Effective: 13 April 2018
This Services Agreement Standard Terms and Conditions (“T&Cs”) set out the terms on which You may access and use the Services provided by Finnigan Investments (Australia) Pty Limited (ABN 70 155 747 765) trading as OneAffiniti of Suite 1007, Level 10, 109 Pitt Street, Sydney New South Wales, Australia (“OneAffiniti, we, us, our”).
These T&Cs, accompanied by a Registration Form, constitute the Services Agreement (“Agreement”) between You and OneAffiniti. By submitting a Registration Form to OneAffiniti or using the Services, You accept and agree to be bound by the Agreement.
In the Agreement, unless the context otherwise requires:
(a) “Account” means an online account made available to You by OneAffiniti to enable You to access and use the Services;
(b) “Anti-Spam Laws” means the Spam Act 2003 (Cth) and any other applicable Laws in relevant jurisdictions regulating the transmission of electronic messages;
(c) “Confidential Information” means all trade secrets, ideas, know-how, concepts, methods of working, management, operations, procedures, financial and business information whether in writing or otherwise relating to the parties, but does not include information that is in the public domain for reasons other than unauthorised disclosure;
(d) “Effective Date” means the earlier of the date You submit a valid and complete Registration Form requesting Services from OneAffiniti or the date You commence using the Services;
(e) “Fees and Charges” means the Subscription Fee and any other applicable fees and charges payable by You to OneAffiniti from time to time for the Services;
(f) “Insolvency” means You are, or are at the risk of being unable to pay Your debts as they become due, and includes any form of bankruptcy or administration;
(g) “Intellectual Property Rights” means all existing and future property, rights, title and interests (both legal and beneficial) in intellectual property throughout the world, including property, rights, title and interests in relation to any copyright, patents, inventions, designs, trademarks, domain names, trade secrets, know-how, and all other intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation 1967 (whether registered or unregistered), and any application or right to apply for registration of any of those property, rights, title and interests;
(h) “Laws” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state, provincial or local governmental authority. Where relevant to Your obligations, when assessing “applicability”, You will take into account the Governing Law in clause 20.9 and the Laws relating to both the jurisdiction where You are using the Services and the jurisdiction where Your Subscriber resides;
(i) “Lead Qualification” means contact, which may be by email or phone, with Your Subscriber in relation to a good or service contained in the Marketing Materials or Linked Pages, to determine whether the Subscriber is likely to follow through with any sales or transactions of goods or services;
(j) “Linked Pages” means any webpages produced by OneAffiniti as part of the Services that may be linked in the Marketing Material;
(k) “Malicious Code” means harmful or malicious code, files, scripts, agents, programs, or the like designed or intended to have, or capable of performing or facilitating, any of the following functions: disrupting, disabling, harming, corrupting, or otherwise impeding in any manner the security, integrity, operation or functionality of, or providing unauthorised access to, a computer system, database or network (or other device on which such code is stored or installed) including but not limited to viruses, worms, time bombs and Trojan horses;
(l) “Marketing Material” means digital marketing material, including marketing emails delivered to Your Subscribers, or posts on Your social media platforms, produced by OneAffiniti as part of the Services, which may include content, information, display advertising, promotions, coupons, links to Linked Pages, Sponsor Content and other Third Party Content;
(m) “OneAffiniti Material” means content, information, data, reports and materials used in providing or incorporated into the Services, Marketing Material, Linked Pages or any Site, or developed as a result of the provision of the Services, including all software, tools, know-how, equipment or processes, trade marks, logos, designs and other materials;
(n) “Outbound Calling Laws” means the Do Not Call Register Act 2006 (Cth) and any other applicable Laws in relevant jurisdictions regulating outbound telemarketing calls;
(o) “Personal Information” has the meaning given to that term or any similar term in any applicable Privacy Laws;
(p) “Privacy Laws” means the Privacy Act 1988 (Cth), an applicable privacy code approved by the Office of the Australian Information Commissioner or pursuant to the Privacy Act 1988 (Cth), and any other applicable Laws in relevant jurisdictions regulating information privacy or personal information;
(q) “Registration Form” means any form, including an electronic form, You complete in requesting Services from OneAffiniti, together with the information provided in them and any variations to the Registration Form agreed by OneAffiniti. All Registration Forms are taken to incorporate and will be subject to and governed by these T&Cs;
(r) “Site” means a website owned and operate by OneAffiniti, including oneaffiniti.com;
