This Agreement is made between Ibenta Pty Ltd ABN 69 618 138 248 and the Customer on the following terms and conditions.
This Agreement comprises these General Terms & Conditions and the Plan.
Plan
The Customer subscribes to the Plan and in so doing agrees upon and accepts these General Terms & Conditions.
These General Terms & Conditions prevail over the Plan to the extent of any inconsistency.
The Customer warrants the Plan meets the Customer’s needs at the Commencement Date and for the duration of the Term.
The Customer may change Plans at any time using the Website or otherwise with the consent of Ibenta Pty Ltd and the Customer shall pay any additional Service Fees or charges with immediate effect.
Services
Ibenta Pty Ltd shall provide the Services to the Customer in accordance with the Plan.
Ibenta Pty Ltd shall deliver the Services in accordance with Good Industry Practice.
The Customer uses the Services and the Website solely at its own risk.
The Customer warrants that it has obtained its own independent professional and technical advice, or has decided not to do so, prior to entering these General Terms & Conditions and that it shall use the Services hereunder freely and voluntarily without duress or pressure to do so from Ibenta Pty Ltd.
Customer’s Risk
The Customer shall use the Services at its own risk.
The Customer hereby releases and discharges Ibenta Pty Ltd and its officers, employees and assigns from and against any liability arising as a consequence of any advice provided in connection with the Services.
Access
The Customer shall access the Services via the Website.
The Customer shall use the Login Codes on the Website.
The Customer shall configure the Services to its requirements using the features and functionality made available through the Website. Ibenta Pty Ltd may assist with but is not responsible for configuration of the Services for the Customer.
The Customer shall keep the Login Codes strictly confidential and secure from third parties.
Ibenta Pty Ltd may access the Customer’s Data any time for any reason without the prior consent of the Customer and without giving prior notice to any person for doing so.
Use
The Customer is licensed to use, and shall use, the Services and the Website only for the Authorised Use.
The Customer shall only permit its officers and employees who are Authorised Users to use the Services and the Website.
The Customer shall comply with the Acceptable Use Policy.
The Customer acknowledges and accepts the Privacy Policy.
The Customer shall comply with Ibenta Pty Ltd’s terms of use of the Website.
Data and Content
The Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership all Data and Content uploaded, collected or otherwise hosted and/or processed on the Website for the Services.
The Customer authorises Ibenta Pty Ltd, and warrants that Ibenta Pty Ltd is authorised (including by any relevant third parties) to access and manipulate Data if in Ibenta Pty Ltd’s sole opinion that is reasonably necessary to provide the Services.
Intellectual Property
Ibenta Pty Ltd owns or is licensed to use all Intellectual Property in the Services and the Website.
The Customer licenses, and warrants that Ibenta Pty Ltd is authorised, to use, copy, modify, configure and integrate the Data and Content supplied by the Customer for the purposes of these General Terms & Conditions.
Ibenta Pty Ltd licenses the Customer to use the Services and the Website for the Authorised Use in accordance with these General Terms & Conditions.
Nothing herein disclaims, abrogates, alienates or affects Ibenta Pty Ltd’s subsisting and continuing moral rights in the Services and the Website.
The Customer shall not copy, hack, alter or disseminate the Services or Website in any way, nor allow any third party to do so.
The Customer agrees Ibenta Pty Ltd may suspend or terminate the Services and access to the Website if any infringement of a third party’s Intellectual Property occurs or is alleged in connection with the Website.
Back Up and Disaster Management
The Customer shall regularly and independently store and back up all of its Content and Data submitted or uploaded to the Website in accordance with Good Industry Practice.
The Customer shall implement and maintain a disaster management plan for its activities and/or enterprise and shall be solely responsible for rectifying any events which interrupt the Customer’s ability to access and use the Services and the Website pursuant to the General Terms & Conditions.
