These terms of service are incorporated into any contract between THE BOM (AUST) PTY LTD ACN 624 468 882 of L1/530 Collins St Melbourne VIC 3000(" BOM", “we”, “us”, “our”) and you (being the party named in the member application form) for provision of the Services by BOM to you. IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
In these Terms, unless the context otherwise requires:
(a) "Confidential Information" means all confidential information belonging to a party in whatever form, including financial information, forms, specifications, processes, customer lists, sales processes, business dealings, marketing information, plans, statements, trade secrets, drawings and data (and copies and extracts made of or from that information and data) concerning the operations and dealings of the party or its business;
(b) “Content” means any information, text, graphics, photos, audio, video and/or other material and content.
(c) "Fees" means the fees specified in the payment schedule provided to the you at the time of purchase;
(d) “GST” means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(e) "Intellectual Property" includes but is not limited to trade marks, patents, copyrights, processes, know-how, registered designs and concepts;
(f) “Interest Rate” means a rate 2% higher than the rate set by the Penalty Interest Rates Act 1983 from time to time;
(g) “Minimum Period” means the period set out in the payment schedule;
(h) “Personal Information” means information or an opinion about an identified individual, or about an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not;
(i) "Services" means any of the services provided by BOM to you. A list of Services offered can be found [www.thebom.com.au/pricing];
In these Terms, unless the context otherwise requires:
(a) A word denoting the singular includes the plural and vice versa;
(b) A word denoting an individual or person includes a corporation, firm, authority, government body and vice versa;
(c) A word denoting one gender includes all genders;
(d) A reference to a thing is a reference to the whole or any part of it, and a reference to a group of things is a reference to any one or more of them;
(e) All references to "$" and "dollars" are to the lawful currency ofAustralia;
(f) Specifying anything after the words "including","includes" or "for example" or similar expressions does not limit what else is included unless there is express wording to the contrary; and a
(g) Headings are for convenience of reference only and do not affect interpretation.
2. TERM OF AGREEMENT
2.1 These Terms commence upon submission by you of a member application form through our Website and continues for the Minimum Period.
3.1 You appoint BOM to provide the Services in accordance with the member application form and subject to these terms of service.
3.2 You acknowledge and agree that nothing in these Terms limits BOM from providing other services, including services similar to the Services, to or on behalf of any other party.
4. FEES AND PAYMENT
4.1 In consideration of the provision of the Services, you shall pay the Fees for the entire Minimum Period to BOM in accordance with this clause 4.
4.2 Unless paid in advance, all payments are required to be via direct debit, charged on a monthly basis (as elected by you at time of purchase).
4.3 In addition to Interest charged under clause 5, you must:
(a) Reimburse BOM for any banking or third-party service fees, costs and charges, which BOM incurs as a result of you failing to make payment of the Fees in accordance with this clause 4;and
(b) Reimburse BOM $25.00 for each dishonored payment, such amount being on account of the administration costs involved in re-processing the dishonored payment.
5.1 Interest on overdue Fees shall accrue daily from the date when payment becomes due until the date of payment at a rate 2% higher than the rate set out by the Penalty Interest Rates Act 1983 (Vic) and such interest shall compound monthly.
5.2 If your defaults in payment of any Fees when due, you shall indemnify BOM from and against all costs and disbursements incurred in pursuing the debt including legal and collection agency costs.
5.3 Without prejudice to any other remedy that BOM may have, BOM may suspend or terminate the Services to you so long as you remain in default of payment of any of the Fees
5.4 If BOM suspends or terminates all or any part of the Services pursuant to clause 5.3:
(a) All amounts owing by you to BOM shall, whether or not due for payment, become immediately payable; and
(b) BOM will not be liable to you for any loss or damage you suffer because BOM has exercised its rights under that clause.
6.1 Either party may cancel the Services after the expiration of the Minimum Period at any time by providing the other party with 30 days written notice.
6.2 If you cancel the Services in accordance with clause 6,you remain liable for that part of the Fees that BOM has already reasonably incurred.
7.1 Each party who receives Confidential Information (the "Recipient") agrees with the other party (the"Owner"):
(a) To use the Confidential Information only for the purposes of these Terms; and
(b) To keep that Confidential Information confidential and not disclose it or allow it to be disclosed to any third party except:
(i) With the consent of the Owner; or
(ii) To officers, employees and consultants or advisers of the Recipient and of the Recipient’s related bodies corporate who have a need to know (and only to the extent that each has a need to know) and are aware that the Confidential Information must be kept confidential, and the Parties must take or cause to be taken reasonable precautions necessary to maintain the secrecy and confidentiality of the Confidential Information.
7.2 The obligations of confidentiality under these Terms do not extend to information that (whether before or after these Terms is executed):
(a) Is disclosed to a Recipient under or in relation to these Terms, but at the time of disclosure is rightfully known to or in the possession or control of the Recipient and not subject to an obligation of confidentiality on the Recipient;
(b) Is public knowledge (otherwise than as a result of a breach of these Terms); or
(c) Is required by law to be disclosed and the Recipient required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure and to limit, as far as reasonably possible, the extent of the disclosure.
