Terms & Conditions

The following are Aspedia Australia Pty Ltd ACN 107 553 668 (Aspedia) terms and conditions (Terms) for the provision of Services (Services) to You. Please read these terms and conditions carefully. It is a condition of your use of the Services that you as the customer (Customer) comply with these terms and conditions.


  1. DEFINITIONS

    1. Any reference in this agreement to:
      1. Accelerator Program. means the marketing services provided by Aspedia to a Customers as an Additional Service in accordance with clause 10;
      2. Access Keysmeans any certificates, usernames, passwords or other security mechanisms used by the Customer to access the Services;
      3. Additional Servicesmeans the additional services provided by Aspedia to the Customer in accordance with this Agreement;
      4. Agreementmeans these Terms together with any Order Form, Annexure and Schedule;
      5. Business Daymeans any day which is not a Saturday, Sunday or public holiday in Brisbane, Queensland;
      6. Change Requestmeans the relevant document, form or ticket as required by Aspedia which specifies any change requested by the Customer to the Services;
      7. Commencement Datemeans the earlier of the date upon which Aspedia confirms to the Customer that access to the Software will commence or the date the Customer makes the first payment of the Subscription Fee, whichever is the earlier;
      8. Configuration Optionsmeans the selectable options which modify the behaviour of the Software;
      9. Configuration Servicesmeans the professional services provided by Aspedia to the Customer (including but not limited to consulting, user interface design, build and testing services) to configure the Software as required by the Customer and in accordance with the selected Configuration Options, any Order Form, any Change Request documents or as otherwise requested by the Customer;
      10. Configuration ServiceFee means the Service Fee payable by the Customer for the Configuration Services;
      11. Customer Datameans the data of the Customer inputted or imported into the Software or created by the Customer whilst using the Software;
      12. Customer Materialsmeans all the artwork, graphics, logos, symbols, information, documents, audio, video, client list, marketing plans, drawings and any other materials provided by the Customer, for use in connection with the Software, or otherwise used or by Aspedia, in providing the Services. Customer Materials does not include any information, designs, software, workflows, processes, documents or ideas introduced by Aspedia as these Intellectual Property Rights will remain the property of Aspedia;
      13. Force Majeuremeans a circumstance beyond the reasonable control of the Parties, which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, strikes, equipment or communication failures or delays or failures in the provision of goods or services by third parties;
      14. Intellectual Property Rightsmeans any intellectual property rights protected by statute or common law in Australia or elsewhere in the world and whether registered or unregistered and includes copyright, design, patent, trade mark, semiconductor and circuit layout rights;
      15. Optional Add-Onsmeans any software modules (including workflows) which are made available to and selected by the Customer for inclusion with Software;
      16. Optional Add-On Feemeans the fee payable by the Customer for each Optional Add-On selected by the Customer;
      17. Order Formmeans any document provided by Aspedia to the Customer which describes the description of Services to be provided and the fee summary for the Subscription, Configuration Services, Option Add-ons and Service Level Plans which forms part of this Agreement;
      18. Servicesmeans the services provided by Aspedia to the Customer including but not limited to:
        1. Configuration Services;
        2. Optional Add-ons;
        3. Software at the Customer’s chosen Subscription Level;
        4. Service Level Plan at the Customer’s chosen Subscription Level; and
        5. Additional Services (including the Accelerator Program);
      19. Service Feemeans the fees payable by the Customer to Aspedia for the provision of the Services pursuant to these Terms and includes:
        1. the Subscription Fee;
        2. the Configuration Service Fee;
        3. the Service Level Plan Fee
        4. the Optional Add-On Fee,

    and any other fees payable by the Customer pursuant to this Agreement (including but not limited to fees for the use of third party applications);

    1. Service Level Planmeans the features, services, user licences, penalties provided by Aspedia to the Customer (as selected by the Customer);
    2. Service Level PlanFee means the fee charged by Aspedia to the Customer for the Service Level Plan;
    3. Softwaremeans Aspedia’s software known as VinCreative and includes all modifications and additions made to the Software by the Configuration Services;
    4. Subscriptionmeans the subscription for the provision of the Software by Aspedia to the Customer;
    5. Subscription Feemeans the fee set and charged to the Customer by Aspedia for the provision of the Software from time to time and where the context dictates;
    6. Subscription Levelmeans the category of Services selected by the User as at the Commencement Date;
    7. Termmeans the term of this agreement as set out in clause 5;
    8. Termination Feemeans the fee payable by the Customer in the event this Agreement is terminated by the Customer prior to expiration of the Term and calculated pursuant to clause 5.3.
  2. SERVICES GENERALLY

