Last modified: 20 October 2021
E-Com (Aus) Pty Ltd, a company incorporated in Australia (Amazed/ we/ us) provides a software platform (Platform) for businesses (you/your/Supplier) to offer Supplier Vouchers via the Platform to Customers.
You agree that you shall be bound by these terms and conditions (Agreement) in relation to your use of the Platform, our provision of the Platform and our provision of the Services as set out in this Agreement. Please read this Agreement carefully as it contains important information about your rights and responsibilities when using the Platform and Services.
Without limiting the way in which you may become bound by this Agreement, you will be deemed to have accepted and will be bound by the terms and conditions of this Agreement by signing a document agreeing to be bound by this Agreement, by accepting this Agreement by conduct such as by checking the "I agree to the Terms and Conditions" checkbox and/or clicking the "Sign Up" button on your computer screen to electronically indicating your acceptance of this Agreement, or by proceeding with the any use of the Services. For that reason, this Agreement is important, and you should ensure that you read this Agreement carefully and contact us with any questions before you use the Platform and Services.
If you do not agree to the terms and conditions in this Agreement, you may not access or otherwise use the Platform and the Services.
In this Agreement the following terms have the following meanings:
means an account with our Platform that you set up and complete for the purposes of offering Supplier Vouchers and accessing the Platform and our Services.
means a voucher purchased by a Customer from us, which they may use to pay for the purchase of a Supplier Voucher from you via the Platform.
means your employees, officers, agents and personnel whom you authorise to use the Platform on your behalf.
(a) our Service Fee;
(b) any transaction fee payable to us as described in your application for an Account or on our Site or that we have advised you from time to time in our sole discretion; and
(c) any applicable third-party fees or charges as notified to you by us in writing from time to time.
means a person who, either in the capacity as a guest or registered user, uses the Platform to purchase a Supplier Voucher.
means all identifiable information about Customers generated or collected by us or you, including, but not limited to, their name, addresses, email addresses, phone numbers, preferences and tendencies, and financial transaction data.
Intellectual Property Rights
means all intellectual property rights of any kind whatsoever throughout the world, including all present, future, registered and unregistered rights which subsist in copyright, trademarks, patents, designs and circuit layouts.
means the Amazed platform which delivers the Services to you.
means the Customer’s act of redeeming a Supplier Voucher with the Supplier, and the completion by the Supplier of the supply of the Related Product.
has the meaning given in clause 8.5.
means the goods or services you supply or are required to supply, when a Customer redeems a Supplier Voucher with you
is the commission or fees paid by you to us for access to the Platform and use of the Services.
means the services we provide to you via the Platform from time-to-time to enable you to offer your Supplier Vouchers to Customers to purchase, and which are further described in this Agreement.
means the site that hosts the Platform that you access to use our Services owned and operated by us but also includes your profile page that contains your Supplier Content, details of Supplier Vouchers offered for sale by you through the Platform, Voucher Terms, Voucher Sale Price and other information relevant to your Account.
means you, but (depending on the context) includes other users of the Platform that supply Supplier Vouchers.
Supplier Code of Conduct
means a set of rules or procedures which we impose on Suppliers from time to time in relation to their interactions with Customers, delivering and honouring Supplier Vouchers, content of your Voucher Terms and any other conduct in relation to Suppliers or their Supplier Vouchers which are not expressly dealt with in this Agreement.
is described in clause 17.
means gift cards or vouchers offered by you, for the purchase from you of your Related Products.
means all sales based taxes including without limitation, GST, VAT and sales tax, which are levied on the supply of the Services or any payments from you to Amazed.
means a Supplier Voucher which a Customer has purchased but which is yet to become a Redeemed Voucher.
Voucher End Date
means for a Supplier Voucher, the date that the voucher expires, which must be the last day of the minimum period prescribed by applicable law, or any other minimum period we specify.
Voucher Sale Price
means the total cost of a Supplier Voucher to a Customer which you specify on your listing for the Supplier Voucher, or Related Product (as applicable) on the Site.
means the terms, conditions and restrictions (including the Voucher End Date) that are specific to a Supplier Voucher which you state on the Site but are always subject to the terms of this Agreement.
means the amount we will pay you for the supply of a Supplier Voucher, which is the amount of the Voucher Sale Price, less our Charges.
2. Our relationship
2.1 As the provider of the Platform, we do not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Supplier Vouchers or Related Products other than our Services. You alone are responsible for your Supplier Vouchers, Related Products and Voucher Terms (subject to our rights which we detail in this document). When Customers purchase a Supplier Voucher, they are entering into a contract directly with you. We do not become a party to or participant in, any contractual relationship between you and Customers. We are not acting as an agent in any capacity for you or a Customer, except as specified in clauses that specify the services we provide on your behalf (under a limited agency), being the following:
(a) collecting payment from the Customer for purchases which they make;
(b) paying you your Voucher Value; and
(c) providing the Services in respect of issues arising between you and Customers, in relation to the supply of your Supplier Vouchers and Related Products.
2.2 Apart from the forgoing, neither party is the partner, agent, employee or representative of any other party and neither party has the power to incur any obligations on behalf of any other party.
2.3 You warrant that:
(a) you are at least 18 years old;
(b) you are legally capable of entering into binding contracts;
(c) you will abide by the terms and conditions of the Platform as contained in this Agreement;
(d) you will not use the Services or the Platform for any unlawful purpose; and
(e) all information supplied by you is accurate, true and up to date.
