It is vital to understand the business broker's policies first before taking the plunge of listing your Melbourne business opportunity. Please make sure to carefully read all of the terms outlined on this page.
Terms and Conditions of use
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE REGISTERING WITH EDENEXCHANGE.COM. ALL EDENEXCHANGE.COM SERVICES PROVIDED TO YOU ARE SUBJECT TO THESE TERMS.
These terms and conditions relate to end users who use EDE, or the subscription management tools at www.edenexchange.com
EDE is an online platform for investors to find investment opportunities and businesses for sale.
EDE provides a business introduction platform service in accordance with ASIC Class Order 02/273 (Class Order) which provides an exemption to the disclosure requirements under section 708 of the Corporations Act (Cth) 2001 (Act).
The Class Order provides these potential investors to contact private businesses without complying with the disclosure requirements under the Act.
We confirm that:
1. we receive no fee for providing the online introduction service; and
2. the Website not is endorsed or approved by ASIC, SEC.
We wish to make you aware:
1. investment in new business carries high risks. It is highly speculative and before investing in any project about which information is given, prospective investors are strongly advised to take appropriate professional advice;
2. the information contained in our Website has been prepared by or on behalf of the person who is proposing to sell a business or solicit investment. EDE nor the publisher (if any) has undertaken an independent review of the information contained in our Website;
3. the information contained in our Website about the proposed business opportunities is not intended to be the only information on which the investment decision is made and is not a substitute for a disclosure document, product disclosure statement or any other notice that may be required under the Act, as the Act may apply to the investment. Detailed information may be needed to make an investment decision, for example: financial statements; a business plan; information about ownership of intellectual or industrial property; or expert opinions including valuations or auditors' reports;
1. I have read and understood the above 'Important Warning'; and
2. I wish to subscribe to the Website
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Agreement: the Client's agreement to use the Services provided by EDE and to pay the Charges subject to these Conditions or as otherwise agreed in writing.
Charges: EDE's charges for the Services as posted on EDE's website from time to time or as agreed between the parties from time to time.
Client: the person, firm or company who purchases or uses Services from EDE pursuant to these Conditions.
Data: means the personal data provided to EDE and updated from time to time by Client (which may include sensitive personal data).
Data Protection Legislation: all applicable data protection legislation and regulations.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Material: includes, in addition to a document in writing, the Data, databases, computer software (including the Software), designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form.
Payment Day: means the day of the month upon which the Client enters into this Agreement and the same day each month for the duration of the Agreement.
Services: means the provision of the EDE website services and Software, whereby (i) EDE provides the Services, EDE provides an online platform for investors to find investment opportunities and businesses for sale. (i) EDE provides a business introduction platform service in accordance with ASIC Class Order 02/273 (Class Order) which provides an exemption to the disclosure requirements under section 708 of the Corporations Act (Cth) 2001 (Act). (ii) EDE stores the Data, (iii) EDE provides the facilities for the Client to send e-mails
Site: means EDE web site from which the Services can be accessed.
Software: means EDE's data management website software which is made available by EDE for use to the Client over the internet as part of the Services.
Subscriber: means each person for whom EDE holds Data on
EDE: means EdenExchange.com (company number 152 787 212 registered in Australia).
Trademark: means the "EDE" unregistered trade mark and logo and any future registration of any similar mark or application for registration anywhere in the world.
1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.9 References to conditions and schedules are to the conditions and schedules of this Agreement.
Agreement: the Client's agreement to use the Services provided by EDE and to pay the Charges subject to these Conditions or as otherwise agreed in writing.
1. Defined terms
For the purposes of these Terms and Conditions:
·"Agreement" is as defined in the Introduction above.
·"Order Form" means the form specifying your subscription details for the Service.
·"Our web site" refers to the web sites located at the URL "edenexchange.com".
·"Service" is as defined in the Acceptable Use Policy.
·"Term" means any Initial Term or Further Term of this Agreement.
