PaydayDeals.com.au Sellers Terms and Conditions
These terms and conditions are the contract between the Seller and Payday Deals ("us", "we", “Payday Deals” etc). By visiting or using Our Website, you agree to be bound by them.
We are Payday Deals Pty Ltd, ACN 622 297 572, incorporated in Australia. Our registered office is at 11 Wilson Street, South Yarra, VIC 3141.
1. Definitions
"App" means our Payday Deals online shopping app which enables a user of a Device to order and pay for goods using that Device via the Internet.
‘Applicable Laws” means any law or legal requirement, including at common law, in equity, under any statute, regulation or by-law, any condition or any authorisation, and any decision, standard, directive, guidance, guideline or requirements of any Government Agency in any relevant jurisdiction.
“Claim” means all actions, suits, applications, arbitrations, causes of action, complaints, costs, damages, debts due, demands, determinations, enquiries, judgments, liabilities, sums of money and verdicts whatsoever and however arising whether at law or in equity or under any statute, with the exception of a claim arising under workers’ compensation or superannuation legislation;
"Commission" means the commission you pay us, calculated as a percentage of the value of sales made through us, net of GST as set out in the Payday Deals Marketplace Seller Application.
"Content" means the textual, visual or audio content that is encountered on Our Website. It may include, among other things: text, images, sounds, videos and animations. It includes content Posted by you both directly to offer your Products for sale and indirectly, for any other purpose.
"Device" includes any computer, device, work station, electronic application or electronic receiving device.
"Fee" means the fees we charge you as set out in the Payday Deals Marketplace Seller Application.
‘Government Agency” means any federal, state, territory, municipality or other political subdivision, administrative or judicial body, court, ministry, department, commission, authority, instrumentality, tribunal or agency or other governmental, quasi-governmental or regulatory authority or any self-regulatory organisation.
“GST” means Goods and Services Tax payable pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time).
“Loss or Losses” means all third party claim, action, dispute, proceeding, loss, damage, cost, expense or liability (including any legal costs on a full indemnity basis) and consequential and indirect loss.
“Payday Deals Marketplace Seller Application” means the document titled “Payday Deals Marketplace Seller Application” which the Seller completes upon registering with us.
"Post or Posted" means place on or into Our Website any Content or material of any sort by any means.
“Privacy Policy” means the document titled “Privacy Policy” which we have provided to the Seller and as updated from time to time.
"Product" means any item offered for sale by you on Our Website, whether physical goods or downloads, together with all supporting text, and information in any medium.
"Service" means all of the services available from Our Website, whether free or charged. For the sake of good order "Service" does not include any service offered for sale on Our Website by any person other than us.
“Service Level Agreement” means the document titled “Service Level Agreement” which we have provided to the Seller and as updated from time to time.
"Website" means any website, App or Service designed for electronic access by mobile or fixed Device which is owned or operated by us or any member of the Payday Deals group of companies. It includes all of the hardware and software installations that enable our website to function.
2. Interpretation
In this agreement unless the context otherwise requires:
2.1. a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa;
2.2. a reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit;
2.3. a reference to a person includes reference to that person's successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person;
2.4. the headings to the paragraphs and schedules (if any) to this agreement are inserted for convenience only and do not affect the interpretation;
2.5. any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing;
2.6. except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person; and
2.7. all money sums mentioned in this agreement are calculated ex of GST, which will be charged when payment is due.
3. Our contract
3.1. The relationship between us is solely that:
3.1.1 in consideration of the Fee and Commission charged by us, we provide for you an Internet marketplace as an arm's length contractor;
3.1.2 we act as your agent solely in the collection of money paid by the customer and
3.1.3 we are not partners or joint venturers.
3.2. If you place a Product for sale on Our Website, you do so subject to these terms.
3.3. When you place a Product on Our Website, you will be bound to provide on Our Website all the information required by the Competition and Consumer Act 2010, all Applicable Laws and industry standards and the information stated in this agreement.
3.4. In consideration of the Fee and the Commission, we provide for you a marketplace accessible via Our Website.
3.5. We reserve the right to vary these terms and conditions at any time upon providing you with 30 days’ notice in writing. If you do not agree to any such variation of these terms and conditions you may terminate your agreement with us. If you continue to use Our Website after the date the new terms and conditions take effect then you are deemed to accept the new terms and conditions.
3.6. In contracting with users of Our Website, we make certain assumptions as to your compliance with the law and to the policies and procedures set out in Our Website including our Privacy Policy and Service Level Agreement. You agree to comply with those policies and procedures.