DDoS
If the Services or the Website are the target of a DDoS or any other electronic attack or threat, Ibenta Pty Ltd may, at any time and without giving prior notice to any person, take such protection and/or mitigation measures as it in its sole discretion considers reasonably necessary, including:
suspending the Services and the Website;
moving the Services, the Website and/or any Content or Data to a quarantine server;
implementing access control lists; and/or
applying IP address filtering and/or blocking software or algorithms.
If Ibenta Pty Ltd takes any such measures, it may continue them until such time as the attack or threat is considered by Ibenta Pty Ltd (in its absolute discretion) to be eliminated, avoided or otherwise dealt with.
Support
Ibenta Pty Ltd may provide the Customer with Help Desk Support for the Services and Website.
The Customer may access Help Desk Support via any email or other contact method designated by Ibenta Pty Ltd.
Ibenta Pty Ltd shall use its best endeavours to respond to any Help Desk Support enquiries or reports in a timely manner but is otherwise not bound to respond or to rectify any defects, errors, threats or other issues arising within any particular time frame.
Service Fees
The Customer shall pay the Service Fees set out in the Plan and as otherwise agreed in writing between the parties.
Ibenta Pty Ltd may vary the Service Fees at any time by serving not less than 7 days’ prior written notice of the same upon the Customer and giving the Customer an opportunity to terminate this agreement prior to the expiry of that notice period if the Customer does not accept the varied Service Fees. The Customer shall not be entitled to any compensation or other remedy in the event of termination hereunder. Upon the expiry of the notice period, if the Customer has not terminated, the Customer shall be deemed to have accepted the varied Service Fees as notified by Ibenta Pty Ltd.
Ibenta Pty Ltd may block and/or suspend the provision of or access to the Services and Services if any Service Fees are unpaid or become overdue (whether in whole or in part).
Ibenta Pty Ltd may at its sole discretion recommence or restore the provision of or access to the Services if any overdue invoice for Service Fees is paid.
The Customer acknowledges and agrees that it may take up to 48 hours for any Service to be recommenced or restored.
The Customer shall pay Service Fees by credit card, electronic funds transfer, direct debit, or in any other manner agreed by Ibenta Pty Ltd. Where payment is made or taken by credit card, Ibenta Pty Ltd shall be entitled to add a reasonable surcharge of the total amount due under any invoice.
Ibenta Pty Ltd may pass on and charge the Customer any fees, levies or charges it incurs as a result of any credit card, direct debit, cheque or similar payment transaction failing or being declined.
Unless otherwise stated, Service Fees are inclusive of GST. The Customer shall be entitled to a tax invoice for its payments for Services.
Errors and omissions
Ibenta Pty Ltd shall use its best endeavours to rectify at its cost any material errors or omissions in the Services provided hereunder promptly whenever such an error or omission is found in the course of execution of the Services. An error or omission is material if Ibenta Pty Ltd determines in its absolute discretion (acting reasonably) that it is not minor and prevents the Services from satisfying the Customer’s specifications, any Legislative Requirements and/or the standards of Good Industry Practice.
Notwithstanding the foregoing, Ibenta Pty Ltd shall not be liable to rectify any errors or omissions caused or partly caused directly or indirectly by or arising from:
any misinformation provided by the Customer;
any direction given by the Customer;
any conduct of the Customer or any third party;
any undue duress, pressure or influence exerted by the Customer upon Ibenta Pty Ltd or its officers, employees, agents or subcontractors; or
any accident, act of God, fire, flood, war, act of violence, terrorism or similar occurrence beyond Ibenta Pty Ltd’s reasonable control.
The Customer shall submit all claims for rectification to Ibenta Pty Ltd in writing via email promptly upon discovering them.
Limitation of liability
To the extent permitted by law, and without limiting the foregoing subject always to the Competition and Consumer Act, the Australian Consumer Law, and the Fair Trading Acts of each State and Territory in Australia, Ibenta Pty Ltd does not warrant either the quality or standard of the Services provided hereunder, or the design, performance, use, utility, fitness for purposes or merchantable or acceptable quality of any software, service, product or thing for any particular purpose or at all, other than to the extent expressly represented in these General Terms & Conditions or in any documentation prepared and supplied by Ibenta Pty Ltd to the Customer hereunder and to the extent implied or required by law.
