that you have the full authority as at the time of entering into this Agreement to bind that entity or organisation to the terms of this Agreement. You will provide evidence of such authority on request by TCB.

 

You agree as follows.

1          Services

(a)       TCB provides the following services:

            (i)        it makes the Platform available to Professional;

            (ii)       it may provide lead generation services to Professional by connecting Professional with Users who are seeking the provision of Professional Services;

            (iii)      any Additional Services pursuant to clause 2; and

            (iv)      it acts as a collection agent on behalf of Professional for the amount charged to a User for the provision of Professional Services,

            (collectively, the Services).

(b)      Professional acknowledges and agrees that TCB is a technology services provider and does not provide any Professional Services.

(c)       Professional must procure that any of its Personnel who use the Platform or who provide Professional Services comply with the terms of this Agreement.

 

2          Additional services

(a)       TCB may offer Professional the opportunity to upgrade to a Promoted Account and/or to receive other additional services to be notified by TCB to Professional from time to time (Additional Services).

(b)      Additional Services may incur additional fees and charges.

(c)       Additional Services may be subject to additional terms and conditions, which will be deemed to be accepted by Professional upon payment of any applicable fees and charges.

 

3          Professional Accounts

(a)       To access and use the Services, Professional must have a registered account (Professional Account).

(b)      A Professional Account is personal to Professional and can only be accessed and used by the individual registered to that account.

(c)       TCB has sole discretion as to whether to provide Professional with a Professional Account, or whether to List a Professional Account. Without limiting the foregoing, TCB will only List a Professional Account if, in TCB's reasonable opinion, the Listing Requirements have been satisfied.

(d)      Once a Professional Account has been activated by TCB, Professional will also be provided with Access Credentials. Professional must keep their Access Credentials secure and confidential. Professional must not use another person's Access Credentials.

(e)       All activity, including activity in breach of the provisions of this Agreement, undertaken using Professional's Access Credentials will be deemed to be the activity of Professional.

(f)       Professional must notify TCB immediately if it becomes aware of any unauthorised use, or suspected unauthorised use, of the Professional Account.

(g)       TCB may suspend or deactivate a Professional Account, either permanently or temporarily in TCB's sole discretion, in the following circumstances:

            (i)        Professional provides false or misleading information to TCB in connection with the Listing Requirements;

            (ii)       Professional no longer meets the Listing Requirements;

            (iii)      Professional receives negative ratings or reviews from a User which, upon investigation by TCB, demonstrate that Professional is or has been in breach of the terms of this Agreement; or

            (iv)      Professional uses the Services to be connected to a User and then provides or attempts to provide Professional Services independently of the Platform, in order to intentionally circumvent the Platform, Professional's obligation to pay any Service Fees or for any other reason, or Professional attempts to encourage a User to circumvent the Platform.

 

4          Using the Platform

4.1      Obtaining Professional Services

(a)       Professionals and Users can interact with each other using the Platform.

(b)      Users can order Professional Services on such lawful terms as may be determined by Professional (including, without limitation, terms in relation to requirements for any deposit prior to the provision of any Professional Services, cancellation timeframes and refund policies). Any such terms between Professional and a User are expressly not incorporated into the terms of this Agreement. Professional must comply with all applicable guidelines and policies provided by TCB in determining the terms upon which Professional agrees to provide Professional Services to User.

(c)       Professional will determine the appropriate Professional Fee and any applicable Cancellation Fee, and must notify and agree each with the User prior to payment.

(d)      Professional must issue the User with a tax invoice setting out the Professional Fee and any applicable Cancellation Fees (the Invoice).

(e)       TCB will collect payment for the provision of Professional Services in accordance with clause 6.

(f)       Professional is solely responsible for all costs and expenses in relation to the provision of Professional Services, including applicable fees and Taxes, wages, licensing, insurance coverage, tolls and fines incurred in the course of providing Professional Services.

(g)       Professional will be solely responsible for any and all liability which results from the provision of the Professional Services, including any Loss, damage, injury or delay.

(h)      Notwithstanding any other provision of this Agreement, any failure by Professional to provide Professional Services will constitute a material breach of this Agreement.