3. THE SERVICES
3.1 Subject to the terms and conditions of this Agreement, the provision of the Services which we supply constitute Amazed’s only obligation to you.
3.2 You agree that Amazed may modify the Services at any time, and discontinue the Services (or part thereof) at any time. Amazed may also restrict your use of some or all Services. If you have pre-paid for any Services which are modified or discontinued then you should contact Amazed to discuss whether you are entitled to a partial refund.
3.3 You acknowledge and agree that Amazed does not guarantee that the Platform and Services will always be accurate, reliable, or error-free.
3.4 By creating an Account and uploading Supplier Content relating to your Supplier Vouchers, you authorise us to promote and sell your Supplier Vouchers and Related Products on your behalf to Customers subject to the terms and conditions of this Agreement.
4. CREATING AN ACCOUNT WITH Amazed
4.1 You are required to create an Account on the Platform in order to use some or all of the Services. Your Account will only be accessible via the Platform.
4.2 When you create an Account with Amazed you agree:
(a) that the Account will be created using Amazed’s online sign-up process, or any other method specified by Amazed from time to time;
(b) to keep confidential and secure any password used to access the Account and ensure that each of your Authorised Users do the same;
(c) that you warrant that all information provided by you to Amazed in the setup of the Account is true and correct in every detail; and
(d) that you will only use the Account for the purposes of using the Services, and for no other purpose.
4.3 During the registration process, you will be asked to select a password for your account. You agree to keep your password confidential at all times and must not disclose it to any third party.
4.4 You agree to be fully responsible for activities that relate to your account or your password, including those of your Authorised Users. If you have reason to believe that your password has been obtained by someone else without your consent, you must:
(a) reset your password; and
(b) inform us immediately to disable your account.
4.5 You will be responsible for all usage of your Account and the use of your Account by Authorised Users or any unauthorised use. Your username and password for your Account are non-transferrable and must be kept confidential.
4.6 If a third party accesses your account (or an Authorised User Account) because credentials associated with that Account are compromised, we are not liable to you in any way. If you become aware of your credentials being compromised, you must advise us immediately. We reserve the right to suspend or terminate your registration with us in the event of your credentials being compromised.
4.7 During and after the Account sign-up process, we reserve the right to request further information from you about you, your Related Products and your Supplier Vouchers. We may reject your application for an Account at any time in our sole and absolute discretion and prohibit you from creating an Account on the Site.
5. PLATFORM LICENCE
5.1 We agree to grant to you a non-exclusive, non-transferable, revocable licence (Licence) to:
(a) use the Platform; and
(b) allow your employees and personnel to use the Platform (as Authorised Users), subject to the terms of this Agreement.
5.2 Notwithstanding clause 5.1, Amazed may refuse to grant a Licence to any person, for any reason whatsoever in its sole discretion. Amazed reserves the right to revoke a licence granted to any person under this clause at any time in our absolute discretion.
5.3 You may only sublicense or authorise your Authorised Users to use the Platform on the condition that they also agree to be personally bound by this Agreement in relation to their use of the Platform.
5.4 An Authorised User may not otherwise sublicense, deliver, transfer or assign the Licence to any other person except with the written permission of Amazed.
5.5 Each Authorised User may be required to set up a separate Account with their own separate username and password and are, as far as they can apply, subject to the obligations in clauses 4.2 to 4.6 of this Agreement.
5.6 We reserve the right to review your Supplier Vouchers and Voucher Terms. We may, at any time, require you to review and/or amend your Supplier Vouchers (you offer via the Platform) or Voucher Terms. We reserve the right at our sole discretion, to suspend your offer of Supplier Vouchers via the Platform, temporarily or permanently, and in respect of all or some of your Supplier Vouchers. In no way are we liable to you if we exercise our rights under this clause.
5.7 In addition to your obligations under this Agreement, the Licence is subject to the following terms, where you agree not to:
(a) interrupt or attempt to interrupt the operation of the Platform or the Site in any way, or use the Platform in a manner that adversely affects the availability of its resources to other suppliers or Customers;
(b) use the Platform for any illegal purpose or in any manner that is inconsistent with this Agreement; or
(c) modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from or offer for sale any information contained on, or obtained from the Site or the Platform.
5.8 By using the Site, you acknowledge and agree that:
(a) we have the absolute right to change, suspend or remove any Supplier Voucher or other information on the Platform at any time;
(b) you will only offer Supplier Vouchers for Related Products which you can supply or fulfill, including having sufficient stock or availability (as applicable);
(c) you will advise Customers when Supplier Vouchers that have been Redeemed are no longer available and, in such circumstances, advise us such that we can provide a refund to the Customer if requested;
(d) from time to time, the Platform may be unavailable for maintenance and/or updates, or due to unexpected technical issues;
(e) we have provided no uptime guarantees in relation to the Platform; and
(f) we do not guarantee that you will sell any minimum amount of Supplier Vouchers via the Platform.
6. YOUR SUPPLIER VOUCHERS and related products
6.1 As part of the Account sign up process, you must provide us with details of your Supplier Vouchers and Related Products that you will offer for sale on the Site via the Platform and any other information we may request from you (from time-to-time).
