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These Terms and Conditions of service and use, as amended from time to time (and including any schedules or annexures) (Terms and Conditions) constitute an agreement between Spenda and any party that registers to use the Platform as a User and who is approved by Spenda or any of its Related Bodies Corporate to use the Platform. Each User should read these Terms and Conditions carefully – they contain important information about a User’s rights and obligations, including specific limitations or requirements that may be applicable to the User when using the Platform.
By creating a User Account and/or using the Platform, you as a User agree to these Terms and Conditions and to any amendments which may be made from time to time in the manner provided for below.
1. MEANINGS OF KEY TERMS IN THESE TERMS AND CONDITIONS
Business means the business operated by a User, as specified by that User during the Account registration process.
Claim means any claim in law or equity, or under statute, for a remedy of any nature whatsoever, whether contingent, prospective, actual or otherwise and including any and all claims, actions, sums of money, arbitrations, suits, counterclaims, demands, causes of action, debts due, verdicts, judgments, losses, account reckonings, proceedings and charges.
Cookies means the cookies that must be enabled to use the Platform (if applicable).
Compatible Device means an Android device version 4.03 and above or an Apple iPhone 5 with iOS 8.0 and above or any other electronic device capable of supporting the Minimum Browser Requirements.
Confidential Information means:
a. any information disclosed, directly or indirectly, by one party to another party before, on or after the date on which the User agrees to these Terms and Conditions under or in connection with matters which are the subject of these Terms and Conditions, including information that is designated as “confidential” or in some other manner to indicate its confidential nature or any Intellectual Property Rights; and
b. all or any of the following as it relates to Spenda or the Platform generally, including:
i. technical, financial, operational, legal and other information, including any Intellectual Property Rights, systems, technology, ideas, concepts, know-how, techniques, specifications, blueprints, tracings, diagrams, models, functions, capabilities and designs (including computer software, manufacturing processes or other information embodied in drawings or specifications);
ii. information derived or produced partly or wholly from any information the subject of (i) above, including any calculation, conclusion, summary or computer modelling;
iii. trade secrets or information which is capable of protection at law or in equity as confidential information; and
iv. any information and Intellectual Property Rights owned by Spenda or its Related Bodies Corporate which are concerned with or connected the Platform.
Content means any text, graphics, images, software, information or other materials in digital form or otherwise.
Customer means a User who utilises the Platform for the purposes of paying for goods and services supplied by a User who is a Supplier.
Fee means the relevant fee payable by a User to Spenda in connection with a particular Service provided to that User, as agreed between Spenda and that User.
GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means, for a party:
a. an order is made or an effective resolution is passed or legislation is enacted for its dissolution, liquidation or winding up;
b. it becomes insolvent or makes an assignment for the benefit of its creditors or is unable to pay its debts as the same become due;
c. a receiver is appointed and takes possession of the whole or a material part of its assets or undertaking and the receiver is not removed or does not withdraw within two weeks of his appointment or taking possession of those assets;
d. the party takes any step to obtain protection or is granted protection from its creditors, under any applicable legislation or an administrator is appointed to the party; or
e. the happening of any event in relation to a party which leads to the party becoming unable to pay its debts as and when they fall due.
Approved Limit means a credit limit set for a User as agreed by a Virtual Credit Card provider that has been nominated by Spenda.
Intellectual Property Rights means any intellectual or industrial property rights (anywhere in the world, whether at a statutory level, at common law or otherwise and whether registered or unregistered), including inventions, patents, patent applications, patent disclosures, utility models, copyright (including future copyright), trademarks, logos, design marks, service marks, systems, trade names, business names, brand names, designs, source code, know how, trade secrets, domain names, internet addresses, semiconductor or circuit layout rights, and including all applications and rights to apply for registration of those intellectual property rights, and any and all registrations, renewals, revisions, extensions, reexaminations, translations, adaptations, derivations and combinations, copies and prototypes, tangible embodiments or manifestations of those items.
Law means any law or legal requirement, including at common law, in equity, under any statute, regulation or by-law and any decision, directive, guidance, order, decree, guideline or requirements of any authority.
Loss means any damage, loss, expense and cost whatsoever including any cost or expense regarding any Claim and any legal costs and expenses of any nature.
Merchant Of Record services – Spenda’s payment gateway which enables Merchants to receive payments from Customers who pay by card
Minimum Browser Requirements means Microsoft, Internet Explorer 9+, Google, Chrome, Apple or Safari.
Our Content has the meaning given to it in clause 12.2(a).
Platform means the fully integrated digital payment and business software application (available in iOS, Android and progressive web app formats) known as “Spenda”, developed by or on behalf of, and owned by, Spenda, together with the website, https://spenda.co/, and all adaptations, modifications, amendments, extensions, revisions, updates, upgrades and other changes to those products.
Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
Services means the payment facilitation services provided by Spenda from time to time in connection with the Platform.
Supplier means a User who receives payment from a Customer via the Platform in connection with the good or services they have provided.
User means a Supplier or Customer who has registered a User Account.