 

4.2       Damage and injury claims

(a)       Professional will notify TCB of any damage to property or injury caused or incurred in the course of providing Professional Services as soon as practicable after the damage or injury occurs.

(b)      Without limiting clause 4(g), Professional agrees and acknowledges that Professional will be responsible for any damage to property or injury caused or incurred in the course of providing Professional Services and will need to resolve any Claim directly with User or a third party (including any dispute over insurance coverage).

(c)       Professional agrees to fully co-operate with the User and/or TCB to resolve any damage or injury claims as quickly as possible.

 

5          Ratings and reviews

(a)       Professional may be given a rating or review by the User in relation to the provision of Professional Services (Professional Ratings).

(b)      Professional Ratings will be used by TCB to monitor and improve the standard of the Services.

(c)       Where Professional is dissatisfied with the Professional Rating provided by a particular User, Professional may contact TCB and the parties will engage in good faith discussions in order to resolve the issue in accordance with TCB's Reviews Policy. This clause 5(c) is not subject to the dispute resolution procedure set out in clause 24. TCB is under no obligation to amend or remove Professional Ratings following such discussions and will not do so where such amendment is contrary to Law, including the Australian Consumer Law.

(d)      If Professional consistently receives Professional Ratings considered unacceptable by TCB, TCB may, at its sole and absolute discretion, deactivate a Professional Account and/or terminate this Agreement without notice or liability to Professional.

 

6          Financial terms

6.1       Payment

(a)       The parties agree and acknowledge that Users will be charged the Professional Fee and/or any applicable Cancellation Fee.

(b)      TCB collects payment from Users for the Professional Fee and any applicable Cancellation Fee as a collection agent for Professional. Unless TCB specifies a refund policy in respect of payments collected on behalf Professionals (in which event the TCB refund policy shall apply to the exclusion of any refund policy determined by a Professional), subject to the terms and conditions of this Agreement, TCB agrees to treat the payments collected from Users in accordance with the relevant Professional's refund policy.

(c)       In consideration of TCB's provision of the Services under this Agreement, and TCB acting as the collection agent for Professional as per clause 6.1(b), Professional agrees to pay TCB the Service Fee in respect of the Professional Fee and any applicable Cancellation Fee.

(d)      TCB reserves the right to change the Service Fee at any time in TCB’s discretion based upon local market factors, and TCB will provide Professional with notice in the event of such change. Continued use of the Services after any such change in the Service Fee calculation shall constitute Professional's consent to such change.

(e)       TCB shall electronically remit to Professional on at least a monthly basis any amounts collected on behalf of Professional under clause 6.1(b), less the Service Fee and less any amounts payable to TCB under clause 6.2.

 

6.2       GST

(a)       If GST is payable on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable on that supply.

(b)      Unless otherwise stated, all amounts referred to in this Agreement are stated on a GST exclusive basis.

(c)       Any reference in this Agreement to value, sales, revenue or a similar amount is a reference to that amount exclusive of GST.

(d)      Where any indemnity, reimbursement or similar payment under this Agreement is based on any cost, expense or other liability, it shall be reduced by any input tax credit entitlement, or notional input tax credit entitlement, in relation to the relevant cost, expense or other liability.

(e)       If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST payable on that supply will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.

(f)       If required to provide an invoice, a party shall provide proper tax invoices if GST is applicable.

(g)       This clause will not merge upon completion and will continue to apply after expiration or termination of this Agreement.

(h)      Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 shall have that meaning in this Agreement.

 

7          Use of Platform and Services

(a)       (licence restrictions) Professional must:

           (i)        not copy the Website except where such copying is incidental to normal use of the Website;

           (ii)       not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Website;

           (iii)      not make alterations to, or modifications of, the whole or any part of the Website, or permit the Website or any part of it to be combined with, or become incorporated in, any other programs;

           (iv)      not disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Website or attempt to do any such thing;

           (v)       not provide or otherwise make available the Website in whole or in part (including object and source code), in any form to any person without the prior written consent of TCB; and

           (vi)      comply with all technology control or export laws and regulations that apply to the technology used or supported by the Website.