    1. The parties agree that it is the intention of the parties that the Order Form set out the Subscription Level, Services Level Plan, Configuration Services and Optional Ad-Ons required by the Customer.
    2. Aspedia will provide the Services to the Customer as set out in the Order Form (if any) subject to these Terms and the policies and guidelines of Aspedia published from time to time.
    3. The provision of Services by Aspedia will depend on the selections made by the Customer in the Order Form, any Change Request or otherwise:
      1. the Configuration Services, Optional Add-Ons and Subscription Levels are as set by Aspedia from time to time and advised to the Customer;
      2. each Subscription Level may contain a variety of different features or uses;
      3. Aspedia reserves the right to vary the features of the Configuration Services, Optional Add-Ons, Service Level Plans and Subscription Levels in accordance with these Terms.
    4. A Customer may change the Configuration Services, the Optional Add-Ons and/or Subscription Level with the consent of Aspedia provided the Customer follows Aspedia’s change process and pays the appropriate fee for such change.
    5. The Customer agrees to promptly provide Aspedia with the following (as may be reasonably requested by Aspedia) to enable Aspedia to perform the Services:
      1. access to and authorisation to use all and any data, information, material and content, as reasonably required;
      2. authority to communicate with the Customer’s third-party suppliers (if required); and
      3. such other information, authorisation and items as may be reasonably requested by Aspedia.
    6. Where the Customer provides Aspedia with information and materials, the Customer agrees and warrants that any and all information supplied by the Customer is true, accurate, current and complete and the Customer either owns or has right to supply the information and materials supplied
    7. The Customer acknowledges that failure to promptly provide the items referred to in clause 2.5 may restrict Aspedia’s ability to provide the Services in accordance with these Terms. Aspedia will not be liable in any respect where any failure to provide the Services is due to a delay of the Customer (or a Customer’s third party) to provide the required information or the Customer (or a Customer’s third party) providing incorrect or inaccurate information.
    8. The Customer further agrees to cooperate with, act reasonably and follow the reasonable directions of Aspedia in connection with the use of the Software and this Agreement.
  3. CONFIGURATION SERVICES

    1. Aspedia will perform the Configuration Services within a reasonable time of payment by the Customer of the Configuration Services Fee.
    2. The time period for completion of the Configuration Services will depend on the Customer’s compliance with clause 2.5, clause 2.7 and clause 2.8 and Aspedia’s current development schedule and resource availability.
    3. Where the services required to be performed by Aspedia to effect the Configuration Services are extraordinary or outside the scope of the Configuration Services specified on the Order Form, Aspedia may charge Additional Fees for the performance of such services. Aspedia will endeavour to advise the Customer as soon as possible where it becomes apparent that Additional Fees will apply.
  4. OPTIONAL ADD-ONS

    1. Aspedia will provide the Optional Add-Ons to the Software upon completion the Configuration Services.
    2. The Customer may at any time change its Optional Add-Ons:
      1. on thirty (30) days written notice;
      2. by providing Aspedia with a Change Request;
      3. otherwise complying with Aspedia’s change process.
    3. A Customer may only decrease or reduce its Optional Add-Ons once in any twelve (12) month period. A Customer may increase its Optional Add-Ons at any time during the Term by following the process in clause 4.2.
    4. A fee for Additional Services may be charged as a result of any change request referred to in this clause.
  5. TERM and service FEES