3.7. We require you to provide certain minimum terms when selling Products to customers set out in this agreement at clause 15 and meet the Service Level Agreement, relating to product delivery, returns, payments and other practical matters, such guidance is not to be interpreted as appropriate to your particular Products or circumstances. They do not differentiate between the compliance requirements of different merchants nor do they cover exclusions which may apply to you or to some of your Products. Accordingly, you must not assume that you have complied with the law by adopting our standards. Accordingly, your compliance must be provided by:
3.7.1 your business procedures;
3.7.2 all of the pre-purchase information you give to prospective customers; and
3.7.3 the content on your website or Product listing.
3.8. For the sake of good order, we remind you that the law provides that all information of whatever nature, provided to a customer, is deemed to be relevant and true.
3.9. Although we are not a party to your contract with a customer introduced to you via Our Website, we reserve the right to investigate any complaint made by a customer or user of Our Website against you and following any such investigation we reserve the right to remove your Products from Our Website.
3.10. You agree that Payday Deals has the ability to remove part or all Product listings upon 14 days’ written notice or earlier if you fail to comply with any our policies or written instructions to remove objectionable items for sale. We also reserve the right to either suspend or terminate your access to the Website at any time at our sole and absolute discretion which, for the avoidance of doubt, will mean that you will lose all or partial access to the Website and the ability to sell your Products via the Website.
3.11. Subject to this agreement and to the procedures set out on Our Website, you may Post a Product for sale through Our Website. You acknowledge and agree that any agreement you enter into with a customer to sell your Product to is solely between you and the customer. We act solely as agent for you in collecting payment by the customer for any sale of Products.
4. Your licence to us
4.1. You now warrant that:
4.1.1 you have the authority to enter into this agreement and bind the person or organisation named by you as the seller and licensor;
4.1.2 you own the copyright in all Content you may Post to Our Website or that you have the permission of the owner to use it and to grant this licence to us.
4.1.3 you know of no lawful reason why any person should object to or claim for infringement of, any intellectual property right relating to any Content you may Post.
4.2. In Posting data through our Service you grant to us an irrevocable, sub-licensable, licence to display your Product in images and text in the public domain. In doing so you understand and accept that we shall grant a sub-licence to any person in any terms we may from time to time decide, to download your Product images or any other Content.
4.3. We will use that licence only for commercial purposes in reference to Payday Deals and will stop using it after a commercially reasonable period of time.
4.4. You agree to any act or omission which may otherwise infringe your right to be identified as the author and your right to object to derogatory treatment of your Content as provided in the Copyright Act 1968.
4.5. You now irrevocably authorise us to publish feedback, comments and ratings about your activity through Our Website, even though it may be negative or critical.
4.6. Posting Content does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.
4.7. You understand that you are personally responsible for your breach of intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you.
4.8. You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.
4.9. You agree to notify us of any security breach or unauthorised use of your account.
4.10. We do not solicit ideas or text for improvement of our Service, but if you do send to us material of any sort, you are deemed to have granted to us a licence to use it.
5. Your Product placement
You agree:
5.1. not to place any Product for sale which is not of merchantable quality or which requires for its setup or use a level of technical expertise which is not fully explained to a customer before purchase;
5.2. to make suitable arrangements for the delivery of each Product, including packaging and carriage, so that you can comply with the delivery terms set out in the Service Level Agreement.
5.3. immediately to remove from sale on Our Website any Product which for any reason, you are unable to supply; and
5.4. not to re-place any Product we remove from offer for sale or instruct you not to list for sale.
6. Your account and personal information
6.1. When you visit Our Website, you accept responsibility for any action done by any person in your name or under your account or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner.
6.2. You agree that you have provided accurate, up to date, and complete information about yourself. We are not responsible for any error made as a result of such information being inaccurate.
6.3. You agree to notify us of any changes in your account information immediately.
6.4. We may terminate your account immediately and without notice to you if you fail to notify us of any changes in accordance with clause 6.3 above.
7. The selling procedure
7.1. You agree that a contract to sell a Product offered by you is a firm and binding contract as soon as your customer's payment has been accepted by our payment service provider.
7.2. Deliveries of hard copy and physical Products will be made from your premises, by post or by a carrier instructed by you subject to the contract between you and your customer. In your contract with the customer you should clearly specify the mode of delivery, delivery timeframe and expense involved.
7.3. In the absence of information to the contrary, you agree to despatch a Product within two business days of notification of order by us, by a method likely to reach the customer within a further seven to ten days.
7.4. You will notify Payday Deals by email on the date of sending that the Product has been despatched and include tracking information and the expected delivery date.
7.5. If at any time, any customer notifies you of non-delivery within the time scale offered by you on Our Website, you will investigate immediately and advise the customer of what you are doing to rectify the issue and when you expect to be able to deliver the Product.