Ibenta Pty Ltd may, at its option, choose to satisfy any claim for rectification of any defect or omission in the Services by either:
resupplying the Services at Ibenta Pty Ltd’s cost; or
paying a third party approved by Ibenta Pty Ltd to resupply the Services or to supply replacement Services hereunder, upon which Ibenta Pty Ltd shall be fully and effectually released and discharged from any further obligations in relation to such claim.
In no case shall the value of a claim by the Customer for rectification of any defect or omission (as assessed and determined by Ibenta Pty Ltd, acting reasonably) exceed the total value of the Services Fees paid by the Customer under these General Terms & Conditions up to the date the claim is made, and all damage or expense over and above such amount shall be the responsibility of the Customer.
Ibenta Pty Ltd shall not be liable to the Customer for any delay or delays in the provision of the Services.
Ibenta Pty Ltd shall not be liable to compensate the Customer for any delay in either replacing or remedying an actual or alleged defect or omission or in properly assessing or responding to a claim.
Ibenta Pty Ltd shall be under no liability whatsoever to the Customer for any indirect, special or consequential loss and/or damage (including loss of profit, loss of revenue or other economic loss) suffered by the Customer arising out of or in connection with any Services or any defect or omission arising under these General Terms & Conditions.
The Customer shall give Ibenta Pty Ltd reasonable access to any premises or property (including to Devices via screen sharing) required for Ibenta Pty Ltd to fully and properly investigate and assess any and all claims hereunder.
Ibenta Pty Ltd may decline any claim which does not comply with these General Terms & Conditions, or which is not covered by these General Terms & Conditions, or which is made for Services that are found not to be defective by Ibenta Pty Ltd, in which case Ibenta Pty Ltd may give notice to the Customer that the claim is declined and the Customer shall be responsible for Ibenta Pty Ltd’s reasonable costs of receiving, processing, assessing and declining the Customer’s claim. Ibenta Pty Ltd may invoice the Customer any such costs incurred by it and the Customer shall promptly pay the invoice within seven (7) days of the date of the invoice.
Default & consequences of default
Without prejudice to Ibenta Pty Ltd’s other remedies at law or in equity, Ibenta Pty Ltd shall be entitled to immediately suspend or terminate the supply of the Services in the event that:
any Service Fees are not paid when due; or
the Customer breaches these General Terms & Conditions; or
the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a trustee in bankruptcy, receiver, manager, administrator, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Ibenta Pty Ltd will not be liable for any loss or damage the Customer suffers because Ibenta Pty Ltd has exercised its rights under this clause.
If Ibenta Pty Ltd terminates these General Terms & Conditions under clause 14.1, Ibenta Pty Ltd may pursue the Customer for damages for breach or specific performance or both.
Ibenta Pty Ltd’s rights and entitlements hereunder are in addition to the rights which Ibenta Pty Ltd may have at law or in equity.
If the Customer defaults in payment of any Service Fees, the Customer shall indemnify Ibenta Pty Ltd from and against all costs and disbursements incurred by Ibenta Pty Ltd in pursuing the debt including legal costs on a solicitor and own Customer basis and Ibenta Pty Ltd’s collection agency costs.
Termination for convenience
Ibenta Pty Ltd may at Ibenta Pty Ltd’s option suspend the provision of the Services at any time after notice of termination is given by either party.
Neither party shall be liable to the other party for any loss or damage whatsoever arising from termination under clause 17.1.
The termination of these General Terms & Conditions by either party is without prejudice to any other right or remedy which they may have against each other at law or in equity.