    1. Subject to these Terms and Conditions, the Services shall be provided to the Customer as follows:
      1. The Configuration Services will be provided to the Customer upon receipt of payment of the Configuration Services Fee;
      2. Unless specified otherwise in the Order Form, the Subscription Services will be provided for a period of thirty six (36) months from the Commencement Date (Term);
      3. The Service Level Plan will continue for the duration of the Subscription Services (i.e. the Term).
    2. On expiry of the Term, unless either party provides notice to the other party that it wishes to terminate this Agreement at least thirty days prior to expiry of the Term, this Agreement will continue on a month to month basis until terminated by either party on thirty (30) days written notice to the other party.
    3. The Customer agrees to the pay the Service Fees as follows:
      1. The Configuration Fee upfront within seven (7) days of execution of the Order Form by the Customer;
      2. The Subscription Fee, the Optional Add-On Fee and the Service Level Plan Fee monthly from the Commencement Date by way of direct debit for the Term;
      3. Any Additional Fees on invoice from Aspedia in accordance with Aspedia’s payment terms or if no time is specified within seven (7) days from the invoice date.
    4. Any Service Fee paid by way of credit card may incur a surcharge of up to five percent (5%).
    5. The Customer will be responsible for all fees and charges incurred by Aspedia in respect of the Customer’s use of any Optional Add On or any third party application and Aspedia may add such charges to the Service Fee.
    6. Aspedia may charge an administrative processing fee in an amount not exceeding eighty dollars ($80.00) in the event any Customer payment is declined.
    7. Interest shall accrue on all Service Fees due and unpaid at an annual rate equal to the Reserve Bank's Official Cash Rate (as published in the Australian Financial Review at the time the unpaid fees become due) from the date the unpaid amount became due until the unpaid amount is paid to Aspedia in full (whether before or after judgment).
    8. Aspedia reserves the right to increase any or all of its Service Fees once each calendar year from the Commencement Date during the Term by no more than five percent (5%) per annum.
    9. All amounts and fees stated or referred to in this Agreement are exclusive of GST, in Australian dollars and (subject to the terms of this Agreement) non-cancellable and non-refundable.
    10. In the event of any action being taken by Aspedia to recover any overdue amount due and owing under this agreement any costs incurred by Aspedia in recovering the debt (including without limitation any legal expenses on a solicitor/client basis, collection agency charges (if permissible by law) or any other reasonable associated costs) are payable by the Customer to Aspedia and shall be recoverable by Aspedia as a separate debt.
    11. The Customer acknowledges and agrees that the Service Fees have been calculated having regard to the Term and in the event that the Customer elects to terminate this Agreement prior to expiration of the Term or Aspedia terminates this Agreement due to a breach of the Customer, the Customer must pay to Aspedia the Termination Fee as follows:
      1. Termination Fee = Total of all Service Fees that would be due and owing to Aspedia for the balance of the Term had the Agreement not been terminated.
      2. For example: Subscription - Term 1 February 2020 – 31 January 2023. Terminated 30 June 2022. The Customer is liable to pay to Aspedia the relevant monthly Subscription Level Fee + Service Level Plan Fee + Optional Add-On Fee x 7 months (being the balance Term).
  6. SOFTWARE

    1. The Customer acknowledges and agrees that Aspedia, at all times retains all right and title to all the data, materials and content contained within the Software, excluding any Customer Data.
    2. The Customer is granted a non-exclusive, revokable license for the Term to access the Software in accordance with the Customer’s chosen Subscription Level and such license is personal to the Customer, cannot be transferred and is limited by these Terms.
    3. The Customer is not authorised to copy or reproduce the Software in any way without the prior written consent of Aspedia.
    4. Aspedia will not be responsible in any respect for any action or inaction of the Customer based on the Customer’s analysis or interpretation of the Software or the results produced from the Software.
    5. The Customer must not add to, remove or vary any of the Software unless permitted by Aspedia.
    6. The Customer acknowledges and agrees that Aspedia is not responsible in any respect for any Customer Data provided by or for the Customer in its use of the Software.
    7. The Customer is responsible for maintaining (and updating) the accuracy of any Customer Data in the Software.
    8. Aspedia acknowledges and agrees that the Customer at all times retains all right and title to the Customer Data.
    9. Aspedia does not, unless required as part of the relevant Subscription Level or provision of Services, analyse or interpret the Customer Data for and on behalf of the Customer.
    10. The Customer irrevocably grants Aspedia a perpetual, world-wide, non-exclusive, royalty free and transferable license to use the Customer Data for the purpose of enabling access to the Software.
    11. Aspedia will not be responsible in any respect for any action or inaction of the Customer based on the Customer’s analysis or interpretation of the Customer Data.
    12. The Customer acknowledges and agrees that:
      1. upon Aspedia consenting to any grant of access by the Customer to the Software, the Customer will be issued, within a reasonable period of time of such grant, Access Keys providing the Customer access to the Software;
      2. the Customer is responsible for ensuring the security of the Customer’s computer and devices and maintaining the confidentiality of any Access Keys;
      3. the Customer must notify Aspedia immediately if the Customer becomes aware of any unauthorised use of the Customer’s Access Keys;
      4. the Customer’s use of the Software is the Customer’s responsibility and is entirely at the Customer’s own risk and the Customer accepts full responsibility for all and any information that the Customer or any third party, client or customer of the Customer transmits via the Customer’s access to the Software;
      5. the Customer will educate its agents, consultants and employees on the correct use of the Software;
      6. the Customer must not use the Software in a way that breaches this Agreement or any laws, regulations, standards or codes as enacted or modified from time to time;
      7. the Customer must not use, reproduce, sell, resell or otherwise exploit any of the Software or any part of it for commercial purposes other than in accordance with these Terms;
      8. the Customer must not modify, copy, adapt, distribute, translate or create derivative works of any kind whatsoever of any of the Software or any of the Services;
      9. Aspedia retains complete editorial control over the Software and may change, modify, alter, amend, delete any of the Software (or any Optional Add-On, component or feature of the Software) or cease the operation of the Software at any time in its sole discretion;
      10. the Software will not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes);
      11. neither the Software and/or the Services will be error free and Aspedia does not guarantee that the Software and/or the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the Software and/or the Services; and
      12. the Customer is responsible for acquiring and maintaining all equipment, services and software (whether through third parties or otherwise) necessary to access the Software. The Customer is responsible for all telecommunication fees or charges incurred as a result of connecting to the Software.
    13. The Customer acknowledges that it has reviewed the terms of Aspedia’s Privacy Policy and Disclaimer as set out in its website as amended from time to time.
    14. The Customer grants to Aspedia permission to publicise that the Customer is a user of Aspedia and/or its products.
  7. CUSTOMER obligations

