VillageMall is an Application Service Provider, and provides via the internet the Subscription Service, on the terms and conditions of this Agreement
If You wish to access the Subscription Service offered by VillageMall, then you must agree these Service terms and conditions. By submitting a Subscription Service request, or upon logon to any VillageMall Service You agree to be bound by the terms and conditions of this Agreement.
If You are subscribing to
our SMSF service, this specific Service Agreement is incorporated by
If You are subscribing to our SMSF_DIY service, this specific Service Agreement is incorporated by reference.
If You are subscribing to our Cognition service, this specific Service Agreement is incorporated by reference.
1.1 By submitting a Subscription Service request, or upon first access logon, You agree to abide by all of the terms and conditions of this Agreement, and the included by reference VillageMall Program Policy. If You have been provided a specific service Agreement, then You herby agree to abide by all of the terms and conditions any such Agreement, in addition to all of the terms and conditions of this Agreement. Where there is any conflict of terms or conditions of the Agreements, and no precedence is established, then the terms and conditions of this Agreement shall take precedence.
1.2 By accepting these terms and conditions and Paying the Subscription Fees, you have subscribed to the Subscription Service and VillageMall agrees to provide You with access to the Subscription Service subject to the terms and conditions of this Agreement.
1.3 VillageMall grants You a license to access the Subscription Service and to use and display the audio and visual information, documents, products and software and other contents contained in or made available through the Subscription Service solely for Your own internal business purposes and subject to Your compliance with all of the terms and conditions of this Agreement.
1.4 You require a Subscriber Account to access the Subscription Service which may only be used by You.
1.5 To obtain a Subscriber Account, You must complete the Registration process and provide VillageMall with all the information requested within the Registration process.
1.6 Each User shall be assigned an individual Subscriber ID.
1.6.1 You will be assigned a Subscriber ID once you have correctly completed the Registration process.
1.7 You may not access a Subscription Service without first agreeing to the terms and conditions of this Agreement, in full and without alteration.
1.8 You agree to change your password when requested, you must confirm acceptance of the terms of the current Agreement as part of the password change process. You must change your password at last once every 60 days.
2. Price and Payment.
2.1 You agree to Pay the Subscription Fees, in accordance with the terms of this agreement. Prompt payment is of the essence of this Agreement.
2.2 You agree to provide VillageMall all information as necessary to complete the Registration Process.
2.3 You must Pay the Subscription Fees as described in the Schedule of fees hereby authorised and from the Commencement Date. No credit is extended by VillageMall, all Subscription Services are provided on a Prepay basis, unless agreed in writing.You must send an email or facsimile advice notifying VillageMall that a payment has been made by electronic transfer, stating the value of the payment, the Invoice and Account to which it relates, unless this requirement has been waived by written notice to You. In the absence of any advise of your due date, your Fees are due and payable within seven days of VillageMall making the Service available for your access, either directly or via a service partner.
You must Pay the Subscription Fees
incurred, unless issued an invoice
to You containing Credit Terms, in accordance with Your billing cycle and any allocated billing date as follows:
upon the Commencement Date and then
every month for monthly Subscription Fees, or
(b) every quarter for quarterly Subscription Fees, or
(c) every six month for half yearly Subscription Fees, or
(d) each subsequent anniversary of that Commencement Date for annual Subscription Fees.
Any monthly amounts due, totalling less than $100 may be billed
For re-sellers, unless otherwise advised in writing, all annual renewal fees are due on the first of the month within which the, subsequent anniversary of the client Subscription Service, the Commencement Date falls.
2.5 The Subscription Fees shall be equal to the the number of service items multiplied by the current item service charge, unless VillageMall otherwise notifies You in advance. All excess service item charges are payable at the beginning of the next billing cycle referred to in sub-clause 2.4.
2.6 You will have 14 days after the latter of either; invoice, commencement or billing date to notify VillageMall that You wish to cancel Your subscription. Any such notice must be served on VillageMall in accordance with clauses 9.3 and 18 to be effective.
2.7 Where You have a written Agreement for Automatic Renewal of Subscription Service, unless otherwise requested VillageMall will automatically renew and continue the Subscription Service providing the following has occurred:
(a) Notice to renew has been issued within 30
days of renewal data;
(b) You have not requested in writing 30 days prior to the renewal date for the services to be discontinued.
2.8 Should VillageMall issue You an invoice, then all Subscription Fees or charges shall be due and Payable by the nominated due date. Any due Payments shall be made via a direct credit to our nominated bank account. You shall send an email or facsimile advice notifying VillageMall that a payment has been made by electronic transfer, stating the value of the payment, the Invoice and Account to which it relates, unless this requirement has been waived by written notice to You.
2.9 You are responsible for all Your expenses and costs associated with accessing the Internet and connection to the Site or Subscription Service, any service fees associated with such access and connection, and for providing all computer equipment, and software necessary for You to make such connection, including, without limitation, computer, modem, and Internet Browser.
2.10 If at any time You vary the number of Additional Users, the Subscription Fees will be calculated on the maximum number of Subscriber Accounts then issued to You for that billing cycle referred to in sub-clause 2.4.
2.11 If at any time during the billing cycle referred to in sub-clause 2.4, You use additional services, which may result in a change in service levels, then Subscription Fees will be calculated on the service level or service item that has the greatest fee for that billing cycle.
2.12 If the Subscription Fees are not deposited as cleared funds into the VillageMalls' nominated bank account for any reason, or Subscription Fees are not available within the nominated bank account by the billing date, VillageMall reserves the right to suspend Your access to the Subscription Service and/or terminate this Agreement in accordance with clause 9.2 without any liability or any further obligation to You. In addition VillageMall reserves the right, if You are on monthly payments, to invoice you on a pre-paid Yearly basis ( in no event less than the amount as defined within the Early Termination Fee), which immediately falls due for payment.
2.13 If VillageMall receives a Termination Notice from You, pursuant to clause 9.3, You will be obligated to pay all outstanding Subscription Fees due and owing up to the effective date of such termination. You hereby authorise VillageMall to charge any outstanding Subscription to Your nominated Credit Card , Direct Debit Bank Authority or forward an invoice to You for any unpaid Subscription Fees.
2.14 If any legal action is commenced in connection with the enforcement of this Agreement or any payment due hereunder and VillageMall prevails, then VillageMall shall be entitled to costs, fees, charges, expenses and outlays including lawyers' fees actually incurred on a full indemnity basis.
2.15 Upon acceptance by VillageMall of you registration of a Credit Card account or Direct Debit Bank Authority, You give VillageMall authorisation to debit Your nominated Credit Card or Bank Account for all legitimate charges You incur.
2.16 You must pay all Subscription Fees in full without deducting, withholding, setting off or counter claiming any amount or attaching any condition to the payment.