(s) “Sponsor” means any entity that engages OneAffiniti to include their content or links into the Marketing Material or Linked Pages delivered by OneAffiniti on Your behalf as part of the Services;
(t) “Sponsor Content” means content, information or links that promote Sponsor products or services;
(u) “Services” means the automatic digital marketing program software available as a service via a Site, developed and hosted by OneAffiniti, to deliver Marketing Materials on your behalf, and related services, such as Lead Qualification, made available by OneAffiniti, its third party service providers, or accessible via a Site;
(v) “Subscriber” means Your subscriber to whom You send Marketing Material to or otherwise engage or communicate with via the Services;
(w) “Subscriber Lists” means the lists of Subscribers You upload to the Site or that You otherwise provide to OneAffiniti to receive Marketing Materials, but does not include any supplemental or auxiliary information that is collected about Subscribers as a result of the provision of the Services;
(x) “Subscription Fee” means if applicable, the monthly fee payable by You in advance to OneAffiniti for Your access to and use of the Services;
(y) “Term” means the period as defined in clause 2 of these T&Cs and includes any renewed Terms;
(z) “Third Party Content” means content, information, data, text, graphics, images, videos, audio, links, advertising, or other materials incorporated into the Services, Marketing Material, Linked Pages or Sites that are not owned by OneAffiniti or are Sponsor Content;
(aa) “You” means the person or entity entering into the Agreement and includes any person authorised by You to access and use the Services through Your Account such as Your employees, agents or representatives.
In the Agreement unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include every gender;
(c) where any word or phrase is given a definite meaning in the Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(d) a reference to a party, clause, schedule or appendix is a reference to a party and appendix to and a clause and schedule of the Agreement and a reference to the Agreement includes any schedule and appendix;
(e) a reference to “includes” or “including” means “includes or including without any limitation”;
(f) a reference to anything includes a part of that thing;
(g) an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
(h) a reference to a party to a document includes that party’s legal personal representatives, successors and permitted assigns;
(i) a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally;
(j) a reference to any statute or regulation includes all statutes and regulations amending, consolidating or replacing them and reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(k) a reference to a document includes an amendment or supplement to, or replacement of, that document;
(l) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the Agreement;
(m) no rule of construction will apply to a clause to disadvantage the party merely because that party put forward the clause or would otherwise benefit from it; and
(n) headings are for convenience only and do not affect the interpretation of the Agreement.
2.1 The Agreement commences on the Effective Date until terminated in accordance with clause 18 of these T&Cs.
3 The Services
3.1 You appoint OneAffiniti to provide the Services in accordance with the Agreement for the Term. For the purposes of providing the Services, OneAffiniti grants You a non-exclusive, worldwide, non-transferable licence to access and use its Services in accordance with the Agreement during the Term, for Your internal business purposes only.
3.2 From the Effective Date, Your access to and use of the Services is governed by the Agreement. You acknowledge that You are taken to have entered the Agreement on behalf of any entity for whom You access and use the Services.
3.3 The Agreement binds You and each person authorised by you to access and use the Services. You are responsible for ensuring that each person authorised by you to access and use the Services has been provided with the T&Cs that apply to their access to and use of the Services and You must ensure that each person authorised by you to access and use the Services agrees to and complies with the T&Cs.
3.4 You acknowledge and agree that certain features of the Services are provided by or interoperate with third party services providers or through third party software applications. Your use of these other services may be subject to separate terms between You and that third party. The Agreement does not affect Your legal relationship with that third party. OneAffiniti cannot guarantee the continued availability of Services provided by third party service providers and may cease providing them without entitling You to any refund, credit, or other compensation.
4 Changing the T&Cs and Services
4.1 OneAffiniti may update, add to, make changes to, or remove certain Services, its internal processes, the interface of the Services, or features and functionalities of the Services from time to time as it considers appropriate. To the extent practicable, OneAffiniti will give You 21 days’ notice in writing (which may be by e-mail) of any such changes that are material to Your use of the Services.
4.2 OneAffiniti may change the T&Cs or impose new T&Cs at any time, effective immediately upon OneAffiniti giving 21 days’ notice in writing (which may be by e-mail). It is likely the T&Cs will change over time.