6.2 When you list a Supplier Voucher for sale on the Site, you must include all information as required by us about you and the relevant Supplier Voucher and Related Product. Such information may include (without limitation):
(a) your name, address and contact details;
(b) the Voucher Sale Price payable by a Customer to purchase the Supplier Voucher, as an inclusive price for all costs associated with the Supplier Voucher;
(c) the Voucher Terms;
(d) the Voucher End Date, which must ensure that the Supplier Voucher is valid for no less than the minimum period required by applicable law, or any other minimum period we specify from time to time;
(e) details of any warranty applicable to the Related Product which your Supplier Voucher may be used to purchase; and
(f) any other information requested by us or required in order to accurately or legally represent and describe the Supplier Voucher and its Related Product.
6.3 We rely on information provided to us by you in connection with the Supplier Vouchers and Related Products, and you warrant that any information provided by you is accurate, current, complete, correct and complies with all applicable laws.
7. VOUCHER TERMS
7.1 You must specify the complete terms of the supply of your Supplier Vouchers and Related Products in your Voucher Terms (including the redemption of those Supplier Vouchers for your Related Products) and publish those Voucher Terms together with the listing of your Supplier Voucher on the Site. Your Voucher Terms are deemed to include, and must include, the following minimum terms of supply:
(a) all terms and warranties implied by the Competition and Consumer Act 2010 (Cth), Australian Consumer Law, applicable fair-trading legislation, applicable sale of goods legislation, and all other terms implied by law which are not capable of exclusion;
(b) supply of the Supplier Vouchers will occur after:
(i) the Platform accepts an offer to purchase your Supplier Voucher from a Customer; and
(ii) we have received payment of the Voucher Sale Price in full from the Customer; and
(c) the Supplier Voucher will:
(i) have an expiry date no earlier than the Voucher End Date;
(ii) be exchangeable for the supply by you of Related Products; and
(iii) remain valid and not be redeemed until such time as you complete the supply of the Related Product.
7.2 The Voucher Terms must be consistent with the terms of this Agreement and the Supplier Code of Conduct entered into between us and you and your Authorised Users, and include:
(a) any special conditions, limitations, restrictions or other terms or conditions that apply to the purchase of a Supplier Voucher (including, without limitation, in relation to how Supplier Vouchers are redeemed by Customers) and the supply of the Related Products;
(b) any time, weather or availability restrictions relating to the supply of a Related Product;
(c) details about the transferability or otherwise of a Supplier Voucher and Related Product;
(d) how and when a Customer may redeem a Supplier Voucher for a Related Product; and
(e) your refunds, returns and exchanges policies and procedures (which are at all times subject to applicable law, the terms of this Agreement and the Supplier Code of Conduct).
7.3 We are not a party to the Voucher Terms and we are not responsible for either party’s performance of their obligations under the Voucher Terms. We may, however, exercise any of your rights arising under the Voucher Terms for our benefit.
7.4 You agree to release and forever discharge us from any and all claims, actions, demands or proceedings, which you may make, institute or claim, in relation to any negligence, act or omission of any Customer.
7.5 You otherwise agree that any Voucher Terms must not conflict with either your obligations or the Customer’s obligations to us (and this Agreement will apply to the extent of any inconsistency with the Voucher Terms).
7.6 Where time restrictions or expiry dates apply to a Supplier Voucher, you may, at your election, extend (but in no circumstances shorten) those dates.
8. SALE PROCESS FOR SUPPLIER VOUCHERS
8.1 When we sell a Supplier Voucher via the Platform to a Customer, we:
(a) sell the Supplier Voucher to the Customer for the full amount of the Voucher Sale Price;
(b) just immediately prior to the sale of the Supplier Voucher to the Customer, purchase the Supplier Voucher from you for the Voucher Value, for on-sale to the Customer; and
(c) pay the Voucher Value to you at the time specified in clause 8.5.
8.2 At the time the Customer purchases a Supplier Voucher, they may either immediately or at a future time (subject to available functionality in the Platform), redeem the Supplier Voucher for the supply by you of the Related Product to which the Supplier Voucher relates. You agree that if a Customer uses functionality provided by the Platform to book or purchase a Related Product using a Supplier Voucher, that you will honour that booking or purchase and supply the Related Product on the same basis as if the Related Product had been purchased directly from you.
8.3 If a Customer attempts to redeem a Supplier Voucher for an Related Product, you must promptly advise the Customer whether you accept the redemption (which you must only reject if the relevant Related Product is unavailable) or reject the redemption. You agree that we may refund the Customer the full amount of the Voucher Sale Price to the Customer if you reject their redemption, and we will be under no obligation to pay the Voucher Value to you for that Supplier Voucher.
8.4 You must not request any payment from the Customer in addition to the Voucher Sale Price (at any time) or through any means without our written prior consent.
8.5 The Voucher Value for the supply of a Supplier Voucher is payable to you only when the Supplier Voucher is redeemed for the Related Product, and you have completed the supply of the Related Product to the Customer (Redeemed Voucher). We will pay you the Voucher Value no more 21 days after the forgoing occurs and the total amount payable to you will be all amounts of the accrued Voucher Value at that time, less:
(a) refunds paid or payable by us on your behalf for which you are yet to reimburse us;
(b) refund administration fees payable to us as described in your application for an Account or that we have advised you in our sole discretion;
(c) credit card charge backs or amounts declined by a payment provider to us in relation to a sale of a Supplier Voucher;
(d) notification of a Redeemed Voucher but which in fact has not been redeemed;
(e) any amount which we reasonably consider you may owe to us; and
(f) any other amount which you owe us under this Agreement or on any other account whatsoever.
