The following are the terms and conditions of use of the findinstore.com Platform.
1.1 This agreement is made between you and Find in Store Pty Ltd (findinstore, findinstore.com, us, we or our). This agreement will not permit any of your related or other parties (whether a parent entity, a subsidiary or any other party that is not you) from using or accessing the Platform. Any such related or other party must enter into a separate Agreement direct with us in order to use and access the Platform.
1.2 This agreement governs and regulates your access to, and use of, the Platform you have elected to purchase that includes, but is not limited to, you downloading, accessing and using our Platform for licensed purposes.
1.3 Upon you accepting the terms and conditions of this agreement, we will create a unique account (Your Account) for your use during the term of this agreement. Your Account will be operated by a username and password (Your Password) which password you may change via the Administration Area at your convenience.
2.1 We will provide the Setup Services to you as soon as practicable after the Commencement Date or at a later date as the parties may agree in writing.
3. USER SUBSCRIPTIONS
3.1 Subject to the terms and conditions in this agreement, you are granted a non-exclusive, personal, non-transferable and non-sub-licensable licence as an Authorised User to access and use the Marketplace, Software, Reporting and Documentation during the Subscription Term solely for your business purposes. You shall not acquire or be entitled to any rights other than those rights expressly set out in this agreement.
3.2 As an Authorised User, you undertake that:
3.3 You will not impersonate another client or Authorised User or provide false identity information to gain access to or use the Marketplace.
4. YOUR OBLIGATIONS
4.1 When setting up Your Account you must provide us information that is true, accurate and not misleading or deceptive. If any of the information you have provided to us changes, you must promptly update your information by accessing the Administration Area or by emailing us at email@example.com if access to the Administration Area is unavailable.
4.2 During the Subscription Term you must (at your own cost):
5.1 You shall not access, store, distribute or transmit any viruses, worms, trojans or other malicious code, or any material during the course of your use of the Platform that:
5.2 You must not do (nor attempt to do) any of the following:
5.3 You acknowledge and agree that, to the extent permitted by law, we make no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Platform, the Software (or any services provided in connection with us). We will not be liable if the Platform, the Software (or any services provided in connection with the Software) are unavailable for any reason, including directly or indirectly as a result of:
6. OUR OBLIGATIONS
6.1 During the Subscription Term, we undertake to provide you the Platform substantially in accordance with the Documentation.
6.2 The undertaking in clause 6.1 shall not apply in the event of:
6.3 In the event we fail to provide the Platform in accordance with clause 6.1, we will, at our expense, use all reasonable endeavours to correct any such non-conformance, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking in clause 6.1. Notwithstanding the foregoing and subject to any requirements at law, findinstore.com:
6.4 We shall provide you with our standard customer support services during Normal Business Hours in accordance with our Support Services Policy in effect at the time the Platform is provided.
6.5 findinstore.com reserves the right, at its absolute discretion, to charge you, at our standard rates at the time, for any changes or modifications to the Software or New Versions customised for your needs or requirements.
6.6 findinstore.com shall use reasonable endeavours to make the Platform available 24 hours a day, 7 days a week, except for:
6.7 You are solely responsible for obtaining and maintaining all equipment, hardware and software, and all telecommunications services, required by you to access and use the Platform, including access to an account for the provision of internet services with an internet service provider.
6.8 This agreement shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.1 When setting up Your Account you will be offered payment options for access to and the ongoing use of the Platform as set out in the Pricing Schedule.
7.2 Your Account will not be established and/or available for use unless and until we have received any Setup Fees and all payments for the corresponding Platform as referred to in the Schedule. All fees are in US Dollars and are exclusive of any goods and services or value added tax (or similar tax), if applicable, which shall be added to and payable in addition to the fees. You shall be liable for all foreign exchange or conversion charges. To the extent permitted by law the fees are non-refundable.
7.3 You acknowledge and agree to reimburse us for any expenses reasonably incurred by us in relation to providing the Platform specifically to you which is in addition to the standard Software.
7.4 We may increase the fees for the provision of the Platform at any time upon 90 days written notice to you.
7.5 Without prejudice to any other rights and remedies of findinstore.com, we may immediately suspend the Platform or disable Your Password, Your Account and access to all or any part of the Platform, if any subscription payment is not received by us, on or before its due date.
7.6 If any amount payable under this agreement is in arrears for more than 30 days, we reserve the right to charge interest on such overdue amounts, payable by you on demand, from the due date up to the date of actual payment, at an interest rate of 1.25% per month (15% per annum). Such interest shall accrue on a daily basis and be compounded quarterly.