4.3 You understand and agree that if You access and use the Services after the date on which the Services or the T&Cs have changed, OneAffiniti will treat Your ongoing use as acceptance of the changed Services and T&Cs. It is Your obligation to ensure that You have read, understood and agree to the most recent T&Cs when OneAffiniti notifies You.
5 Marketing Material
5.1 In providing the Services, OneAffiniti will produce and deliver Marketing Materials on Your behalf and where You have opted-in, conduct Lead Qualification.
5.2 If Your access to and use of the Services are funded by a Sponsor, the Marketing Materials or Linked Pages will contain Sponsor Content. You represent and warrant that sending Marketing Materials containing Sponsor Content does not breach any other agreement or Law to which You are a party or bound.
5.3 If Your access to and use of the Services are not funded by a Sponsor, the Marketing Materials or Linked Pages will not contain Sponsor Content.
5.4 You will have the opportunity to approve, request reasonable changes to or reject the Marketing Material (acting reasonably).
5.5 Where You have opted-in to our auto approval mechanism, if You do not request reasonable changes to or reject the Marketing Material (acting reasonably) within 48 hours of OneAffiniti submitting the Marketing Material to You, OneAffiniti will in its sole discretion deliver the Marketing Material.
5.6 You cannot request changes to or remove OneAffiniti trade marks, logo, copyright or other proprietary notices or labels from the Marketing Material or reject the Marketing Material for these reasons.
5.7 If Your access to and use of the Services are funded by a Sponsor, You cannot request changes to Sponsor Content in the Marketing Material.
5.8 OneAffiniti does not endorse any of the goods or services that are promoted, visible, accessible or transacted through the Marketing Material.
5.9 You acknowledge and agree that nothing provided as part of the Services will be taken to constitute legal, financial or tax advice. OneAffiniti makes no warranty or representation of any kind regarding the accuracy, quality, integrity and legality of the Services. You agree that use of and reliance on any part of the Services by You or a Subscriber is at Your and the Subscriber’s own risk and OneAffiniti does not accept and excludes to the full extent permitted by applicable Laws, all responsibility in relation to Your and the Subscriber’s use of and reliance on any part of the Services.
5.10 You are solely responsible for Your relationship with Your Subscribers and any products or services You provide to Your Subscribers, including relating to Your provision of any financial services where applicable. Despite conducting any Lead Qualification at your request, OneAffiniti does not guarantee that a Subscriber will act on or follow through with any sales or transactions of products and services or the availability of a product or service contained in the Marketing Materials or Linked Pages. You agree that You are solely responsible for and OneAffiniti does not accept and excludes to the full extent permitted by applicable Laws, all responsibility in relation to the conduct of any sales and transactions or prospective sales and transactions resulting from the Marketing Materials or Linked Pages, including any payments disputes by a Subscriber or any breach of an agreement or offer between You and a Subscriber.
5.11 OneAffiniti agrees to make every reasonable effort to ensure that Marketing Materials sent through the Services follow email standards, but OneAffiniti does not guarantee that Marketing Materials will look consistent across all email platforms due to the number of different HTML composition tools available.
6 Subscriber Lists
6.1 You warrant that You own or have the right to use the Subscriber Lists and use of the Subscriber Lists does not infringe the Intellectual Property Rights, rights under Privacy Laws or other rights of any third party.
6.2 You will ensure that the Subscriber Lists and all information in the Subscriber Lists are accurate and up to date and remains accurate and up to date.
6.3 You will ensure that the Subscriber Lists do not contain any government related identifier, financial account numbers, health information, criminal records or other sensitive information.
6.4 You will ensure that the Subscriber Lists do not contain any Distribution Email Addresses, email addresses copied or scraped from the Internet, newsgroups, purchased, loaned, or rented lists, or emails addresses that were obtained without express opt-in and consent from the email recipient. Distribution Email Addresses in this clause means an email address associated with a distribution list that enables a person to send an email to multiple recipients by sending that email to the single email address associated with the distribution list.
6.5 You may unsubscribe some or all of the Subscribers from receiving Marketing Materials at any time.
6.6 You agree that OneAffiniti may use and update the information in the Subscriber Lists from time to time for the purposes of ensuring the contact details, including email addresses, provided in the Subscriber Lists are valid and ceasing to send Marketing Materials to Subscribers that have unsubscribed to the Marketing Materials.
6.7 OneAffiniti will not disclose Your Subscriber Lists to a Sponsor without Your prior consent (which may be oral or in writing). OneAffiniti will disclose details of sales and transactions You submit to us, which You acknowledge may contain Subscriber information, to the relevant Sponsor.
