Terms and Conditions
1.1 These Terms and Conditions (Terms) are between The Peacock Says Pty Ltd (ABN 14 162 067 058), its successors and assignees (referred to as “we”, “us” or “our”) and the entities who request our Services (referred to as “you” or “your”), and collectively the Parties.
1.2 You have requested specific services, described on and able to be ordered via our Website (Services). You accept these Terms by:
(a) ticking the online acceptance box;
(b) confirming by email that you accept the Terms;
(c) instructing us to proceed with the Services; or
(d) making part or full payment for the Services, by the methods set out in these Terms or our tax invoice to you (Invoice).
1.3 You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions using the contact details at the end of these Terms. Using our Services indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are eighteen (18) years or older. You must not order or use the Services if you are under eighteen (18) years of age. If you do not agree to these Terms, you should not use our Services.
1.4 You may be required to provide us with adequate identification information such as photographic identification for the purposes of establishing your age. We may cease providing the Services to you if we are unable to verify your age to our satisfaction.
2. SUBSCRIPTION AND SERVICES
2.2 We agree to perform the Services with due care and skill.
2.3 We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.
2.4 We may provide the Services to you using our employees, contractors and third party providers and they are included in these Terms.
2.5 Third parties who are not our employees or our direct contractors (Third Parties) will be your responsibility. We are not responsible for the products or services provided by Third Parties.
3. PRICE, INVOICING AND PAYMENT
3.1 Your subscription will continue month to month until terminated. Unless you cancel your subscription before your monthly billing date, you authorise us to charge your next month’s Subscription Fee to your credit card.
3.2 The Subscription Fee and any other charges you may incur in connection with your use of the Paid Services will be charged on a monthly basis to your credit card through our third party payment processor, currently Stripe, on the calendar day corresponding to the start of your subscription to our Paid Services. In some cases your payment date may change, for example if your payment wasn’t processed or if your subscription began on a day not contained in a given month.
3.3 For some credit cards, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your credit card. Local tax charges may vary depending on the credit card used.
3.4 You must provide a current, valid credit card when subscribing to our Paid Services
3.5 All amounts are stated in Australian dollars. All purchase prices include Australian GST (where applicable).
3.6 If we do not receive a Subscription Fee in full on its due date for any reason, we will stop providing you with the Paid Services.
3.7 You may cancel your subscription to the Paid Services at any time and you will continue to have access to the Paid Services through the end of your monthly billing period. To the extent permitted by law, Subscription Fees are non-refundable and we do not provide refunds or credits for any partial month subscription periods or unused Paid Services. To cancel, you must send us an email to [email protected]. We will provide you with a cancellation form which you must complete in order for the cancellation to be activated. Any purported cancellations made in another way will not be valid.
3.8 Our Subscription Fees, pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The pricing changes will apply to you for
Services provided to you after the date of the change. All other changes will apply from the date that the amended or new Terms are posted on our Website or are provided to you, whichever is earlier.
4. YOUR OBLIGATIONS AND WARRANTIES
4.1 You warrant that you will not canvass, employ, induce or attempt to employ, induce, solicit or entice away from us, any employee or contractor that was employed by or contracted to us during the term that we provide Services to you or the prior twelve (12) month period.
4.2 You warrant that throughout the term of these Terms that:
(a) there are no legal restrictions preventing you from agreeing to these Terms;
(b) you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested by us from time to time, and comply with these requests in a timely manner.
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Services;
(e) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
(f) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
(g) you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you;
(h) if applicable, you hold a valid ABN which has been advised to us; and
(i) if applicable, you are registered for GST purposes.
5. OUR INTELLECTUAL PROPERTY
5.1 The work and materials that we provide to you in carrying out the Services contain material which are owned by or licensed to us and are protected by Australian and international laws
(Materials). We own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
5.2 You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property ownership rights in our Materials, except as stated in these Terms or with our written permission.
5.3 Your use of our Materials does not grant you a licence, or act as a right to use, any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
5.4 You must not breach our Intellectual Property rights by, including but not limited to:
(a) altering or modifying any of the Materials;
(b) creating derivative works from the Materials; or
(c) using our Materials for commercial purposes such as onsale to third parties.
6. CONFIDENTIAL INFORMATION
6.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
6.3 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
6.4 The obligations under this clause will survive termination of these Terms.
7. FEEDBACK AND DISPUTE RESOLUTION
7.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about our Services, please contact us.
7.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Victoria to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
7.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
8.1 The Parties may terminate these Terms by mutual agreement, upon 30 days’ notice in writing including by email.
8.2 Either party may terminate these Terms immediately, if there has been a material breach of these Terms.
8.3 We may terminate these Terms immediately, in our sole discretion, if:
(a) we consider that a request for a Service is inappropriate, improper or unlawful;
(b) you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) we consider that our working relationship has broken down including a loss of confidence and trust;
(d) you act in a way which we reasonably believe will bring us or our Website into disrepute;
(e) you provide us with incorrect payment details or any other incorrect information; or
(f) for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe.
8.4 On termination of these Terms you agree that any payments made are not refundable to you.
8.5 If you terminate these Terms early, you must pay for all Services provided prior to termination, including any Services which have been performed and have not yet been billed to you.
8.6 On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and/or documents containing or relating to our Confidential Information.
8.7 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information, and/or documents containing or relating to your Confidential Information.
8.8 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the
statutory periods, or on termination of these Terms.
8.9 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
9. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
9.1 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms.
9.2 Services: If you are a consumer as defined in the ACL, the following applies to you: We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time. To the extent we are unable to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us resupplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
9.3 Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in the period set out on the Website where it is affected by your delay in response, or supply of incomplete or incorrect information.
9.4 Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
9.5 Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
9.6 Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services and these Terms, except those set out in these Terms, including but not limited to:
(a) implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
(b) the Services being unavailable; and
(c) any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your inability to access or use the Services, and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
9.7 Limitation: Our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
9.8 This clause will survive termination of these Terms.
10.1 We make no warranties or representations, expressed or implied, as to the timeliness, accuracy, quality, completeness or existence of the Website, Services or Materials.
10.2 Whilst we use our best endeavours to ensure the information, insights and guidance on the Website, Services or Materials are accurate, we do not guarantee that they are accurate, or that you will win a bet or that your gambling skills will improve as a result of using the Website, Services or Materials.
10.3 We are committed to supporting responsible gambling. You agree that the Website, Services and Materials are intended for general information purposes only and are not aimed at endorsing, encouraging or promoting gambling. You agree that we are not responsible for any gambling problems or addictions that you encounter.
10.4 You are solely responsible for determining the suitability of any of our Services, and your reliance on any information that is provided to you through our Website, Services or Materials is at your own risk.
11.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) any breach of these Terms; and
(c) any misuse of the Services, the Website or the Materials from or by you, your employees, contractors or agents.
11.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
11.3 The obligations under this clause will survive termination of these Terms.
12.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
12.2 Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you.
12.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
12.4 GST: If and when applicable, GST payable on the Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
12.5 Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
12.6 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
12.7 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
12.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days’ notice in writing.
12.9 Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the address in the Proposal. Our address is set out in the Proposal. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
12.10 Jurisdiction & Applicable Law: These terms are governed by the laws of Victoria and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria.
12.11 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
13.1 Confidential Information includes confidential information about you, your credit card details, the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, knowhow, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
13.2 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
13.3 Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
13.4 Website means www.thepeacocksays.com.au
The Peacock Says Pty Ltd (ABN 14 162 067 058)
108, Newquay Promenade
Email: [email protected]
Last update: 28 March 2018