·"We", "our", "us" or "EDE" refers to edenexchange.com and its subsidiaries, employees, officers, agents, affiliates or assigned parties.
·"You", "your" or "the client" refer to you as the user of the Service.
1. The Agreement between us
1.3 Any error or omission of any information that we publish about the Services shall be subject to correction, provided that the correction does not materially affect the Services.
2. Registration and using the Services
2.1 In order to use EDE you will need to:
2.2 You agree that you will register in your own name only and all information provided by you will be accurate and up-to-date. You agree to promptly update any of your details on the Site as necessary.
2.3 You may not transfer your membership to another person.
2.4 You are responsible for maintaining the confidentiality of your password and for all use of the Services made through your password. You agree to keep your password secret at all times and must inform us, and promptly change your password, if you believe that another person has become aware of your password or is using it or is likely to use it in an unauthorised way.
3. Cost of using the Services
3.1 Membership and use of the Services is free but you will be charged for any upgrade packages you choose during your use of the service.
4. Intellectual Property
4.1 All information, data and materials used in the Services (including materials accessible on the Site and the software used to access the Services) are protected by rights, including copyright, design rights, database rights and trade marks. All these rights are either owned by us or licensed to us by the rights owner(s) for use with the Services or otherwise used by us as permitted by applicable law.
4.2 The Services are intended for personal and business use. Accordingly, you may print and download extracts from this Site for commercial use, provided that any material copied remains intact and includes the following notice: "Copyright © 2013 Edenexchange.com Ltd. All rights reserved." Any other copying, distribution, storing, framing or transmission of any kind or any sort of commercial use of the material used in the Services is strictly prohibited without our express consent.
4.3 The word and logo "Edenexchange.com", however represented, are trademarks of "EDE". All rights reserved.
5. Acceptable Use Policy
(a) use the Services to receive, access or transmit material that is obscene, sexually explicit, defamatory, threatening, degrading, racist, in breach of confidence or in breach of third party intellectual property rights (including copyright) or otherwise objectionable or unlawful;
(b) impersonate any person, or entity or misrepresent your affiliation with anyone or entity;
(c) access or attempt to access parts of the Services that you are not authorised to access or collect or store other members' usernames, passwords or personal data;
(d) avoid authentication processes or security of the Services or interfere with the use of the Services by other members;
(e) use the Services to gain unauthorised access to other computer systems or interfere with services to other host providers, networks or websites.
(f) reverse engineer or decompile (whether whole or in part) any software used in the Services;
(g) use the Services to knowingly or recklessly transmit material (including viruses) or otherwise use the Services so as to cause harm to the Services, EDE or other users or which is likely to bring the Services or EDE; or
(h) intentionally violate any other applicable law or regulation while using the Services.
6. Competition and Prizes
6.1 We may run competitions, prize draws and promotions that will be subject to additional terms and conditions applicable to each individual instance and which will be made available at the time of such competitions.
7. Limits to your rights
7.2 You are responsible for providing all computer equipment, mobile phone equipment and telecommunications service required to use the Services. We cannot and do not accept any responsibility for these and cannot guarantee the continued availability of any other person or services involved in providing the Services to you.
7.3 The internet is not a secure environment and we cannot guarantee that the Site and the server are free of computer viruses or other harmful applications. We recommend that you regularly update your browser software and use up-to-date anti-virus software to ensure that your access to the Services is as secure as possible.
7.4 Your access to the Services may be occasionally restricted to allow for repairs, maintenance, the introduction of new facilities or services, or due to events beyond our reasonable control. Where this happens, we will attempt to restore the Services as soon as we reasonably can.
7.5 We have no control or proprietary interest in the companies or products with which you register your interest. We do not endorse any particular company or product. When you register your interest with a particular company, you will receive information from that company and we are not responsible for the content or the accuracy of such information. You should contact that company directly if you have any queries or complaints
7.6 We have no control over or proprietary interest in any websites that are hypertext linked to this Site. We make no representations or guarantees about those websites or their content, nor that the links work.