2.17 VillageMall may at any time review Your creditworthiness and require You to provide such Creditworthiness Information as directed by VillageMall. In doing so, VillageMall may seek information or advice from third parties such as credit reporting agencies or credit providers to assist it. You agree to procure written consents (as required under the Privacy Act 1988 (C'th)) from such of Your Principals as is reasonably necessary in the circumstances to enable VillageMall to carry out its Creditworthiness investigations. VillageMall reserves the right to require an upfront payment of the minimum period before accepting new accounts which VillageMall believes may be pose a credit risk.
acknowledge that VillageMall Service Fees are based upon prompt payment by all
Subscribers, late payments cause additional costs to be incurred.
VillageMall reserves the right, if You are on monthly
payments, to invoice you for the Early Termination Fee which immediately fall
due for payment. If You fail to pay the account within 7 days of the due date or 7 days of a second notice Your services
will be suspended (removing your
access to the service and/or disabling your account login). If You fail to
pay the account within 21days of the due date or 7 days of a third notice Your
may be Terminated with
cause as per
default on payment when due,
from and against
costs and disbursements including on a solicitor,
bank dishonour fees
and all cost
2.19 Late fee. Should VillageMall not
receive payment in full, on or before the
nominated due date or billing date,
a Late fee of $100, per subscription service, will be immediately due for
payment. In addition
You may be charged a $100 account
management fee. An
fee of $100 for each month or part
month that the fee is late is also payable.
2.20 An additional fee, of 3% of the Subscription Fees, will be added to your Subscription Fees for all credit card payments.
2.21 Volume, wholesale or other discounts applied to a Subscription Service are conditional on payment being received on or before due date, should funds not be received by due date, all discounts shall become null and void and the published retail price will apply to all outstanding invoiced Subscription Services.
2.22 Subject to written approval, an alternative to Direct Credit to the nominated bank account may ( in order of preference): Direct Debit Authority. A Cheque, is not an acceptable form of payment, any cheque received will not be processed and will be destroyed; it remains Your responsibility to cancel any such cheques.
2.23 You acknowledge that any Discounted Service is conditional upon prompt payment. Should VillageMall offer you a Discounted Service, and your payment is not received in full by due date; then the Discounted Service offer shall terminate on the due date, and the current standard service fee plus any Late Fee shall become due and payable.
2.24 Dispute of invoice amount. If you dispute any invoiced or directly debited amount, you must notify us, as per clause 18, within 14 days of receiving that invoice or that direct debit respectively. You must pay any undisputed amounts invoiced by the due date.
2.25 Low Value Subscription Fees, where the associated retail Subscription Fee is less than $300 per year, VillageMall may, at its sole and absolute discretion, reduce the medium Late fee or suspension removal fee payable, from $100 to $10.
2.36 For annual Subscription Service renewals, the renewal Fees shall be the previously invoiced Fee increased by the current Consumer Price Index, or the current published Schedule of Fees, which ever is the greater; unless otherwise advised, or invoiced.
2.37 VillageMall reserves the right to withdraw an invoice and substitute an amended invoice for an increased amount being the full amount of the itemised invoice with administration costs, finance charges, debt recovery costs and court fees, notwithstanding that it may exceed the amount shown on the invoice, if not paid by the due date.
3. Australian Goods and Services Tax (“GST”)
3.1 All amounts expressed, described or referred to in this Agreement are GST exclusive amounts.
3.2 If any GST (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time, ‘GST’) is payable by any party (‘Supplier’) in respect of the supply of any goods, services, real property or any other things to another party (‘Recipient’), then the amount expressed or described in this Agreement (‘Original Amount’) is to be increased so that the Supplier receives an amount (‘Increased Amount’) which, after subtracting the GST liability of the Supplier on that Increased Amount, results in the Supplier retaining the Original Amount after payment of that GST liability.
3.3 The Supplier will do all things reasonably available to it to assist the Recipient to claim on a timely basis any input tax credits (if any) the Recipient may be entitled to claim for any goods, services, or rights granted by or acquired from the Supplier. This includes the Supplier maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under this Agreement on a timely basis as reasonably requested by the Recipient.
3.4 The Supplier acknowledges that under the GST Law the Supplier is required, from the date the GST is imposed, and at all times that a GST related tax reform takes effect, to reduce the consideration payable by the Recipient to the extent that the cost to the Supplier of supplying any goods or services or rights granted or other things under this Agreement is reduced.
4. Your Obligations
4.1 You warrant that the Data and any other material used, stored, submitted or created by You in connection with this Agreement:
(a) shall not violate any applicable laws or regulations including criminal laws and those applicable to the protection of privacy;
(b) shall not infringe any Intellectual Property Rights of any third party;
(c) is lawfully possessed by You and that You have full right, title, licence and authority to provide to VillageMall all such Data;
(d) shall not be obscene, lewd, indecent, defamatory or otherwise illegal in nature.
(e) shall comply with our Acceptable Use Policy.
4.2 You are permitted to store, manipulate, analyse, reformat, print, and display the Data and content only for Your personal use.
4.3 Unauthorised use of the Subscription Service, or the resale of the Subscription Service, is expressly prohibited and will result in immediate termination of the Service by VillageMall.
4.4 You shall not copy, modify, publish, broadcast, transmit, rent, license, sell, transfer, make available or distribute the Content to, or for the benefit of, any third party.
4.5 You also shall not create any Internet "link" to the Service or "frame" or "mirror" any of the Content.
4.6 You shall not use any Content provided by VillageMall in or in conjunction with any business or commercial enterprise, except as expressly permitted by this Agreement.
4.7 You agree to submit accurate, current and complete information in Your Registration Form and to promptly update and keep updated such information. Should VillageMall suspect that such information is untrue, inaccurate, not current or incomplete, VillageMall has the right to suspend, disable or terminate Your access to the Subscription Service in accordance with clause 9.2 without any liability or any further obligation to You.
4.8 Your Subscriber Account may only be used by the Named Individual and the Named Individual agrees to keep any Subscriber I.D. provided by VillageMall confidential and only use the Subscriber ID within Your Business Entity nominated to VillageMall as authorised to access the Subscriber Service. An individual Subscriber ID is required, to be issued by VillageMall, for each person accessing your Subscriber Account. A Subscriber ID may not be assigned or transferred without the express written permission of VillageMall. Subscriber ID's may not be shared, sharing of Subscriber ID may lead to automatic Subscriber Account suspension.
4.9 You are also solely responsible for any and all activities that occur under Your Subscriber Account and for ensuring that You exit or log-off from Your Subscriber Account at the end of each online session.
4.10 You shall notify VillageMall immediately of any unauthorised use of Your Subscriber Account or any other breach of security that You suspect or become aware of.
4.11 You agree to use Your best endeavours to immediately:
(a) stop any copying or distribution of Content that You become aware of;
(b) notify VillageMall of the relevant facts.
4.12 You agree to abide by all applicable local, state, and national laws and regulations in connection with Your use of the Subscription Service.