(b)      (acceptable use restrictions) Professional must:

           (i)        not use the Platform or Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Platform or any operating system;

           (ii)       not infringe TCB's Intellectual Property Rights or those of any third party in relation to Professional's use of the Platform or Services;

           (iii)      not transmit or submit using the Platform or Services any material or User Content that is defamatory, offensive or otherwise objectionable;

           (iv)      not use the Platform or Services in a way that could damage, disable, overburden, impair or compromise TCB's systems or security or interfere with other users; and

           (v)       not collect or harvest any information or data, or attempt to decipher any transmissions to or from the servers used by TCB.

(c)       TCB may, at any time and in TCB's sole discretion, prohibit, suspend or otherwise restrict Professional from accessing the Platform or the Services for any reason whatsoever.

 

8          Audit

(a)       During the Term and for 12 months after the end of the Term, TCB will have the right to, or engage an independent third party auditor to, conduct an audit of Professional to verify that Professional is complying with the terms of this Agreement.

(b)      Each audit must be conducted by providing reasonable written notice to Professional, and must be conducted during normal business hours and in a manner designed to not unreasonably interfere with Professional's ordinary business.

(c)       Subject to clause 8(d), TCB will bear its own costs associated with any audit conducted under this clause 8.

(d)      If an audit reveals Professional is not complying with the terms of this Agreement, Professional will be responsible for TCB's audit and inspection costs and must promptly reimburse TCB for those costs following any request by TCB to do so.

 

9          Intellectual Property Rights

9.1       Platform and Services

(a)       (ownership) The parties acknowledge that all rights, title and interest in the Platform and Services, including in any improvements to the Platform and Services (including any Intellectual Property Rights in the Platform and Services, and any improvements to them) remain with TCB and/or its licensors at all times and nothing in this Agreement is intended to transfer such right, title or interest to Professional.

(b)      (licence) Subject to clause 9.1(c) and Professional's compliance with the terms of this Agreement, TCB grants to Professional and its Personnel a non-transferable and non-exclusive licence to view, use and display the Website during the Term for personal and business purposes (to the extent that the business purpose is solely and directly related to the provision by Professional of Professional Services to Users) only.

(c)       The licence granted under clause 9.1(b) does not include a right to sub-license or otherwise provide the Platform or Services to any third party.

 

9.2       Feedback

(a)       Professional agrees and acknowledges that any feedback, suggestions, bug reports, system errors and other information or ideas in relation to the Platform or the Services (Feedback) may be used by TCB in any manner it deems appropriate (and will not be regarded as being confidential or proprietary information).

(b)      Professional will ensure that any existing or future Intellectual Property Rights in any Feedback vest in TCB absolutely. Professional agrees to assign, and procure the assignment of, such Intellectual Property Rights in any Feedback to TCB immediately on their creation.

 

9.3       User Content

(a)       Professional agrees and acknowledges that it is solely responsible for any User Content submitted by Professional. To the extent permitted by Law, including the Australian Consumer Law, TCB will not be responsible for any User Content and provides no guarantees regarding the accuracy, currency, suitability or quality of any User Content.

(b)      Professional grants TCB a perpetual, worldwide, transferable, non-exclusive right to access, use, adapt, modify, reproduce, reformat, transform, process, commercialise and exploit, and create Derivative Materials from, User Content submitted by Professional to the extent necessary to undertake such activities.

(c)       TCB reserves the right (but does not undertake, except as required by Law, any obligation) and has the sole discretion to remove or edit at any time any User Content that TCB determines:

           (i)        breaches any applicable Law or is fraudulent;

           (ii)       amounts to unauthorised advertising;

           (iii)      contains viruses or any other harmful programs;

           (iv)      contains any defamatory, obscene or offensive material;

           (v)       promotes violence or discrimination;

           (vi)      infringes the Intellectual Property Rights of another person;

           (vii)     breaches any legal duty owed to a third party (such as a duty of confidence);

           (viii)    promotes illegal activity or invades another individual's privacy; or

           (ix)      is otherwise objectionable or may expose TCB or any third parties to any harm or liability of any type, or for any other reason.