User Account means a unique account given to a User in relation to the Platform, which is linked to and is accessible by that User on the Platform upon successful completion by that User of Spenda’s registration procedure.
User Generated Content has the meaning given to it in clause 12.1(a).
Virtual Card means, a payment method available within Spenda to Users with an Approved Limit.
1.2. INTERPRETATION
a. Headings in these Terms and Conditions are provided for convenience only and do not form part of these Terms and Conditions or affect their interpretation.
b. A clause in these Terms and Conditions must not be construed to the disadvantage of Spenda merely because Spenda was responsible for the preparation of these Terms and Conditions or any amendments to them.
c. In these Terms and Conditions “Including” and similar expressions are not words of limitation.
d. Each of these Terms and Conditions which expressly or by its nature survives termination of these Terms and Conditions shall remain fully enforceable notwithstanding such termination.
e. A reference to a User includes the officers, employees or authorised representatives of that User.
2. ACKNOWLEDGEMENT OF TERMS AND CONDITIONS
a. By accessing or using the Platform in any way as a User, you accept and agree to be bound by these Terms and Conditions.
b. These Terms and Conditions constitute the entire agreement between you and Spenda regarding the matters set out herein and supersede any prior representations, negotiations, agreements, understandings or arrangements between you and Spenda, whether written or oral.
c. As stated in clause 17, Spenda may amend these Terms and Conditions from time to time. A copy of the most current version of these Terms and Conditions is available here. You acknowledge it is your sole responsibility to review and check any updates to these Terms and Conditions from time to time.
d. If you do not agree with any part of these Terms and Conditions, you must immediately stop using the Platform as a User. Your continued use of the Platform will be deemed acceptance of the Terms and Conditions, including any amendments made to them on and from that time.
e. Spenda may make changes to the Platform at any time. Spenda will not be liable for any Loss incurred by you resulting from any changes made to the Platform.
3. REGISTRATION
a. In order to access the Platform as a User, you must:
b. When registering a User Account, you:
i. warrant to Spenda that all information provided by you as part of the registration process (including your relevant business name and ABN, bank account details, address and contact details) is true, full and accurate, and you specifically consent and authorize Spenda to make any inquiries (whether directly or through third party service providers), which we consider necessary to verify your identity or that of your Business.
c. Spenda will assume and rely on the fact that any person who registers a User Account on your behalf has been authorised by you to do so.
d. To the extent that you are a Supplier, your registration of your User Account will involve your authorisation that we may deduct, from time to time, applicable Fees in consideration of the Services provided to you in connection with your use of the Platform.
e. To the extent that you are a Customer or Supplier approved for a Virtual Card, your selection and use of the Virtual Card as a payment method authorises Spenda to charge and deduct from your nominated repayment method, the agreed processing fee, or for Spenda to charge and add to your outstanding balance the agreed processing fee (dependant on agreed term).
f. To the extent that you are a Supplier using Spenda’s Merchant Of Record services, you agree to manage any refund or chargeback requests directly with your Customer outside of the Spenda Platform.
g. To the extent that you are a Customer using Spenda’s Merchant Of Record services, you agree to manage any requests for refund or chargeback directly with your Supplier outside of the Spenda Platform.
h. To the extent that you are a Customer, you accept all risks in connection with non-performance of your Supplier.
i. To the extent that you are a Supplier, you agree that you will only use Spenda’s platform to deliver invoices and collect payment for genuine sales of goods and services.
j. To the extent that you are a Supplier using Spenda’s Merchant Of Record services, you confirm that you are not currently nor have been in the last 12 months, a Merchant accepting cards as a payment method.
k. Spenda reserves the right to close, suspend or limit your access to your User Account and/or the Platform in the event that, after reasonable enquiries, Spenda is unable to obtain information about you required to verify the commercial identity of your Business.
l. Spenda will not be responsible for any Losses suffered by a User or any other person in connection with or arising from the provision by a User of inaccurate or incomplete information when creating their User Account.
m. You agree and on your behalf any representative who registers a User Account in your name, when you register a User Account, Spenda may send SMS text message to the telephone number submitted as the contact in relation to that User Account, containing a code in order to verify your phone number. By attempting to register a User Account, you agree to receive an SMS text message from Spenda. Depending on your current mobile carrier plan, you may incur charges for receiving this SMS text message (and you agree that Spenda will not be responsible for any charges incurred). You acknowledge that, depending on your mobile carrier’s service, it may not be possible to transmit an SMS text message to you successfully. Spenda is not liable to you for any Losses you or any other person may incur as a result of transmission delays or message failures (whether in relation to the SMS verification message referred to above or regarding any other communications generally). If you have any issues registering your User Account due to being unable to receive an SMS text message from Spenda, please contact Spenda at 1300 682 108.
n. Spenda will never ask for information about your Business via email or SMS text message. If you receive an email or SMS text message purporting to be from Spenda asking you to enter any such information, please report it to Spenda immediately and delete the email or SMS text message.
o. Spenda reserves the right, in its sole and absolute discretion, to refuse to process any User Account registration requests and will not be liable in any way whatsoever for any such refusal decision.