4.13 In addition, without limitation, You agree not to use the Subscription Service to:
(a) send unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise;
(b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent;
(c) transmit through or post on the Subscription Service unlawful, harassing, libelous, abusive, tortuous, defamatory, threatening, harmful, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way;
(d) transmit any material that may infringe any Intellectual Property Rights of third parties;
(e) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs and cancel bots;
(f) interfere with or disrupt servers or networks connected to the Subscription Service or violate the regulations, policies, procedures and protocols of such networks;
(g) attempt to gain unauthorized access to the Subscription Service, other accounts, computer systems or networks connected to the Subscription Service, through password mining or any other means;
(h) harass or interfere with another Subscribers use and enjoyment of the Subscription Service or
(i) engage in any high risk activities, including without limitation, use of the Subscription Service in conjunction with the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, life support machines, weapons systems, or any other environment requiring fail-safe performance in which the failure of such product could lead to death, personal injury, or severe physical or environmental damage.
4.14 Completion of Your Taxation Returns, BAS, IAS and PAYG Remittances:
a) VillageMall provides online tools to help you in summarising your financial transactions. Section 251(L) of the Commonwealth Government's Income Tax Assessment Act says that BAS preparation work must occur under the direction of a Registered Taxation Practitioner. BAS preparation work using VillageMall's Bookkeeping Services, if performed by VillageMall employees or partners, must be referred to a Registered Taxation Practitioner for direction and review as to accuracy and correctness.
b) Clients of VillageMall are responsible for the remittance of Taxation Returns and other Government lodgements and forms for themselves and/or for their organisation. This may occur through the client's Registered Taxation Practitioner. VillageMall Bookkeeping Services can only assist in the preparation of the information required by your Registered Taxation Practitioner. We can only prepare to the extent by which we are provided accurate information. We cannot be held responsible for errors or omissions resulting from inadequate information. Accordingly You agree that VillageMall shall have no liability, obligation or responsibility and hereby release VillageMall in respect of any such claim for any loss or damage of any sort incurred as a result of information provided.
4.14 Use of Data
You may only use the data and information provided by VillageMall for your own personal and non-commercial purposes while accessing the Service. You may not copy, distribute or redistribute the data, including by caching, framing or similar means or sell, resell, re-transmit or otherwise make the data retrieved from our services available in any manner to any third party. You may not store the data for the purposes of creating a historical database or historical data product. You may not use any of the data in connection with the issuance, trading, marketing or promotion of investment products (e.g., derivatives, structured products, investment funds, investment portfolios, etc. where the price, return and/or performance of the investment product is based on or related to the data, or any Third Party Data)
4.15 Dispute Resolution
In the event of a dispute arising between the parties in respect of any right or obligation under this Agreement, each party covenants with the other in good faith to take all steps necessary to attempt to resolve the dispute. In the event that the parties are unable between themselves to resolve a dispute within a reasonable period having regard to the nature of this Agreement and the dispute, then either party may apply to the Brisbane Dispute Resolution centre for resolution of the dispute.
5. Third Parties
5.1 As part of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third-party advertisers or sponsors of goods and/or services. All such activities, and any terms, conditions, warranties or representations associated with such activity, is solely between You and such third-parties.
5.2 You agree that VillageMall shall have no liability, obligation or responsibility and hereby release VillageMall in respect of any such claim for any loss or damage of any sort incurred as a result of any such dealings or as a result of Your interaction with such advertisers or sponsors through the Subscription Service.
5.3 Links to other Internet Web sites may be accessible through the use of the Subscription Service. VillageMall does not endorse any sites on the Internet that are linked through the Subscription Service. VillageMall is providing these links to You only as a matter of convenience, and in no event shall VillageMall be responsible for any content, advertising, products, services or other materials on or available from such sites.
6. Extent of Service
6.1 You may request VillageMall to provide You with assistance over and above the online help provided as part of the Subscription Service by acquiring a Support Contract from our Support Options, as outlined on our Customer Care site. Any support provided, without an valid support contract, will be charged on a per incident basis at 150% of our published single incident fee. Should VillageMall offer a free contact support facility, any such facility is always provided on an best efforts basis, and no service level guarantee is applicable to such facility. The offer of a free support facility, does not guarantee the ongoing offer of such a facility; and such offer is conditional on the exclusive use of integrated support forms as may be provided by VillageMall from time to time. VillageMall may at any time terminate, or limit the provision of free support without notice. Any free support is void, if any alteration to the base set of accounts has been performed by the Subscriber; a standard incident support fee will be charged for any support request which is associated with a change of the base set of accounts. Any support request received outside of one of the methods described within this section 6.1 will not be processed.
6.2 The Subscription Service does not provide support for You if Your principle place of business is outside Australia.
6.3 This Subscription Service has been designed to work within the user environment described in the System Requirements. Any defects, inconsistencies, or issues arising out of operating outside the stated parameters may require You to pay additional maintenance/upgrade costs to VillageMall to support and/or rectify in a manner determined by VillageMall. All new Subscription Services' financial periods will contain your Commencement Date, and start on the 1st July of the current taxation year unless otherwise advised.
6.4 VillageMall will make regular backups of Your Data, and will store these backups according to the backup/restore service levels defined on the site. Providing all Your Subscription Fees are current and have been paid in full, You may request the download of Your (Web Ledger, Web Office, Web Superfund) SAF-T Data to your local computer. Due to the nature of Web Portal, backups of data will not be provided. A physical copy of your SAF-T Data can be provided to You (upon payment of the applicable fees) while You have an active Subscription Service. VillageMall uses commercial backup technologies and procedures; disaster recovery of your company data is always your responsibility. You should request such copies of your data from VillageMall as required to meet your business risks profile. Seven days following the termination of the Subscription Service Your Data may be destroyed and may not be available. VillageMall recommends that you make use of the on-line OECD SAF-T archive, to meet your specific data archive requirements.
6.5 You agree to immediately disconnect the equipment You use to access the Subscription Service upon notice from VillageMall if VillageMall has reason to believe that Your equipment has or may cause failure, interruptions, errors or defects to the Subscription Service.
6.6 VillageMall reserves the right to refuse service to anyone at any time without notice for any reason.
6.7 Subscriber agrees that any Discounted Service is provided on the basis, that VillageMall shall have the exclusive right to display, and Subscriber further agrees not remove any "Powered by VillageMall..." or other text as solely determined by VillageMall, within any form or electronic media produced via said Discounted Service.
6.8 Subscriber agrees that any service which includes a feature to assist with the preparation of a Taxation return, that the Subscriber shall be solely responsible for the accuracy and suitability of the data used within the preparation of the Taxation return. The Subscriber shall seek professional advise on all matters regarding the preparation of any Tax return. The Taxation preparation subsystem shall only be available for use by a Subscriber with an active account, between October and May following the end of the current financial year. VillageMall does not support the preparation of a taxation return outside of the above periods.