(d)      Professional may disclose User Content submitted by Professional to third party service providers, if TCB merges with or is acquired by a third party, or to comply with applicable Laws. TCB may also use User Content to investigate or prevent any breach or potential breach of any applicable Law or this Agreement.

 

9.4       Data and Derivative Materials

(a)       Professional grants TCB a perpetual, worldwide, transferable, non-exclusive right to access, use, adapt, modify, reproduce, reformat, transform, process, commercialise and exploit, and create Derivative Materials from, the Data to the extent necessary to undertake such activities.

(b)      Professional agrees and acknowledges that TCB intends to use and/or aggregate the Data in conjunction with other information collected or obtained by TCB, and Professional agrees that TCB is permitted to make full use of, commercialise and exploit the Data for those purposes.

(c)       Professional will ensure that any existing or future Intellectual Property Rights in any Derivative Materials immediately vest in TCB absolutely. Professional agrees to assign, and procure the assignment of, such Intellectual Property Rights in any Derivative Materials to TCB immediately on their creation.

(d)      Without limiting the foregoing, Professional agrees and acknowledges that TCB may disclose Data and Derivative Materials to any third party in its sole discretion.

 

10       Third party content

The Platform may contain links to third party websites, services or advertisements for third parties (Third Party Content). Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, TCB does not endorse and is not responsible for any Third Party Content and has no control over or rights in Third Party Content.

 

11       Confidentiality

11.1    Confidentiality

Subject to clause 11.2, a party must not disclose, or use for a purpose other than as contemplated by this Agreement, the existence of and terms of this Agreement or any other Confidential Information.

 

11.2    Permitted disclosure

A party may disclose any Confidential Information:

(a)       to the other party to this Agreement;

(b)      under corresponding obligations of confidence as imposed by this clause, to persons which control or are controlled by the party within the meaning of the Corporations Act, and the employees, legal advisors or consultants of such persons;

(c)       which is at the time lawfully in the possession of the proposed recipient of the Confidential Information through sources other than the other party, or a Related Body Corporate of the other party, to this Agreement;

(d)      in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement;

(e)       if required under a binding order of a Governmental Agency or under a procedure for discovery in any proceedings;

(f)       if required under any Law or any administrative guideline, directive, request or policy whether or not having the force of law;

(g)       as required or permitted by this Agreement;

(h)      to its legal advisers, its insurers and its consultants; or

(i)        with the prior written consent of the other party to this Agreement.

 

11.3    Publicity

(a)       Professional agrees that, notwithstanding this clause 11, TCB may:

           (i)        disclose to third parties the fact that Professional has entered into this Agreement with TCB; and

           (ii)       use de-identified information about Professional,

in any marketing or other material used by TCB.

(b)      For the avoidance of doubt, marketing material may include (but is not limited to) case studies regarding Professional's involvement with TCB, however TCB will only identify Professional in marketing material (including in case studies) with Professional's prior written consent.

 

12       Privacy

(a)       TCB may collect personal information about Professional (and, if applicable, its Personnel) in order to provide the Services and for other purposes set out in the Privacy Policy.

(b)      Professional agrees and acknowledges that personal information may be disclosed to third parties, and that the Privacy Policy sets out how TCB collects, uses, stores and discloses personal information and the consequences if that information is not provided.

(c)       The Privacy Policy sets out the manner in which Professional (and, if applicable, its Personnel) may access personal information, seek correction of personal information or complain about a breach of the Privacy Act.

 

13       Representations and warranties

(a)       Each party represents and warrants that:

           (i)        it has full power, authority and legal capacity to enter into this Agreement and perform its obligations under this Agreement;

           (ii)       execution and performance of this Agreement will not result in a breach of any terms or conditions of any instrument or agreement to which it is a party; and

           (iii)      it shall obtain and maintain all Consents applicable or necessary in order to perform its obligations under this Agreement.

(b)      Professional represents and warrants to TCB that:

           (i)        it has the required level of competency and professionalism expected to provide Professional Services; and

           (ii)       Professional will take all reasonable steps to prevent breaches of any applicable Laws.