p. Upon successful completion of the registration process in relation to the Platform:
i. you will be provided with a User Account accessible to you by a username and password of your choice; and
ii. subject to you at all time complying with these Terms and Conditions, Spenda will grant you licence to use the Platform as a User on the basis set out in clause 4.
k. Spenda may refuse requests to use the Platform if the information provided by you during the registration process is the same as or similar to existing log-ins; or is inappropriate, offensive, obscene, abusive, defamatory or illegal; or infringes copyright
l. Spenda may (but is not obliged to) ask you to produce documentation to confirm your Business’ details and eligibility to use the Platform. If you choose not to provide documentation, Spenda may in its sole and absolute discretion cancel your User Account. Spenda will not be liable for any Loss suffered by you or any other person as a result of such cancellation.
m. It is your sole responsibility to ensure that your User Account information is kept up to date and that you have provided Spenda with accurate details at all times so that Spenda can contact you for any reason in relation to the Platform or your use of the Platform. Any updates to your User Account (excluding updates make to your contact information) must be submitted to Spenda in writing and are subject to the prior approval of Spenda. Spenda may in its absolute discretion refuse to approve any updates to your User Account information if in Spenda’s reasonable opinion such updates do not comply with these Terms and Conditions.
n. Spenda may terminate the operation of the Platform at any time, and in such circumstances Spenda will notify you using the contact information provided by you when registering your User Account or as updated by you as required under this clause 3. Spenda will not be liable for the termination of the Platform or any Loss suffered by you or any other person as a result of such termination.
o. Warrant to Spenda
4. LICENCE
a. The registration of your User Account grants you a personal, non-exclusive, non-assignable, non-transferable, revocable licence to use the Platform in accordance with these Terms and Conditions.
b. All rights not expressly granted to you under these Terms and Conditions are reserved to Spenda.
5. PAYMENT SERVICE PROVIDER
a. You agree and acknowledge that Spenda is a provider of payment facilitation services only and that the Platform is provided to Users, whether as Customers or Suppliers, as a means of facilitating payment for transactions effected between such Users. Spenda does not:
6. SUPPORT
Spenda provides telephone and email support in relation to the Platform on the basis set out here. Spenda may change the basis on which it provides such support from time to time and your continued use of the Platform will constitute deemed acceptance of the prevailing support arrangements provided by Spenda in that regard.
7. ACCOUNT SECURITY
1. Security
a. It is your sole responsibility at all times to ensure your username and password required for you to access your User Account are in each case kept secure and confidential and are not disclosed to any other party.
b. You must not transfer or assign your User Account to anyone else unless you have obtained prior written consent from Spenda (which will be given in Spenda’s sole and absolute discretion.) You must not allow anyone else to use your User Account. Spenda may suspend or cancel your User Account if it suspects you are in breach of this clause.
c. You must not use another User’s User Account without their and Spenda’s express written consent. Spenda may require proof of the other User’s consent at any time.
d. You must notify Spenda immediately upon becoming aware of any unauthorised use of your username, password or User Account or of any other breach of security associated with your User Account. Once notified, Spenda will reset your password and send a new password to the email address provided by you. Spenda may (but is not obliged to) take any further action as it considers necessary in relation to any alleged unauthorized use or other security breach. Spenda may (but is not obliged to) suspend your User Account in order to prevent any activity on the User Account during an actual or suspected breach of security.
e. Whilst Spenda takes its security obligations seriously, you are responsible for all activities which occur under your User Account (regardless of whether you know about them) and Spenda is not liable for any Loss whatsoever that you or any other person may incur as a result of any unauthorised use of your User Account.
f. Any use of the Platform which can be attributed to your User Account will be considered to be use of the Platform by you as a User, unless you have previously notified Spenda in writing of an unauthorised use of your User Account, or of any other breach of security associated with your User Account and at the relevant time the breach has not been remedied by Spenda pursuant to clause 7.1(d).
g. You may, to the greatest extent permitted by Law, be held responsible for any Losses incurred by Spenda or any third party (including any other User) due to any unauthorised use of your User Account.
2. No Tampering
a. Neither you nor anyone having access to your User Account may do, or attempt to do, any of the following:
i. use the Platform in a way which is, in Spenda’s opinion, contrary in any way to these Terms and Conditions;
ii. access areas of the Platform which you are not authorised to access;
iii. alter or tamper with any part of the Platform except as expressly authorised;
iv. send unsolicited correspondence to other Users (if the User opts out of such correspondence);
v. use any automated means or interface, including tracking software, robots, spiders or similar technological devices or programs not provided by Spenda, to access the Platform or to track Users or their usage of the Platform;
vi. reverse engineer or decompile any aspect of the Platform or do anything to discover the source code, or to circumvent measures put in place by Spenda to prevent or limit access to any area of the Platform;
vii. send viruses, or any computer code, file or program to the Platform which is designed to, or has the effect of, destroying, interrupting or limiting the functionality of any computer software or hardware, electronic device or other telecommunications equipment; or
viii. do anything when accessing the Platform to the commercial disadvantage of Spenda or in a manner otherwise adverse to the business interests of Spenda.