8.6 Until such time as a Supplier Voucher becomes a Redeemed Voucher, you will have no right to receive the Voucher Value. If a Supplier Voucher is an Unredeemed Voucher as at the Voucher End Date (including any extensions of that date by you), you acknowledge and agree that the value of the Voucher Sale Price shall be credited or refunded to the Customer or retained by us (and you will have no claim for any payment of the related Voucher Value).
8.7 You acknowledge that Customers may purchase Amazed Vouchers from us and use those vouchers towards the payment of the Voucher Sale Price.
8.8 Payments will be made to you under this Agreement:
(a) via third-party payment platform(s) (including, without limitation, PayPal, eWay and ZipPay) or any other means of payment provided by us via the Platform from time to time (Payment Processor); and
(b) subject to acceptance of, and in accordance with, any credit account terms and conditions or terms and conditions of use of the Payment Processor.
8.9 As a condition of us enabling payment processing services through the Payment Processor, you agree to provide us with accurate and complete information about you (in the form specified by us or the payment processor), and you authorise us to share such info with the Payment Processor together with transaction information related to your use of the payment processing services provided by the Payment Processor.
8.10 We may issue recipient created tax invoices (RCTI) to you in respect to the sale of Supplier Vouchers.
8.11 If we reasonably believe that you have breached any provision of this Agreement, we may offset, delay, withhold, or suspend future payments to you, in our sole discretion.
8.12 In addition, if you are unwilling to, or in our reasonable discretion appear unable to, perform your obligations under this Agreement, we are authorized to offset, delay, withhold, or suspend future payments to you in addition to such other remedies as may be available under this Agreement or at law, to secure payment from you for any refunds and/or other amounts payable by you under this Agreement.
9. SUPPLIER VOUCHER PROMOTIONS
In an effort to incentivise sales of Supplier Vouchers, you authorise us, at any time and in our sole discretion, to increase or decrease the Voucher Sale Price for which we offer your Supplier Vouchers for sale (any such effort, Promotional Program(s)). For each Supplier Voucher redeemed as part of a Promotional Program, the Voucher Value may be adjusted in an amount equal to the percentage increase or decrease in the Voucher Sale Price (Promotional Adjustment), provided that, any decrease of the Voucher Value will not exceed: (i) twenty percent (20%) of the Voucher Value payable prior to the Promotional Program, or (ii) if applicable, the maximum Promotional Adjustment specified on the Site from time-to-time. Promotional Programs include the following:
(a) Promotional Codes – A “Promotional Code” is a code that Customers may use, in our sole discretion, to receive a discount on the Voucher Sale Price.
(b) Price Optimization – “Price Optimization” is any change (excluding Promotional Codes) to the Voucher Sale Price.
10.1 We may require you to pay a refund of the Voucher Sale Price, or part thereof, to a Customer where:
(a) you fail to honour a Supplier Voucher, or cancel the supply of a Related Product;
(b) either this Agreement or the Voucher Terms specify that a refund must be paid;
(c) our agreements with our payment providers require a refund to be paid;
(d) we consider that a refund is required to be provided by law;
(e) the Customer has pursued or obtained a chargeback against us from its credit card provider; or
(f) we consider that you have breached your Voucher Terms.
10.2 Our determination of whether a refund is payable is absolute and final, and will not be disputed by you. You must pay us the amount of a refund on demand.
10.3 A refund may be paid:
(a) by us on your behalf, and then by you reimbursing us for the same amount, or by us (in our sole discretion), deducting that amount from any subsequent Voucher Value payable to you, or from any other money we hold on your behalf for any reason; or
(b) with our prior consent, by the Supplier directly to the Customer.
10.4 If you are required to pay a refund of the Voucher Sale Price then you acknowledge we are under no obligation to refund or credit you any Charges relating to the sale of the original Supplier Voucher, unless and only to the extent that the refund was caused by our negligence or breach of this Agreement, or is otherwise required under applicable law.
11.1 The Charges are retained by us from the proceeds of the Voucher Sale Price as compensation to us for marketing, promoting and advertising your Supplier Vouchers and for the access to our Platform and use of our Services.
11.2 Either at the time of completing an application for an Account or at such other time as notified to you by us in our sole discretion, we will confirm to you our Service Fee. We will also confirm to you any other Charges which we are able to calculate at that time. We may also update our Service Fee and Charges by written notice to you at any time. Any updated Service Fee or Charges will only apply to the sale of Supplier Vouchers after we notify you of the change.
11.3 Unless expressly specified to the contrary, all amounts payable under this Agreement (consideration) by you to us have been expressed to be exclusive of Taxes. You will, at the same time as paying the consideration to us, pay an additional amount on account of such Taxes, so that after deduction of such Taxes, we receive no less than the amount of the consideration.
11.4 You bear sole financial responsibility for any and all Taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between us and you (Transaction Taxes), if any. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law.
11.5 We may be required by tax authorities to withhold Taxes on your behalf. We reserve the right to deduct any such Taxes from amounts due to you and to remit them to the appropriate tax authority. We may also be required to report the withholding tax payments to the tax authorities.