6.8 You acknowledge and agree that OneAffiniti may disclose Your Subscriber Lists to OneAffiniti third party service providers for the purpose of fulfilling its obligations and exercising its rights under the Agreement.
6.9 OneAffiniti acknowledges that Subscriber Lists will remain Your property and all Intellectual Property Rights in the Subscriber Lists remain vested in You. You grant OneAffiniti an irrevocable, worldwide, non-exclusive, royalty-free and licence-fee free licence to use and access and a right to sublicense the Subscriber Lists for the purpose of fulfilling its obligations and exercising its rights under the Agreement.
6.10 It is Your responsibility to have appropriate back-up processes in place to protect against unexpected data corruption or loss. OneAffiniti strongly recommends You regularly export Your Subscriber Lists to Your own systems to protect against any data loss caused by system or hardware failure.
6.11 If You delete Your Subscriber Lists, deliberately or accidentally, OneAffiniti may not be able to retrieve it and it may be lost permanently depending on when the server auto-purges the data from the system.
6.12 Subject to clause 18.6, OneAffiniti may hold Your Subscriber Lists for a period of 12 months or longer at our discretion. You should contact us if You require permanent deletion of some or all of the Subscriber Lists periodically, and we will assist You with this.
7 Subscriber Profiles
7.2 Data created as a result of OneAffiniti’s activities in clause 7.1 is OneAffiniti Material and is the sole and exclusive property of OneAffiniti or its licensors.
7.3 You acknowledge that OneAffiniti may, in its sole discretion, use and disclose such data to Sponsors (in aggregated and de-identified form) and third party service providers, including to:
(a) evaluate the effectiveness of the Services or any specific marketing campaign;
(b) undertake direct marketing or serve display advertising to Subscribers (which may be by the Sponsor, by OneAffiniti in its own right or on behalf of a Sponsor);
(c) personalise and offer a better experience for Subscribers; and
(d) optimise and improve the Services.
8 Your Use of the Services
8.1 You agree to use the Services in a manner consistent with the Agreement and any applicable Laws.
8.2 You are responsible for providing Your own internal facilities (including if applicable, terminal, server, software, SQL database licenses, modem and telecommunications facilities or services) necessary for accessing Services. OneAffiniti accepts no responsibility for any deficiency in the internal access facilities or services.
8.3 You must have an Account in order to access the Services. You will appoint a primary contact representative for the Agreement (“Primary Contact”). You authorise the Primary Contact to handle all issues under the Agreement on your behalf.
8.4 You must ensure that Your Account information is accurate and up to date at all times. You must keep confidential and secure any passwords or other security credentials used to access and use the Services. You agree to take reasonable steps, including implementing reasonable security measures to ensure that no authorised person gains access to the Service and there is no authorised use of the Services.
8.5 You agree that Your use of the Services including access to the Sites and Your Account will be for lawful purposes only. You further agree that You will not:
(a) post or transmit any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, hateful, or racially or ethnically or otherwise objectionable;
(b) encourage conduct that is criminal, would give rise to civil liability or would otherwise violate any Law;
(c) impersonate a person or entity or falsely state their affiliation with a person or entity;
(d) upload, post, transmit or otherwise make available any content that infringes the rights of another party including rights under Privacy Laws, trademark, copyright and other Intellectual Property Rights;
(e) advertise or perform any commercial or other form of solicitation that is in breach of any Law or not authorised by OneAffiniti under the Agreement;
(f) send the Marketing Material through another service including email;
(g) engage in conduct that is misleading or deceptive or likely to mislead or deceive any Subscriber or make any false or misleading statement in connection with a product or service of a Sponsor;
(h) make any representations regarding OneAffiniti, on OneAffiniti’s behalf, or about any of the Services;
(i) engage in any activity that interferes with or disrupts the Services or attempt to gain unauthorised access to the Services (including the servers and networks that are connected to the Services), including uploading, transmit or otherwise make available any Malicious Code;
(j) distort, interfere with or disrupt the integrity or performance of the Services or third party data contained in the Services;
(k) attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services; or
(l) assist with the development of a competitive or replacement automatic digital marketing program system during and after the termination of the Agreement.