7.3 Upon termination or expiration of these Terms, each party must:
(a) Continue to keep confidential all Confidential Information of each other party; and
(b) At each Owner’s option, return to that Owner or destroy and certify the destruction of that Owner’s Confidential Information.
8. INTELLECTUAL PROPERTY
8.1 You represent and warrant to BOM that you:
(a) Own or have the full right to provide all Content that you provide through the Services for use on the Website and for the Services (“Your Content”),
(b) That Your Content does/is not:
(i) In fringe any third-party rights, including any intellectual property, publicity or privacy rights;
(ii) Contravene any laws or incite breaches of any law, regulation, industry code or guideline;
(iii) Promote or incite violence or criminal activity;
(iv) Breach your contracts;
(v) Materially misleading or deceptive in nature;
(vi) Free of viruses, worms or corrupted; and
(vii) Breach any relevant laws
and you indemnify BOM against any loss, damage, liability or cost incurred by BOM as a result of any breach of such warranty.
8.3 BOM does not adopt, endorse, or accept responsibility for Your Content or any third-party Content. You agree that BOM will not be liable for any loss or damage resulting from your reliance on Content available through the Services.
8.4 BOM reserves the right (but has no obligation) to pre-screen, review, flag, filter, modify, refuse, or remove Content from the Services.
8.6 BOM and its licensors own and retain all right, title, and interest in and to the Services, all underlying technology used with or otherwise enabling the Services, and all software and Content (other than Your Content, which you own subject to the license set forth herein) available within the Services (collectively, “BOM Materials”), including all associated trademarks, copyrights, and other intellectual property rights. Nothing in these Terms transfers any such rights, title or interest to you or any other user, and BOM reserves all rights not expressly granted to you. All information and Content provided to you under these Terms are licensed for the period of your use of the Services in accordance with these Terms, not sold.
8.7 You agree not to remove, conceal, or alter any proprietary rights notices (including copyright and trademark notices) contained within the BOM Materials. You may not (and you may not permit anyone else to) extract, copy, modify, reverse engineer, decompile, or otherwise attempt to access or use the source code of the software underlying or otherwise used to provide the Services or any part thereof, except to the extent allowed by law not with standing this restriction.
8.8 All trademarks, service marks, trade names, logos and graphics included within the Services ("Marks") are trademarks of BOM and its licensors. You may not use any Marks without the prior written consent of BOM.
8.9 You acknowledge that the ownership, title and rights associated with all Intellectual Property in any material prepared by BOM (including in its performance of the Services) shall at all times belong to, vest in and remain vested in BOM.
8.10 You must not:
(a) Use, sell, lease, loan, distribute (including uploading to social media or the Internet), or in any manner commercially exploit any of BOM's Intellectual Property without the prior written consent of BOM;
(b) Infringe BOM’s Intellectual Property rights and not cause or permit anything which maybe damage or endanger such rights and not assist or allow others to do so.
8.11 You agree that any breach of your obligations with respect to BOM's and its licensors’ proprietary or intellectual property rights will result in irreparable injury to BOM and its licensors for which monetary damages are inadequate, and you therefore agree that BOM and its licensors shall be entitled to seek injunctive relief to address such breach, without the requirement of posting a bond, in addition to any other relief that a court may deem proper.
8.12 The parties' obligations pursuant to this clause 8 continue after the expiration or termination of these terms or the completion of the Services.
9. GOODS AND SERVICES TAX
9.1 Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
9.2 Any consideration to be paid or provided for a supply made under or in connection with these Terms, unless specifically described in these Terms as "GST inclusive", does not include an amount on account of GST.
9.3 A recipient need not make a payment for a taxable supply made under or in connection with these Terms until the supplier has given the recipient a tax invoice for the supply to which the payment relates.
10. LIMIT OF LIABILITY
10.1 The parties acknowledge that, under applicable State and Common wealth law, certain conditions and warranties may be implied in these terms of service and there are rights and remedies conferred on your in relation to the provision of the Services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”).
10.2 BOM disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on your, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of BOM for a breach of a Non-excludable Right is limited, at BOM’s option, to the supplying of the Services again, refund of the cost of the Services or payment of the cost of having the Services supplied again.
10.3 The maximum liability of BOM for any and all breaches of these terms of service by BOM will be capped at the amount of the amounts previously paid by your to BOM under these terms including the Proposal.
10.4 To the maximum extent permitted by law, BOM excludes its liability (including, but not limited to, liability in tort, contract and for breach of statute) to your or any other person for any injury, loss or damage consequential or otherwise (whether contractual, tortious, statutory or otherwise) for any special, incidental, indirect or consequential damages sustained or incurred in connection with the provision of the Services whether as a result of any breach, default, negligence or otherwise by BOM suffered or incurred by your or any other person in relation to the Services.