12. YOUR GENERAL OBLIGATIONS
12.1 You agree, represent and warrant that:
(a) you will not impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated in the Voucher Terms;
(b) Supplier Vouchers and their Related Products will be listed by you for sale on the Site, at the Voucher Sale Price, and on the terms and conditions of the Voucher Terms;
(c) at all times during the Term, you will meet or exceed the obligations and service level performance criteria contained in the Supplier Code of Conduct (Service Levels). You agree that at the same time you enter into this Agreement, you will also become bound by the Supplier Code of Conduct. The Supplier Code of Conduct may be amended at any time by us by written notice to you. If you do not agree to the amended Supplier Code of Conduct then your sole remedy is to cease listing your Supplier Vouchers on the Platform and to terminate the your Account;
(d) your Supplier Vouchers, Related Products and their supply, and the Voucher Terms, comply with all applicable laws, regulations and codes;
(e) the conditions, warranties, guarantees and representations given by you with respect to a Supplier Voucher and Related Product comply with the Competition and Consumer Act 2010, and all other consumer protection laws;
(f) you will comply with the Competition and Consumer Act 2010, all other consumer protection laws and all other applicable laws;
(g) any descriptions of a Supplier Voucher and Related Product which you specify on the Site are true and not misleading and the Supplier Voucher and Related Product are fully and correctly described, and will be supplied to the Customer on the same basis as advertised on the Platform;
(h) the Supplier Vouchers and Related Products do not infringe the Intellectual Property Rights of any person;
(i) you have the authority and the legal right to supply the Supplier Vouchers and Related Products, and provide the Supplier Vouchers and Related Products in the Australian market or other territory in which you are located, and you will furnish such proof at our request;
(j) all conditions of availability or eligibility for a Customer to redeem a Supplier Voucher for an Related Product are stated in the Voucher Terms;
(k) you will not use the Platform to contact Customers and sell Supplier Vouchers to such Customers independently, outside of the Platform;
(l) you will provide a resolution to us within the timeframes set out in the Supplier Code of Conduct in relation to Customer enquiries or complaints; and
(m) you will provide Customers with a Proof of Transaction for all orders as required pursuant to Section 100 of Australian Consumer Law.
13. CUSTOMER COMPLAINTS
13.1 If a Customer complains about a the supply of your Supplier Voucher or Related Product, you are required to:
(a) liaise with relevant Customer directly at first instance; and
(b) resolve any issues or disputes with respect to Customer in accordance with the requirements of the Supplier Code of Conduct.
13.2 If you are unable to resolve a complaint, issue or dispute with a Customer in accordance with the Supplier Code of Conduct, you must contact us via your Account or other means we specify from time to time. We will use all reasonable endeavours to assist you and the relevant Customer in resolving the problem (including, without limitation, by liaising with the Customer on your behalf, investigating the issues, advising on the relevant processes and procedures for returns or refunds).
13.3 Our dispute resolution service is non-binding on you and Customers. We have no responsibility for:
(a) any failure of a Customer to participate in the dispute resolution process; or
(b) any failure to resolve your dispute in a timely manner or to your satisfaction.
13.4 As part of the resolution of a dispute we may elect to issue a refund to the Customer as further described in clause 10.
14. suspension and termination
14.1 Term of this Agreement
This Agreement commences at the earlier of:
(a) your acceptance of the terms of this Agreement; or
(b) your first use of the Services,
and will continue until terminated under this clause 14 (Term).
14.2 Termination by Amazed
Amazed may terminate this Agreement at any time, and for any reason, by:
(a) the provision of written notice to you (which may include notice via the Platform); or
(b) permanently disabling or deactivating your access to the Platform.
14.3 Suspension by Amazed
Amazed may suspend your access to the Platform and use of the Services, or any part thereof, at any time, and for any reason. Amazed will however provide you with written notice (which may include notice provided via the Platform) if it suspends your use of the Platform or Services (or part thereof) and will advise you subsequently if and when such suspension is lifted.
14.4 Termination by you
You may terminate this Agreement at any time, and for any reason, upon the provision of written notice to Amazed, or by cancelling your Account.
14.5 Obligations on termination
Upon the termination of this Agreement by you or by Amazed in accordance with this clause 14:
(a) you must immediately cease offering your Supplier Vouchers via the Platform;
(b) you will unless otherwise specified by Amazed, honour all Unredeemed Vouchers;
(c) Amazed may alternatively cancel one or more Unredeemed Vouchers and retain their Voucher Value and Voucher Sale Price. Amazed will then separately credit or refund the Voucher Sale Price to the relevant Customer; and
(d) at the time no Unredeemed Vouchers are outstanding (either due to their redemption or due to Amazed cancelling the Unredeemed Vouchers, or any combination of the forgoing), your access to the Platform, Services and any Supplier Content will immediately cease. Alternatively if you have breached this Agreement prior to termination then Amazed may immediately cancel your access to the same. Upon the foregoing occurring:
(i) you and each Authorised User will be deactivated from using the Platform;
(ii) you and each Authorised User must cease all use of the Platform;
(iii) you must pay Amazed all amounts which you owe us under this Agreement, including our estimate of such amounts which may accrue after termination; and
(iv) we will pay you any outstanding Voucher Value, subject always to our right to deduct and off-set anything you owe to us. The Voucher Value will be paid at the times indicated in clause 8.5.