7.7 Should you purchase products or services from companies advertising on or linked to our Site, any contracts will be exclusively between you and the relevant company. We are not responsible for and do not endorse any other companies' products or services.
8. Your responsibility to us
9. Terminations and Suspension
9.1 We may cancel or suspend your membership account and/or suspend your access to the Services if:
(b) you have behaved in a way which objectively could be regarded as inappropriate or is unlawful or illegal or which would bring us and/or the EDE brand into disrepute.
9.2 We may suspend access to the Services or require you to change your password if we reasonably believe that the Services have been or are likely to be misused, and we will notify you accordingly.
9.3 It may be necessary, for reasons beyond our control, to terminate the Services and if this occurs we will endeavour to provide as much notice as is reasonably possible in the circumstances.
9.4 We may terminate the Services and this agreement between us by giving you 14 days notice.
9.5 You may terminate the Services at any time by closing your membership account as instructed on the Site or by contacting us as set out at clause 14 below.
9.6 Any termination of your membership account or the Services will not affect liability previously incurred by either of us to the other.
11. Disputes and law
11.1 We will try to solve any disagreements quickly and efficiently. If you are not happy with the way we deal with any disagreement you may wish to take court proceedings.
Terms and conditions for listing on behalf of another business
2. Your obligations and acknowledgements when listing on behalf of another business
2.1 You represent and warrant in respect of each business you list on our web site that:
(a) you are a registered business broker or agent in the Region or Territory to which your use of the Service relates;
(b) you have a signed authority to sell from the owner or vendor (such as an Agency Agreement or Authority to Sell); and
(c) you are authorised to make available the material uploaded or submitted to use the Service;
(d) you will not allow another business broker in your business broker group to list the business using your subscription. Where an owner or vendor of a business authorises multiple business brokers in your business broker group to list a business, you acknowledge that:
(i) this does not entitle you to authorise any other person (including, without limitation, any associated offices in your business broker group) to make use of the one subscription; and
(ii) any such conduct is in breach of these Terms and Conditions; and
(e) you will comply with all of the terms applying to your use of the Service, described in the Introduction paragraph.
2.2 You must:
(a) comply with the terms of the Agreement;
(b) only advertise businesses that are currently available for purchase within the Country, State or Territories in which you are a registered business broker (to the satisfaction of EdenExchange.com) or in which you hold a current broking licence;
(c) only upload businesses to our web site directly, or through a third party provider who has agreed to comply with this Agreement; ;
(d) ensure the businesses you list on our web site are up to date. This means you (and your third party provider, if any) must:
(e) remove all inactive or sold businesses from the active database; and
(f) ensure that material you upload through use of the Service is not unlawful or uploaded for an improper purpose, including information that is defamatory, misleading or deceptive, in breach of copyright or would otherwise expose us to any liability, legal proceedings or other sanction;
(g) ensure that you do not make, arrange or authorise the insertion of any reference to us or our web site in any document (including promotional or merchandising material) or on any web site other than our web site without our prior written consent;
(h) abide by any applicable Code of Practice (incorporating privacy and advertising codes) issued by your local Internet Industry Association(i) comply with any guidelines and codes issued by your local institute of business brokers other similar body you are registered with;
(j) comply with all applicable laws, including without limitation, the Trade Practices Act 1974 (Cth), local fair trading legislation and any other applicable advertising standards and regulations;
(k) ensure that:
(i) your username and password for accessing the Service are kept secure at all times and are only disclosed to persons authorised to access on your behalf. However you are responsible for any use of the Service using your username and password by any person (whether authorised or otherwise) and, without limitation, you must pay any charges incurred as a result of that use;
(ii) unless expressly permitted in the Acceptable Use Policy, material submitted through the Service by you refers only to listing details of a particular business;
(iii) the listing details for a particular business through the Service are only listed by you (or any associated offices or other agents in your business broker group) once; and
(l) ensure that no other person, authorised or otherwise, makes use of your subscription to the Service in breach of these Terms and Conditions. However you are responsible for any use of the Service using your subscription by any person (whether authorised or otherwise) and, without limitation, you must pay any charges incurred as a result of that use.