Spenda reserves the right to take any action Spenda deems necessary to detect, identify, prevent, or stop any conduct which, in Spenda’s opinion, constitutes a prohibited use of the Platform under this clause 7.2, even if it does not specifically violate any of these Terms and Conditions. This includes, without limitation, the right to immediately and without notice delete or remove any Content (whether User Generated Content or otherwise), and the right to immediately and without notice cancel your User Account.
8. PRIVACY AND PERSONAL DATA
1. Privacy
a. To allow you to use the Platform, Spenda needs full and accurate information about your Business. Spenda will only use that information where Spenda has a legal basis to do so.
b. Spenda’s Privacy Policy sets out the type of information collected by Spenda, how Spenda uses that information and your rights in connection with that information.
c. By using the Platform, you are deemed to have read and accepted the Privacy Policy (as amended from time to time).
d. Spenda reserves the right, in its sole and absolute discretion, to amend its Privacy Policy from time to time. You agree that your continued use of the Platform after any such amendment to the Privacy Policy will be taken as your acceptance of the terms of the amended Privacy Policy.
2. Collection of personal data
a. If you receive personal data about another User, you must keep such personal data confidential and only use it in connection with the Platform. You may not, in line with our Privacy Policy, disclose or distribute any personal data about another User to a third party or use such personal data for marketing purposes unless you receive that User’s express consent to do so.
b. To the extent you process any personal data about another User, pursuant to these Terms and Conditions and Spenda’s Privacy Policy, you and Spenda will each be an independent data controller (and not joint controllers), meaning each party will separately determine the purposes and means of processing such personal data.
c. You and Spenda agree to comply with the requirements of any applicable privacy and data protection laws, including any applicable regulations, directives, codes of practice and regulatory requirements applicable to data controllers in connections with these Terms and Conditions. You and Spenda also have and will follow their own privacy statements, notices, policies and procedures for any such personal data that we process in connection with these Terms and Conditions.
d. In complying with the applicable data protection laws, you and Spenda will each:
i. implement and maintain all appropriate security measures in relation to the processing of personal data;
ii. maintain a record of all processing activities carried out under these Terms and Conditions; and
iii. not knowingly or intentionally do anything, or knowingly or intentionally permit anything to be done, which might lead to a breach by the other party of the applicable data protection laws.
e. Any personal data regarding a User which you collect in connection with the Platform (and not otherwise generated, collected, or obtained by you through any separate relationship which you may have with that User outside the use of the Platform) will be used by you only to the limited extent it is necessary and relevant to the Platform and for no other purpose unless you have obtained the prior express consent of the User.
9. CONTENT
1. Acknowledgements
You acknowledge and agree that:
a. your use of the Platform is entirely at your own risk;
b. to the greatest extent permitted by law, you hereby release Spenda and its Related Bodies Corporate from any and all Claims, liability and Losses which you may suffer or incur arising out of or resulting from, or relating in any way to your use of the Platform, including for negligence, inherent and unforeseen risks, injury or damage to persons or property and the actions of you, Spenda, other Users and other third parties; and
c. Spenda reserves the right, but is not obliged, to monitor the Platform and your use of it and Spenda may, at its sole and absolute discretion, choose to modify or delete any Content or material that you post on the Platform, or suspend or delete your User Account and remove your access to the Platform if, in Spenda’s sole and absolute opinion, your Content breaches any of these Terms and Conditions, or is otherwise in bad taste even if it does not specifically breach any of these Terms and Conditions.
2. User Obligations
a. You agree to:
i. comply with all Laws which may be applicable to the use of the Platform including, without limitation, copyright and other intellectual property laws;
ii. report to Spenda immediately if you see any Content posted on the Platform by any User or User that is in breach of these Terms and Conditions; and
iii. adhere to generally accepted rules of etiquette and standards of behaviour in your use of the Platform, posting of Content and interactions with Spenda, other Users or third parties via the Platform.
b. You must not:
i. make available or publish Content on the Platform containing any unlawful or inappropriate content and you will not submit inaccurate, misleading or inappropriate content, including data submissions, edits or requests;
ii. use, or encourage or enable any other party to use, the Platform to violate any applicable Law as outlined in these Terms and Conditions;
iii. use the Platform to discriminate against, spam, harass, stalk or otherwise inappropriately communicate with other Users;
iv. use or misuse the Platform in any way which may impair the Platform or systems used to deliver the Platform;
v. interfere with any other person’s use and enjoyment of the Platform;
vi. attempt to gain unauthorised access to any materials (other than those to which you have been given express permission to access), or the computer systems on which the Platform is hosted;
vii. transmit, or input onto the Platform, any files that may damage any other person’s computing or electronic devices or software, Content that may be illegal or otherwise offensive, or material or data in violation of any Law (including data or other material protected by copyright or trade secrets which you do not have the right to use); or
viii. obtain or attempt to obtain any Content, materials or information of Spenda and its Related Bodies Corporate through any means not intentionally made available through the Platform.
c. Your User Generated Content must not contain or display, and Spenda may refuse, suspend or withdraw any Content on the Platform which contains:
i. threatening or bullying language;
ii. profanity, abusive or aggressive language, whether in English or in any other language;
iii. confidential information of any other person, such as credit card details or account information;
iv. misleading or deceptive content, or content which is likely to mislead or deceive; or
v. any website links or URLs that show content which would contravene these Terms and Conditions if posted on the Platform.
a. Without limiting these Terms and Conditions, you:
release and discharge Spenda and its Related Bodies Corporate to the fullest extent permitted by law from all Claims which you had, have or may have but for the operation of this clause against Spenda or its Related Bodies Corporate, which are caused by or contributed to or in any way connected with any breach of this clause 9.2.