 

14       Compliance

(a)       Professional must comply with all applicable Laws.

(b)      Professional must obtain and maintain all Consents necessary to enable it to perform its obligations under this Agreement without infringing any Law or the rights of any person.

 

15       Force Majeure

(a)       Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Force Majeure Event, this Agreement will continue and remain in effect but the Affected Party will not be in breach of this Agreement for that reason only, and the Affected Party will be granted a reasonable extension of time to complete performance of its affected obligations.

(b)      The Affected Party must promptly after becoming aware of a Force Majeure Event, give written notice to the other party of the nature of the Force Majeure Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Force Majeure Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.

(c)       After 14 days (or earlier if agreed by the parties) of being given notice, either party may terminate the Agreement or negotiate to allow part fulfilment or deferment of the obligations of either party under this Agreement.

 

16       Variation

(a)       TCB may amend these terms and conditions from time to time to reflect changes in market conditions, changes in technology used to provide the products and services under this Agreement, changes in payment methods, changes in relevant Laws and regulatory requirements and changes in the capabilities of TCB's system.

(b)      TCB will notify Professional of any amendment to this Agreement in writing. Professional must accept the amended terms in order to continue its use of the Services. If Professional does not agree to the amended terms, Professional will be deemed to have exercised its right to terminate the Agreement pursuant to clause 17.2(f) below.

 

17       Term and termination

17.1    Term

This Agreement commences on the Commencement Date and shall continue until terminated in accordance with its terms.

 

17.2    Termination

(a)       (for cause) Either party may terminate this Agreement with immediate effect by giving written notice to the other party at any time if the other party:

           (i)        breaches any warranty in this Agreement or any other provision of this Agreement which is incapable of being remedied, or where the breach is capable of being remedied, fails to remedy the breach within seven days after receiving written notice from the terminating party requiring it to do so; or

           (ii)       on the occurrence of an Insolvency Event.

(b)      (termination for failure to comply with requirements) Without limiting clause 17.2(a)(i), TCB may suspend Professional's access to the Services or terminate this Agreement with immediate effect if Professional breaches clauses 7 or 14 of this Agreement.

(c)       (termination for misrepresentation as to compliance with requirements) Without limiting clause 17.2(a)(i), TCB may suspend Professional's access to the Services or terminate this Agreement with immediate effect if Professional makes any intentional or fraudulent misrepresentation in connection with the Listing Requirements or this Agreement.

(d)      (suspension or termination for unacceptable Professional Ratings) TCB may suspend Professional's access to the Services or terminate this Agreement with immediate effect in accordance with clause 5(c).

(e)       (termination for Regulatory Event) If a Regulatory Event that, in the reasonable opinion of TCB, may affect the subject matter of this Agreement occurs or is likely to occur during the Term, TCB may immediately suspend the performance of this Agreement or terminate this Agreement without liability to Professional.

(f)       (termination for refusal of new terms) If Professional elects not to accept variations to these terms made pursuant to clause 16, Professional will be deemed to have terminated this Agreement with immediate effect.

(g)       (termination for convenience) Either party may terminate this Agreement for convenience and without incurring liability to the other party at any time by giving at least 30 days' written notice to the other party.

 

18       Consequences of termination

(a)       On termination of this Agreement for any reason:

           (i)        all rights granted to Professional under this Agreement shall cease;

           (ii)       any Professional Account will be deactivated and any User Content may be deleted; and

           (iii)      Professional must cease all activities authorised by this Agreement.

(b)      Professional must, within 20 Business Days of termination, pay to TCB all fees incurred and/or owing under this Agreement up to and including the date of termination or expiry.

(c)       TCB will, within 20 Business Days of termination, pay to Professional all amounts owing in accordance with clause 6 up to and including the date of termination or expiry.

 

19       Accrued rights and remedies and survival

Without limiting any other provision of this Agreement, clauses 7 (Use of Platform and Services), 9 (Intellectual Property), 11 (Confidentiality), 12 (Privacy), 18 (Consequences of termination), this clause 19 (Accrued rights and remedies and survival), 20 (Disclaimer), 21 (Indemnities), and any other clauses which should by their nature survive termination of this agreement, survive termination or expiration of this Agreement for any reason.