2.3 You acknowledge that:
(b) by using the Service, you grant us an irrevocable, world-wide, royalty free licence to commercialise, copy, license to other persons, use and adapt for any purpose any material you generate or submit to make use of the Service;
(c) we are not under any obligation to monitor or censor the material uploaded by you that appears on our web site. However we reserve the right to do so and to take any action we deem appropriate (including removing material from our web site without notice);
(d) we are not responsible for the Service's content or for any errors or omissions in any business data provided by or on behalf of you;
(e) we cannot guarantee the continuous or fault-free operation of the Service;
(f) systems or technological failure may impede or prevent access to all or any part of the business data and transmission of data over the internet can be subject to errors and delays;
(g) you are responsible for and must pay the cost of all telecommunications and internet access charges incurred when using our web site, whether or not such access has been arranged by us;
(h) you are responsible for the security and integrity of your data;
(i) our servicesare subject to change, development and discontinuation. We will endeavour to notify you when this happens;
(j) we will contact you from time to time to make you aware of opportunities, products and services offered by us and our business partners. You authorise us to contact you via email, SMS, MMS and other electronic media for that purpose unless you explicitly request us not to contact you via these media; and
3. Termination or suspension of Service by us
3.1 We may terminate this Agreement (or any part of this Agreement, or any part of the Service that we provide to you) at any time for any reason provided that we give you at least seven (7) days written notice.
3.2 Without limiting our other rights, we may immediately suspend or temporarily remove details of any business uploaded by you to our web site or terminate this Agreement if:
(a) you fail to pay any fees or charges due to us by the due date;
(b) you breach any part of this Agreement and the breach is material and not capable of being rectified;
(c) you breach any part of this Agreement and fail to rectify the breach;
(d) you breach any warranties provided or representations made in this Agreement;
(e) any material supplied by you (including material uploaded to our web site) is false or misleading;
(f) you enter into bankruptcy, liquidation, provisional liquidation, administration, receivership, receivership and management, a composition of arrangement with your creditors, or appoint a receiver, manager or controller over all or any part of your assets or are protected from creditors under any statute, or become or are deemed to become insolvent; or
(g) you die, or if you are in a partnership, are dissolved or an application to dissolve is filed, or if you are a company, are wound up or an application for winding up is filed.
4. Effect of termination (by you or us)
4.1 Termination of this Agreement (by you or by us) does not: (a) relieve you of your accrued obligations and liabilities pursuant to this Agreement and we reserve our right to enforce such obligations and liabilities after termination; and (b) waive any breach of this Agreement by you.
4.2 In addition to clause 6.1, you acknowledge that:
(a) you remain liable for all fees incurred before termination of this Agreement and you must pay all outstanding amounts to us within seven (7) days of termination; and
(b) if you continue to use the Service following termination of this Agreement, you remain liable for any and all fees incurred by you (these fees may be calculated at our "out of contract" rate which is higher than our usual rates).
5. Packages, fees and billing
5.1 We offer a number of different packages that vary in terms of price, products and services included. You may subscribe to any of these packages, but switching, or addition of special conditions to, packages is at our sole discretion.
5.2 The current fee for the Service is specified in your Order Form. There is no current surcharge for payment by Visa Card or Mastercard, but we reserve the right to impose a surcharge in accordance with clause 7.3.
5.3 We reserve the right to amend the terms and conditions of this Agreement, including package components, products and fees, at any time. You will be given written notice of any changes to our fees or package components.
5.4 Service fees for the initial month of the Term are payable from the Contract Start Date specified on your Order Form. The initial month's service fees may be billed in advance or in arrears to fall within our regular billing cycle. Fees for subsequent months are payable partly in advance and party in arrears with the due date being fourteen (14) days from the commencement of any subsequent calendar month.