    1. The Customer will ensure that at all times there is a Customer representative who:
      1. may exercise all of the powers of the Customer under this Agreement; and
      2. may by notice in writing to Aspedia, delegate any of the Customer representative's powers, except the power to delegate.
    2. The Customer must name any person acting as its Customer representative by notice in writing to Aspedia. The appointment of the person named in the notice as the Customer representative will be effective from the date that notice is given to Aspedia.
    3. The Customer must replace its representative if requested by Aspedia, acting reasonably, to do so.
    4. The Customer must not:
      1. access, store, distribute through the Services any material, data or content that:
        1. Aspedia deems to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically offensive or otherwise objectionable;
        2. constitutes, encourages or provide instructions for a criminal offence, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
        3. depicts sexually explicit images;
        4. promotes unlawful violence;
        5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; and/or
        6. causes damage or injury to any person or property;
      2. distribute or transmit through the Services any material that contains software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
      and Aspedia reserves the right, without liability, to disable the Customer's access to the Services, with or without notice, should such occur.
    5. The Customer will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services. The Customer will immediately notify Aspedia in writing in the event of any such unauthorised access or use.
    6. Except as permitted by law or under this Agreement, the Customer will not (nor grant any other person or entity the right to):
      1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means;
      2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services;
      3. access all or any part of the Services in order to build a product or service which competes with the Services;
      4. use the Services to provide services to third parties without Aspedia’s prior written consent;
      5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit or otherwise make the Services available to any third party;
      6. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Agreement;
      7. without the prior written consent of Aspedia, be involved or interested, either directly or indirectly, in the development, manufacture, production, importation, sale or advertisement of any other platform, which is like or comparable to the Services or the Software in any manner which might compete, conflict or interfere in any way with the use of the Services or the Software;
      8. independently publish data generated from the Services without consultation with and approval from Aspedia; or
      9. assign, sub-licence, transfer, charge or deal with, in any manner, any of its rights under this Agreement without the prior written consent of Aspedia.
    7. The Customer agrees that it will not:
      1. use automated scripts to collect information from or otherwise interact with the Software and any Aspedia application;
      2. take any action that imposes or may impose an unreasonable or disproportionately large load on the Software, any Aspedia application or the infrastructure of Aspedia; or
      3. impersonate any person or entity, or falsely state or otherwise misrepresent itself, its age or its affiliation with any person or entity.
    8. The Customer agrees to observe and comply with all reasonable directions and instructions given by Aspedia in relation to the Services.
    9. The Customer agrees to abide any policy relevant to the Services that may be implemented by Aspedia from time to time.
  8. ASPEDIA’S OBLIGATIONS

    1. Notwithstanding any other term of this Agreement, Aspedia does not guarantee the continuous availability of the Services. Aspedia will use best efforts to provide a consistent availability of the Services. For the purpose of these Terms availability:
      1. means the ability of the Services to perform their required functions;
      2. will be determined by Aspedia in its sole discretion; and
      3. will not be measured with reference to any unavailability caused by any third-party.
    2. Aspedia will inform the Customer if the Services or any part of them is unavailable at any time due to maintenance, update or any other foreseeable factor or cause.
    3. Aspedia is not responsible for any delays, delivery failures, or any other loss or damage resulting from:
      1. the acts or omissions of third party providers engaged by the Customer or otherwise;
      2. the failure of a Customer's system;
      3. the failure of any third party application not in control of Aspedia; or
      4. the transfer of data over communications networks and facilities, including the internet,
      and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities, systems and third party providers.
    4. This Agreement shall not prevent Aspedia from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
    5. Aspedia will obtain and maintain, with a reputable insurer, appropriate insurance relevant to the provision of the Services for the duration of this Agreement.
    6. Aspedia warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
    7. The Customer acknowledges and agrees that Aspedia may, but is not obliged to, undertake backups of Customer Data and/or information obtained through the Services.
  9. SERVICE LEVEL PLANS & ADDITIONAL SERVICES

    1. During the Term, Aspedia will, subject to the Customer’s Subscription Level, provide support services in accordance with the relevant Service Level Plan selected by the Customer.
    2. Where the Customer requires Aspedia to perform additional services (Additional Services), any Additional Services will be provided by Aspedia:
      1. as agreed between Aspedia and the Customer in writing;
      2. at Aspedia’s current charge rates for the provision of such Additional Services; and
      3. on the same terms and conditions as set out in this Agreement (as applicable) unless agreed otherwise.
  10. ACCELERATOR PROGRAM