6.9 Subscriber acknowledges that VillageMall is not an market or exchange participant, a broker, a brokers intermediary, dealer group nor an advisor. As such VillageMall is unable to supply any broker, trade or exchange related data; the supply of any such data shall be via an market or exchange participant, licensed broker, intermediary, or advisor. The availability of any trade or exchange related data, and any data VillageMall may derive from such data, within your service is at the sole and absolute discretion of your broker. It is Your sole responsibility to ensure that your broker supplies such data to VillageMall via a VillageMall approved interface. As VillageMall has no control over the quality or availability of such data, all trade, and exchange data including but not limited to all execution, clearing, custodial, registry, margin, bank trading account, market and price related data is herby excluded from our Subscription Service offering.
6.10 Subscriber acknowledges that VillageMall takes no responsibility for any delays in processing Transactions entered into using the VillageMall or third party Trading Platform or for its temporary disengagement or service outage.
7. Your Privacy
7.1 VillageMall makes no claim to own any Data, unless we specifically tell You otherwise before You submit the Data.
7.2 VillageMall will not monitor, or disclose any information regarding You or Your account, including any Data, without Your prior permission except in accordance with this Agreement.
7.3 VillageMall may provide certain statistical information, such as usage or user traffic patterns in aggregate form, to third parties, but such information will not include information that could be used to identify specific persons or entities.
7.4 VillageMall may access Your Subscriber Account, including Your Data, to respond to service or technical problems at our discretion.
7.5 You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and right to the use of all Data and VillageMall shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to transmit or store any Data.
7.6 You hereby authorise VillageMall to issue a Cookie to your equipment from which you access the Subscription Service, and to use such Cookie for the duration that You are using the Subscription Service.
7.7 Should your
Subscription Service have multiple Subscriber Accounts, You hereby authorise
VillageMall to discuss or disclose, any supplied Data with any Subscriber
Account, unless prior Notice has been provided, and the per Subscriber Account Fee has be
received by VillageMall, that a specific Subscriber Account is not to have
specific Data disclosed.
You acknowledge, the default access to Subscription Service, shall be that any supplied Data, shall be disclosed to any individual linked to an authorised Subscriber Account. You acknowledge, that VillageMall shall only implement restricted access, after receipt of additional, per Subscriber Account Fee.
7.8 Where Subscription Service has multiple Subscriber Accounts, the separation of Subscription Service Data, between Subscription Accounts shall be the total responsibility of the Subscription Service owner. VillageMall may supply Subscription Service with facilities to separate Data access, but shall not be responsible for the setup and ongoing operation of these facilities. You fully indemnify VillageMall against any failure of any supplied facilities, which separate any Subscription Service Data between Subscriber Accounts. It is the responsibility of the Subscription Service owner to determine the appropriateness of any Data separation facilities within their business, and for ongoing audit of the effectiveness of any such configured facilities.
7.8 Email communication between VillageMall and employee's of Subscription Service. Where employees directly communicates with VillageMall, or VillageMall communicates with employee of Subscription Service, via email, and where employee email address is contained within the configured domain of the Subscription Service, then all such communication shall be considered, as taking place with an individual employee linked to a Subscriber Account as per clause 7.7.
7.9 Email communication between VillageMall and Subscriber, it is a condition of your account that you provide VillageMall with an operational email address. You herby authorise VillageMall, to use the supplied email address, to contact You regarding your service, to assist with any support requests, to advise you of any Service related issues, to advise new features, or additional service options from time to time.
8. Availability of Service
8.1 VillageMall will take all reasonable steps to ensure the Service is available at all reasonable times. You acknowledge that VillageMall is required to undertake regular maintenance and support of the Subscription Service and may from time to time:
(a) schedule automatic resets of the Subscription Services which will result in temporary disruption of access to the Services requiring You to log into and/or reconnect to the Service again; and
(b) shut down the Subscription Service for more extended periods of time and in particular from 2.00am to 5.00am eastern time Monday to Saturday each week and every Sunday from 3.00am to 8.00am eastern time.
(c) as described within the current Service Level Agreement available from within your service..
8.2 You acknowledge that the Subscription Services may not be available for access during any equipment or Subscription Service malfunction or breakdown, electrical storm, electrical short circuit, power failure, telecommunications failure or fault, industrial dispute or other cause whether or not within VillageMall's control.
8.3 VillageMall reserves the right to establish or modify general practices and limits concerning use of the Subscription Service, including without limitation the maximum number of days that Content or Data will be retained by the Service and the maximum storage space that will be allotted on VillageMall's servers on Your behalf.
8.4 VillageMall reserves the right to modify this Agreement, and the software or policies associated with the Subscription Services, any time and shall notify You by posting an updated version of this Agreement on the Site.
8.5 Your continued use of the Subscription Services following any modification shall be conclusively deemed an acceptance of all such modification(s) and the varied Agreement in its entirety.
8.6 VillageMall reserves the right to modify, suspend or discontinue the Subscription Services or any portion thereof at any time, including the availability of any functional area of the Subscription Service and the Site and may do so without notice to You where:
(a) VillageMall's authority or licence to use or provide the Subscription Services are withdrawn;
(b) VillageMall determines in its reasonable discretion to discontinue provision of or access to any such Subscription Service or that such Subscription Service infringes the rights of a third party or exposes VillageMall to liability to a third party or to liability for prosecution for an offence or liability to a statutory penalty.
8.7 VillageMall may also impose limits on certain features and services or restrict Your access to parts of the Service without notice or liability. You are responsible for regularly reviewing this Agreement.
8.8 You acknowledge that VillageMall reserves the right to disable, or remove accounts that are inactive for an extended period of time.
9. Termination of Agreement and suspension of Subscriber Account
9.1 This Agreement shall be come effective on the Commencement Date and shall continue until terminated as provided for in this clause 9.
9.2 VillageMall, in its sole discretion and without notice may terminate, or suspend (including remove access to your Service or disabling login access) Your Subscription ID, Subscription Account and use of the Subscription Service and remove and discard any of Your Data within the Subscription Service if:
(a) You fail to comply with any provision of this Agreement;
(b) or if You do not first log-on within 30 days after registration, or a period of 90 days has elapsed since Your last log-on.
(c) or you fail to pay any Fee by the due date.
9.3 Termination Notice
9.3.1 Non Wholesale Service: You may terminate this Agreement by delivery of a Termination Notice, and paying the Early Termination Fee, to VillageMall and this Agreement shall be terminated 30 days after such Termination Notice ("Effective Date"). The parties acknowledge that the Early Termination Fee is payable by way of liquidated damages and represents the parties' genuine pre-estimate of the loss caused to VillageMall by your early cessation of the Subscription Service from VillageMall.
9.3.2 Wholesale Service, including, but not limited to Broker Portfolio Service (BPS), Self Managed Super Service (SMSF): You may terminate this Agreement by delivery of a Termination Notice, to VillageMall and paying all Fees; this Agreement, shall be terminated 12 months after delivery of such Termination Notice ("Effective Date"). The parties acknowledge that the 12 months Notice required for such wholesale services, and any associated Fee during this notice period, represents the parties' genuine pre-estimate of the costs associated with the establishment and ongoing operation of said Wholesale Services.