6. Limitation of liability and indemnity
6.1 To the extent allowable under the Trade Practices Act 1974 (Cth) or any other applicable law, we:
(a) exclude all conditions and warranties implied into this Agreement;
(b) exclude consequential, special or indirect loss or damage (including but not limited to loss of opportunity, loss of revenue, loss of data and loss of profits);
(c) limit our liability for breach of any condition or warranty that we cannot exclude to (at our option):
(i) resupplying the Service; or
(ii) paying the cost of having the Service resupplied; and
(d) limit our liability in respect of any other claim under or in connection with this Agreement whether the claim is based in contract, tort (including negligence) statute, or otherwise, to the amount paid to us by you under this Agreement and reduce that liability to the extent you cause or contribute to the loss the subject of the claim.
6.2 You must take all reasonable steps to minimise any loss you suffer or are likely to suffer and that is the subject of a claim against us under this Agreement. If you do not take reasonable steps to minimise that loss, then our liability to you for the relevant claim will be reduced accordingly.
6.3 We will not be liable under this Agreement to the extent that liability is caused by: (a) any breach of your obligations under this Agreement or a negligent act or omission by you; or (b) any delay in performance or breach of this Agreement which arises as a result of any matter beyond our control including but not limited to viruses, other defects or failure of the server hosting our web site.
6.4 You indemnify us and our officers, employees and agents ("those indemnified") against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any material uploaded or submitted by you in connection with the Service or any other act or omission by you in connection with your use of the Service.
6.5 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.
7.1 We may change these Terms and Conditions at any time by giving you at least 30 days' prior written notice. You acknowledge that our publishing the amended version of the Terms and Conditions at this link on our web site constitutes written notice to you of such changes.
7.2 No delay or failure by us to enforce any provision of this Agreement will be deemed a waiver or create a precedent or will prejudice our rights. No waiver by us will be effective unless it is in writing and signed by us.
7.3 We will send all notices and other communications to you to the email address and/or facsimile number you have provided to us. It is your sole responsibility to ensure that you provide us with your current contact email address and/or facsimile number.
7.4 All notices from you to us (including termination notices) must be sent by email to firstname.lastname@example.org and these contact details may be amended from time to time. It is your responsibility to check these Terms and Conditions for the current contact details.
7.5 You must not assign this Agreement or appoint an agent without our prior written consent.
7.6 We may assign this Agreement at any time. If we assign this Agreement, we will notify you of the assignment.
7.7 This Agreement (together with any documents referred to in the Agreement or provided by us at the same time as the Agreement) comprises the entire agreement between us about its subject matter. It supersedes all prior understandings, agreements or representations and you may not rely on any representations or warranties about the subject matter of this Agreement except as expressly provided in this Agreement.
7.8 The laws of Victoria, Australia govern the Agreement.
7.9 You submit to the exclusive jurisdiction of the Courts Australia and you waive any right you have to object to an action being brought in the Courts of Victoria (including that the action has been brought in an inconvenient forum, or that those Courts do not have jurisdiction).
7.10 If any term of this Agreement is void unenforceable or illegal, that term is severed. The remainder of the Agreement has full force and effect.
7.11 Our rights and remedies provided in this Agreement are in addition to other rights and remedies given to us by law and equity independently of this Agreement
Use of the EDE system constitutes complete and unconditional acceptance of the terms below.
2. APPLICATION AND DURATION OF CONDITIONS
2.1 These Conditions shall apply to and be incorporated into the contract between us. As the application form is completed online by Client, Client will need to scroll through these Conditions online and will be asked to tick a box accepting these Conditions on the web page, this will constitute an acceptance by Client of these Conditions relating to the Services.
2.2 The Services supplied under this Agreement shall be provided by EDE to the Client from the date Client signs up to the Services online.
2.3 The Client may request that the Services be varied but any such variation shall be subject to EDE's prior written consent and the written agreement of both parties, which shall set out any new, or variation of, the Charges.