15. PROHIBITED USES
15.1 Subject to clause 17.1, all content and information on the Platform, including, but not limited to, messages, data, information, text, music, sound, photos, graphics, video, maps, icons, software, code or other material, as well as the infrastructure used to provide such content and information, is owned by Amazed or its third party licensors. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, code or Services obtained from or through the Platform. Additionally, you agree not to:
(a) content that infringes, or may infringe, the Intellectual Property Rights or other rights of any person;
(b) content that impersonates any person or entity or otherwise misrepresents your relationship with Amazed or any other person;
(c) content that is false, unlawful, misleading, libellous, defamatory, slanderous, obscene, pornographic, indecent, lewd, abusive, harassing or advocates harassment of another person, threatening, invasive of privacy, abusive, inflammatory, fraudulent or otherwise objectionable;
(d) content that can reasonably be considered to be offensive, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or which incites such behaviour or action from others;
(e) content that would constitute, encourage or promote, or provide instructions for the conduct of an illegal act or omission, any criminal activity, or violate the rights of any person or party in any country of the world;
(f) unsolicited promotions or SPAM;
(g) content which contains the private information of any person;
(h) content which publishes an image or likeness of a person who has not consented to their likeness or image being published on the Platform;
(i) content that is unrelated to the page of the Platform in which your Supplier Content is posted; and/or
(ii)content which contains viruses, malware or any other malicious software or data.
(iii) use the Platform or its contents for any commercial purpose, other than in your capacity as a supplier of Supplier Vouchers and Related Products;
(iv) use another person's name, account, identity or password without permission, or use the Platform while impersonating another person;
(v) access, monitor or copy any content or information of the Platform using any robot, spider, scraper or other automated means or any manual process for any purpose without Amazed’s express written permission;
(vi) violate the restrictions in any robot exclusion headers on the Platform or bypass or circumvent other measures employed to prevent or limit access to the Platform;
(vii) take any action that imposes, or may impose, in Amazed’s discretion, an unreasonable or disproportionately large load on its server infrastructure;
(viii) deep-link to any portion of the Platform for any purpose apart from where expressly permitted by this Agreement;
(ix) attempt to modify, translate, adapt, edit, decompile, disassemble, or reverse engineer any software programs used by Amazed in connection with the Platform or the Services (except to the extent specifically permitted by law);
(x) post, upload to, transmit, distribute, store, create or otherwise publish on the Platform any:
16. OUR INTELLECTUAL PROPERTY RIGHTS
16.1 You acknowledge and agree that, as between the parties, we own all Intellectual Property Rights in and to the Site, Customer Data, our trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Site, all audio visual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by us or at our direction, or assigned to us, and any materials, software, technology or tools used or provided by us to promote, sell/resell (as may be applicable) or distribute the Supplier Vouchers and conduct our business in connection therewith (collectively Amazed IP). Amazed IP also includes the items described in clause 15.1 in which we are stated to own Intellectual Property Rights in.
16.2 You shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Amazed IP or any portion thereof, or use such Amazed IP as a component of or a base for goods or services prepared for commercial use, sale, sublicense, lease, access or distribution.
16.3 You shall keep the Amazed IP confidential, and shall not prepare any derivative work based on the Amazed IP or translate, reverse engineer, decompile or disassemble the Amazed IP. You shall not take any action to challenge or object to the validity of our rights in the Amazed IP or our ownership or registration thereof. Except as specifically provided in this Agreement, you and any third party assisting you with your obligations in this Agreement, are not authorized to use Amazed IP in any medium without prior written approval from our authorized representative.
16.4 You shall not include any trade name, trademark, service mark, domain name, social media identifier, of ours or our affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. You shall not use or display any Amazed IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between you or a third party and us. All rights to the Amazed IP not expressly granted in this Agreement are reserved by us.
(a) you provide us or any of our affiliates with feedback, suggestions or reviews, in connection with our Services, this Agreement or our Amazed IP (collectively, Feedback); or
(b) a Customer provides us with any Feedback about your Supplier Vouchers or anything related to your use of our Platform, then,
you irrevocably assigns to us all Intellectual Property Rights in and to such Feedback.
16.6 In the event your assignment to us is invalid for any reason, you hereby irrevocably grant us and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to:
(a) use, reproduce, perform, display, and distribute Feedback; and
(b) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity.
16.7 You agree to provide us such assistance as we might require to document, perfect, or maintain our rights in and to Feedback.
17. your SUPPLIER content and intellectual property rights
17.1 Subject to the Amazed IP and other items which we are stated to own Intellectual Property Rights in by this Agreement, you own all Intellectual Property rights in the content that describes your Supplier Vouchers and Related Products which you upload onto the Platform (Supplier Content).
17.2 You grant a worldwide, irrevocable, perpetual, exclusive, royalty-free, sub-licensable, assignable license to Amazed and its affiliates to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display the listing details that make up your Supplier Content, for the purposes of us providing our Services. For the purposes of the licence granted by you to Amazed under this clause, Services includes the marketing and promotion of your Supplier Vouchers including on other third-party websites and/or networks.
17.3 You represent and warrant on an on-going basis that your Supplier Content does not infringe the Intellectual Property Rights or other rights of any other person or body and complies with all applicable laws, regulations, codes and standards, including without limitation all applicable advertising standards and regulations concerning sponsored or advertorial content.
17.4 To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in your Supplier Content you provide to Amazed, then you waive all such moral rights, and to the extent that such waiver is not possible, then you consent to Amazed making all uses, edits and modifications to your Supplier Content in its sole discretion, including, without limitation, as further described in this Agreement.
17.5 You agree that:
(a) your Supplier Content is not confidential once it has been uploaded to the Platform;
(b) you are solely responsible for the Supplier Content you post on the Platform;
(c) Amazed may reproduce any part of your Supplier Content on the Platform and will determine in its discretion how it presents your Supplier Content on the Platform; and
(d) Amazed may make any modifications to your Supplier Content in its sole and absolute discretion, before presenting your Supplier Content on the Platform.
