Definitions
⦁ For purposes of these Terms and Conditions, defined terms have the following meanings:
“Agreement” means the agreement between the parties comprising these Terms and Conditions and the Contract Details.
“App” means the Leftspring app which enables Customers to access relevant particulars from the Leftspring Merchant Database.
“Confidential Information” means all inherently confidential or proprietary information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) during the term of and for the purposes of the Agreement including, for the avoidance of doubt, data contained in the Leftspring Merchant Database.
“Contract Details” means the document so titled which accompanies these Terms and Conditions.
“Customer” means a person who utilises the Service in order to engage directly with Merchant.
“Force Majeure Event” means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations under the Agreement and which is beyond the reasonable control of that party, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency.
“Intellectual Property” means all rights (as applicable) relating to copyright, trade marks, designs, patents, circuit layouts, inventions and any similar rights whether or not registered or capable of registration.
“Leftspring Merchant Database” means the database of participating merchants maintained by Leftspring for the purposes of the Service.
“Personal Information” means information about an identified or identifiable individual, more particularly as defined in the Privacy Act 1988 (Cth).
“Service” has the meaning set out in clause 3.
1.2 These Terms and Conditions, read in conjunction with the Contract Details, constitute an agreement between the parties for the provision of the Service by Leftspring to Merchant. To the extent of any inconsistency between the Contract Details and these Terms and Conditions, the Contract Details prevail.
Term
⦁ The Agreement commences on the date specified in the Contract Details and the Service will continue for the period specified in the Contract Details.
Service
⦁ The Service involves the inclusion of Merchant in the Leftspring Merchant Database.
⦁ Inclusion on Leftspring Merchant Database will enable Customers to access particulars of Merchant’s products or services and to place an order direct with Merchant.
⦁ Merchant is responsible for ensuring the accuracy and completeness of information submitted to the Leftspring Merchant Database at all times.
⦁ Leftspring accepts no responsibility for any deficiency in the Service which is attributable to inaccurate or incomplete information provided by Merchant.
⦁ Leftspring makes no representation as to the volume of Customers which might utilise the Service, or who might utilise Merchant through the App.
Status of Parties
⦁ Leftspring enters the Agreement as an independent contractor. Nothing in the Agreement creates any employment, contractual or other like relationship between Leftspring and Merchant of any of Merchant’s personnel.
Charges
⦁ Merchant will pay the Charges at the rate and in the manner specified in the Contract Details. Unless specified otherwise in the Contract Details, the Charges are exclusive of taxes, duties and charges (including GST) imposed or levied in Australia or overseas in connection with the Agreement. If Merchant disputes the whole or any portion of the amount claimed in an invoice submitted by Leftspring, Merchant must pay the undisputed portion pending resolution of the dispute.
Warranty
⦁ Leftspring warrants that:
⦁ it has the legal capacity to enter into the Agreement; and
⦁ it will exercise due care and skill in providing the Service.
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Confidentiality
7.1 Subject only to the exceptions under Clause 7.2, a party (“the Receiving Party”) will not disclose any Confidential Information to any third party. The Receiving Party shall not make any copies of Confidential Information unless approved by the Disclosing Party beforehand in writing. Each party shall use the other party’s Confidential Information only for the purposes of the Transaction.
7.2 The Receiving Party shall have no duty of non-disclosure as to the following Confidential Information:
⦁ information which is in the public domain at the time of the initial disclosure by the Disclosing Party or enters the public domain after the time of the initial disclosure through no fault of the Receiving Party;
⦁ information which is in the possession of the Receiving Party at the time of the initial disclosure by the Disclosing Party;
⦁ information developed independently by the Receiving Party solely by employees who have not been exposed to the Disclosing Party’s Confidential Information.
7.3 Upon termination of the Agreement or at any time before such termination at the request of the other party, each party shall immediately return to the other party all of the other party’s Confidential Information (including all copies) in its possession.
7.4 The obligations arising under this clause continue indefinitely for so long as the information remains confidential.
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Privacy and Data Protection.
⦁ To the extent that, in the course of providing the Service, Leftspring accesses any Personal Information under the control of Merchant, Leftspring will:
⦁ take all reasonable steps to protect the information from misuse, interference, loss, and from unauthorised access, modification or disclosure;
⦁ handle the information in accordance with applicable Australian data protection legislation(including any applicable cross-border obligations arising under such legislation) and the applicable data protection legislation of any other jurisdiction; and
⦁ if applicable, handle the information in a manner consistent with Leftspring’s privacy policy.
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Intellectual Property.
9.1 Nothing in these Terms and Conditions affects the ownership of a party’s existing Intellectual Property, including any improvements, enhancements or derivatives of such Intellectual Property.
9.2 Subject to clause 9.1, each party will own new Intellectual Property which it develops in the course of and for the purposes of the Agreement.
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Liability
10.1 To the extent permitted by law:
⦁ Leftspring is not liable, whether in contract, tort (including negligence or breach of statutory duty) or otherwise for any special, indirect, incidental or consequential loss or damage arising out of the provision of the Service;
⦁ Leftspring accepts no liability for:
⦁ Customer satisfaction;
⦁ Customer non-appearance;
⦁ the quality of Merchant’s products or its service to Customers;
⦁ any technical fault or failure which impedes delivery of the Service.
⦁ Subject to clauses 10.1(a) and (b), the liability of Leftspring is limited to a sum equivalent to the aggregate amount paid by Merchant for the Service over a period of 12 months in the period immediately prior to the act or omission first giving rise to liability.
10.2 Merchant agrees to fully indemnify Leftspring in respect of any claim by, or liability incurred to, a Customer or other third party relating to or arising out of:
⦁ a Customer’s use of the Service;
⦁ the inability of a Customer to use the Service; or
⦁ Customer dissatisfaction either with the Service or with Merchant.
10.3 No attempt is made in these Terms and Conditions to exclude liability arising to pursuant to the Australian Consumer Law. The Supplier’s liability for failure to comply with a consumer guarantee under the Australian Consumer Law is limited to:
(a) in the case of goods supplied to Merchant, the replacement of the goods or the supply of equivalent goods; and
(b) in the case of services supplied to Merchant, the supply of the services again.
10.4 Neither Party will be liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to a Force Majeure Event.
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Termination
11.1 Either party may immediately terminate the Agreement if the other party is in breach of a material term and:
(a) such breach is not rectified within 10 business days of notification; or
(b) the breach is incapable of rectification.
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Miscellaneous Provisions.
Entire Agreement. These Terms and Conditions together with the Contract Details constitutes the entire agreement between the parties as to this subject matter, and supersedes all prior agreements and representations between the parties on this subject matter, whether given in writing or orally. The Agreement may be amended only by a writing signed by both parties.
Assignment. The Agreement or any part hereof shall not be assigned or delegated by either party without the prior written approval of the other party, and any purported assignment or delegation in violation of this provision shall be null and void.
Waiver. The failure at any time of either party to enforce or require strict compliance with any provision of the Agreement shall in no way be construed as a waiver of such provision, nor in any way be construed to affect the right of such party to thereafter enforce that or any other provision of the Agreement.
Special Conditions. Any variation to these Terms and Conditions may set out in the Contract Details.
Governing Law. The Agreement is governed by the laws of the State of Victoria, Australia.