8.6 You agree to promptly notify OneAffiniti of any complaints received from any person relating to the Services.
9 Payment Terms
9.1 If Your access to and use of the Services are fully funded by a Sponsor, You will not pay any Subscription Fees.
9.2 If Your access to and use of the Services are not fully funded by a Sponsor, You agree to pay monthly Subscriptions Fees to OneAffiniti in advance, in return for access to and use of the Services, in accordance with the OneAffiniti pricing schedule. You are responsible for reviewing the pricing schedule, features and limits associated with the Services. You must provide the required direct debit authority for payment to be made by direct debit and you agree to keep your direct debit details accurate and up to date.
9.3 OneAffiniti may also charge and You must pay additional Fees and Charges for certain additional Services which You may request from time to time or use on an ad hoc basis. These include, for example, Fees and Charges for connection and setup, training, consulting and development, customisation and styling. The Fees and Charges for these additional Services will vary from time to time based on Your requirements and are as agreed between the parties.
9.4 OneAffiniti may, in its sole discretion, vary components of the Fees and Charges at the time of renewal by giving You at least 30 days’ notice in writing and You are responsible for reviewing the Fees and Charges prior to renewal, provided no variation will be effective until the date of the renewal. You acknowledge and agree that if OneAffiniti registers what it considers to be exceptional server resource loads or support relating to Your use of the Services, then OneAffiniti may require an increase in Subscription Fees for Your continued use of the Services in accordance with this clause.
9.5 Unless indicated otherwise, all Fees and Charges are exclusive of all applicable taxes and duties, which must be paid by You.
10 Intellectual Property Rights
10.1 All Intellectual Property Rights in the materials comprising the Services, Marketing Materials, Linked Pages or any Site, including all OneAffiniti Materials, are the sole and exclusive property of OneAffiniti or its licensors. Nothing in the Agreement grants or assigns to You any Intellectual Property Rights in the Services, Marketing Materials, Linked Pages or any Site.
10.2 You agree not to copy, alter, modify, reproduce or distribute any part of the materials comprising the Services, Marketing Materials, Linked Pages or any Site, including all OneAffiniti Materials, unless expressly permitted under the Agreement.
10.3 You must not use any OneAffiniti logo, trade mark or other distinctive brand features (unless expressly permitted under the Agreement and in materials specifically approved by OneAffiniti) without the prior written consent of OneAffiniti.
10.4 You acknowledge that You have no right to access the software code, including the object code, intermediate code and source code of the Sites or the Services, either during or after the Term of the Agreement.
10.5 Nothing in the Agreement grants You any licence or right to use or distribute any of OneAffiniti’s or any other person’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.
10.6 You agree that OneAffiniti may use Your business name, logo, trade mark and testimonials for its promotion and marketing purposes in its sole discretion without restriction and without payment to You. You grant OneAffiniti an irrevocable, worldwide, non-exclusive, royalty-free and licence-fee free licence to use such content in this way, providing that OneAffiniti does not use Your business name, logo and trade marks for promotion or marketing purposes in a way which would clearly detract from Your good name and reputation. You warrant that You own, or have the right to use such content, and that OneAffiniti’s use of such content does not infringe the rights of any third party. You unconditionally indemnify OneAffiniti for Your non-compliance with this clause.
10.7 Each party will, to the best of its ability, not do or permit to be done any act or thing which might in any way impair the goodwill or other rights of the other party in their Intellectual Property Rights or which may otherwise prejudice or damage the other party’s Intellectual Property Rights.
11 Confidential Information
11.1 Each party must keep the other party’s Confidential Information (including the terms of the Agreement) confidential, and neither party will disclose or allow any written or electronically recorded Confidential Information to be copied other than for the purposes of the Agreement, as the other party expressly agrees or as required by law.
11.2 Each party may only disclose the Confidential Information of the other party to persons that have undertaken to maintain the confidentiality of the Confidential Information in accordance with this clause 11.
11.3 Each party must immediately notify the other party of any actual or potential breach of confidentiality, disclosure or unauthorised use of the other party’s Confidential Information and take all reasonable steps to prevent or stop such actual or potential breach.
11.4 At any time during the Term or on termination of the Agreement for any reason, a disclosing party may request a receiving party to destroy or hand over to the disclosing party anything in the receiving party’s control that belongs to the disclosing party or is a disclosing party’s Confidential Information.
