Directory Listing – Terms of Business
This page sets out the Terms of Business which you agree to in creating a Directory Listing for your business at www.snowsearch.com.au (“Directory Listing”) by submitting the Directory Listing – Registration Form on the website (“Registration Form”). Please read these terms carefully - they are open to negotiation so if you have any concerns, please discuss them with us prior to submitting the Registration Form.
- Extended license to use the website and your promises to us
Your promises to us. You represent and warrant to us on a continuous basis for the duration of this agreement and will take such actions as necessary to ensure that:
- you operate a legitimate business related to the snow and skiing industry within Australia (“Snow Related Business”);
- you abide by all applicable laws and regulations, you take all care, health and safety steps as are prudent for someone operating the type of Snow Related Business which you operate, including maintaining current insurance policies, complying with all relevant health and safety standards and, in general, operating your business and providing related goods or services in a professional manner and within industry standard; and
- you will only use the website and your Directory Listing for the purpose of furthering your Snow Related Business and in a manner that is appropriate in the context of the website and in accordance with the above license.
- Creating a Directory Listing and editorial control
Application process. By completing the Registration Form you accept these Terms of Business and are applying to us to create a Directory Listing. We may, in our discretion, reject your request or cancel your Directory Listing after it has been accepted (see “6. Duration and termination" below).
Content you provide. You must at all times ensure that any information, opinions, logos, photos, graphics and any other materials or content you provide in relation to your Directory Listing (“Content You Provide”):
- is true, accurate, not misleading, up to date and that all details are updated as necessary to ensure these characteristics remain true;
- is limited to the business name, address and phone number and such other information as we may request in creating your Directory Listing;
- to the extent that Content You Provide expresses an opinion or other type of commentary, that it is reasonably formed on the basis of facts which have been and can be verified;
- is prepared and provided with all due skill and care;
- does not infringe any other person’s intellectual property, confidentiality or other legal rights;
- complies with all applicable laws, regulations and relevant industry codes;
- to the extent that it advertises and/or promotes products and services, matches the description provided and that such products and/or services are available in the manner, at the price and for the time period you specify in the Directory Listing; and
- to the extent that it includes any URL, whether shown or embedded, that such URL is controlled and operated by you or on your behalf, is functional and accessible and at all times operates in compliance with all applicable laws, regulations and relevant industry codes.
In creating a Directory Listing, you must not use any name or term that:
- is the name of another person or business (including with the intent to impersonate that person or business);
- is subject to any rights of another person or business, without appropriate authorisation; or
- is offensive, vulgar, obscene or otherwise inappropriate in the context in which we make the website available.
Your use of the Directory Listing service must at all times be reasonable and appropriate in the context in which the website is provided. You must not:
- provide or otherwise transmit content that is defamatory, disparaging, offensive or which could in any other way reasonably be considered to be inappropriate;
- embarrass any person or business, provide any image or information about someone without their consent or impersonate any person or business; or
- promote, provide information about, cause or contribute to an activity which is unlawful or causes or contributes to the infringement of the legal rights of any person (including any rights related to intellectual property, publicity, privacy or confidentiality).
Creation of Directory Listing. We will create your Directory Listing on the basis of information you provide to us through the Registration Form or otherwise. We may provide you with the opportunity to review your Directory Listing prior to publication or, in other cases, will provide you with a period of 7 consecutive days from the first date of publication in which to advise us of any changes you request. Where information in your Directory Listing is or will become out of date, inaccurate or misleading, you should contact us as soon as possible to ensure the Directory Listing is updated.
You agree that we are not responsible for publication of any inaccuracies and/or errors which may later be discovered in the Directory Listing. Submission of any content by you to us constitutes your authorisation for us to publish that content in your Directory Listing.
Publication of Content You Provide. Any Content You Provide will be available for viewing by the public at large and without restriction. You acknowledge that we may reproduce any Content You Provide in any marketing materials, social media forum or generally, for the furtherance of our business and/or promotion generally of Snow Related Businesses listed in the website directory. You further acknowledge that any Content You Provide and your username may appear on third party services such as Google and other search engines.
