Terms of Service

1. Definitions

In these Terms:

"ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act.

"Agreement" means any agreement for the provision of services by the Company to the Customer

"Company" means MarketBuddy Pty Ltd.

"consumer" is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement.

"Customer" means any person, jointly and severally if more than one, and on their own behalf or on behalf of a corporate entity, using the Website and, if applicable, also acquiring products or services from the Company from the Website.

“Information” means the information available on the Website.

"Intellectual Property Rights" means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific or artistic fields.

“Linked Websites” means other websites operated either by the Company, its affiliates or other third parties.

"services" means all services provided by the Company to the Customer.

"Terms" means these Terms and Conditions.

"Website" means https://marketbuddy.com.au.

2. Basis of Agreement

2.1 Unless otherwise agreed by the Company in writing, the Terms apply exclusively to every use of the Website and any order, request or inquiry placed either on the Website or by any other means by the Customer and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of use or of purchase (if any).

2.2 Please read these Terms carefully before accessing or using the Website. By visiting, accessing or using any part of the Website, each Customer agrees to be bound by these Terms. If the Customer does not agree to all of the Terms, then such Customer may not access the Website or purchase any products or services from the Company. If these Terms are considered an offer, acceptance is expressly limited to these Terms.

2.3 An agreement is accepted by the Company when the Company accepts a request from the Customer for the provision of services.

2.4 The Company has an absolute discretion to refuse to accept any offer.

2.5 The Customer must provide the Company with its specific requirements, if any, in relation to the services.

2.6 The Company may vary or amend these Terms posting the amended version of the Terms on the Website. Any variations or amendments will apply to orders placed after the date the updated Terms are posted on the Website.

3. USE OF WEBSITE

3.1 The Customer agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of:

(a) the Information provided or sold; or

(b) any part of the Website

without express written permission provided by the Company.

3.2 The Customer may be able, through hypertext or other computer links, to gain access to Linked Websites. Unless otherwise specified, the Linked Websites are not under the Company's control. The Linked Websites may have different terms of use and privacy requirements. Unless otherwise specified, the Company is not responsible for the content of any Linked Websites, or any changes or updates to such Websites. The Company provides these links for the Customer’s convenience only. The Customer links to any such Linked Websites at its own risk. The Company is not a party to any transaction between the Customer and a Linked Website. Unless specified, the Company does not sponsor, endorse, adopt, confirm, guarantee or approve of any material or representations made in those Linked Websites. To the full extent permissible by law, the Company disclaims all responsibility for any error, omission or inaccuracy of any information from Linked Websites or their failure to comply with the relevant laws or regulations. The Company has no responsibility regarding any information the Customer obtains from any Linked Websites, even if the Customer accesses it via a link from the Website.

3.3 The Company does not warrant, guarantee or make any representation regarding the accuracy, adequacy, reliability, completeness or timeliness of the Information or that it is suitable for the Customer’s intended use. The Information is provided by the Company in good faith on an "as is" basis without warranty of any kind.

3.4 The Company does not warrant or represent that the Information is free from human or mechanical error, technical inaccuracies or other typographical errors or defects. The use of this Website and the Information is at the Customer’s own risk.

3.5 The Company makes no warranties, guarantees or representations that the material in this Website will not cause damage or that the material is free from any computer virus or other defects. It is your responsibility to complete a virus check on any Information downloaded.

3.6 All warranties, representations and statutory guarantees and any liability which may arise in relation to your access to or use of this Website or the Information is expressly excluded to the maximum extent permitted by law.

3.7 The publication of the Company's email addresses on this Website is to facilitate communications relating to the services supplied by the Company. It must not be inferred as consent by the Company to receive unsolicited commercial electronic messages.

3.8 All communications between the Customer and the Company must be done via email. However, in limited circumstances communication by phone may be allowed by the Company for some of the business accounts using the Website. If a chat function is implemented by the Website, all chats will be of limited nature and the Customer will be advised what parts of inquiries will need to be lodged via email.

3.9 The Website may contain cookies.

3.10 The Customer acknowledges and undertakes that the Customer is 18 years of age.

4. LIMITATION OF LIABILITY

4.1 The Company will in no way be liable to any party for any loss or damage arising out of or related to the use (or the inability to use) of the Website or any of the services.

4.2 Under no circumstances will the Company be liable for any direct, indirect, incidental, special or consequential loss or damage, including loss of programs or data, loss of business, business interruption, or lost profits, suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.

4.3 Where liability cannot be excluded, any liability incurred by the Company is limited to the re-supply of the Information on the Website or the services to the Customer or the reasonable costs of having the Information or the services re-supplied.