9.4 Upon termination of Your Subscription Account, Your right to use such Subscription account and the Subscription Service immediately ceases and You agree to stop all use of the Subscription Service and either return to VillageMall or destroy all copies or portions (in any form) of all Content provided on or through use of the Subscription Service. All Subscription Fees shall become immediately due, any outstanding fees after the Effective Date shall attract a Late Fee payment charge.
9.5 VillageMall shall have no obligation to maintain, or destroy any Data stored in Your account or to forward any Data to You or any third party. Termination of this Agreement will not relieve You of any liabilities or obligations accrued on or before the date of such termination, or limit any other remedies available to VillageMall arising out of any breach of this Agreement.
9.6 If VillageMall terminates this Agreement based on a breach of any portion of this Agreement, VillageMall reserves the right to refuse to provide Subscription Service to You in the future.
9.7 If the use of the Subscription Service is suspended under clause 9.2 then VillageMall is entitled to charge You an Administration Fee of $100, which must be paid in addition to any outstanding Fees before removal of the suspension. If an account is suspended Your right to use the Subscription account, the Subscription Service or access any Data immediately ceases and You agree to stop all use of the Subscription Service.
10.1 You agree to use third party software including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by VillageMall and to follow VillageMall's log-on procedures for the Subscription Service that support such protocols.
10.2 You acknowledge that VillageMall is not responsible for notifying You of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet.
10.3 You acknowledge that it is possible that electronic communications transmitted through the Subscription Service may be accessed by unauthorised third parties when communicated between You and VillageMall using the Internet, other network communications facilities, telephone or any other electronic means.
You acknowledge, that any information transmitted via email is
Should you wish to send us information, which you consider sensitive, then it is Your sole responsibility to request a VillageMall digital certificate, which VilllageMall shall supply to you upon request, to enable You to protect transmissions to VillageMall.
Unless You have supplied, and VillageMall has acknowledged receipt of your digital certificate, You acknowledge that any Data transmitted, shall not be protected in transit, or within storage at the recipient systems, to any Subscription Service, Subscriber Account. It is your sole responsibility, to supply your digital Certificate to VillageMall, and advise any required usage of your Certificate.
11. Intellectual Property Rights.
11.1 Except for the licenses granted herein, You have no right, title or interest in or to the Subscription Service or any Content and VillageMall retains all proprietary right, title and interest, to Intellectual Property Rights, in respect of the Site, any software associated with the Service, the Service itself and the Content.
11.2 The names of other companies and products mentioned herein may be the trademarks of their respective owners.
11.3 VillageMall has the right to use and apply the Marks. You agree not to display or use any of the Marks in any manner without VillageMall's prior written permission.
11.4 VillageMall alone will own all right, title and interest, including all related Intellectual Property Rights to any Submissions and You agree to assign such Intellectual Property Rights in the Submissions to VillageMall free of charge. VillageMall may use such Submissions as it deems appropriate in its sole discretion.
11.5 You acknowledge that VillageMall has the right to use villagemall.com.au and villagemall.net.au, weboffice.com.au (the "Site"), or any other domain name as offered by VillageMall from time to time.
11.6 You acknowledge, that access to the Service is conditional, upon your acceptance, that you shall not disclose the results of usage, comparison to any other product or service, review, or benchmark test, to any third party without VillageMalls' prior written approval.
12.1 You hereby agree to defend, indemnify and hold VillageMall (and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys, and agents) harmless from and against any and all claims, demands, actions, proceedings, costs (including reasonable legal fees), damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with Your use of the Subscription Service (including the Content), violation of any law or third party rights, or breach of this Agreement.
12.2 You shall cooperate as fully as reasonably required in the defence of any claim made against VillageMall.
12.3 VillageMall reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by You and You shall not in any event settle any matter without the written consent of VillageMall.
12.3 You indemnify and must keep VillageMall indemnified against all damages, losses, costs and expenses suffered by VillageMall arising out of any breach by you of this agreement.
12.4 You agree to indemnify and hold VillageMall , its Affiliates, employees, agents, authorised representatives, successors and assigns harmless from and against all liabilities, losses, damages, costs and expenses, including attorney's fees resulting from use of programmable trading systems, whether built by you yourself or by any third party and executed on or using the VillageMall Trading Platform or any other trading platform offered by VillageMall .
13. Australian Broadcasting Authority (ABA) Regulations
13.1 Commonwealth legislation allows the ABA to direct VillageMall to remove certain Internet content from its servers or prevent users from accessing certain Internet content. You authorise VillageMall to take any steps necessary to ensure compliance with any relevant industry code of practice, notification or direction from the ABA, including without limitation:
Removing any content (including part or all of a web site) from its servers;
Terminating the service;
Restricting access to a particular web site
VillageMall may take these steps immediately without notice to You.
14.1 You acknowledge that you have sought independent professional advice in relation to the Software and Documentation, and that you are not relying on the advice or judgment of VillageMall. To the extent permitted by law, the Software and the Documentation are provided on the basis that:
(a) VillageMall, its officers, employees, contractors, agents and Authorised Distributors are not responsible for the results of any actions taken by you in reliance on information in the Software or Documentation, nor for any error or omission in the Software or Documentation;
(b) VillageMall, its officers, employees, contractors, agents and Authorised Distributors are not engaged in and do not represent by providing the Software and Documentation that they are providing any legal, accounting, professional or other advice or services; and
(b) VillageMall, its officers, employees, contractors, agents and Authorised Distributors are not engaged in and do not represent by providing the Software and Documentation that they are providing any legal, accounting, professional or other advice or services; and
(c) VillageMall, its officers, employees, contractors, agents and Authorised Distributors are not responsible for the results of any actions taken by you in reliance on information contained in any third party software or data, embedded in or provided in conjunction with the Software or Documentation, nor for any error or omission in such third party software or data.
14.2 To the extent permitted by law, VillageMall makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, correctness, availability, accuracy or completeness of the Subscription Service or any content.
14.3 VillageMall does not represent or warrant that:
(a) The use of the Subscription Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data,
(b) The Subscription Service will meet Your specific requirements or expectations,
(c) Any stored data will be accurate or reliable,
(d) The quality of any products, services, information, or other material purchased or obtained by You through the Subscription Service will meet Your requirements or expectations,
(e) Errors or defects will be corrected,
(f) The Subscription Service or the server(s) that make the Subscription Service available are free of viruses or other harmful components.
14.4 The Subscription Service and all content is provided to You strictly on an "as is" and "as available" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, is hereby disclaimed to the maximum extent permitted by applicable law by VillageMall.
14.5 VillageMall support does not provide any advice on legal, accounting, financial, or taxation issues. Assistance in how to use the VillageMall Service should not be understood to be legal, accounting, financial, or taxation advice but rather as general educational information that may or may not meet your specific requirements.