General indemnity
To the fullest extent permitted by law, the Customer shall indemnify and keep indemnified Ibenta Pty Ltd from and against any and all losses, loss of profits, claims, damages, actions, suits, demand, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever, which Ibenta Pty Ltd shall or may suffer or incur or be called upon to suffer or incur by virtue of:
any default or breach hereunder by the Customer;
any unlawful, negligent, fraudulent or indictable act or omission of the Customer or any of its officers, employees or agents;
the use or misuse of any Services by the Customer; or
any Content or Data uploaded, processed or posted by the Customer using the Services or otherwise on the Customer Website or any other website of the Customer, except to the extent of any contributory negligence by Ibenta Pty Ltd.
The Customer shall pay any and all indemnified amounts to Ibenta Pty Ltd within 7 days of receiving a written demand for the same.
Representations
The Customer represents and warrants that at the date of acceptance of these General Terms & Conditions by the Customer and at all times until these General Terms & Conditions are fully performed and completed:
the Customer is not bankrupt and is not insolvent or in receivership or under administration, official management or liquidation and has not entered into an arrangement with its creditors;
the Customer is able to carry on its business and perform its obligations under these General Terms & Conditions;
the Customer is adequately insured with a reputable insurer against all risks which a prudent person carrying on its business would insure against;
there are no legal proceedings, actions, prosecutions or investigations threatened, pending or commenced against the Customer or the directors or shareholders of the Customer;
all corporate authorisations and approvals necessary to enable it to enter into these General Terms & Conditions have been obtained and remain in full force and effect;
all governmental requirements, authorisations, approvals and licenses which are necessary for the Customer to legally carry on its business are in full force and effect; and
it has not withheld from Ibenta Pty Ltd any document, information or other fact material to the decision of Ibenta Pty Ltd to enter into these General Terms & Conditions or to supply Products or provide credit to the Customer.
The Customer must immediately notify Ibenta Pty Ltd if any of the aforementioned representations, warranties and covenants cease to be true and correct.
Force majeure
Ibenta Pty Ltd will not be liable for any failure or delay in the performance of its obligations under these General Terms & Conditions to the extent such failure or delay is caused by a Force Majeure Event.
If a Force Majeure Event arises, Ibenta Pty Ltd shall use reasonable endeavours to promptly advise the Customer of the details of the Force Majeure Event and its likely effect on the performance of Ibenta Pty Ltd’s its obligations hereunder, and Ibenta Pty Ltd shall Ibenta Pty Ltd shall take all steps reasonably necessary to recommence performance of the affected Services and minimise any delay caused by the Force Majeure Event.
Dispute resolution
If a dispute arises out of or relates to these General Terms & Conditions, the breach, termination, validity or subject matter of these General Terms & Conditions, or any claim in tort, in equity or pursuant to any domestic or international statute or law, then subject always to clause 21.6 the parties to the Agreement and to the dispute expressly agree to endeavour in good faith to settle the dispute by mediation administered by a mediator appointed under the Mediation Rules of the Resolution Institute as in existence at the time written notice is received by the parties.
A party claiming that a dispute has arisen must give written notice to the other parties to the dispute specifying the nature of the dispute.
On receipt of the notice specified in clause 21.2, the parties to the dispute must within seven (7) days of receipt of notice seek to resolve the dispute.
If the dispute is not resolved within the said seven (7) days or within such further period as the parties agree, then the parties must mediate the dispute and adopt the provisions of, and the procedures noted in, the Mediation Rules of the Resolution Institute, being the Rules in existence at the date of the notice specified in clause 21.2.
The terms of the Mediation Rules of the Resolution Institute, being the Rules in existence at the date of the notice specified in clause 21.2, are hereby deemed incorporated into these General Terms & Conditions.
Notwithstanding the foregoing, Ibenta Pty Ltd shall always have the right to institute legal proceedings in any court of competent jurisdiction in order to collect payments due to Ibenta Pty Ltd by the Customer whether under these General Terms & Conditions or any other agreement, without first being required to undergo mediation or any other form of alternate dispute resolution.