4.4 Except as these Terms specifically state, or as contained in any express warranty provided by the Company, the agreement for the supply of the services by the Company to the Customer does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the services or any contractual remedy for their failure.

4.5 The supply of Information on the Website is made subject to the following disclaimers:

(a) The Information provided on the Website or otherwise by the Company is of a general nature and should not be construed as specific advice or relied upon in lieu of appropriate professional advice.

(b) While the Company uses commercially reasonable efforts to ensure the Information is current, the Company does not warrant the accuracy, currency or completeness of the Information and to the full extent permitted by law excludes all loss or damage howsoever arising (including through negligence) in connection with the Information or any products or services provided by the Company

(c) Any Information or products provided by the Company is only current as at the date of its publication or provision to the Customer.

4.6 The Company will not be liable if any minor (person under the age of 18 years old) uses the Website.

4.7 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer's rights or remedies against the Company for failure of a statutory guarantee under the ACL.

4.8 Other than as stated in the Terms or any written warranty statement the Company is not liable to the Customer in any way arising under or in connection with the Website or the services and the Customer or any third party.

4.9 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of services which cannot be excluded, restricted or modified.

5. Cancellation

5.1 If the Company is unable to deliver or provide any of the services, then the Company may cancel the Customer's order (even if it has been accepted) by notice to the Customer (written or verbal).

5.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on the Company once the order has been accepted.

6. SUBSCRIPTIONS

6.1 The Company will operate the use of the Website and obtaining products and services from the Website on subscription basis. The details of subscriptions will either be made available on the Website or via email request from the Customer to the Company.

6.2 The Company may provide free trials to Customers in its absolute discretion.

7. Payment

7.1 When the Customer request any products or services from the Company, including but not limited to any subscription services or products, the Company will provide the details of the total costs of products and these Terms will apply.

7.2 The Customer must make payment for any products or services it wishes to purchase from the Company, including any subscription services in accordance with the terms of payment advised to the Customer by the Company (whereby any subscription services will have recurring payments, which must be authorised by the Customer and paid on time).

7.3 The payments can be made by any of the ways listed by the Company on the Website, and any payments made by a credit card will incur a surcharge, as listed on the Website.

7.4 Any payment terms provided by the Company to the Customer may be revoked or amended at the Company’s sole discretion immediately upon giving the Customer written notice.

7.5 The time for payment is of the essence and all invoices should be paid on or before the due date.

8. Payment Default

8.1 If any services or products are to be paid by the Customer and the Customer defaults in payment by the due date of any amount payable to the Company, then all money which would become payable by the Customer to the Company at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Company may, without prejudice to any of its other accrued or contingent right :

(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;

(b) charge the Customer for, and the Customer must indemnify the Company from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover any products;

(c) cease or suspend supply of any further products or services to the Customer; and

(d) by written notice to the Customer, terminate the Customer’s use of the Website and any of the products or services.

8.2 Clauses 8.1(c) and (d) may also be relied upon, at the Company’s option, where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally or where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

9. PASSWORDs

9.1 If applicable, you may utilise the functionality on the Website that allows you to log in to the Website by using your login credentials for an existing account on our Website or using login credentials for an existing account on various third party websites, which may change from time to time, including, without limitation, Twitter, Facebook and LinkedIn (“Third Party Logins”) and, if applicable, configure your privacy settings in your third party website account to permit your activities on this Website to be shared with your contacts in your third party website account. Notwithstanding the foregoing, you agree that your use of any third party website through which you log in to our Website using your Third Party Logins is governed by the terms and conditions of such third party website’s terms of use and privacy policy, including, without limitation, such third party website’s password and account security policies and user-generated content posting and acceptable use policies.

9.2 You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardise the security of your passwords. You agree to notify us if there is any unauthorised use of your password on the Website or if you know of any other breach of security in relation to the Website.

10. CREDIT INFORMATION AND PRIVACY

10.1 The Customer acknowledges that certain items of information in provided to the Company may be disclosed to a credit reporting agency.

10.2 By creating the account with the Company, the Customer authorises the Company to obtain consumer and/or commercial information permitted by the Privacy Act from a credit reporting agency and to use such information for the purpose of collecting overdue payments relating to commercial credit owed by the Customer. This authority remains in force for the duration of the Customer’s account with the Company and until all moneys owed have been repaid.

10.3 The Company may collect, use, store, record and transmit the Customer’s personal information entered on this Website. For further details, please refer to the Company's Privacy Policy. All Customers’ continued use of the Website and provision of Customer’s personal information constitutes approval for the Company to deal with the Customer’s personal information.

11. Personal Property Securities Act

11.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.