17.6 You agree that Amazed is under no obligation to edit, monitor or control your Supplier Content that is published to the Platform by you or an Authorised User, but that Amazed reserves the right to do so.
17.7 To the maximum extent permitted by law, Amazed will have no responsibility or liability for your Supplier Content posted, stored or uploaded on the Platform, or for any loss or damage suffered by you or any other person as a result of the Platform storing, holding, or making available, your Supplier Content, to Customers, or members of the public generally.
17.8 Amazed is under no obligation to review your Supplier Content to determine its accuracy, truthfulness, or whether it is defamatory, slanderous or contains falsehoods.
18. Customer Data Restrictions
18.1 You shall:
(a) use Customer Data to only fulfill your redemption obligations in connection with a Supplier Voucher or Related Product; and
(b) not use any Customer Data in any way, whether by your own actions or those of any third-party, to market or promote or sell your Supplier Vouchers or Related Products to Customers outside of the Platform.
18.2 You expressly agree that any Customer Data shall be used only for this purpose and not to enhance a file or list owned by you, or any third party. You represent, warrant and covenant that you will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law.
18.3 If you engage any third party to facilitate the redemption or supply of Supplier Vouchers or Related Products, you shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data, and your obligations in relation to your use of Customer Date as specified herein.
18.5 You shall immediately notify us if you become aware of or suspect any unauthorised access to or use of Customer Data or any of our confidential information, and shall cooperate with us in the investigation of such breach and the mitigation of any damages.
18.6 You will bear all associated expenses incurred by us to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorised access or acquisition of Customer Data while such data is in your reasonable possession or control.
18.7 Upon termination or expiration of this Agreement, you shall, as directed by us, destroy or return to us all the Customer Data in your or in the possession of any of your agents.
19. CONFIDENTIALITY & PRIVACY
19.1 You must keep all of our content and processes that form the Platform confidential.
19.3 By using the Platform or the Services, you agree to:
(b) if applicable, our standard Data Processing Agreement in relation to our processing of personal information you supply to us or we supply to you. A copy of our standard Data Processing Agreement may be viewed on our website.
19.4 This clause 19 does not limit your obligations in relation to Customer Data as specified in this Agreement.
If you require support in relation to your use of the Platform, or any of our Services, please visit our support page at [address].
21. COMPLIANCE WITH THIRD PARTY LICENCES
21.1 The Platform may incorporate components licensed to Amazed by third parties, which may be subject to their own End User Licence Agreements (Third Party Licences).
21.2 You agree that the use of the Platform, in addition to this Agreement, will be governed by any terms and conditions specified by any Third Party Licence that applies to the Platform, which we separately notify to you.
21.3 You agree to be bound by and observe all terms and conditions of any Third Party Licence and acknowledges that any breach of a Third Party Licence will entitle Amazed to terminate the Licence and exercise its rights under clause 14.
22. Your indemnity
22.1 You indemnify and keep indemnified, Amazed, its agents, employees and officers against all loss, cost, expense or damage which Amazed, its agents, employees or officers suffer or incur, as a direct or indirect result of:
(a) any Supplier Vouchers or Related Products; or
(b) your Voucher Terms.
(c) any breach or alleged breach by you of this Agreement, or the representations and warranties made in this Agreement;
(d) any mistake or misrepresentation made by you in connection with the supply of the Supplier Vouchers or Related Products, or representations contained in your Account application;
(e) any misrepresentation, mistake, infringement of any person’s rights (including in respect of Intellectual Property Rights), breach of law in connection with your Supplier Vouchers or Related Products, or any claim by a Customer in relation to your Supplier Vouchers or Related Products;
(f) any claim for your Taxes arising from the redemption of Supplier Vouchers;
(g) any claim by any local, state, provincial, territorial or federal governmental entity for Unredeemed Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest;
(h) any claim arising out of a violation of any law or regulation by you or governing your Supplier Vouchers;
(i) any claim arising out of your violation of law or regulation governing the use, sale, and distribution of alcohol;
(j) any claim by a Customer or anyone else arising out of or relating to the Supplier Vouchers provided by you, including but not limited to, any claims for false advertising, Voucher defects, personal injury, death, or property damage;
(k) any claim by a Customer for a refund of the Voucher Sale Price;
(l) any claim arising out of your misuse of Customer Data, or any violation of an applicable data privacy or security law;
(m) any claim arising out of your negligence, fraud or willful misconduct;
(n) any misuse of the Platform by you or your Authorised Users in breach of this Agreement;
(o) your violation of any law or Amazed Intellectual Property Rights or other rights of a third party;
(i) you posting or uploading any Supplier Vouchers or Related Products that infringe the rights of others; or
(ii) any legal proceedings or any claim made against Amazed by a third party, which arises directly or indirectly from:
22.2 Any amount payable by you under the forgoing indemnity will be reduced to the extent that Amazed caused or contributed to the relevant act or event giving rise to the indemnity.
22.3 We maintain the right to control our own defence and to choose and appoint our own defence counsel, regardless of the presence or absence of a conflict of interest between us and you. Your duty to defend and indemnify us includes the duty to pay our reasonable solicitor’s fees and costs, including any expert fees.
23. LIABILITY AND DISCLAIMER
23.1 You acknowledge and agree that Amazed has made no representations or warranties that the Services will be error free or that a Customer will comply with the Voucher Terms.