Editorial control. At all times, as between us and you, we retain complete editorial control of content published on the website. We will position your Directory Listing as we determine to be appropriate in the context of the website. We may at any time and without advance notice to you and whether in whole or in part, reject, remove, cancel or re-position the publication of your Directory Listing in our sole discretion. We may also label any Directory Listing as an advertisement, promotion or in such other way as we see fit to clarify that it is paid promotional content and/or does not represent our own views or recommendations.
Directory Listing upgrade. Should you wish to upgrade the type of Directory Listing you have requested, you may email or contact us to request a Directory Listing upgrade and we will approve or reject your request in our absolute discretion. Where we accept your request, we may charge you an administration fee for processing such upgrade plus the difference between the fees ordinarily charged for the upgraded type of Directory Listing and the fees paid at the time of initially creating your Directory Listing. Any such fees must be paid within 14 days of the relevant invoice date, failing such payment your Directory Listing may be suspended until such payment is received.
- Intellectual property and other rights
We do not claim ownership in any Content You Provide. You grant us, our affiliates and sublicensees, a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable license to use the Content You Provide in any way and permit us to sublicense and authorise any person to do the same thing, including reproducing, changing and communicating the Content You Provide to the public or using it in connection with the operation of our business. This license includes the right to display, reproduce and republish Content You Provide, including in other formats and on other mediums, such as using it at various location within the website, in social media sites, using it in our eNewlsetters, in blog posts within the website and using it in in promotional emails.
Content You Provide may be used by us for any purpose, whether commercial, advertising, or otherwise, on or in connection with the website or the promotion thereof. You further acknowledge that the license you provide includes the right to delete, edit, modify, reformat, translate, excerpt, prepare derivative works of, reproduce, host, display, stream, transmit, playback, transcode, copy, feature, market, sell, distribute, and otherwise fully exploit (for the purpose of promoting and operating the website and our business) any Content You Provide. You further license us to use your trademarks, service marks, slogans, logos, and similar proprietary rights which are included in any Content You Provide for the purpose of your Directory Listing and our business related purposes.
You represent and warrant to us that you have all necessary rights to grant this license. You acknowledge that your name, your representative(s)’s and/or your business name may or may not be published in connection with Content You Provide. To the extent legally permissible, you consent to any act or omission which would otherwise constitute an infringement of your moral rights and, if you provide any content in which any other person has moral rights, you must also ensure that person also consents in the same manner.
If you believe any content on the website breaches your (or any third party’s) intellectual property or other legal rights, please contact us immediately.
- Fees and payment
Fees payable and invoicing. Fees applicable are set out on the list with us page. Different fees may be payable depending upon the type of Directory Listing you register for. Any special offers we may advertise may be for a limited time or quantity. Unless otherwise indicated, all Fees are exclusive of GST which you will be charged in addition to the Fees stated. We will send you invoices for the amounts payable and, unless otherwise indicated at the time of submitting your Registration Form or within an invoice itself, all invoices must be paid within 14 consecutive days of the date the invoice is issued. Invoices will be sent to the email address you provide as your best business contact when you submit the Registration Form, unless you advise us of an alternative communication method for invoices. Payments are to be made according to the payment method set out in our invoice(s).
Late payment. Where payment is not received in accordance with this provision, we may, in our absolute discretion, de-activate your Directory Listing.
Third party payment system. Where we nominate a third party payment system (such as eWay offered by Web Active Corporation Pty Ltd and/or PayPal Pty Ltd or a merchant banking facility) (“Third Party Payment System”), you authorise our Third Party Payment System provider to make a direct debit to your nominated bank account for the applicable amount as stated on the website or invoice (as relevant) and any applicable GST. To process your payment, our Third Party Payment System provider may require you to accept their own separate terms and conditions. The name that will appear on your bank statement in respect of such a withdrawal is the business name “SNOWSEARCH”. If you do not accept full responsibility for all risks associated with using our nominated Third Party Payment System, you should contact us to arrange an alternative payment method.