10. PAYMENT
a. Spenda may charge you Fees in accordance with agreed rates for Services provided by Spenda to you in connection with your use of the Platform, whether as a Customer or Supplier.
b. If you are a Customer, you expressly authorise Spenda to deduct such Fees from the funds you provide to a Supplier via the Platform as payment for any goods or services that the Supplier has provided to you.
c. If you are a Supplier, you expressly authorise Spenda to deduct such Fees by way of direct debit from your relevant bank account nominated at the time you register your User Account (or as otherwise updated from time to time).
d. You as a User recognise that there may be a period of up to seven [7] days, from the date on which a Customer initiates payment to a Supplier using the Platform, until that payment is deposited in the relevant account of the Supplier.
e. All Fees payable under or in connection with these Terms and Conditions and applicable Services are exclusive of GST. You will be responsible for the payment of any applicable GST which may be imposed in connection with those Fees and/or Services and agree to that GST amount being deducted by Spenda at the same time as it collects the applicable Fees.
11. GST
You as the User are solely responsible for ensuring you comply with all applicable taxation requirements and make payment of all taxes and duties regarding your use of the Platform (including but not limited to determining whether you are required to be registered for GST and for disclosing and accounting for GST as required by law).
12. INTELLECTUAL PROPERTY
1. User Generated Content
a. Any Content which you post, submit, input, transmit or upload to the Platform (User Generated Content), may be subject to Australian and international copyright laws. Accordingly, you must not post any User Generated Content that is not written or otherwise created by you or which you otherwise do not have express permission to use.
b. You warrant that you own, or otherwise have all necessary licences or permissions to use the User Generated Content that you post on the Platform. If such Content is a work of joint authorship, you must obtain the written consent from all joint author(s) of the work to post it on the Platform.
c. In order to enable Spenda to display your User Generated Content on the Platform and to provide you and other Users with relevant services associated with the Platform, you agree to grant Spenda and its Related Bodies Corporate a non-exclusive, irrevocable, royalty-free, worldwide licence to use and reproduce your User Generated Content on any part of the Platform which Spenda considers reasonably necessary having regard to the intended functionality of the Platform and you warrant that there are no legal or equitable impediments to you granting Spenda and its Related Bodies Corporate this licence.
d. You grant Spenda the right to access, disclose, use and/or retain User Generated Content for the sole purpose of us providing you access to the Platform. You also agree that we may disclose, use and/or retain User Generated Content in depersonalised aggregated form for our business purposes including planning, marketing and product development.
e. Where there are moral rights in accordance with any applicable law subsisting in your User Generated Content, you grant your consent, and must procure the consent of all other joint author(s), to allow Spenda and its Related Bodies Corporate to exploit all Intellectual Property Rights in Content posted by you at Spenda’s entire discretion, even where such use may amount to an infringement of the author’s (or authors’) moral rights.
2. Our Content
a. All Content on the Platform including, without limitation, the text, graphics, and photos created by and for Spenda, and the name, logo and trade marks of Spenda and its Related Bodies Corporate (whether registered or unregistered), as well as the ‘look and feel’ of the Platform, including its structure, sequence and organisation (Our Content) is owned by or licensed to Spenda, and is subject to copyright and other Intellectual Property Rights under Australian and foreign Laws and international conventions.
b. Our Content on the Platform is provided to you ‘as is’ for your information and personal use only and may not be used for any other purpose whatsoever without Spenda’s prior written consent or as expressly permitted herein. Spenda makes no representation or warranty as to the truth or accuracy of any information contained in Our Content.
c. Spenda reserves all its rights at Law and in equity in connection with Our Content. The Platform, whether in whole or in part, may not be reproduced, copied, stored or downloaded, and you may not publish, sell, let, hire, or offer to sell, let or hire any part of the Platform and any Content posted on it.
d. You may not do or participate or assist in, or cause, procure, authorise or allow any third party to participate or assist in anything designed to:
i. discover, or which has the effect of discovering, the design, composition, construction methods, structure, source code, object code, or otherwise reverse engineering any part of the Platform; or
ii. infringe, or which has the effect of infringing, any Intellectual Property Rights of Spenda or its Related Bodies Corporate generally.
a. You may not, at any time, challenge or oppose, or cause, procure, authorise, allow or assist any third party to challenge or oppose Spenda’s exclusive ownership of any Intellectual Property Rights in the Platform.
b. From time to time, you may contact Spenda with any suggestion, comment, feedback or request that you may have in relation to the Platform. By doing so, you acknowledge that the Intellectual Property Rights in any alteration or modification to the Platform made as a result of a suggestion, comment, feedback or request that you have made, will immediately belong to Spenda and you will have no right, title or interest in connection with such alterations or modifications (including for compensation).
c. You agree not to use any of Our Content other than as expressly permitted under these Terms and Conditions. If you download or print a copy of Our Content for your personal use, or use which is expressly permitted by law, you must retain all copyright and other proprietary legal notices contained in Our Content.