23.2 You agree that Amazed will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Amazed complying with its obligations under this Agreement where such failure or delay has arisen as a direct or indirect result of:
(a) epidemic, pandemic, fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
(b) denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;
(c) a significant demand being placed on telecommunications infrastructure, or on Amazed’s services, which is above the usual level of demand and which results in a failure of Amazed’s software and hardware to function correctly or in a timely manner;
(d) the failure of any third party to fulfil any obligations to Amazed; or
(e) any other circumstances or event similar to the above which is beyond the reasonable control of Amazed.
23.3 You acknowledge and agree that Amazed has no liability whatsoever to you in relation to:
(a) the conduct of Customer;
(b) any negligence of Customer or other tort committed by a Customer;
(c) any wilful act of a Customer;
(d) any breach of default by a Customer;
(e) any breach or default of the Voucher Terms by a Customer;
(f) any dispute between you and a Customer; or
(g) any damage to your business or reputation caused by this Platform or a Customer.
23.4 In the event any terms, conditions, representations or warranties are implied by statute, common law or equity into this Agreement which cannot be lawfully excluded (Prescribed Terms), such Prescribed Terms will apply, save that Amazed’s liability for breach of any such Prescribed Terms will be limited, to the extent permitted by law, at Amazed’s option, to any one or more of the following:
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired
23.5 If Amazed’s liability for breach of any Prescribed Terms are capable of exclusion, they are hereby excluded to the fullest extent permitted by law
23.6 To the extent permitted by law, and subject to clause 23.4, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded under this Agreement.
23.7 Subject to clause 23.4, and to the extent permitted by law, Amazed’s liability to you arising directly or indirectly under or in connection with this Agreement or otherwise in connection with or in any way relating to the Platform or any of the Services, and whether arising under any indemnity, statute, in tort (for negligence or otherwise) or on any other basis in law or equity, is limited as follows:
(a) AUD10.00; and
(b) the total of all Service Fees you have paid to us for the Services that are the subject of the relevant claim.
(i) Amazed excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Platform or Services; and
(ii) Amazed’s total aggregate liability under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Platform or Services, is otherwise limited to the greater of:
24.1 Amazed reserves the right to revise and amend this Agreement in its discretion, as follows:
(a) if Amazed considers that the change is likely to benefit you or have a neutral or minor detrimental impact on you, it may make any changes immediately without notifying you except by publishing the amended Agreement (as applicable) on the Platform; and
(b) if Amazed considers that the change is likely to have a significant detrimental impact on you, it will make the change after it has notified you of the change (solely by using the email address you have provided) and will display a notice on the Platform describing the change.
24.2 Your continued use of the Platform after an amendment will mean that you agree to that amendment. You must stop using the Platform if you do not agree to an amendment.
25. General clauses
25.1 In the interpretation of this Agreement unless the context otherwise requires:
(a) headings and words in bold type are included for convenience only and do not affect interpretation;
(b) the words "includes" or "including" mean "includes without limitation" or "including without limitation";
(c) a reference to a word includes the singular and the plural of the word and vice versa;
(d) a reference to a gender includes any gender;
(e) if a word or phrase is defined, then other parts of speech and grammatical forms of that word or phrase have a corresponding meaning;
(f) a term which refers to a person includes a person in any capacity, a body corporate, an unincorporated body (for example a society or association), a trust, a partnership, a sovereign state, a government or a government department or agency;
(g) a reference to a document includes a reference to that document as amended, novated, supplemented, varied or replaced;
(h) a reference to a recital, clause, paragraph, schedule, annexure or other part is a reference to an item of that type in this Agreement;
(i) a reference to a party is a reference to a party to this Agreement and includes a reference to that party’s successors, personal legal representatives and permitted assigns;
(j) a reference to a statute or regulation or a provision of a statute or regulation includes a reference to that statute, regulation or provision as amended or replaced, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws made or issued under that statute; and
(k) if an individual party to this Agreement consists of two or more persons, then those persons are bound both jointly and severally.
25.2 Any notice given under this Agreement must be in writing and must be signed by the party giving the notice, or alternatively must be given via functionality contained in the Platform. Unless a later time is specified in a notice, the notice takes effect from the time it is received. A notice is taken to be received:
(a) in the case of a notice delivered by hand, when so delivered;
(b) in the case of a notice sent by pre-paid express post, on the third clear Business Day after the date of posting;
(c) in the case of a notice sent by email, at the time that the email is sent, unless the sender receives a notification that the email was delayed or not received; or
(d) in the case of a notice sent via functionality contained in the Platform, at the time the notice was sent,
but if the effect of paragraphs (a) - (d) above is that a notice is taken to have been received before 9:00am or after 5:00pm on a day which is not a Saturday, Sunday or public holiday in Victoria (Business Day), or on a day which is not a Business Day, then the notice is taken to have been received at 9:00am of the next Business Day.
25.3 There are no other representations, promises, warranties, covenants or undertakings between the parties and this Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
25.4 A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
25.5 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the extent that the invalid or unenforceable provision will be treated as severed from this Agreement.
25.6 You must not assign or novate any of your rights or obligations under this Agreement. You agree that Amazed may however assign or novate this Agreement at any time, with or without notice to you.
25.7 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
25.8 This Agreement will be construed in accordance with and will be governed by the laws in force in Victoria, Australia. Each of the parties irrevocably submits to and accepts the exclusive jurisdiction of any of the Courts of Victoria, Australia.