    Where Aspedia provides the Customer will the Accelerator Program the following additional provisions apply:
    1. The Additional Services provided under the Accelerator Program will be as determined pursuant to any proposal provided by Aspedia to the Customer.
    2. The Accelerator Program will be for a period of time (term) as specified in any proposal provided by Aspedia to the Customer. Termination of the Accelerator Program prior to expiry of the term will result in fees being charged as per clause 5.11 as if the fees charged were Service Fees.
    3. Fees and charges will apply under the Accelerator Program as agreed between Aspedia and the Customer and as set out in any proposal. These fees and charges may include
      1. A Retainer Fee being Aspedia’s fee for the planning, configuration, deployment, training and ongoing management of marketing services. The Retainer Fee will usually be an agreed set monthly fee. Any Retainer Fee is charged and payable by the Customer monthly.
      2. Campaign Fees being Aspedia’s fees for undertaking selected campaigns for the Customer.
        1. Campaign Fees will usually be an amount equal to a percentage of Customer sales resulting from the services provided by Aspedia under the Accelerator program.
        2. Customer sales may be classified as an initial sale being a sale from a new consumer or a consumer that has not used the services of the Customer for a period (for example in the last 12 month period) or a recurring sale being repeat sales from consumers.
        3. Campaign Fees are charged and payable by the Customer monthly.
    4. All intellectual property rights in all products, creative works, unique campaign ideas, slogans, copy themes, layouts, copy, artwork, production services, public and other marketing material will remain the property of Aspedia unless otherwise agreed with the Customer. Aspedia may, on payment by the Customer for such Additional Services and subject to the Customer’s compliance with these Terms, grant the Customer a royalty free non-revocable perpetual licence to use such intellectual property rights in the Customer’s business.
    5. The Customer agrees to promptly provide Aspedia with the following (as may be requested by Aspedia) to enable Aspedia to perform the services under the Accelerator Program:
      1. access to and authorisation to use all and any data, information, material and content (including customer information, graphics, photos, designs, trademarks) as required by Aspedia;
      2. authority to communicate with customers and third-party suppliers;
      3. such other information, authorisation and items as may be reasonably requested by Aspedia.
    6. The Customer acknowledges that failure to promptly provide the requested information may restrict Aspedia's ability to provide the Accelerator Program.
    7. The Customer acknowledges and agrees that nothing in these Terms shall constitute by Aspedia an express or implied warranty or guarantee that the provision of the Accelerator Services will improve the business or trade of the Customer in any respect.
    8. Aspedia does not warrant that any consent, design or plan provided by Aspedia does not infringe the intellectual property rights of any other person. Aspedia does not undertake any legal due diligence in this regard. The Customer is responsible for such due diligence.
  11. THIRD PARTIES