- Website functionality and security
The website functionality is a dynamic part of our business and may change over time. In general, changes to website functionality will happen without you receiving notice and may include the addition or removal of content and/or services. If you are not satisfied with any changes to the website functionality, you may terminate your Directory Listing (see “6. Duration and termination” below).
You agree to comply with all reasonable security procedures which we may require. If you suspect or know of any unauthorised use of the website, you should contact us immediately.
- Duration and termination
Commencement and initial term. This agreement commences on the date you submit a Registration Form and continues for one calendar year from date of the directory listing becoming active (“initial one year period”), unless terminated in advance in accordance with these Terms of Business.
Auto-renewal. Upon the termination of the initial one year period, your directory listing will automatically renew for further consecutive one year periods on the anniversary date of the date of your first listing in the website directory, unless you advise us with no less than 30 days’ prior written notice that you do not wish to renew your Directory Listing. The fees payable for each successive one year term will be the current rates as published on the website in respect of the type of directory listing which you hold. Further, these terms will be amended or replaced in line with the then-current version of the “Directory Listing – Terms of Business”.
Termination. This agreement may be terminated by either you or us providing 30 days advance written notice (without reason), such notice may be provided by us by email to your last advised email address or by you using the contact us form or our email address email@example.com
This agreement may also be terminated by either you or us providing, (a) notice with immediate effect to the other party if it is in breach of this agreement and where a written notice has previously been provided to that party requiring it to rectify a breach and that party has not rectified that breach within 7 days of being requested to do so; or (b) notice with immediate effect if the other party is insolvent.
We reserve the right to immediately and without prior notice to you, terminate this agreement, your Directory Listing, restrict functionality available to you and/or refuse service to you (i) if we believe you are in breach of any law or the legal rights of any person, (ii) if we believe you are using the website in an inappropriate way or outside its intended purposes or (iii) if required by business or technical reasons.
Payment. Upon termination all Fees and charges (including any outstanding in respect of services provided but not yet invoiced) become immediately payable. You will be charged Fees up to the point of termination and where you are charged Fees in arrears, you will be charged on a pro rata basis.
Refunds. Refunds are not available if you simply change your mind about having a Directory Listing. Refunds (whether in whole or in part) are only available: (i) on a pro-rata basis if we cancel publication of your Directory Listing during the pre-paid one year period for publication (other than due to your breach of this agreement, the occurrence of an insolvency event or because we cease to provide directory listing services generally); or (ii) as required by law.
Survival. Any rights (other than the publication of your Directory Listing), obligations and liabilities which have accrued at the point of termination will continue beyond and survive termination. All provisions related to (i) the license of Content You Provide, (ii) any warnings and disclaimers by us, (iii) the limitation of our liability, (iv) your liability to us and (v) any provisions required to give effect to such provisions, continue after and survive termination of this agreement. Any content you have previously provided may or may not (in our discretion) be removed from the website following termination of this agreement.
- Consumer guarantees
All disclaimers in these Terms of Business and all limitations on our liability to you are subject to all applicable laws which prohibit or restrict the exclusion or modification of implied warranties and/or limitations on our liability, including (without limitation) any consumer guarantees mandated by the Australian Consumer Law (“ACL”). If our products or services we supply are covered by the ACL and fail to meet the consumer guarantees, you may be entitled to:
- for any major failure, a refund and compensation for your losses or damages which were reasonable foreseeable; or
- for a non-major failure to have the products or services re-supplied.
To the maximum extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms of Business and those which by law cannot be excluded. In addition, we draw your attention to the following points - these are risks which you accept in engaging our services and in relation to which you release us from any liability.
- Information you disclose. Disclosure of any information in your Directory Listing is at your own risk. Always use caution when giving out any information about yourself or your business, especially with respect to information which can be used to personally identify you.