3. SUPPLY OF SERVICES
3.1 Subject to earlier termination in accordance with these Conditions, EDE shall provide the Services to the Client for the duration of this Agreement and will use its reasonable endeavours to provide the Services in a professional manner.
3.2 When Client requests the Services of EDE, and clicks online to agree to these Conditions, the Client shall be allocated a free account and will be sent a link by email to validate their details and provide access to this account. The Client can then create Business Profiles, Businesses for Sale, Investment Opportunities, write articles and upload videos
3.3 EDE shall store Client's Data securely and Client should note that: EDE and does not buy, sell or rent any of Client's Data nor will EDE disclose any Data to any business, organization or individual without the Client's prior express consent.
3.4 EDE uses a third party to host the application servers and to provide communication services. That third party undertakes to provide its services at or above industry standards. The third party relies upon the services of other telecommunications operators. Accordingly, EDE does not warrant that the Services will be uninterrupted or error free. EDE will endeavour to ensure that any third parties involved in the supply of the Services take appropriate security measures to protect Data.
3.5 It may be necessary to temporarily suspend the Services from time to time to carry out maintenance of equipment; such suspensions will be limited. However, the Services may also be suspended (in whole or part) where EDE or the third party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation.
3.6 EDE may at any time without notifying the Client make any changes to the Services which are necessary to comply with any relevant statutory, regulatory or similar requirements which do not materially affect the nature or quality of the Services.
3.7 EDE will provide e-mail support for the Services during its usual business hours free of charge. EDE speed of response and other modes of support will depend upon the package and Charges agreed with the Client.
3.8 EDE reserves the right to gather, process and publish anonymous statistics on aggregate delivery and open rates and other campaign statistics. These statistics are produced on an aggregate basis across all clients, for the purposes of quality control and allowing clients to compare their performance across their particular industry. The gathering of these statistics will not require processing of any personal data.
4. CLIENT'S OBLIGATIONS
4.1 The Client shall ensure that it has suitable computer and communications equipment to utilise the Services from time to time; EDE recommends that Client has, at minimum, a computer, internet connection and a web browser with minimum specification of either (i) Internet Explorer 9 or above (for a PC), or (ii) Firefox 3 or above (for a MAC or PC). Any other web browsers shall be used at Client's own risk as they may not necessarily offer full functionality with EDE's Software.
4.2 The Client shall obtain and maintain all necessary licences and consents and comply with all relevant legislation, including Data Legislation, in relation to the Services, before the date on which the Services are to start. The Client shall comply, and ensure that all of the Data and all use of the Services complies, in all respects, with all regulations, directions, codes of practice and other rules and guidelines, mandatory or otherwise, promulgated from time to time by regulators (collectively, "Codes")
4.3 The Client shall procure that any subcontractors used by Client comply in all respects with the Codes as if they were the Client under this Agreement.
4.4 The Client shall ensure that where EDE is advised in writing by a Regulator that the Client is or has been in breach of any Code, EDE shall be entitled to act on any request or recommendation by the Regulator for access to be barred to such Services as the Regulator may specify for such periods as the Regulator specify. In these circumstances, the Client shall:
(a) provide all reasonable assistance to EDE in connection with EDEs compliance with any requirements or conditions which are at any time imposed by law or any Regulator which are applicable to or affect the Services; and
(b) provide the Regulator with such information or material relating to the Services or a future service as the Regulator may reasonably request in order to carry out any investigation in connection with (i) the Services or (ii) Client's relationship with a subcontractor.
4.5 The Client will keep its password and other access details for use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information and treat it accordingly. The Client shall notify EDE without delay if it believes that such information is no longer secret.
4.6 The Client shall take account of and promptly comply with all reasonable directions of EDE in relation to its use of the Services. When considering the reasonableness of EDE's directions account shall be taken of the rights of other clients of EDE, potential damage to the reputation of EDE or its services and any complaints received by EE from third parties.