14.6 The Service incorporates information sourced from Third Party Data Providers. All Third Party Data Providers have exclusive proprietary rights in their respective information and data. Third Party Data is provided by third parties beyond VillageMall control and VillageMall does not take responsibility for its content, for any delays in availability, interruptions, ongoing availability or errors within Third Party Data. Third Party Data Providers require that VillageMall advise You that as a user of Third Party Data You assume the entire risk of any use the end user may make of the data. In no event shall Third Party Data Provider, VillageMall, its information providers or any third party involved in or related to the making or compiling of any of the data, be liable to the end user of the data, or any other person, for any direct or indirect damages, including, without limitation, any lost profits, lost savings or other incidental or consequential damages arising out of this agreement or the inability of the customer to use the data, regardless of the form of action, even if VillageMall, any of its information providers, or any other third party involved in or related to the making or compiling of any of the data has been advised of or otherwise might have anticipated the possibility of such damages.
14.7 Where the Service utilises a Third Party Infrastructure Provider account, You assume full responsibility for the Third Party Infrastructure Provider; including but not limited to, suitability of the service to meet Your specific requirements, performance, interruptions, ongoing availability, or errors in accessing Third Party Infrastructure Provider. In no event shall VillageMall, or its agents, be liable to the end user of the Service, or any other person, for any direct or indirect damages, including, without limitation, any lost profits, lost savings or other incidental or consequential damages arising out of this agreement and the use of Third Party Infrastructure Provider; regardless of the form of action, even if VillageMall, or any other third party has been advised of or otherwise might have anticipated the possibility of such damages. Should VillageMall provide a listing of Third Parties, such listing does not remove the requirement for you to satisfy yourself that the third party service is suitable for Your specific requirements.
14.8 To the full extent permitted by the Commonwealth, State, Territory or other law or laws applicable to this Agreement, any conditions or warranties imposed by such legislation are hereby excluded. Insofar as liability under or pursuant to any legislation, whether of Commonwealth, State, Territory or other government, may not be excluded, such liability is limited to: (a) re-supply of the Service; or, (b) correction of defects in the Service at the exclusive option of VillageMall . The warranty terms contained within this agreement do not exclude, restrict or modify and are in addition to the statutory rights implied by the trade practices Act 1974 or any corresponding state or territory legislation applicable to the sale of this product to You the Licensee.
14.9 Warranty of
For a period of one (1) months following delivery, or Your first access to the Software (the "Warranty Period"), VillageMall warrants that the Software shall perform in all material respects according to the VillageMall's specifications concerning the Software when used with the appropriate computer equipment. VillageMall does not warrant, however, that the use of the Software will be uninterrupted or that the operation of the Software will be error-free. In the event of any breach or alleged breach of this warranty, Your sole remedy shall be that VillageMall shall correct the Software so that it operates according to the specification and any associated documentation. This warranty shall not apply to the Software if modified by anyone or if used improperly or on an operating environment different from that specified by VillageMall.
15.1 VillageMall shall not be responsible for any unauthorised access to, or alteration of, Your transmissions or data, any material, information or data sent or received by You, regardless of whether the data is actually received by VillageMall, or any transactions entered into by You through the Subscription Service or Your failure to abide by this Agreement.
15.2 Notwithstanding any provision contained in this Agreement, VillageMall shall not be liable to the extent performance if any terms or provisions of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; any act of Terrorism; lack of available resources from persons other than parties to this Agreement; labour disputes; electrical equipment or availability failure; fires; floods; acts of God; or federal, state or municipal action, statute, ordinance or regulation.
16.1 In no event shall VillageMall's aggregate liability exceed the amount actually paid by You in the six (6) month period immediately preceding the event giving rise to the applicable claim.
16.2 To the maximum extent permitted by law, VillageMall will not be liable under any contract, negligence, strict liability or other legal or equitable theory for (i) any indirect, punitive, special, exemplary, incidental or consequential damages (including, without limitation, any loss or corruption of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with, this Subscription Service, including but not limited to Your use or inability to use the Subscription Service, or for any content obtained from or through the Subscription Service, even if VillageMall has been previously advised of the possibility of such damages or (ii) the cost of procuring substitute goods, services or technology.
16.3 These Terms and Conditions do not exclude any liability which any law requires VillageMall to accept. If VillageMall becomes liable for any breach of any such condition or warranty, VillageMall's liability shall be limited at its option, to any one or more of the following:
(a) in the case of goods, to any one it determines of the following: replacement of the goods or the supply of equivalent goods; repair of the goods; payment of the cost of replacing the goods or acquiring equivalent goods; or payment of the cost of having the goods repaired; and
(b) in the case of services, to either supplying the services again or payment of the cost of having the services supplied again
16.4 VillageMall does not warrant that the files, information, services or contents provided by the Subscription Service will be accurate, error free or suitable for any particular purpose. Under no circumstances shall VillageMall be liable for any loss, damage or injury (including without limitation any loss of profits in direct consequential or incidental loss, damage or injury) arising from the use of the Subscription Service or the information obtained from it.
16.5 VillageMall does not guarantee availability of access to the Subscription Service, or Data, at any given time.
16.6 VillageMall warranties will become null, and void if any alterations are made to the, as supplied set of accounts, by the Subscriber, or Subscription Account is overdue.
17.1 VillageMall controls and operates this Subscription Service from its location within Australia and is subject to the laws in force in the State of Queensland, Australia. VillageMall makes no representation that the Service is appropriate or available for use in any other locations. If You access or use the Service from outside the Australia, You are solely responsible for compliance with all Australian and any applicable laws within the jurisdiction which You operate or access the Service.
17.2 This Agreement will be governed by Queensland law without regard to the choice or conflicts of law provisions of any jurisdiction. The sole jurisdiction and venue for all disputes, actions, claims, or causes of action related to this Agreement or in connection with the Service shall be the Courts of Queensland.
18.1 VillageMall may give notice by means of a general notice within the Subscription Service, electronic mail to Your e-mail address on record in VillageMall's account information, or by written communication sent by registered mail to Your address on record in VillageMall's account information.
18.2 You may give notice to VillageMall (such notice shall be deemed given when received by VillageMall) at any time by any of the following:
(a) letter delivered by nationally recognised overnight delivery service or registered mail, postage prepaid, to VillageMall at the following address: VillageMall, PO Box 351, Nundah, Brisbane, QLD, 4012;
(b) by email to firstname.lastname@example.org or nominated email address within a VillageMall issued invoice.
18.3 Notice shall be deemed given;
(a) five (5) days after posting; or
(b) one (1) day after deposit with the overnight delivery service.
(c) upon receipt of an acknowledgement response, as per clause 18.4 for each email transmission;
18.4 Email Notices. You acknowledge that Email is not reliable, and is not a business grade notification service; hence You agree that should you choose to use email to deliver any Notices under this clause, that You shall be solely responsible to ensure that you have received a acknowledgement receipt from the email address "email@example.com", which shall include a copy of the original notice text received by VillageMall. Any email transmission without such receipt, shall NOT be considered a Notice under clause 18. VillageMall may request that you provide any such receipt upon request by VillageMall. You acknowledge that obtaining an acknowledgement receipt from VillageMall is Your sole responsibility, which VillageMall shall provide upon receipt of Your request. As an optional service, VillageMall upon request, may provide You with a digitally signed receipt.