8.1 Local taxes of any kind, including duties, levies, tariffs, charges, contribution, imposts or any similar charges (including without limitation, sales taxes, use taxes and value added taxes), whether or not similar to any in force at the Commencement Date and whether imposed by a local, municipal, governmental, state, federal or other body or authority in any of the countries to which this agreement applies, shall, if applicable, be added to all sums due under this agreement at the rate prevailing at the time such taxes are due.
9. YOUR DATA
9.1 When you establish Your Account and use the Platform you will be required to provide store, product and stock data to us (Your Data). You will retain ownership of Your Data and End User Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data and End User Data.
9.2 You grant to findinstore.com a non-exclusive licence to use Your Data and End User Data (and all Intellectual Property contained therein) to enable us to provide the Platform and otherwise perform its obligations under this agreement.
9.3 We shall follow its archiving procedures for Your Data in accordance with its standard Back-Up Policy from time to time. In the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for findinstore.com to use reasonable endeavours to restore Your Data, that is lost or damaged, from the latest back-up of Your Data maintained by us in accordance with the archiving procedure referred to in this clause. We shall not be responsible for any loss, destruction, alteration, damage, corruption or disclosure of Your Data caused by an act or omission of you or any third party.
9.4 You authorise findinstore.com to:
9.5 You warrant that, in relation to any Personal Information comprising Your Data or End User Data:
10. THIRD PARTY PROVIDERS
10.1 You acknowledge that the Platform may enable or assist you to use or access Third Party Products and that you do so solely at your own risk.
10.2 findinstore.com makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of any such Third Party Products, or any transactions completed, and any contract entered into by you, with the owner, licensor or operator of such Third Party Products.
10.4 findinstore.com does not endorse, sponsor or approve any Third Party Products or services made available via the Platform. It is your sole responsibility to determine that specific products or services, introduced or used by you, or by an Authorised User, meets the needs of your business and/or are suitable for the purposes for which they are used.
10.5 Any rights you may have to access Third Party Products shall be limited to:
11. PROPRIETARY RIGHTS
11.1 You acknowledge and agree that findinstore.com and/or its licensors own all Intellectual Property in the Platform, the Software and the Documentation (and all updates, Modifications, New Versions and anything else arising or generated therefrom). Except as expressly stated herein, this agreement does not grant you (or anyone else) any rights to, or in, Intellectual Property, or any other rights or licences, in respect of the Platform, the Software or the Documentation, whether existing now or at any time in the future.
11.2 You hereby grant findinstore.com permission to use and publish your name, logo and trade mark, together with reference(s) to the fact that you are a customer of findinstore.com, in any medium whatsoever, including, without limitation, on our website or our marketing collateral.
12.1 To the extent that you acquire goods or services from us as a consumer within the meaning of the Australian Consumer Law, you may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement.
12.2 Nothing in this clause 12 operates to exclude, restrict or modify the application of any condition, warranty or provision implied by law, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
12.3 Except in relation to Non-excludable Obligations:
12.4 Except as expressly and specifically provided in this agreement:
13. TERM AND TERMINATION
13.1 This agreement shall commence on the Commencement Date and, unless otherwise terminated as provided in this clause 13, shall continue for the Subscription Term set out in the Schedule, unless:
13.2 We may terminate this agreement:
13.3 Upon termination of this agreement for any reason:
14. ADDITIONAL SERVICES
14.1 Subject to compliance by the parties with the process set out in clause 14.2, we will provide the Additional Services to you in accordance with the terms of this agreement.
14.2 You may, at any time during the Subscription Term, request findinstore.com to provide Additional Services in relation to the Platform by giving us a written proposal to that effect (Additional Service Proposal).
14.3 findinstore.com will consider any requests for Additional Services within 30 days of such request and will notify you within a reasonable period whether we:
and, in the case of clauses 14.3(a) and (c), the applicable fees for those services.
14.4 The parties agree that they may, acting reasonably, continue to exchange drafts of the Additional Service Proposal until such time as each of them agree on a final version.
14.5 An Additional Service Proposal will not be binding on either party (and, to avoid doubt, we will be under no obligation to provide the relevant additional Services) unless the Additional Service Proposal has been signed by duly authorised representatives of both parties.
15. CONFIDENTIALITY AND PRIVACY
15.1 A Receiving Party:
15.2 A Receiving Party may disclose Confidential Information of the Disclosing Party to persons who:
15.3 A Receiving Party must:
15.4 If a Receiving Party is required by law to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:
15.5 You agree that, to the extent that you come into possession of any Personal Information in the course of exercising your rights or performing your obligations under this agreement, you will comply with the provisions of the Privacy Act 1988 (Cth).