    1. The Customer acknowledges and agrees that the Services may:
      1. contain, comprise or provide access to applications owned and operated by third parties; or
      2. be subject to the terms and conditions of use and operation of applications owned and operated by third parties.
    2. The Customer acknowledges that terms and conditions, terms of use and privacy policies of those third-party applications may apply to the Customer’s use of these applications within the Services and the Customer agrees to:
      1. enter into terms and conditions directly with owner of third party applications as may be required;
      2. abide all third party terms and conditions; and
      3. familiarise itself with the terms and conditions of any third party privacy policy.
    3. Aspedia is not responsible for the content, operation and/or reliability of any such applications and makes no representation as to the accuracy of any material contained in such applications
    4. Aspedia, to the maximum extent possible, excludes liability for any loss suffered as a result of the use of any and all third-party applications by the Customer.
    5. Aspedia will not be responsible for any loss, destruction, alteration or disclosure of any Customer Data caused by any third party.
    6. If Aspedia incurs a charge from a third party as a result of the Customer’s act or omission, Aspedia reserves the right to on-charge the Customer for such charge.
    7. In respect of any payment service provider which may form part of the Services (including but not limited to Stripe) the following applies in addition to these Terms:
      1. The Customer agrees to abide at all times the terms and conditions of any payment services provider;
      2. The Customer agrees to familiarise itself and comply with the policies, procedures and processes of the payment services provider;
      3. Where Aspedia has a master account relevant to the payment service provider, the Customer agrees to indemnify and hold harmless Aspedia from any and all loss, claim or damage that arises as a result of the Customer’s or the clients and customers of the Customer acts and omissions in respect of the payment service provider;
      4. The Customer agrees to be liable for all fees, charges, refunds and chargebacks (disputed fees) relating to the payment service provider (PSP Fees);
      5. Aspedia will not be responsible in any respect where a payment service provider refuses any transaction and where the payment service provider charges Aspedia in respect of any payment failure or chargeback, Aspedia reserves the right to charge the Customer directly for such fee or chargeback charged to Aspedia by the payment service provider;
      6. The Customer will be responsible for any customer disputes relevant to any chargeback. Aspedia will not enter into any disputes between the Customer and its customers or third parties relating to any chargeback or dispute relevant to any Customer product sold through the Software;
      7. Aspedia is not liable for any security or compliance matter relating to any payment service provider. The Customer is responsible for its own compliance requirements in using any payment service provider.
      8. The Customer must comply with any audit requirement of any payment service provider.
    8. Where the Customer uses the third party payment service provider Stripe, the following additional terms apply:
      1. The Customer acknowledges and agrees that Aspedia has partnered with Stripe to provide a payment gateway for Customers.
      2. If the Customer elects to use Stripe, in addition to the provisions of this clause 11, the Customer acknowledges and agrees that:
        1. A Stripe application fee will apply and be charged by Aspedia to the Customer. The application fee will be as published by Aspedia from time to time;
        2. The Customer will be liable for all charges incurred by the Customer through Stripe and Aspedia will pass on all charges incurred by the Customer through Stripe. These charges will be as published by Stripe and/or Aspedia from time to time;
        3. Aspedia may, at is discretion, set and charge fees for the use of Stripe and such fees will be as published by Aspedia from time to time.
      3. Customers will be paid one hundred percent (100%) of each transaction value (Stripe Payout) to the Customer’s nominated Stripe Connect Bank Account.
      4. PSP Fees, Stripe or Aspedia charges (Charges) will be automatically charged in the local currency to:
        1. the Customer’s Stripe Connect Bank Account by way of a deduction to the Stripe Payout; or
        2. via the Customer’s Stored Payment Method (as provided to Aspedia for payment of the Charges/PSP Fees).
      5. The Charges will be deducted/debited from the Customer’s Stripe Connect Bank Account or Customer’s Stored Payment Method automatically at hourly, daily and weekly intervals as determined by Stripe or Aspedia (as the case may be) in its sole discretion.
      6. The Customer’s Stored Payment Method (as provided to Aspedia for payment of the Charges/PSP Fees) must at all times remain the same as the Stripe Connect Bank Account and the Customer will immediately advise Aspedia of any change in details. The Customer will be liable for any loss or damaged incurred by Aspedia as a result of a breach of this clause.
  12. SECURITY

    1. The parties expressly recognise that it is impossible to maintain flawless security.
    2. Each party shall use best endeavours to ensure that each party’s data and Confidential Information is protected at all times during the Term of this Agreement from unauthorised access or use by third parties and from physical misuse, damage or destruction by any person.
    3. The Customer is responsible for protecting its Access Keys and files and shall be responsible for any damage caused by unauthorised access to the Services.
    4. If either party becomes aware of unauthorised access or use by third parties, physical misuse, damage or destruction of the Software or any Aspedia application by any person then that party will immediately notify the other party and will take all reasonable measures to ensure such unauthorised access immediately ceases.
  13. GST

    1. For the purpose of this clause the following definitions apply:
      1. GSTmeans any form of goods and services tax payable under the GST Law;
      2. GST Lawmeans the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
    2. Words used in this clause that are defined in the GST Law have the meaning given in that legislation.
    3. Unless otherwise specified, all amounts payable under this Agreement are exclusive of GST and must be calculated without regard to GST.
    4. If a supply made under this Agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.
    5. The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply.
    6. If there is an adjustment to a taxable supply made under this Agreement then the Supplier must provide an adjustment note to the Recipient.
    7. The amount of a party’s entitlement under this Agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or liabilities.
  14. WARRANTIES, INDEMNITY AND LIABILITY