3. Open Source Content
a. The Platform may include or rely upon open source software, codes, modules or languages (Open Source Content). Any and all Open Source Content used by Spenda is governed by the relevant open source licences. Spenda’s use of such material, if any, in developing the Platform does not infringe any third party intellectual property or other rights.
b. If you use the Platform in a manner that is not permitted under these Terms and Conditions, Spenda cannot warrant that such use by you in such manner will be permitted under the relevant open source licensing regimes. You must indemnify and hold Spenda and its Related Bodies Corporate harmless from and against any and all Claims, costs, expenses, damages, liability and Loss incurred as a result of your use of the Platform in a manner not permitted under these Terms and Conditions.
13. INDEMNITY
a. To the greatest extent permitted by Law, you indemnify Spenda and its Related Bodies Corporate against any and all Claims, damages and Losses which may be suffered or incurred by, or brought, made or recovered by any person against, Spenda or its Related Bodies Corporate as a result of, or in connection with (without limitation) any:
i. breach or alleged breach of these Terms and Conditions;
ii. Intellectual Property Rights infringement;
iii. breach of privacy; and/or
iv. violation of any Law;
by you, or any party acting on your behalf (or purporting to do so).
b. In addition to clause 13(a), you release and discharge Spenda and its Related Bodies Corporate to the greatest extent permitted by Law from all Claims and Losses which you had, have or may have but for the operation of this clause had against Spenda or its Related Bodies Corporate in connection with these Terms and Conditions or the Platform.
c. Any failure or delay in or by Spenda in enforcing any part of these Terms and Conditions is not to be construed as a waiver of Spenda’s rights. Any waiver of Spenda’s rights must be given in writing and will relate only to the particular circumstances for which it is given.
d. You acknowledge this clause 13 survives your use of the Platform (including after the cancellation of your User Account).
14. THIRD PARTY MATERIAL AND THIRD PARTY WEBSITES
a. The Platform may contain third party advertisements including banner ads, third party logos and information, material and documents relating to or provided by third parties (Third Party Material). The Third Party Material may contain embedded hyperlinks to websites operated by third parties or their licensees or contractors (Third Party Websites). In some instances, the Third Party Material may contain representations or offers which you can accept by linking to the relevant Third Party Website and executing the relevant transaction.
b. Spenda does not control the Third Party Material posted via the Website or the Third Party Websites. As such, you acknowledge and agree that:
i.by using the Platform, you may be exposed to Third Party Material or a Third Party Website that is misleading, deceptive, incomplete, inaccurate, out of date, offensive, indecent or otherwise objectionable;
ii.any offers contained within Third Party Material or on Third Party Websites are not made or recommended by Spenda and the relevant third party is solely responsible to you for the delivery of any goods or services you purchase on the Third Party Website;
iii.Spenda does not give any representation or warranty as to the reliability, accuracy or completeness of any Third Party Material on the Website, Third Party Websites, linked sites, or subsequent sites and no endorsement is intended or implied by the presence of such Third Party Material on the Platform;
iv. the policies described on the Platform do not apply to the Third Party Websites;
v. your linking to such Third Party Websites is entirely at your own risk;
vi. Spenda is not responsible for the accuracy or reliability of any information on the Third Party Websites;
vii. any Third Party Material may be subject to change without notice to Spenda to you; and
viii. under no circumstances is Spenda liable in any way (including in negligence) for any loss or damage of any kind incurred by you arising out of or as a direct or indirect result of the use of any Third Party Material, Third Party Websites, linked sites or subsequent sites or of any Third Party Material posted, emailed, transmitted or otherwise made available via the Platform.
15. LIMITATION OF LIABILITY
a. Notwithstanding any other provision in these Terms and Conditions to the maximum extent permitted by Law, Spenda and its Related Bodies Corporate will not be liable to you or any other person for any Loss or damage of any kind or other economic losses in contract, tort (including negligence), under any statute or otherwise arising out of or in any way connected to your use of the Platform.
b. Spenda will use reasonable endeavours to ensure that the Platform is functional at all times. However, Spenda make no warranties whatsoever that the Platform will be fully functional and free of errors, bugs or viruses. Accordingly, you agree that Spenda will not be held liable for any delay, disruption or interruption in your access to the Platform or to a Users’ ability to view and/or interact with your Content on the Platform. You further agree that Spenda will not be liable for any Losses or liability which may be incurred as a result of, or in connection with, or in relation to any loss of functionality of the Platform, or any errors, bugs or viruses, whether or not resulting in any destruction, interruption or damage to your electronic device from which the Platform is accessed.
c. Spenda and its Related Bodies Corporate may plead this clause 15 as a complete defence to any action, proceeding or suit, which may be taken or commenced by you or on your behalf arising out of the matters referred to in these Terms and Conditions and until this clause 15 is set aside by a final order of a Court, you must consent to an order staying such action, suit or proceeding.