This clause 21 survives termination or expiration of these General Terms & Conditions.
General
These General Terms & Conditions prevail over any terms of trade or terms and conditions of supply or of acquisition of goods or services provided or submitted by the Customer or agreed to by Ibenta Pty Ltd to the extent of any inconsistency between them.
The parties contract hereunder independently and at arm’s length. Nothing herein constitutes either party a partner, joint venturer, agent or employee of the other party.
Each party warrants, states and represents that the party has entered these General Terms & Conditions with full knowledge of the responsibilities of the party under it, with full knowledge of the effect of these General Terms & Conditions on the party’s financial position, after either obtaining or electing not to obtain independent legal and accounting and taxation advice on the terms and subject matter of these General Terms & Conditions, and without any reliance on any other party in respect thereof.
If any provision of these General Terms & Conditions shall be invalid, illegal or unenforceable, that provision shall be severed from these General Terms & Conditions and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired in any way.
All notices required to be given by the Customer under these General Terms & Conditions must be given in writing (whether electronically or in hard copy), addressed to Ibenta Pty Ltd at its registered office (or other address published on the Website), in the English language, signed (whether digitally or in hard copy) by the Customer (or its duly authorised attorney or representative), and dated the date on which it was signed. Ibenta Pty Ltd may give notices to the Customer in any form Ibenta Pty Ltd thinks fit and, without limiting the foregoing, if Ibenta Pty Ltd publishes a notice or any content on the Website then the Customer is deemed to have received that notice and notice of that content on and from the date of publication. The Customer shall check and monitor and keep updated with all notices and content published on the Website.
Ibenta Pty Ltd may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. Ibenta Pty Ltd may also at its sole discretion transfer or assign all or any part of its rights and obligations hereunder to any third party without the Customer’s consent.
The Customer shall not transfer or assign all or any part of its rights and obligations hereunder without first obtaining the prior written consent of Ibenta Pty Ltd.
The Customer shall give Ibenta Pty Ltd not less than fourteen (14) days prior written notice of any proposed change of ownership or control of the Customer, or any change in the Customer’s name, or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Ibenta Pty Ltd as a result of the Customer’s failure to comply with this requirement. In addition, any such change in ownership or control of the Customer shall be deemed hereunder to constitute a transfer or assignment of the Customer’s rights and obligations hereunder to the person or entity take on or taking over such ownership or control, which change shall not be undertaken without first obtaining the prior written consent of Ibenta Pty Ltd.
Ibenta Pty Ltd shall not be required to notify the Customer of, or obtain the Customer’s consent to, any change or proposed change of ownership or control in Ibenta Pty Ltd.
Ibenta Pty Ltd reserves the right to review these General Terms & Conditions at any time. If, following any such review, there is to be any change to these General Terms & Conditions, then that change will take effect from 7 days after the date on which Ibenta Pty Ltd notifies the Customer of such change. The Customer may not change or amend these General Terms & Conditions without Ibenta Pty Ltd’s prior written agreement.
Personal information about the Customer may be used and retained by Ibenta Pty Ltd for the provision of products or services, the marketing of products or services, credit checking, maintenance of the Customer’s account/s with Ibenta Pty Ltd, processing any payment instructions or direct debit or credit facility, and debt collection, as well as for any other purposes as may be agreed between the parties or required by law from time to time.
The failure by Ibenta Pty Ltd to enforce any provision of these General Terms & Conditions shall not be treated as a waiver of that provision, nor shall it affect Ibenta Pty Ltd’s right to subsequently enforce that provision.
Any party signing or executing or otherwise accepting these General Terms & Conditions on behalf of the Customer as the Customer’s director, officer, attorney or representative hereby warrants, states and represents in his or her personal capacity that he or she is duly authorised and permitted to do so by the Customer and by law.