 

20       Disclaimer

Professional agrees and acknowledges that, to the extent permitted by Law (including the Australian Consumer Law if applicable), TCB:

(a)       does not represent, warrant or accept any liability in relation to the accuracy, currency, reliability or quality of the Platform or the Services;

(b)      does not represent or warrant that the Platform or the Services are free from errors or omissions, or that they are exhaustive;

(c)       does not represent or warrant that the Platform or the Services will be available on an uninterrupted, timely or secure basis;

(d)      does not represent or warrant that the Platform or Services will be free of viruses or other harmful code; and

(e)       disclaims any warranties, representations or endorsements, express or implied, with regard to the Platform or the Services, including all implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

 

21       Indemnities

21.1    Indemnity by TCB

TCB shall defend, hold harmless and indemnify Professional from and against any Loss suffered or incurred by Professional arising out of or in connection with any Claim that the Services infringe any Intellectual Property Right or other right of any third party, except to the extent that such Loss is caused or contributed to by an act or omission of Professional.

 

21.2    Indemnity by Professional

Professional shall defend, hold harmless and indemnify TCB and its Related Bodies Corporate and Personnel (the TCB Indemnified Parties) from and against any Loss suffered or incurred by the TCB Indemnified Parties arising out of or in connection with:

(a)       any breach of this Agreement or any applicable Laws by Professional or its Personnel;

(b)      the death or injury of any person arising out of or otherwise in connection with any negligence or wrongful act or omission of Professional or its Personnel;

(c)       any fraud (including intentional and/or fraudulent misrepresentation), criminal activity, negligence or wilful misconduct of Professional or its Personnel;

(d)      any Claim by any person in connection with any Feedback, User Content or data used or disclosed by TCB in connection with this Agreement;

(e)       any Claim by any person that is connected with any communications between Professional and a User or other user of the Platform, any arrangement agreed between Professional and a User, or the provision by Professional of Professional Services; or

(f)       any loss or damage to property arising out of or otherwise in connection with any wrongful act or omission of Professional.

 

22       Limitation of liability

(a)       To the extent permitted by Law, (including the Australian Consumer Law if applicable), and subject to clause 22(d), in no event will the aggregate liability of TCB for any Loss, direct or otherwise, exceed the Liability Cap, regardless of the cause or form of action. For the avoidance of doubt, the limitation of liability under this clause 22(a) is cumulative and not per incident or Claim.

(b)      To the extent permitted by Law, (including the Australian Consumer Law if applicable), under no circumstances will TCB be liable for any Consequential Loss.

(c)       The limitations and exclusions in this clause 22 shall apply whether the action, claim or demand arises from breach of contract, tort (including negligence) or under any other theory of liability.

(d)      Clause 22(a) does not apply to, and shall not limit, any party's liability:

           (i)        for death or personal injury caused by that party or its Personnel;

           (ii)       for fraud (including fraudulent misrepresentation); or

           (iii)      under any indemnity given in this Agreement.

 

23       Assignment

(a)       The contract between TCB and Professional is binding on the parties and their respective successors and assigns.

(b)      Professional must not transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of its rights or obligations arising under it, without TCB's prior written consent.

(c)       TCB may transfer, assign, charge, sub-contract or otherwise deal with this Agreement, or any of its rights or obligations arising under it, at any time during the term of the Agreement.

 

24       Dispute resolution

(a)       Neither party may commence any court or arbitration proceedings relating to a Dispute unless it has complied with the provisions of this clause 24, except to seek urgent interlocutory relief.

(b)      A party claiming that a Dispute has arisen must promptly notify the other party in writing by giving details of the Dispute. The parties must use reasonable endeavours to resolve any Dispute.

(c)       If the parties are not able to resolve the Dispute in accordance with clause 24(b) within 20 Business Days from the date of notification, either party may immediately refer the Dispute to mediation and the parties will use reasonable endeavours to resolve the Dispute following the ACDC Guidelines. Each party must bear its own costs in relation to complying with this clause 24(c), except for the costs and expenses of the mediation, which will be borne by the parties equally.