16. COMPLAINTS AND DISPUTE RESOLUTION
a. If you have a complaint about the Platform, or believe your User Account may be subject to unauthorized transaction, account takeover or other fraudulent activity, you should contact us immediately.
b. Spenda will aim to acknowledge receipt of all complaints within 5 business days and resolve all complaints within 45 days. This may not be possible in all circumstances. If we cannot resolve a complaint within 45 days we will notify you and advise the reason for the delay and an indication of when you should expect a resolution.
c. If you have any dispute with Spenda in relation to these Terms and Conditions or Spenda’s enforcement of these Terms and Conditions (Dispute), you must:
i.notify Spenda of the Dispute by all reasonable means, including by email (Notification of Dispute); and
ii.co-operate with Spenda or Spenda’s authorised representative to resolve the Dispute.
d. You can report complaints or provide Spenda with a Notification of Dispute by:
i. email: support@spenda.co ;
ii. telephone: 1300 682 521; or
iii. mail: 605, 275 Alfred Street, North Sydney, NSW, 2060.
e. Within 60 days of Spenda receiving your Notification of Dispute, you and Spenda each agree to use best endeavours to attempt to resolve the Dispute by negotiation.
f. If the Dispute is not satisfactorily resolved by negotiation between the you and Spenda after the 60 day period referred to in clause 16(b) above (or, where both you and Spenda agree to a longer period, that longer period), the Dispute will be referred to mediation in accordance with the ADC Guidelines for Commercial Mediation published by the Australian Disputes Centre (ADC) in force at the time to a mediator agreed upon by you and Spenda, or if such agreement cannot be reached, a mediator appointed by the ADC.
g. You and Spenda must use best efforts to make use of the mediation process to resolve the Dispute and mediation shall continue until:
i.the Dispute is resolved; or
ii.a determination by the mediator that the Dispute is unlikely to be resolved through mediation.
h. Each party shall bear its own costs in relation to the resolution of the Dispute. The costs of the mediation in accordance with clause 16(d) above will be borne equally between both parties.
i. During the Dispute, these Terms and Conditions will remain in full force and effect.
j. Neither party may commence any arbitration or court proceedings without first complying with this clause 16. However, nothing in this clause 16 denies Spenda the right to seek urgent interlocutory relief (including an injunction) from an appropriate court in relation to any Dispute arising under these Terms and Conditions.
17. AMENDMENT OF TERMS AND CONDITION
a. Spenda reserves the right, in its sole discretion, to amend these Terms and Conditions at any time, which amended Terms and Conditions shall be immediately binding upon you. Spenda will use reasonable endeavours to notify you of any updates or changes to these Terms and Conditions (but is not obliged to do so).
b. You agree that you will be deemed to have reasonable notice of any amendments to these Terms and Conditions once Spenda has posted them here or notified you by email. You agree that your continued use of the Platform after such notice will be taken as your acceptance of the amended Terms and Conditions.
c. It is your responsibility to check periodically for any such amendments to these Terms and Conditions. If you do not agree with the amended Terms and Conditions, you must take steps to cancel your User Account and immediately stop using the Platform.
d. Notwithstanding clause 17(b) above, where you notify Spenda of a Dispute in accordance with clause 16 above, any amendments made to these Terms and Conditions after you have notified Spenda of the Dispute will (to the extent they relate to the Dispute) not apply to you until the Dispute has been resolved.
18. SUSPENSION AND CANCELLATION OF USER ACCOUNT
a. Spenda reserves the right to suspend your User Account at any time for any breach of these Terms and Conditions or any alleged breach of these Terms and Conditions pending investigation. The suspension of your User Account may result in any Content in connection with your Business (whether User Generated Content or otherwise) being removed from the Platform.
b. At the conclusion of an investigation into any alleged breach of these Terms and Conditions by you, Spenda may in its sole and absolute discretion:
i. reactivate your User Account;
ii. temporarily suspend your User Account; or
iii. permanently cancel your User Account in accordance with the remainder of this clause 18.
c. Spenda reserves the right to cancel your User Account at any time for any breach of these Terms and Conditions. If Spenda cancels your User Account, you may not, under any circumstances, register a new User Account without prior written consent and approval from Spenda.
d. Subject to clause 13, you have the right to terminate these Terms and Conditions, at any time for any reason whatsoever by cancelling your User Account.
e. If you wish to cancel your User Account, you may notify Spenda by email at support@appstablishment.com and Spenda will endeavour to cancel your User Account as soon as practicable.
f. In certain circumstances, you may not cancel your User Account, including:
i. to evade investigation;
ii. if you have a pending transaction;
iii. if you have an open dispute or claim; or
iv. if your User Account is subject to a hold.
g. Upon cancellation of your User Account by Spenda in accordance with clause 18(a), (b), (c) or (e) above, you will no longer have access to your User Account, and you will no longer be authorised to use, and must not use, the Platform.
h. Upon the cancellation of your User Account, any Content in connection with your Business may be removed from the Platform.
i. To the greatest extent permitted by Law, Spenda is not liable for any Losses of any kind suffered by you or any other person in connection with or arising from the suspension or cancellation of your User Account.