12 Third Party Content
12.1 The Services or Sites may contain Third Party Content. OneAffiniti accepts no responsibility for Third Party Content. You acknowledge and agree that OneAffiniti is not liable for any loss or damage which may be incurred by You as a result of the availability of Third Party Content, or as a result of Your reliance on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, third party websites or resources. OneAffiniti does not endorse any of the goods or services that are promoted, visible, accessible or transacted through the Services or Sites.
13.2 You will ensure that each person authorised by you to access and use the Services has been notified of OneAffiniti’s practices and policies relating to the collection, handling, use and disclosure of Personal Information.
13.3 You must comply with all applicable Privacy Laws so far as they relate to Your collection, handling, use and disclosure of Personal Information for access to and use of the Services.
13.4 You warrant that You have made and will make all necessary notifications and have obtained and will obtain all necessary consents from Your Subscribers in relation to Personal Information You collect and disclose to OneAffiniti and for OneAffiniti to use, and disclose, including to OneAffiniti third party service providers, for the purposes of and other purposes contemplated by, the Agreement.
13.5 You agree to notify OneAffiniti immediately in the event of a potential or actual data breach or Personal Information and take all reasonable steps to prevent or stop such actual or potential breach.
13.6 You agree to notify OneAffiniti immediately of any complaints or claims received from any person, including any regulator, attorney general or government agencies or bodies, relating to a Subscriber’s Personal Information or information privacy and take all reasonable steps to assist OneAffiniti with resolving such complaint or claim.
13.7 You unconditionally indemnify OneAffiniti for Your non-compliance with this clause and any Privacy Laws.
14 Spam and Telemarketing
14.1 You agree that You are solely responsible for ensuring that a Subscriber has consented to receiving the Marketing Materials or Lead Qualification and You must only import, access or use Subscriber Lists with Subscribers who have consented to receiving the Marketing Materials or Lead Qualification. Consent under this clause must comply with the applicable Anti-Spam Laws or Outbound Calling Laws. You must retain records of any consent received and will provide such records to OneAffiniti immediately on request.
14.2 Subject to clause 14.1, the parties agree to comply at all times with its obligations under the applicable Anti-Spam Laws or Outbound Calling Laws.
14.3 You agree to notify OneAffiniti immediately of any complaints or claims received from any person, including any regulator, attorney general or government agencies or bodies, relating to the transmission of electronic messages and take all reasonable steps to assist OneAffiniti with resolving such complaint or claim.
14.4 You unconditionally indemnify OneAffiniti for Your non-compliance with this clause and any Anti-Spam Laws or Outbound Calling Laws.
15.1 Each party represents and warrants to the other party that as at the Effective Date:
(a) it has full corporate power to execute, deliver and perform its obligations under the Agreement, and doing so will not violate any other agreement to which it is a party;
(b) the Agreement constitutes a legal, valid and binding obligation on it enforceable in accordance with its provisions by appropriate legal remedy;
(c) there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware, and which may have a material effect on the subject matter of the Agreement; and
(d) it has all licences, authorisations, consents, approvals and permits required by all applicable Laws in order to perform its obligations under the Agreement, including relating to Your provision of financial services where applicable, and otherwise complies with all Laws applicable to the performance of those obligations.
16 Limitation of Liability
16.1 You agree that Your access to and use of the Services is at Your own discretion and Your own risk. The Services are provided ‘as is’ and ‘as available’. To the extent permitted by Law, neither OneAffiniti nor any of its affiliates, employees, representatives or agents make any representation or warranty about the Services in respect of its accuracy, reliability, fitness for purpose or non-infringement.
16.2 You acknowledge that there are certain risks inherent in using the internet and electronic communications generally, which are out of OneAffiniti’s control and for which OneAffiniti is not responsible. OneAffiniti does not guarantee that Services provided will be free of delays, uninterrupted, error free or free of viruses or bugs. OneAffiniti accepts no responsibility or liability for any loss or damage that You may incur, including any damage to software or hardware, delivery failures, system malfunction, or loss of Subscriber Lists, arising from Your access to or use of the Services.
16.3 OneAffiniti excludes, to the maximum extent permitted by Law, all direct and indirect liability or consequential loss or damage, or any loss of profit, revenue, business or goodwill that may arise as a result of Your access to or use of the Services however arising under any theory of liability, including negligence.
16.4 Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Nothing in the Agreement excludes or limits OneAffiniti’s liability that may not be lawfully excluded or limited by applicable Law. Accordingly, only the limitations that are lawful in Your jurisdiction apply to You and OneAffiniti’s liability is limited to the maximum extent permitted by Law.