 

25       Notices

25.1    Provision of notices

Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:

(a)       must be in writing and signed by the sender or a person duly authorised by the sender;

(b)      must be addressed and delivered to the address, email address or fax number last notified by the intended recipient to the sender after the date of this Agreement; and

(c)       will be conclusively taken to be duly given or made when delivered, received or left at the above email address, fax number or address. If delivery or receipt occurs on a day that is not a business day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next business day in that place.

 

26       Relationship of the parties

Professional's relationship with TCB under this Agreement is solely one of service provider and service recipient (including, as part of that relationship, a licensor and licensee relationship). Nothing in this Agreement constitutes a relationship of employer and employee, partnership, joint venture or agency and, except as stated in this Agreement, neither party has any authority or power to:

(a)       bind the other; or

(b)      create a liability against the other.

 

27       General

27.1    Further assurances

Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.

 

27.2    Entire agreement

This Agreement contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. None of the parties has relied on or is relying on any other Conduct in entering into this Agreement and completing the transactions contemplated by it.

 

27.3    Waiver

No failure to exercise or delay in exercising any right, power or remedy under this Agreement operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

 

27.4    Remedies cumulative

The rights, powers and remedies provided to a party in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity or any agreement.

 

27.5    No merger

The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Agreement. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.

 

27.6    Severability

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

 

27.7    Costs and duty

Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

 

27.8    Governing law and jurisdiction

This Agreement and, to the extent permitted by law, all related matters including non-contractual matters, is governed by the laws of New South Wales and of the Commonwealth of Australia applying there. In relation to such matters each party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.

 

27.9    Counterparts

This Agreement may be executed in any number of counterparts. All counterparts will be taken to constitute one agreement.

 

28       Definitions and Interpretation

28.1    Definitions

The following definitions apply unless the context requires otherwise.

Access Credentials means the necessary security measures provided by TCB to Professional to access its Professional Account.

ACDC means the Australian Commercial Disputes Centre Ltd (or, if that organisation ceases to exist, a similar organisation nominated by the party referring the Dispute to mediation).

ACDC Guidelines means ACDC Guidelines for Commercial Mediation (or if the ACDC ceases to exist, the guidelines for mediation of any similar organisation nominated by the party referring the Dispute to mediation) in force from time to time, the terms of which are incorporated into this Agreement.

Additional Services has the meaning given in clause 2(a).

Business Day means a weekday on which banks are open in Sydney, New South Wales.

Cancellation Fee means the fees charged to a User in the circumstances determined by Professional in the event of a cancellation.

Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.

Commencement Date means the date the parties enter into this Agreement.

Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement and includes, without limitation, any information and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property Rights of a party or dealings under this Agreement.

Consents means any licences, clearances, permissions, certificates, permits, authorities, declarations, exemptions, waivers, approvals or consents.

Consequential Loss means any:

(a)       loss of profits, loss of income or revenue, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third parties), loss of management time, damage to credit rating, or loss of business; and

(b)      any loss, not arising naturally (that is according to the usual course of things), from the relevant breach, whether or not such loss is reasonably supposed to have been in the contemplation of both parties, at the time they made the Agreement, as the probable result of the relevant breach.

Data means data (excluding Personal Information) that Professional provides to TCB or its Personnel or that is otherwise obtained by or on behalf of TCB or its Personnel via the Platform or by any other means.

Derivative Materials means materials, data and insights derived or created by or on behalf of TCB or its Personnel in accordance with clause 9.4, which are based on, or created or derived from, the Data.

Dispute means a dispute between the parties arising in connection with this Agreement.

Feedback has the meaning given in clause 9.2(a).

Force Majeure Event means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:

(a)       act of God, lightning, storm, flood, fire, earthquake or explosion;

(b)      strike, lockout or other labour difficulty;

(c)       act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;

(d)      the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;

(e)       embargo, power or water shortage, lack of transportation, lack of public or private telecommunications networks; and

(f)       breakage or accident or other damage to machinery.

Governmental Agency means any government or any governmental, semi-governmental or judicial entity or authority. It also includes any self-regulatory organisation established under statute or any stock exchange.