11. RELEASES AND INDEMNITIES
11.1 The parties acknowledge that BOM makes no guarantees or warranties of any kind, whether expressed or implied of the quality of goods or services of any third party and you forever release and indemnify BOM against all costs, expenses, actions or claims directly or indirectly incurred or suffered by you as a result of any failure fault, defect, flaw or error or any breach of warranty or guarantee or failure to uphold a warranty or guarantee by a third party supplier or service provider.
12. DEFAULT AND TERMINATION
12.1 BOM shall be in default under these terms if any of the following occur:
(a) BOM becomes insolvent or is party to any voluntary bankruptcy or receivership proceeding, makes an assignment for a creditor, or there is any similar action that affects the affairs or property of BOM;
(b) BOM fails to materially perform or comply with the terms and conditions of these terms.
12.2 You shall be in default under these terms if any of the following occurs:
(a) Your fails to make full payment of any invoice rendered to you in accordance with these terms;
(b) You becomes insolvent or is party to any voluntary bankruptcy or receivership proceeding, makes an assignment for a creditor, or there is any similar action that affects the affairs or property of your;
(c) You is the subject of a petition or involuntary bankruptcy and such petition is not removed within ninety (90) days; or
(d) Your otherwise fails to materially perform or comply with the terms and conditions of the Agreement.
12.3 As well as your right to terminate the Services under clause 6.1, You may terminate the Services prior to the expiration of the Minimum Period immediately by notice in writing if:
(a) We become insolvent or an unable to pay our debts or otherwise become involved in any action or process associated with insolvency such as external administration (including a voluntary process); or
(b) We commit a material breach of there Terms and fail to remedy the breach within fourteen (14) days of receiving written notice from you identifying said breach; or
(c) You provide us with notice in writing, within fourteen (14) days of receiving notice from Us that we have materially varied these Terms and You can reasonably demonstrate that the variation would have a material adverse impact on You.
12.4 As well as our right to terminate the Services under clause 6.1, BOM may terminate the Services immediately by notice in writing if:
(a) You die, become bankrupt or insolvent or an unable to pay our debts or otherwise become involved in any action or process associated with insolvency such as external administration (including a voluntary process); or
(b) If you fail to pay any Fees or other monies owing to Us as they fall due; or
(c) You otherwise commit a material breach of these Terms and fail to remedy the breach within fourteen (14) days of receiving written notice from you identifying said breach
12.5 If We terminate the Services early, we will be entitled to liquidated damages calculated by multiplying your total average monthly charge by the number of months left In the Minimum Period. Any period during which BOM suspend the Services pursuant to clause 5.3 will not be taken Into account for the purpose of this clause. The formula in this clause for the calculation of liquidated damages is agreed by you to represent a genuine pre-estimate of our loss if BOM terminate the Services prior to the expiration of the Minimum Period and you agree that it is not a ‘penalty’.
13. DISPUTE RESOLUTION
13.1 If a dispute arises in any way out of these terms of service, or its breach, termination or validity or the Services the subject of these terms, the parties agree to endeavour to settle the dispute by mediation before having recourse to litigation, other than for disputes involving the payment for Services by you. Any costs incurred in relation to the mediation of a dispute are to be shared equally between the parties. Nothing in these terms prevents either party from seeking urgent inter locutory intervention.
14. FORCE MAJEURE
14.1 BOM will not be liable in damages for failure to provide or delay in providing the Services which is caused, whether wholly or partially, by an event beyond its reasonable control including (but not limited to) Act of God, force majeure, war, fire, explosion, acts of terrorism, rioting, burglary, theft, civil disturbances, restrictions by governments (local, municipal, State or Federal) or other competent authority, general economic trends, strikes, industrial action or lockouts (whether at BOM or your premises or not), accidents either at BOM’s or your premises or when in transit to or from those premises, failure by subcontractors and the late arrival of inventory or other material.
15. NATURE OF AGREEMENT
Nothing in these terms is intended or will be construed as constituting a relationship of agent and principal, employer and employee, joint venture or partnership alliance between the parties.
16.1 Entire Agreement
These terms and the schedules and annexures attached here to constitute the entire agreement between the parties and supersedes all previous agreements and understandings, whether verbal or in writing.
The Agreement or any part of it may be varied, modified, amended or added to only in writing executed by the parties.
No provision of the Agreement shall be deemed to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision.
(a) These terms shall ensure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
(b) These terms may not be assigned by a party without the prior written consent of the other party.
If a provision or part of a provision of the Agreement is held invalid, unenforceable or illegal for any reason, then such provision or part, as the case may be, shall be deemed to be severed from the Agreement and the Agreement shall otherwise remain in full force.
16.6 Jurisdiction and Governing Law
(a) The law of the State of Victoria, Australia governs these Terms.
(b) The parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and of the Commonwealth of Australia.
A provision of these terms which can, and is intended to, operate after these terms terminates or expires remains effective after termination or expiry.