- You may not be satisfied with your Directory Listing. There are many factors which may impact on our ability to meet your requirements and we cannot guarantee that you will be satisfied with the results, whether in relation to your Directory Listing or other aspects of the website.
- General business risks. You acknowledge that there are certain risks inherent in your business activities as a Snow Related Business and that you accept full responsibility for such risks, including any risks related to your advertising or listing in a directory service. We are in no way involved in or responsible for any loss or harm which may arise due to your actions or inactions, the actions or inactions of others or, generally, due to the nature of your business and it is up to you to take such measures to protect yourself and your business as are prudent for your type of business.
- Results to be achieved. The results to be achieved from using our products and services are influenced by various factors including many of which are outside of our control, such as the information and content you provide or fail to provide, your responses, limitations and failures in the technical aspects of the website and technology used to provide the website. We cannot guarantee and make no recommendations as to the results which may be achieved through using our website and your Directory Listing. It is for you to monitor the efficacy of your Directory Listing to increase your customer base and to determine for your business circumstances whether or not the continued use of your Directory Listing will achieve the results you desire. We make no guarantees or representations as to the number or type of customers you may receive through your Directory Listing on the website.
- Technical aspects. Technical aspects of the website may be unreliable and we make no representation about the suitability, reliability, security, availability, timeliness or accuracy of any website functionality, the directory listing service, information, software, products, services and related graphics contained on the website. The website may contain inaccuracies, errors or be otherwise unreliable. The content available and services offered over the website will change from time to time and without notice to you.
- Suspension of service. For business, technical and other reasons, the website (and its various components) will not operate on a continuous basis and may be unavailable from time to time, such as for maintenance purposes. Operation of the website and your access to certain website functionality may also be temporarily or permanently suspended for various reasons and at our discretion. Suspensions may apply to you individually or to all (or any group of) website users.
- Third Party Payment System. The security of any payments made using our Third Party Payment System is dependent upon the security procedures of that payment system provider and we in no way guarantee or make any recommendations as to the security or reliability of their systems. Any use of our Third Party Payment System is entirely at your risk and you agree that we are in no way responsible for any inadequacy in the security measures, failures in the security of the payment systems, loss or theft of your personal payment information or otherwise. If you are not comfortable accepting these risks you should contact us to arrange an alternative payment method.
- OUR LIABILITY TO YOU
To the maximum extent permitted by law:
- our total aggregate liability for all claims relating to this agreement is limited to the fees payable under this agreement or, where no amount has been charged, to $10 (AUD);
- we exclude all liability in respect of any special, indirect or consequential loss or damage;
- without limiting the preceding points, we exclude all liability for any business loss and, in particular, we exclude all liability for loss of data, interruption of business and loss of profits; and
- where any legislation prohibits or restricts the exclusion or modification of any implied warranties, conditions, guarantees or obligations, then, to the extent possible, we limit our liability (at our option): (i) in the case of goods, to their replacement (with equivalent goods), repair or payment for the cost of their repair or replacement; or (ii) in the case of services, to their re-supply or payment for the cost of their re-supply.
To the extent that any provision purporting to limit our liability is held to be unenforceable, then our liability is limited to the maximum extent permitted by law. You also agree to waive any claim which you may otherwise have against any of our third party suppliers.
For the avoidance of doubt, liability limited by this section includes liability in any way related to:
- any content about you or your business appearing on the website;
- the directory listing service;
- use (by us or others) of Content You Provide;
- any claim or complaint which you may have against any other website user or which any other website user may have against you; and
- the results you obtain and any consequences which flow from using the directory listing service.
You agree to at all times indemnify and hold us harmless, together with our agents, affiliates, subsidiaries, directors, officers, employees, consultants and contractors (collectively "Indemnified Persons") from and against any claim, costs, losses, damages, liability and expense (including reasonable legal fees) arising in relation to:
- your breach of this agreement (including any breach of any representation or warranty to us);
- you or any Content You Provide not complying with all applicable laws and regulations or breaching any third party’s intellectual property or other legal right(s) or, in either case, causing us to do so;
- the publication or use of the Content You Provide;
- any website represented by a URL included or embedded in the Content You Provide; and
- any third party claim in relation to the Content You Provide, any goods, services or business generally referred to in or directed to by the Content You Provide.