16.5 OneAffiniti excludes, to the maximum extent permitted by Law all implied rights, remedies, guarantees, conditions and warranties of or in favour of You or a third party in respect of goods and services related to Your use of the Services and in particular, if any term, condition or warranty is implied into the Agreement and cannot be excluded, then warranty will be limited to, at OneAffiniti’s option, to:
(a) in the case of goods, any one or more of the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods; and
(b) in the case of services, the supplying of the services again (directly or indirectly) or the payment of the cost of having the services supplied again.
16.6 OneAffiniti limits its aggregate liability, whether in contract, tort (including negligence), under any Law or otherwise, under or in connection with the Agreement and the Services to $500.
17.1 You agree to unconditionally indemnify and keep indemnified OneAffiniti and its affiliates, employees, agents and representatives against any claims, damages, loss, demands, costs or expenses, or liabilities of any nature arising out of or in connection with Your breach of the Agreement or Your access to and use of Services, including:
(a) breach of any applicable Laws or industry codes of practice by You, including relating to Your provision of financial services where applicable, breach of the Privacy Laws, the Anti-Spam Laws or the Outbound Calling Laws;
(b) Personal Information provided by You to OneAffiniti under or in connection with the Agreement;
(c) claims by any third parties, or actions by any regulator, attorney general or government agencies or bodies in connection with their use of and reliance on any of the Services; and
(d) claims by any third parties, or actions by any regulator, attorney general or government agencies or bodies, in connection with the collection, use or disclosure of the Subscriber Lists or any Personal Information included in such Subscriber Lists.
18.1 Either party may terminate the Agreement at any time by giving the other party 14 days’ notice in writing. In the event of termination by OneAffiniti under this clause only, OneAffiniti will provide a refund of any Fees and Charges already paid by You for which the Services will not be provided but OneAffiniti is not obliged to provide a refund of any Fees and Charges in respect of Services it has provided to You.
18.2 OneAffiniti may terminate the Agreement or suspend the Services, immediately upon the provision of written notice to You, if:
(a) You have breached any provision of the Agreement (including non-payment of any Fees and Charges), and that breach is not remedied within 14 days of OneAffiniti notifying You of that breach;
(b) You suffer any form of Insolvency;
(c) Your access to and use of the Services ceases for any reason to be funded by a Sponsor or You no longer wish to pay for the Services;
(d) You remove all Subscriber Lists from the Services and do not log into Your Account for more than 3 months;
(e) You cease to hold the relevant licence, authorisation, consent, approval or permit required to perform Your obligations under the Agreement; or
(f) Any Fees and Charges are unpaid; or.
(g) OneAffiniti reasonably believes that suspending or terminating Your use of the Services is necessary for security reasons, to preserve the proper continued operations of the Services or where Your actions may cause legal liability for OneAffiniti or any other persons.
18.3 You may terminate the Agreement immediately upon the provision of written notice to OneAffiniti if OneAffiniti has breached any provision of the Agreement and that breach is not remedied within 14 days of You notifying OneAffiniti of that breach.
18.4 Subject to clause 18.1, OneAffiniti will not be obliged to provide any refund or credit for any Fees and Charges paid prior to the termination of the Agreement.
18.5 Termination of the Agreement is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of the Agreement:
(a) all rights and licences granted to You will terminate immediately;
(b) You must immediately cease to access and use the Services;
(c) You will return all property of OneAffiniti which may have been provided during the Term within five (5) days of notice being issued by OneAffiniti; and
(d) You will remain liable for any accrued Fees and Charges which become due for payment before or after termination.
18.6 OneAffiniti reserves the right to delete Your Subscriber Lists and any data associated with Your use of the Services within 30 days of termination of the Agreement.
18.7 Rights and obligations that are not specifically limited to the period of the Agreement will continue despite the ending of the Agreement, including the provisions in clause 10 (Intellectual Property Rights and clause 11 (Confidential Information).
19 Force Majeure
19.1 A party will not be liable for any failure or delay in the performance of its obligations under the Agreement if that failure or delay is due to circumstances beyond that party’s control (“Force Majeure”). Any party who is, by reason of Force Majeure, unable to perform any obligation or condition under the Agreement must notify the other party as soon as possible specifying:
(a) the cause and extent of such non-performance;
(b) the date of commencement of non-performance; and
(c) the means proposed to be adopted to remedy or abate the Force Majeure.