4.7 The Client acknowledges that EDE will monitor and record each account's usage of the Services, to include any campaigns sent or data processed, for the purposes of ensuring legal compliance and anti-spam measures.
4.8 If EDE performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, EDE shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
4.9 The Client shall be liable to pay to EDE on demand, all reasonable costs, charges or losses sustained or incurred by EDE (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to EDE confirming such costs, charges and losses to the Client in writing. The Client shall indemnify EDE against any losses, claims, fines, damages and expenses (including legal expenses) arising from any breach of this clause 4.
4.10 The Client shall not, without the prior written consent of EDE, at any time from the date Client accepted these Conditions to the expiry of six months after the termination of this Agreement, solicit or entice away from EDE or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of EDE in the provision of the Services.
5. DATA, DATA PROTECTION AND INDEMNITY
5.1 The Client shall indemnify EDE against any loss, damage or expenses which may be incurred as a result of any breach of the Data Protection Legislation or from its use of any Data provided in the course of the Services (including in relation to any e-mails or SMS text message sent by the Client or at its instruction).
5.2 EDE shall, and any third parties it contracts with shall, comply with all relevant Data Protection Legislation in relation to its storage of Client's Data.
5.3 EDE contracts with a third party to store the Data and back it up. Whilst that third party is obliged to carry out back-ups at regular intervals (at least daily), the Client is advised to make its own interim back-ups of all Data, particularly if it adds a significant amount of Data over a short time period. EDE shall have no liability for any loss or damage, however caused, arising from any loss of Data.
5.4 EDE has installed into the Software several procedures to help ensure compliance with relevant Data Protection Legislation, including the addition of unsubscription links in messages and the use of double opt-in techniques for data captured using EDE provided web forms. It is, however, the Client's responsibility to ensure that their actions under this agreement are compliant with all Data Protection Legislation.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 As between the Client and EDE, all Intellectual Property Rights and all other rights in the Site and the pre-existing Materials (which, for the avoidance of doubt, includes the Trade Mark) shall be owned by. Subject to condition 6.2, EDE licenses all such rights as are necessary to use the Software and Trade Mark to the Client on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Services. If this Agreement is terminated, this licence will automatically terminate.
6.2 The Client acknowledges that, where EDE does not own any pre-existing Materials, the Client's use of rights in pre-existing Materials is conditional on EDE obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle EDE to license such rights to the Client. Use of the Software is on the following terms:
(a) "use" of the Software shall be restricted to use over the internet and for the purpose of utilising the Services only;
(b) the Client shall have no right to copy, adapt, reverse engineer, decompile, disassemble or modify the EDE in whole or part except as permitted by law;
(c) the Client shall have no right to grant sub-licences of the Software; and
(d) the Client acknowledges that the Software will not be treated as goods within the meaning of the Sale of Goods Act 1979.
6.3 The Client undertakes not to do or permit to be done any act which would or might jeopardise or invalidate any registration of the Intellectual Property Rights, or application for registration, nor to do any act which might assist or give rise to an application to remove any of the Intellectual Property from an official register or which might prejudice the right or title of EDE to the Intellectual Property.
6.4 The Client will not make any representation or do any act which may be taken to indicate that it has any right title or interest in or to the ownership or use of any of the Intellectual Property Rights except under the terms of this Agreement, and acknowledges that nothing contained in this Agreement shall give the Client any right, title or interest in or to the Intellectual Property save as granted hereby.
6.5 All use of the Intellectual Property rights (including the Trade Mark) by the Client shall be for the benefit of EDE and the goodwill accrued to the Client arising from its use of the Intellectual Property (including the Trade Mark) (but no greater or other goodwill) shall accrue to and be held in trust by the Client for EDE which goodwill the Client agrees to assign to EDE at its request and own cost at any time, whether during or after the term of this Agreement.