    1. The Customer warrants that:
      1. the Customer not entered into this Agreement or obtained the Services on the basis of or in reliance upon any statement or representation (whether made orally or in writing) made by Aspedia concerning this agreement or any of the Services other than any statement or representation contained in this Agreement;
      2. the Customer has the right or authority to provide the data, materials, information and other the requirements set out in this Agreement;
      3. the provision of any information or material by the Customer and the Customer’s use of the Services does not and will not infringe the intellectual property or any other rights of any third party;
      4. the Customer’s use of the Services will comply at all times with these Terms and the relevant terms, conditions, policies and procedures of third party service providers.
    2. To the extent permitted by law, if Aspedia does make any warranties of any kind, either express or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for purpose, all such warranties are hereby excluded.
    3. The Customer acknowledges and agrees that nothing in this agreement shall constitute by Aspedia an express or implied warranty or guarantee:
      1. that the Services or any software used to provide the Services will be uninterrupted, error free or not subject to delays (technical or otherwise);
      2. that the Services will be free from external intruders, virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Aspedia;
      3. as to the outcomes that may be obtained from use of the Services;
      4. as to any increase in revenue, profit or goodwill that may be obtained as a consequence of the Services;
      5. that the Software is appropriate or available for use in locations outside Australia;
      6. as to the accuracy, reliability or content of any information provided through the Services
    4. The Customer indemnifies and holds Aspedia harmless from any and all claims, demands, liabilities, losses damages, judgements or settlements (including all reasonable legal costs and expenses) which may arise directly or indirectly as a result of any promise, representation, warranty, act, omission or obligation of Aspedia or any third party in respect of:
      1. the provision of the Services to the Customer;
      2. the use of the Services by the Customer (including any input of information by the Customer);
      3. any interruption to the Services;
      4. the Customer Materials;
      5. any third party application;
      6. the Customer and the Customer’s clients, customers, agents, contractor’s use of any third party application;
      7. the Customer’s breach of any third party terms relating to any third party application; and/or
      8. any breach of this Agreement by the Customer.
    5. To the extent permitted by law and regardless of any other provision in this Agreement Aspedia will not be liable for:
      1. any negligent or wrongful act or omission (including but not limited to breach of copyright or defamation);
      2. any costs or expenses arising out of injury to or death of any person or persons or damage to property; or
      3. any consequential or indirect loss or damage, economic loss, loss of contract, loss of profit or revenue, loss of production or production stoppage or loss of data.
    6. The exclusion of liability contained in this clause applies whether the liability claim is based on breach of contract, tort (including negligence), under an indemnity, under statute, in equity or otherwise.
    7. To the extent permitted by law and regardless of any other provision in this agreement, Aspedia’s liability for any breach of warranty under this Agreement or otherwise is limited to the resupply of the Services and will not exceed the Services Fees payable for the Term.
  15. INTELLECTUAL PROPERTY

    1. For the purpose of this clauseIntellectual Propertymeans:
      1. the business names and trade marks owned or used at any time by Aspedia;
      2. the Confidential Information owned or used at any time by Aspedia;
      3. any Software (and associated documentation and specifications) owned or licensed by Aspedia and used in providing the Services;
      4. anything produced by Aspedia in carrying out the Services;
      5. the patents, patent applications, registered designs, unregistered designs, copyright and all other industrial and intellectual property rights owned or used at any time by Aspedia.
    2. Aspedia warrants and represents that
      1. it owns or has the right to use the Software and provide the Services; and
      2. in supplying the Services, Aspedia will not infringe the Intellectual Property Rights of any person.
    3. Nothing in these Terms constitutes a transfer of any Intellectual Property Rights to a party and the Customer has no right, title, claim or interest in or to the Intellectual Property.
    4. The Customer may not copy, modify or translate any of the Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of the Intellectual Property to use it other than in connection with the Services or grant any other person or entity the right to do so.
    5. The Software may contain or be provided with components subject to the terms and conditions of open source software licences (Open Source Software). To the extent required by the licence that accompanies the Open Source Software, the Customer acknowledges and agrees that the terms of such licence will apply in lieu of the terms of this agreement with respect to the Open Source Software, including any provisions governing access to source code, modification or reverse engineering.
    6. The Customer grants to Aspedia a revocable, royalty-free and non-exclusive license to reproduce the Customer’s trademark, business name and other mark or logo which designates the Customer’s business, for the purposes of indicating the Customer as a current or past client of Aspedia.
  16. CONFIDENTIAL INFORMATION

    1. Confidential Informationmeans the terms of this agreement and all confidential information, material (including reports and recommendations) and technology disclosed or provided in any form by any party to any other party in connection with the subject matter of this agreement.
    2. Subject to this clause, each party must maintain in confidence all Confidential Information and ensure that the Confidential Information is kept confidential.
    3. A party (Recipient) may only reveal Confidential Information of another party (Provider)
      1. if required by law or by any stock exchange to disclose, in which case the Recipient must immediately notify the Provider of the requirement and must take lawful steps and permit the Provider to oppose or restrict the disclosure to preserve, as far as possible, the confidentiality of the Confidential Information;
      2. if the Confidential Information is in or enters the public domain for reasons other than a breach of this Agreement;
      3. if the Confidential Information is disclosed to the Recipient by a third party legally entitled to disclose that information and who is not under an obligation of confidentiality to the Provider; or
      4. to its professional advisers to obtain professional advice.
    4. On termination of this Agreement each party agrees to deliver up and/or delete as required the other party’s Confidential Information and in the event such Confidential Information cannot be delivered up or deleted each party warrants not to use such Confidential Information.
    5. This clause will survive the termination of this Agreement.
  17. VARIATION OF AGREEMENT