19.1 Headings in this Agreement are for reference purposes only and shall not effect the interpretation or meaning of this Agreement.
19.2 No text or information set forth on any other purchase order, pre-printed form or document shall add to or vary the terms and conditions of this Agreement.
19.3 The English language version of this Agreement shall control.
19.4 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
19.5 No joint venture, partnership, employment, or agency relationship exists between You and VillageMall as a result of this agreement or use of the Subscription Service.
19.6 VillageMall may assign or otherwise transfer this Agreement, in whole or in part, in its sole discretion.
19.7 You may not assign or otherwise transfer this Agreement, in whole or in part, without VillageMall's prior written consent and any attempt to do so will be null and void.
19.8 The failure of VillageMall to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by VillageMall in writing.
This Agreement comprises the entire agreement between You and
VillageMall and supersedes all prior or contemporaneous negotiations, discussions
or agreements, whether written or oral, between the parties regarding the
subject matter contained herein.
19.10 Subject to applicable regulations, any communications between us using electronic signatures are binding as if it were in writing.
19.11 Our records, unless shown to be wrong, will be evidence of your dealings with us in connection with our services. You will not object to the admission of our records as evidence in any legal proceedings because such records are not originals, are not in writing or are documents produced by a computer. You will not rely on us to comply with your record keeping obligations, although records may be made available to you on request at our absolute discretion.
19.12 We may assign our rights under this Agreement to any of our related companies or to a successor company which will continue the provision of the Subscription Services. You are not permitted to assign your rights under the Agreement without our prior written consent. The Agreement will be taken to have been assigned by You if there is a change in control of your business. We will not withhold our consent unreasonably to assignment to a related company or successor company operating the same business. You must notify us as soon as practicable of any change in control or transfer of your business to which a Subscription Service relates.
20 Using the VillageMall API ("Cognition")
20.1 This Section contains terms and conditions applicable to your use of the VillageMall API, whether you are a Subscriber or other User, including a developer or operator of a website or application (such a website or application, a “VillageMall API Implementation”, and the developer or operator, an “API Developer”) who wishes to use the VillageMall API for the purpose of including Content in your VillageMall API Implementation. If you are a Subscriber and you procure a third-party to develop a VillageMall API Implementation for you, this Section applies to your and their use of the VillageMall API, and you are responsible for their compliance with this Section to the same extent as though you were developing the VillageMall API Implementation yourself.
20.2 If you are an API Developer and not otherwise a User, your use of the VillageMall API constitutes your agreement to these Terms. We may change these Terms without notice to you by posting new Terms on the Site. It is your responsibility to review the Site for changes to the Terms. If you use the Services after new Terms are posted, your use of the Services constitutes your agreement to the new Terms. If you do not wish to be bound by the new Terms, cease your use of the Services.
20.3 If you are an API Developer and not otherwise a Subscriber or other User of the Services, the license set forth in this Section applies to your use of the VillageMall API, and the license set forth in Section 6 does not apply to your use of the VillageMall API. If you are also a Subscriber or other User, the license set forth in this Agreement applies to your use of Content other than the VillageMall API, and this Agreement applies to your use of the VillageMall API.
20.5 Your use of the VillageMall API is also subject to the following restrictions. You may not:
•Interfere or attempt to interfere in any manner with the proper workings of
the VillageMall API, or create or distribute any VillageMall API
Implementation that adversely affects the functionality or performance of
the Services or adversely impacts the behavior of other applications using
the VillageMall API;
•misrepresent your identity or intentions when communicating with us in relation to the VillageMall API, use the developer credentials licensed to a different individual or entity, allow your credentials to be used by others, or mask your usage of the VillageMall API;
•use the VillageMall API in association with, or as a component of, any website that in the sole discretion of VillageMall is determined to be obscene or otherwise inappropriate;
•use the VillageMall API for any application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code;
•use the VillageMall API in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality;
•replicate, in whole or in part, the "look and feel" of VillageMall with your VillageMall API Implementation;
•include in your VillageMall API Implementation a combination of visual, design, or functional elements that could reasonably be expected to cause confusion between VillageMall and your VillageMall API Implementation among users;
•disparage or otherwise negatively represent VillageMall in your VillageMall API Implementation;
•reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof;
•circumvent or render ineffective any IP address-based functionality or restriction imposed by the Services;
•circumvent technological measures to prevent direct database access, nor manufacture tools or products to that effect;
•build conversion functionality that converts Content from the Service to a competing product or service; or
•at any time you are operating your VillageMall API Implementation, solicit, interfere with or endeavour to entice away from us any of our Subscribers.
You agree to carefully monitor your use of the VillageMall API and ensure that it remains within reasonable operational limits for both your own server capacity and for ours. You acknowledge and agree that we may impose or adjust the limit on the number of transactions you may send or receive through the Service; such fixed upper limits may be set by us at any time, at our discretion.
20.6 VillageMall has no responsibility to any person for any use or misuse of any Content obtained through the VillageMall API. If you are a Subscriber, you should consider carefully whether you wish to give an API Developer access to your Content through the VillageMall API. If you wish to revoke access to your Content through the VillageMall API, you should change your VillageMall API key or revoke authorization of the VillageMall API Implementation to your Content. Please contact us at support@VillageMall.com.au if you want assistance doing this.
In this Agreement the expressions defined below shall have the following meanings:
"Additional Users" means the person/s who are members, or have a business or legal relationship with Your business entity You authorise to access the Subscription Service, and whose details are provided in the Subscriber Information;
“Agreement” means this Service Agreement between VillageMall and You;
"The Anniversary Date"
means the date which is twelve months from the Commencement Date, and twelve
months from any subsequent Renewal Date;
"ASP" means an applications service provider;
means any day on which the bank which issuing our Nominated Bank Account is open.
"Certificate" means an X.509 certificate which can be utilised with commercial SMIME, to secure end to end email communications.
"Close Of Business" means 4:00 PM, Australian Eastern Standard Time, unless otherwise advised.
"Cloud Computing" means on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services). Due to the nature of Cloud Computing services; while the primary processing will be conducted within an Australian located node, You acknowledge that stored or data processed by such service, under local node failures or disaster recovery processes, or other operational activities, may exist outside of Australia.
"Cloud Storage" means on-demand network access to a shared pool of storage. Due to the nature of Cloud services, You acknowledge that data stored by such service may exist outside of Australia. Where your service has an associated "Document Management" function, Cloud storage will be used by default; the storage will normally have a primary storage within Australia, but may also have a secondary (backup) storage to a separate geographical location (offshore from Australia) to meet our disaster recovery security policy. Any such storage will by default be under an account owned and controlled by VillageMall, or optionally an account under the control of your accounting practice or in the case of Web Office your company. All such data is encrypted in transit, and at rest within the storage network.