6.6 The Client shall direct any commercial enquiries in relation to the sign-up to EDE at email@example.com
6.7 The Client shall use the Trade Mark in the form stipulated by EDE from time to time and shall observe any reasonable directions given by EDE as to colours and size of the representations of the Trade Mark and their manner and disposition on the Client's products, packaging, labels, wrappers and any accompanying leaflets, brochures or other material. The Client shall be responsible for ensuring that all other requirements relating to labelling, packaging, advertising, marketing and other such matters are complied with. The use of the Trade Mark by the Client shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by EDE and the Client shall cease any use to the contrary as EDE may require.
6.7 The Client shall not use any mark or name confusingly similar to the Trade Mark in respect of any of its goods or use the Trade Mark as part of any corporate business or trading name or style.
6.8 The foregoing obligations as to Intellectual Property Rights shall remain in full force and effect notwithstanding any termination of the Agreement.
6.9 The Client shall as soon as it becomes aware thereof give EDE in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, trade mark or get up of goods or mode of promotion or advertising which amounts or might amount either to infringement of EDE's rights in relation to the Intellectual Property Rights or to passing off.
6.10 If the Client becomes aware that any other person, firm or company alleges that the Trade Mark is invalid or that use of the Trade Mark infringes any rights of another party or that the Trade Mark is otherwise attacked or attackable the Client shall immediately give EDE full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.
6.11 EDE shall have the conduct of all proceedings relating to the Intellectual Property Rights and shall in its sole discretion decide what action if any to take in respect of any infringement or alleged infringement of the Intellectual Property Rights or passing off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property Rights. The Client shall not be entitled to bring any action relating to the Intellectual Property Rights in its own name but shall assist EDE in any such actions if requested.
7. CONFIDENTIALITY AND EDE's PROPERTY
7.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, trade secrets, processes or initiatives which are of a confidential nature and have been disclosed to the Client by EDE, its employees, affiliates or sub-contractors and any other confidential information concerning EDE' business or its products which the Client may obtain unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of such party from a third party. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Client's obligations to EDE, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
7.2 The restrictions at clause 7.1 shall not apply in respect of any disclosure to:
(a) their own employees which need to know the confidential information and which are bound by similar confidentiality restrictions; or
(b) to either parties' legal advisors, a court, governmental body or applicable regulatory body; or
(c) organisations providing hosting and communications services to either party where such disclosure is incidental to the services provided and where those organisations are bound by similar confidentiality restrictions
For the avoidance of doubt, neither party shall disclose at any stage to any third party any confidential, business or future plans of the other party, including but not limited to the commercial terms of the Agreement unless a public disclosure, press statement or similar release or any advertising, publicity or promotional document has been specifically agreed to by a duly authorised representative of EDE.
7.3 This condition 7 shall survive termination of this Agreement, however arising.
8. LIMITATION OF LIABILITY
8.1 This condition 8 sets out the entire financial liability of EDE (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of this Agreement;
(b) any use made by the Client of the Services, or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
8.3 Nothing in these Conditions limits or excludes the liability of EDE:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by EDE; or
(c) for any liability incurred by the Client as a result of any breach by EDE of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
8.4 Subject to condition 8.2 and condition 8.3
(a) EDE shall not be liable for: loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) EDE total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the Charges paid for the Services in the preceding 12 months.
9. FORCE MAJEURE
EDE shall have no liability to the Client 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 strikes, lock-outs or other industrial disputes (whether involving the workforce of EDE or any other party), failure of a utility service or transport 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 suppliers or sub-contractors.
No variation of this Agreement or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
11.1 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 the circumstances for which it is given.
11.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
12.1 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 will remain in force.
12.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
13. STATUS OF PRE-CONTRACTUAL STATEMENTS
Each of the parties acknowledges and agrees that, in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
14.1 The Client shall not, without the prior written consent of EDE assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
14.2 EDE 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.
15. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
16. RIGHTS OF THIRD PARTIES
This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
17. GOVERNING LAW AND JURISDICTION
17.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of Victoria and Australia.
17.2 The parties irrevocably agree that the courts of Victoria and Australia shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
This agreement has been entered into on the date stated at the beginning of it.
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