19. WARRANTIES
1. User Warranties
By creating a User Account, you represent and warrant to Spenda on behalf of you and your Business that:
a. if your Business is conducted via an incorporated entity, it is duly incorporated and validly exists under the laws of its place of incorporation (if applicable);
b. no Insolvency Event has occurred in relation to your Business;
c. the creation of a User Account by you has been authorised by all necessary corporate or other action on the part of your Business;
d. you have full power and lawful authority to agree to these Terms and Conditions and to consummate and perform or cause to be performed its obligations under these Terms and Conditions;
e. these Terms and Conditions constitute a legal, valid and binding obligation upon you;
f. you will not infringe the Intellectual Property Rights or any other rights of any third party by creating a User Account or carrying out your obligations under these Terms and Conditions;
g. you have had adequate opportunity to obtain competent legal and other professional advice concerning the terms and effect of these Terms and Conditions;
h. you understand the legal significance and effect of creating a User Account and have obtained independent legal advice in relation to these matters;
i. you have not been induced to agree to these Terms and Conditions by any promise, representation, improper pressure, coercion or undue influence from Spenda or otherwise;
j. you are aware Spenda is relying on the warranties in this clause 19 if Spenda approves any User Account registration request made by you;
k. you consider the terms of these Terms and Conditions are fair and reasonable in all the circumstances; and
l. the terms of these Terms and Conditions are binding upon you.
2. No Warranty
a. No warranty in relation to any good or services is to be implied into these Terms and Conditions, including any implied warranties of title, merchantability, fitness for a purpose and non-infringement.
b. Spenda does not have any control over the products or services provided by Users who use the Platform as a payment method and Spenda cannot ensure that the Customer or Supplier User you are dealing with will actually complete the transaction or is authorised to do so.
c. Spenda does not guarantee continuous, uninterrupted or secure access to any part of the Platform, and you agree and acknowledge that the operation of Spenda’s website, software or systems (including any networks or servers used to provide the Platform) may be interfered with by numerous factors outside of our control.
d. Spenda will make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, debit cards and credit card are processed in a timely manner, but Spenda makes no representations or warranties regarding the amount of time needed to complete processing because the Platform is dependent upon many factors outside of Spenda’s control, such as delays in the banking system.
20. CONFIDENTIALITY
a. Subject to clause 20(e), you and Spenda agree in respect of Spenda’s Confidential Information:
b. You must not make any use of Spenda’s Confidential Information or any part of it to the competitive disadvantage of Spenda or in a manner otherwise adverse to the business interests of Spenda.
c. Notwithstanding any clause in these Terms and Conditions, you acknowledge and agree that any analytics, reports, analyses, data compilations and any other data and information that relate to the Platform, application or User web traffic, online flow or activity in connection with any Content constitutes Confidential Information that will be the property of Spenda and which Spenda may disclose, use and exploit for any business purpose in its sole discretion.
d. Subject to clause 20(e), you must not disclose any of Spenda’s Confidential Information to any person, other than:
i. your professional advisers in relation to your rights under and performance of these Terms and Conditions;
ii. your officers, employees, agents or contractors for the sole purpose of complying with these Terms and Conditions; or
iii. with the prior written consent of Spenda.
e. You may disclose Spenda’s Confidential Information to the extent disclosure is required:
i. by Law;
ii. to enforce these Terms and Conditions; or
iii. to give effect to the terms of these Terms and Conditions.
f. For the avoidance of doubt, it will not be a breach of these Terms and Conditions to disclose Spenda’s Confidential Information which:
i. is publicly available or has previously been disclosed as at the date on which you become subject to these Terms and Conditions; or
ii. becomes publicly available subsequent to the date on which you become subject to these Terms and Conditions in the absence of a breach of confidentiality.
g. Upon termination of your access to the Platform, you agree to, upon Spenda’s request, deliver to Spenda or destroy all of Spenda’s Confidential Information that you have in your possession or control.
21. GOVERNING LAW
These Terms and Conditions are governed by the laws of Western Australia. You agree to submit to the exclusive jurisdiction of the courts of Western Australia for all matters arising in connection with these Terms and Conditions.
22. SEVERANCE
If any part of these Terms and Conditions is, or becomes, void or unenforceable, that part is, or will be, severed from these Terms and Conditions so that all parts that are not, or do not become, void or unenforceable remain in full force and effect and are unaffected by that severance.
23. ASSIGNMENT
You may not assign any right or obligation you have under or in connection with these Terms and Conditions without Spenda’s express prior written consent. Spenda’s rights and obligations under these Terms and Conditions may be transferred or assigned at any time at Spenda’s absolute and sole discretion.
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