"Commencement Date" means the date You click the ACCEPT button below, submit a request for new account for the Subscription Service, or your first use of the Subscription Service whichever is the sooner.;
"Confidential Information" means any information disclosed by one Party to the other related to this Agreement which is in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature. Confidential Information may also include oral information disclosed by one party to the other related to this Agreement, provided that such information is designated as confidential at the time of disclosure and reduced to a written summary by the disclosing party within thirty (30) days after its oral disclosure, which is marked in a manner to indicate its confidential nature and delivered to the receiving party. Notwithstanding the foregoing:
(a) documentation, training materials, all confidential, unique and proprietary aspects of the Village Mall business, affairs, products, services, customer lists and methodologies shall be deemed the Confidential Information of Village Mall;
(b) all confidential, unique and proprietary aspects of the Subscription Services, and it's systems methodologies shall be deemed the Confidential Information of Village Mall;
Confidential information does not, however, include any information which the recipient can conclusively establish:
(i) was in the public domain at the time communicated to the recipient, or which becomes public through no fault of the recipient;
(ii) was obtained by the recipient from a third party which was not subject to a contractual or fiduciary duty not to disclose;
(iii) was independently developed, as evidenced by written records, prior to disclosure by the recipient without reference to any Confidential Information; or
(iv) the recipient can demonstrate was lawfully in its possession free of any duty to the disclosing party before the date of disclosure to the recipient by the disclosing party.
"Content" means without limitation, stories, articles, text, images, third party data, and other multimedia data, and the business process, procedures, methods and techniques embodied in the Subscription Service;
"Data" means the accounting and or investment data, information and any facts, concepts, and information converted to a form usable for communications display, distribution, interpretation or processing by electronic and electromechanical data processing or electronically controlled equipment that You submit to the Subscription Service or is created, or derived by VillageMall for the Subscription Service;
"Discounted Service" means any service which is offered at a discount, including Free, to the full or one-off Recommended Retail service fee.
"Early Termination Fee" means the minimum fee payable for terminating a service during the Initial Period; in all cases a minimum of $300 per Subscription Service is payable, unless otherwise agreed in writing. The minimum fee payable for all MDA services shall be the monthly fee * 12.
"Future Rights" means jointly and severally all of those Rights (statutory and otherwise) comprised in the Intellectual Property Rights which may arise, be created, be granted or acquired in any way whatsoever in relation to the Improvements;
"Improvements" means in any jurisdiction, any improvement, modification, enhancement, derivative, application or use of the Service, conceived, created or arising during or subsequent to the Your access to the Intellectual Property Rights;
"Intellectual Property Rights" means:
(a) jointly and severally any rights as they relate to the Confidential Information copyright, the design right, the patent right, the eligible layout right, any Improvements and the Future Rights;
(b) all other rights resulting from intellectual activity in the literary, industrial, scientific or artistic fields, and
(c) any application or right to apply for registration of any of the rights referred to in subclause (a).
"Initial Period" means the minimum number of months assigned for each service item , in the absence of any assignment the default shall be 12 months.
"Late Fee" means where amounts due are not received as cleared funds within our Nominated Bank Account by the start of business on the due date. The late fee payable shall be the greater of either the calculated interest rate or the minimum Late Fee. The Late Fee interest rate is equal to a minimum of 2% or 3% above the Macquarie Bank, current credit card standard variable interest rate for cash advances (minimum of 21%) , compounded daily from the due date to the date of payment. Unless otherwise stated the minimum Late fee shall be $100. Should these terms and conditions of sale be referenced by a specific service contract, and that contract contains a Interest Rate definition, then that rate shall apply to any Late Fee calculations. Where the amount due applies to multiple Subscription Service accounts, VillageMall at its absolute discretion, may apply Late fees to individual Subscription Service accounts within the invoice.
"Marks" means the VillageMall trademarks, service marks, logos, product and service names both registered and unregistered;
"Nominated Bank Account" means the Australian bank account, nominated within our invoice, or as advised by VillageMall.
"Pay-Per-View" means content exposed through a subscription based e-commerce system.
"Pay, Paying, Payable or Payment" means a direct deposit to our Nominated Bank Account, in immediately available funds, by the Close Of Business before the due date.
"PIN" means your Personal Identification Number issued by VillageMall;
"Renewal Date" means the date which is twelve months from the Commencement Date
"Registration Process" means the registration form, and any associated VillageMall policies and procedures, including acceptance of the terms and conditions within this Agreement, you must complete to become a Subscriber;
“Site” means the VillageMall website found at the domains villagemall.net.au, villagemall.com.au, or WebOffice.com.au. or any other site URL as nominated by VillageMall;
“Schedule of Fees” means the schedule of fees displayed on the Site, or as identified within an Agreement, which details the fees charged by VillageMall for the Subscription Service and the installation charges and charges for additional services requested by You and provided by VillageMall;
"Submissions" means any suggestions, ideas, feedback, recommendations, or other information you provided relating to the Subscription Service
"Subscriber Information" means the information which must be provided to complete the Registration Form;
"Subscriber Account" means the account granted to You, to access the Subscription Service, such that each individual shall have their own unique and individual Subscriber Account;
"Subscriber ID" means a unique username, Digital ID, or token and PIN assigned to a Named Individual by VillageMall;
“Subscription fees” means all fees payable by You for the licence to access the Subscription Service as provided for by this Agreement;
"Subscription Service” means the business management applications delivered as services over the internet and any modifications, updates, revisions, or enhancements to those services as are provided by VillageMall from time to time, and "Services" shall have the same meaning;
"The Subscription Period" means the Initial Period and any
subsequent renewal period.
"Support Option" means the further services that VillageMall may provide to You to assist You in Your use of the Subscription Service. Such further services may be provided to You on the terms and conditions, and on payment of the fees, described on this Site.
"System Requirements" means the computer system requirements described on the Site.
"Third Party Data Providers" means data that is supplied to VillageMall by You, or by any party other than VillageMall.
"Third Party Infrastructure Provider" means, Amazon AWS, Microsoft Azure or any other Cloud Computing service provider.
"Termination Notice" means a written notice delivered to VillageMall by You to terminate this Agreement.
VillageMall Operations Pty Ltd (ACN.
102 714 885), its agents and
“WholeSale Service" means any Subscription Service, sold to You for sale to internal or external retail clients, other wholesalers and related subordinate services
"You" (You & Yours) refers to the individual or business entity, as applicable, that subscribes to the Subscription Service. If You subscribe on behalf of a business entity, or are an offer of the business entity You warrant that You have the authority to bind that Business entity to the terms of this Agreement. If You are an individual You warrant You are over 18 years of age.
If You do not agree with these terms, You shall NOT proceed to either submit a Service request, to access, or use the Subscription service.