By way of example only, this indemnity applies to (a) any claims against us that any Content You Provide is defamatory, infringes copyright or any other legal rights; and (b) any claim against us by any other person in relation to any products/services you provide.
- Force Majeure. A party will not be responsible for a failure to comply with its obligations under this agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation. Without limiting any other right to terminate under this agreement, if a Force Majeure Event affects a party's performance under this agreement for more than 14 consecutive days, the other party may immediately terminate this agreement by written notice.
- eNewsletters. By submitting a Registration Form, you automatically become an email subscriber and consent to us sending you our electronic newsletter and other emails related to the marketing and administration of our website and any products or services we may offer over the course of time. All promotional emails will include the option to unsubscribe from receiving further emails or you can unsubscribe from such emails by notifying us at firstname.lastname@example.org.
- Proper authorisation. Where you accept this agreement on behalf of a company you must ensure (and we may require confirmation) that you have proper company authorisation to do so.
- No assignment. You must not assign or otherwise deal in any other way with any of your rights under this agreement without our prior written consent.
- No partnership, agency etc. Nothing contained in this agreement creates any relationship of partnership or agency between you and us. Neither you nor we may act, represent or hold ourselves out as having authority to act as the agent of or in any way bind or commit each other to any obligation.
- No involvement in disputes. You agree that we will never be involved in any dispute between you and any other website user.
- Confidential and entire agreement. The terms of this agreement are confidential. The terms set out in these Terms of Business and the details supplied or provided through the Registration Form comprise the entire agreement between us as to the subject matter set out and replace all prior oral or written agreements, representations or understandings. Other than as expressly set out in this agreement, neither you nor we have relied on any representation made by each other or on each other’s behalf. All conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the maximum extent permitted by law.
- No Waiver. Any failure to assert any right under this agreement does not constitute a waiver of such right. No waiver of any term of this agreement will be deemed a further or continuing waiver of that term.
- Severance. If any provision of this agreement is invalid or unenforceable, the relevant provision will be deemed to be removed and replaced with a valid, enforceable provision that most closely matches the intent of the original provision. All other remaining provisions shall continue in full force and effect.
- Governing law. This agreement is governed by and construed in accordance with the laws of the state of Queensland (Australia) and each party submits to the exclusive jurisdiction of the courts of Queensland.
- Definitions and Interpretation
In this agreement, unless the context indicates the contrary, any capitalised terms have the meanings as set out above or, where no such definition is included, have the meaning set out in the Registration Form. In addition:
- “agreement” means the terms set out in these Terms of Business in conjunction with the Registration Form submitted through the website or which you otherwise provide to us (whether by mail, courier or otherwise);
- “Force Majeure Event” means any event beyond the control of the relevant party;
- “GST” means any applicable goods and services tax;
- “insolvent” has the meaning given in the Corporations Act 2001 (Cth) or the other party has reasonable ground to believe that party is insolvent;
- “intellectual property” means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application;
- “website” means www.snowsearch.com.au and all content residing in that domain, including the website functionality, any messaging service(s), the layout, design and underlying code and systems;
- “we”, “us” and “our” means Optimal Solutions and Services Pty Ltd ACN 600 312 703 t/as SNOWSEARCH;
- “we will each” and “each other” means you and us; and
- “you” and “your” refer to (i) you personally OR (ii) if you submit the Registration Form within the scope of your employment and with due authorisation by your employer, that employer and/or company (as appropriate).
Unless the context requires otherwise: (i) a reference to a person includes a corporation or any other legal entity; (ii) the singular includes the plural and vice versa; (iii) headings are for convenience only and do not affect the interpretation of this agreement; (iv) the term "includes" (or any similar term) means "includes without limitation"; and (v) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
Version 1.0; Updated as at [21.01.2016]