15.6 Each party acknowledges that damages may be an insufficient remedy for a breach, or suspected breach by the Receiving Party of its obligations under this clause 15, and agrees that the Disclosing Party may seek such equitable relief (including injunctive relief) as is necessary to remedy or prevent such breach without having to prove or establish any special damage arising from such breach or suspected breach.
16. FORCE MAJEURE
findinstore.com shall have no liability to you under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of hosting or data centre providers or other suppliers or sub-contractors.
17. GENERAL TERMS
17.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
17.2 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.3 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.4 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.5 You shall not, without the prior written consent of findinstore.com, assign, transfer, charge, sub-contract or otherwise deal in any other manner with all or any of its rights or obligations under this agreement. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
17.6 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
17.7 This agreement may be executed in any number of counterparts, each of which, when executed, shall be an original, and all the counterparts together shall constitute one and the same instrument. No counterpart shall be effective until each party has executed at least one counterpart. It is agreed that this agreement may be executed electronically and an executed facsimile, or an electronic copy of a digital scan, of same (where such facsimile or email address has been notified by a party to other party for these purposes) shall serve as a legal and binding contract with the same force and effect as the original.
17.8 The laws of the State of Victoria, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the Courts of Victoria.
18.1 The definitions in this clause apply in this agreement.
Additional Service Proposal: has the same meaning given in clause 14.2.
Additional Services: services outside the then current scope of the Platform provided by findinstore.com under this agreement that you request we to provide, and that we agree to provide, as set out in an Additional Service Proposal agreed by the parties in accordance with clause 14.2.
Authorised Users: those of your employees and independent contractors who are authorised by you to use the Platform and the Documentation, as further described in clause 3.2(d).
Back-Up Policy: the document that defines the policies and procedures for findinstore.com to backup, archive and recover Your Data and the Software.
Business Day: any day which is not a Saturday, Sunday or public holiday in Victoria, Australia.
Commencement Date: has the meaning given in the Schedule.
Confidential Information: in the case of a Disclosing Party:
Disclosing Party: a party to this agreement who discloses or makes available Confidential Information to the Receiving Party.
Documentation: the document or content made available to you by us or accessible by you via the Administration Area from time to time, which sets out a description of the Platform and the user instructions for the Platform (including but not limited to manuals, user guides, video demonstrations, setup instructions, release notes, and operating instructions).
End User Data: non-identifying information or data associated with end users using the Software (whether behavioural, tracking, browsing, ordering, purchasing or otherwise).
Force Majeure Event: has the same meaning given in clause 16.
Intellectual Property: designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in future in any part of the world.
Maintenance Release: release of the Software which adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Modification: any Maintenance Release.
New Version: means any new version of the Software which from time to time is publicly marketed and offered for purchase by us in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Normal Business Hours: 9.00 am to 5.00 pm local time in Victoria, Australia, each Business Day.
Personal Information: information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in material form or not, about a natural person whose identity is apparent, or can be reasonably ascertained, from the information or opinion.
Personnel means any agent, consultant, contractor, employee, officer, person or sub-contractor.
Platform: the subscription services provided by us to you under this agreement, as more particularly described in the Documentation, which subscription relates to the downloading, accessing and/or using of the Software and findinstore.com;
Privacy Laws: the Australian Privacy Principles in the Privacy Act 1988 (Cth) and any other applicable privacy laws or codes when accessing, collecting, storing, using or otherwise handling Personal Information.
Receiving Party: a party to this agreement who obtains Confidential Information of the other party to this agreement.
Related entity: has the same meaning given in the Corporations Act (Cth) 2001.
Software: the stockinstore Software, mobile application, associated software, technology and code, and all Intellectual Property contained therein, provided or otherwise made available by stockinstoreÆ as part of the Platform (including, but not limited to, data stock control and location applications, and database management applications).
Subscription Term: has the same meaning given in the Schedule.
Support Services: the support services described in item 6 of the Schedule.
Third Party Products: software, products, services or content (including all Intellectual Property contained therein) that:
User Subscription(s): the user subscription(s) provided to you pursuant to this agreement which entitle an Authorised User to access and use the Platform and the Documentation in accordance with this agreement.
Website: Websites listed in Item 7 of the Schedule.
Your Account: has the same meaning given in clause 1.3.
Your Data: has the same meaning given in clause 9.1.
Your Password: has the same meaning given in clause 1.3.