19.2 A party who is, by reason of Force Majeure, unable to perform any obligation or condition under the Agreement must:
(a) use all commercially reasonable endeavours to remedy or abate the Force Majeure as quickly as possible;
(b) resume performance as quickly as possible after cessation of the Force Majeure; and
(c) notify the other party when the Force Majeure has terminated or abated to an extent which permits resumption of performance to occur.
19.3 Subject to any other termination provisions a non-performance by either of the parties of any obligation or condition under the Agreement will be excused during the time and to the extent that such performance is prevented, wholly or in part, by an event of Force Majeure of which notice has been given under clause 19.1.
19.4 The period of time during which performance of any obligation or condition is prevented by Force Majeure will be added to the time provided in the Agreement for performance of that obligation or condition and to the time required for the performance of any act dependent on that obligation or condition.
20.1 In relation to the subject matter of the Agreement, the Agreement is the whole agreement between the parties and supersedes all oral and written communications by or on behalf of any of the parties.
20.2 If there is any inconsistency between any of the documents that comprise the Agreement, the order of priority for the purposes of construction is as follows (where the provisions of the Registration Form prevail over the other documents to the extent of the inconsistency, and so on):
(a) Registration Form;
(b) these T&Cs;
(c) any other document references or comprised in the These T&Cs.
20.3 Notices may be given by email. You agree that OneAffiniti may give notice by sending an email to the address provided by You in the Registration Form or as later notified by You. You are responsible for ensuring the email address You have provided to OneAffiniti is a current and monitored email account. You may send notices to OneAffiniti at firstname.lastname@example.org.
20.4 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude its future exercise or the exercise of any other power or right. The waiver of a provision of the Agreement or a party’s consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.
20.5 You may not assign or transfer any rights to any other person without OneAffiniti’s prior written consent.
20.6 Nothing in the Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affect any rights, power or remedy that a party may have against another party or any other person at any time.
20.7 Nothing in the Agreement creates a relationship of partnership, joint venture, agency or employment between the parties.
20.8 If a part of the Agreement is found by a court of competent jurisdiction to be illegal, void, or unenforceable, that part is taken to be deleted from the Agreement and will not affect the enforceability of the remaining provisions, unless the deletion would change what OneAffiniti intends to be the effect of the Agreement.
20.9 The Agreement is governed by and will be construed in accordance with the laws of New South Wales, Australia and each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and waives any right to claim that those courts are an inconvenient form.
20.10 In entering into the Agreement, each party has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of the Agreement made by any person and has relied entirely on its own enquiries in relation to the subject matter of the Agreement. This clause does not apply to warranties and representations that the Agreement expressly sets out.
20.11 Where the Agreement gives any party a right or power to consent or approve in relation to a matter under the Agreement, unless otherwise set out in the Agreement, that party may withhold any consent or approval or give consent or approval conditionally or unconditionally. The party seeking consent or approval must comply with any conditions the other party imposes on its consent or approval.
21 Dispute Resolution
21.1 If a dispute arises out of or relates to the Agreement, or the breach, termination, validity or subject matter thereof, the parties agree, following the process set out below, to endeavour in good faith to settle the dispute by negotiation between the parties, and where such negotiation fails then mediation administered by the Australian Commercial Disputes Centre (“ACDC”) before having recourse to arbitration or litigation.
(a) a party claiming that a dispute has arisen, must give written notice to the other party specifying the nature of the dispute.
(b) on receipt of the notice specified in clause 21.1(a), the parties must within seven (7) days of receipt of the notice seek to resolve the dispute by a meeting between the CEO or managing director or equivalent of the parties, or their respective nominees.
(c) if the dispute is not resolved within seven (7) days or such further period as the parties agree then the dispute is to be referred to ACDC for mediation.
(d) the mediation is to be conducted in accordance with the ACDC Mediation Guidelines which set out the procedures to be adopted, the process of selection of the mediator and the costs involved and which terms are deemed incorporated into the Agreement.
21.2 This clause will not preclude either party from seeking injunctions or other interim measures in any court of competent jurisdiction.
21.3 The parties agree to keep any mediation arising out of the Agreement including the subject matter of the mediation and the evidence heard during the mediation, confidential.
21.4 Despite the existence of a dispute, the parties must continue to perform all their respective obligations under the Agreement.