    1. Aspedia may change these Terms either by obtaining the Customer’s consent or by giving notice. The period of notice given by Aspedia depends on the nature of the change. If:
      1. The change will benefit the Customer: The change can be made immediately. Prior notification is not required.
      2. The change is required by law, a regulatory body or for a technical reason: Three (3) days prior notice.
      3. The change will have significant and detrimental impact on the Customer: Thirty (30) days prior notice.
      4. All other changes: Thirty (30) days prior notice.
    2. Notice of a change may be given by email to the Customer or by publication on our website located at www.vincreative.com (as varied from time to time).
    3. The Customer may terminate these Terms on thirty (30) days notice only if the change is one referred to in clause 17.1(c). The Customer does not have to pay the Termination Fee where it terminates these Terms pursuant to this clause.
    4. Continued use of the Services after the notice period referred to in clause 17.1 will constitute acceptance of the varied terms.
  18. SUSPENSION AND BREACH

    1. Subject to clause 18.2, if the Customer breaches this Agreement (including but not limited to any failure to pay), Aspedia may, without liability to the Customer, either:
      1. suspend the provision of Services; or
      2. disable access to all or part of the Services,
      while the breach remains unremedied. Aspedia will reinstate the Services upon remedy of the breach provided this Agreement has not already been terminated.
    2. In addition to any other rights under this Agreement, Aspedia may terminate this Agreement and cease providing the Services where:
      1. the Customer breaches any term of this Agreement and (if capable of remedy) fails to remedy that breach within seven (7) days of receipt of a notice from Aspedia requiring the Customer to remedy that breach;
      2. the Customer becomes insolvent or is otherwise unable to pay the Customer’s debts as and when they fall due;
      3. the Customer or any third party institutes any insolvency, receivership or bankruptcy proceedings with respect to the Customer;
      4. the Services have been suspended by Aspedia pursuant to the terms of this Agreement and remain suspended for a period in excess of fourteen (14) days; or
      5. the Customer ceases to conduct business.
    3. Subject to clause 17.3, the Customer:
      1. may terminate this Agreement at any time on thirty (30) days notice in writing provided it pays the Termination Fee in clause 5.11;
      2. remains liable for all Services Fees for the balance of any Term in the event of a suspension or termination of this Agreement for any reason whatsoever.
    4. In addition to any other obligation under this Agreement, upon termination of this Agreement for any reason whatsoever, the Customer must immediately:
      1. pay all outstanding Services Fees to Aspedia;
      2. subject to clause 17.3, pay any Termination Fee;
      3. return to Aspedia all Confidential Information and other materials of Aspedia (including any copies) or where such materials are stored electronically, erase such material and provide an undertaking that such has occurred.
    5. Aspedia will, on written request from the Customer, received prior to the date of termination provide to the Customer a copy of any Customer Data held by Aspedia and relevant to the provision of the Services by way of download link. If such request is received Aspedia may charge the Customer an Additional Fee for the provision of such data.
  19. FORCE MAJEURE

    1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay is due to Force Majeure.
    2. If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure the performance of that party’s obligations will be suspended for the period of the Force Majeure.
  20. DISPUTES

    1. In the event of any dispute arising between the parties in relation to this Agreement (Dispute), no party may commence any proceedings relating to the Dispute (except where the party seeks urgent interlocutory relief) unless the parties have first made genuine efforts to resolve the Dispute in accordance with this clause.
    2. A party will give the other a notice of Dispute in connection with this Agreement. A representative from each party, with unfettered authority to resolve the Dispute, must use all reasonable endeavours to resolve the Dispute within ten (10) days of a notice of Dispute being received.
    3. If the representatives are unable to resolve the Dispute within ten (10) days, the Dispute will be referred for mediation in Brisbane, Queensland with a mediator approved by the Australian Commercial Disputes Centre, or its successor. The mediation will be governed by the rules and guidelines agreed by the parties, or failing Agreement, the rules and guidelines set by the mediator (whether or not in conjunction with both parties).
  21. GENERAL

    1. Where a term is defined in this Agreement and referred to in this agreement, the definition will, unless otherwise specified, apply to the whole of this Agreement.
    2. This Agreement and its attachments constitute the entire agreement between the parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the parties, whether orally or in writing.
    3. This Agreement must not be varied except in accordance with the terms of this Agreement.
    4. A right created by this Agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.
    5. This agreement may be assigned or transferred in any manner by Aspedia at its sole discretion.
    6. Each party must promptly execute all documents and do every thing necessary or desirable to give full effect to the arrangements contained in this agreement.
    7. The laws applicable in Queensland govern this agreement and the parties submit to the non-exclusive jurisdiction of the courts of Queensland and any courts competent to hear appeals from those courts.
    8. If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
    9. The Customer must not register a security interest over Aspedia or this agreement without the prior written consent of Aspedia.