11.2 For the purposes of the PPSA:

(a) terms used in clause 11 that are defined in the PPSA have the same meaning as in the PPSA;

(b) these Terms are a security agreement and the Company has a Purchase Money Security Interest in all present and future products supplied by the Company to the Customer and the proceeds of the products;

(c) The security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and

(d) the Customer must do whatever is necessary in order to give a valid security interest over the products which is able to be registered by the Company on the Personal Property Securities Register.

11.3 The security interest arising under this clause 8 attaches to the products when the products provided to the Customer and not at any later time.

11.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.

11.5 To the extent permitted by the PPSA, the Customer agrees that:

(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on the Company will apply only to the extent that they are mandatory or the Company agrees to their application in writing; and

(b) where the Company has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.

11.6 The Customer must immediately upon the Company's request:

(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and

(b) procure from any person considered by the Company to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Company may at any time require.

11.7 The Company may allocate amounts received from the Customer in any manner the Company determines, including in any manner required to preserve any Purchase Money Security Interest it has in products supplied by the Company.

12. WARRANTY

12.1 The Customer warrants all the information, including financial information, provided to the Company is complete and accurate. The Customer acknowledges that the Company will rely on the information when making a decision whether to provide the credit facility.

13. Force Majeure

13.1 The Company is not liable in any way howsoever arising under the Terms to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war or pandemic. If an event of force majeure occurs, the Company may suspend any orders with the Customer and terminate the Terms by written notice to the Customer.

14. Title, Intellectual Property Rights AND COPYRIGHT

14.1 The Customer acknowledges and agrees that:

(a) the Company owns all the Intellectual Property, copyright, Website, Information and all the contents of the Website;

(b) the Customer will not acquire any interest in the Intellectual Property, including the Website and any of its contents or services; and

(c) acknowledges and agrees that all content, coding, graphics, design, services and Information available on the Website are protected by copyright, trade mark or other Intellectual Property rights and laws and remains the property of the Company or third party Companys as the case may be.

14.2 The Customer further acknowledges that the use or duplication of the Intellectual Property in any other way other than as approved and agreed to by the Company would constitute a breach of the Company’s Intellectual Property rights and would be a fundamental breach of these Terms. However, the Customer may download and print these Terms and the Privacy Policy for your personal non-commercial use.

14.3 The Customer acknowledges that:

(a) some of our collage prints are made using elements of photos and illustrations of other photographers and illustrators;

(b) All such photos and illustrations have either been purchased by us or are licensed to us and we have a legal right to use them in our collages (and sell our collages containing such photos and illustrations) by creating our own unique graphic compositions, each of which has its own elements.

14.4 © MarketBuddy Pty Ltd. All rights reserved.

14.5 All trade marks and trade names which appear on the Website are proprietary to the Company and/or its affiliates. Use of these trade marks without the owner's consent will infringe the owner's intellectual property rights. Nothing in this Website should be interpreted as granting any rights to use or distribute any names, logos or trade marks except with the express written consent of the respective owner.

14.6 If you are a competitor of the Company and you create documents or services similar to those of the Company for the purpose of providing them to third parties, whether these third parties are business users or domestic users, the Company expressly excludes and does not permit you to use or access the Website, to use or download any documents or any information, including the Information, from the Website or any other source. If you breach our Intellectual Property rights by using our documents, services or the Information, you will be liable for any loss that the Company may incur. The Company will hold you accountable for all profits that you might make from using the Company’s Intellectual Property.

14.7 You undertake, represent and warrant that you will not, and will not induce any third party to:

(a) attempt to disable or circumvent any security mechanisms used by the Website or otherwise attempt to gain unauthorized access to any portion of the Website by hacking, password “mining”, or any other illegal means;

(b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Website;

(c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Website or with any other person’s use of the Website;

(d) track or seek to trace any information, including the Information, on any other person who visits the Website;

(e) use the Website for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations;

(f) copy, modify, create a derivative work of, reverse Company, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Website or the Information.

14.8 The Company reserves the right to deny access to the Website or the services or the Information to any person or entity or business.

15. MARKETING

15.1 The Customer authorises the Company to use the Customer’s name and logo in the Company’s online customer list, anywhere on the Website and in print and electronic marketing materials of the Company.

16. Miscellaneous

16.1 The law of the State of Victoria, Australia from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.

16.2 The Company’s failure to enforce any of these Terms shall not be construed as a waiver of any of the Company’s rights.

16.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.

16.4 Any products or services provided by the Company to the Customer will be subject to a subscription agreement with the Company or any one-off information pack purchase, which will be provided separately to the Customer upon request.

16.5 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.

16.6 The Company reserves the right to terminate the use of the Website or the Information by any Customer in its abolute discretion.

16.7 To contact the Company – please submit a request through our support desk at: https://pacmanau.atlassian.net/servicedesk/customer/portal/2

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