Subject to any written agreement to amend the terms hereof, these General Terms & Conditions constitute the sole and entire agreement between the parties with respect to its subject matter. No warranties, representations, guarantees or other terms or conditions of any kind not contained and recorded in these General Terms & Conditions are of any force or effect.
These General Terms & Conditions and any contract to which they apply shall be governed by the laws applicable in Queensland and are subject to the jurisdiction of the courts of Queensland. All legal proceedings in relation to these General Terms & Conditions shall be instituted and held in Brisbane in the State of Queensland, Australia.
Definitions and interpretation
In these General Terms & Conditions:
Acceptable Use Policy means Ibenta Pty Ltd’s Acceptable Use Policy published on the Website from time to time.
Authorised Use means the use for which a Service is provided as stated in the Plan or as otherwise notified by Ibenta Pty Ltd to the Customer from time to time.
Authorised Users means the persons or entities who may use the Service as stated in the Plan or as otherwise notified by Ibenta Pty Ltd to the Customer from time to time.
Collateral has the meaning set out in clause 18.1.
Commencement Date means the first day of the Term.
Content means any text, data, images, graphics, animations or other information or material or content to be published on the Website from time to time.
Customer means the customer identified in the Plan to which these General Terms & Conditions apply.
Data means information or data of any kind and includes Content.
DDoS means a distributed denial of service attack.
Devices means the plant, equipment and devices used by the Customer or its Authorised Users to access and use the Services, including any and all software and source code installed thereon.
Force Majeure Event means any circumstance not within the reasonable control of Ibenta Pty Ltd, to the extent that the circumstance, or its effect upon Ibenta Pty Ltd, could not have been avoided, prevented or circumvented despite the exercise of reasonable diligence by Ibenta Pty Ltd. Without limiting the foregoing, such circumstance shall include fire, sea accident, failure of machinery, or other accident, ice hindrance, flood, water shortage, or other natural disaster, vehicle or tonnage shortage or other traffic disturbance, strike, lockout, blockade, riot, revolution, mobilization or state of war, currency problems, import restrictions, or other government action.
Good Industry Practice means, in relation to any work or task required to be performed by a party, the practices, methods, specifications and standards of safety, design and performance which are generally expected of competent and experienced professionals who perform the same or similar work or tasks in the same or similar industry or profession.
Help Desk Support means help desk support for use of the Website provided at the time and in the manner published by Ibenta Pty Ltd from time to time.
Intellectual Property means copyrights, patent rights, trademark rights, design rights, get up, know-how, trade secrets, source code, software and any and all other forms of Intellectual Property, wheresoever and howsoever arising, whether registered or unregistered, anywhere in the world.
Legislative Requirement includes a requirement imposed by law, including to obtain any governmental or judicial approval or consent, to give a notice, to pay a fee charge or penalty, and to perform and act or omissions.
Login Codes means login codes and authentication criteria provided by Ibenta Pty Ltd to access the Services.
Plan means the Services plan agreed between Ibenta Pty Ltd and the Customer from time to time via the Website or otherwise in writing.
Privacy Policy means Ibenta Pty Ltd’s Privacy Policy published on the Website from time to time.
Services means Ibenta Pty Ltd’s services published on and provided via the Website under the Plan, and includes Help Desk Support.
Service Fees means the fees described in the Plan.
Term means the period specified in or covered by the Plan during which the Customer is bound by this Agreement.
Website means Ibenta Pty Ltd’s website at ibenta.com, ibenta.com.au or such other address notified by Ibenta Pty Ltd to the Customer from time to time.
In these General Terms & Conditions, except where the context otherwise requires:
the singular includes the plural and vice versa;
a gender includes other genders;
another grammatical form of a defined term has a corresponding meaning;
a reference to ‘writing’ or ‘in writing’ includes electronically via email, website or other digital communication.
a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, these General Terms & Conditions, and a reference to these General Terms & Conditions includes any schedule or annexure;
a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
a reference to a party is to a party to these General Terms & Conditions, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
headings are for ease of reference only and do not affect interpretation.