Insolvency Event means where:

(a)       a party ceases, suspends or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;

(b)      a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend payment of all or a class of its debts;

(c)       a party becomes or is (including under legislation) deemed or presumed to be insolvent;

(d)      a party has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of it or the whole or any part of its assets or business;

(e)       any composition or arrangement is made with any one or more classes of its creditors;

(f)       except for the purpose of solvent amalgamation or reconstruction, an order, application or resolution is made, proposed or passed for its winding up, dissolution, administration or liquidation;

(g)       a party enters into liquidation whether compulsorily or voluntarily; or

(h)      any analogous or comparable event takes place in any jurisdiction.

Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi-conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

Invoice has the meaning given in clause 4(d).

Law means all laws including rules of common law, principles of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct, writs, orders, injunctions and judgments.

Liability Cap means the amount equal to the fees paid to Professional in the preceding six month period from the time the event occurred that gave rise to the Claim.

List means that Professional is listed on the Platform and may appear in search results provided to Users, and Listed has an equivalent meaning.

Listing Requirements means the requirements for a Professional to be Listed on the Platform, as notified to Professional by TCB in writing from time to time.

Loss means any loss, liability, Claim, damage, cost, charge, expense or diminution in value, however arising, and whether present or future, fixed or unascertained, actual or contingent.

Personal Information means "personal information" as defined in the Privacy Act that either party has collected, received or otherwise has access to in connection with this Agreement.

Personnel means in respect of a person any employee, contractor, servant, agent, or other person under the person's direct or indirect control and includes any sub-contractors.

Platform means the platform that enables Users to organise and obtain information regarding all aspects of an Indian wedding in Australia (including fashion, decor and event inspiration), and allows Professionals to list their services. For clarity, the Platform includes the Website.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy means the privacy policy of TCB available at https://www.thecrimsonbride.com/privacy/, as amended from time to time.

Professional Account has the meaning given in clause 3(a).

Professional Fee means the fees charged to a User for the provision of Professional Services.

Professional Rating has the meaning given in clause 5(a).

Professional Services means any services provided by Professional to a User. For clarity, Professional Services may be subject to terms and conditions as between the Professional and a User, and TCB is not a party to such terms.

Promoted Account means a Professional Account for which TCB provides additional services (upon payment of any applicable fees and charges as notified to Professional).

Regulatory Event means:

(a)       an amendment, repeal or change in Law, the enactment of a new Law, or a change in the interpretation or application of a Law (including Privacy Laws); or

(b)      a direction, notice or order of a Governmental Agency which is binding on TCB or Professional.

Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).

Service Fee means the amount calculated as a fixed percentage of the GST-exclusive amount charged for the Professional Fee or the GST-exclusive amount charged for the Cancellation Fee (as applicable). Such fixed percentage will be notified to Professional at the time of entering this Agreement, and may be adjusted by TCB from time to time.

Tax includes any tax, levy, impost, deduction, charge, rate, duty, compulsory loan or withholding that is levied or imposed by a Governmental Agency, and any related interest, penalty, charge, fee or other amount.

Term means the period described in clause 17.

Third Party Content has the meaning given in clause 10.

User Content means any and all information, data and other content that a Professional or User submits to, or uses with, the Platform or Services.

Website means TCB's website, and includes any mobile/tablet versions of that website and any mobile/tablet application.

 

28.2    Interpretation

The following rules apply unless the context requires otherwise:

(a)       headings are for convenience only and do not affect interpretation;

(b)      the singular includes the plural, and the converse also applies;

(c)       nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it;

(d)      if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(e)       a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;

(f)       a reference to a clause or Schedule is a reference to a clause of, or Schedule to, this Agreement;

(g)       a reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;

(h)      a reference to a party to this Agreement or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);

(i)        a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

(j)        a reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in visible or tangible form;

(k)       a reference to conduct includes an omission, statement or undertaking, whether or not in writing;

(l)        a reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind;

(m)     mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;

(n)      a reference to dollars and $ is to Australian currency or such other currency set out in the relevant Order; and

(o)       a month means a calendar month.