7.6. If it is apparent that a customer has not received a Product within 14 days of the expected delivery date, you will refund money paid, including any delivery charge. This is a condition of your contract with us because our reputation, as well as yours, is at stake in those circumstances.
7.7. Products may be offered for sale subject to any discount or promotion arranged between you and us.
7.8. Subject to discounts and promotions, Products are offered for sale at a fixed price, inclusive of GST.
7.9. All Products will be subject to a delivery charge which will be shown at the pay point. The delivery charge will be fixed by you for each item offered for sale. It may be changed at your discretion. Once you have sold an item, the delivery charge offered by you at the time of purchase cannot be increased.
7.10. You agree to provide an adequate stock of any Product placed by you for sale through Our Website and to tell us, through your control panel, if at any time your supply is exhausted. If that happens, you must also remove the Product from sale or mark it as unavailable.
7.11. You agree to comply with the requirements in the returns policy set out on Our Website, and comply with all Applicable Laws. By accepting these terms you agree to be bound by our policies, including our Privacy Policy and Service Level Agreement.
7.12. We reserve the right to vary the Service Level Agreement at any time upon providing you with 30 days’ notice in writing. If you do not agree to any such variation of the Service Level Agreement you may terminate your agreement with us. If you continue to use Our Website after the date the new the Service Level Agreement take effect then you are deemed to accept the new the Service Level Agreement.
8. Products returned
You agree that you will at all times:
8.1. reply promptly and in any event within 48 hours to any customer message or other correspondence.
8.2. comply with all Applicable Laws relating to all aspects of the contract between you and your customer, relating in particular to your obligations to provide full information and accept cancellation and returns. However, you may also offer more favourable terms to your customers as per your own returns and refunds policy set out on your website or otherwise in your terms and conditions.
8.3. when you have an obligation to return money to a customer for any reason, you will do so immediately in line with the returns and refunds policy set out on Our Website and the Service Level Agreement and otherwise in accordance with Applicable Laws.
8.4. immediately tell your customer in the event that Products bought are not available.
8.5. comply with our procedures relating to satisfaction of an order, Service Level Agreement, Products returned and payment, as set out on Our Website from time to time and also found [here].
8.6. provide written communication within 24 hours via Our merchant support email to us in respect of any claim for non-delivery and any dispute as to payment, so as to enable us to identify the possibility of fraud.
9. Our Commission, Fee and payments to you
9.1. You sell your Product at the price you place on it, subject to these terms and subject also to the requirements we set out on Our Website from time to time.
9.2. You are required to pay the Fees and Commission as set out in the Payday Deals Marketplace Seller Application. You irrevocably authorise us to deduct our Fees and Commissions from sums paid to us by your customer.
9.3. To pay for the Product, at checkout on the Website the customer will be transferred to a secure page on the website or app of PayPal Express Checkout, Shopify Payments, Afterpay, Zip, Openpay Payment Gateway, Laybuy, and LatitudePay or some other reputable payment service provider. This information is never taken by us either through Our Website or otherwise. That page may be dressed in our “livery”, but it is not controlled by us. Our staff and contractors never have access to it.
9.4. When an order for a Product has been dispatched to a customer our Commission becomes due and payable to Payday Deals. The Fees are payable in accordance with the Payday Deals Marketplace Seller Application.
9.5. Upon dispatch of a Product, you must notify us of the valid tracking number/s of the Product. We have the right to deduct the Commission and Fee from the sums paid to us by your customer upon confirmation from you of the valid tracking number/s.
9.6. Our Website selling system is an automated system which can be followed by you through a "control panel".
9.7. The proportion of each sale receipt retained by us, Our Commission, is as set out in the Payday Deals Marketplace Seller Application. The agreed amount of the Fee is set out in the Fee schedule set out in the Payday Deals Marketplace Seller Application.
9.8. We reserve the right to vary Our Commission and Fee at any time upon providing you with 30 days’ notice in writing. If you do not agree to any such variation of the Commission or Fee you may terminate your agreement with us. If you continue to use Our Website after the date the new Commission or Fee takes effect then you are deemed to accept the Commission.
9.9. By listing your Product on Our Website, you agree to abide by the terms of this agreement, all sales, returns and other policies including the payment of the Fee and the Commission.
9.10. Where our Commission is based on a percentage of the sale price, you may not artificially inflate the delivery charge and reduce the price of the Product in order to reduce our Commission. If we believe that you do so, we may immediately cease to deal with you.
9.11. We will pay you within 14 days of confirmed dispatch of order or as otherwise agreed upon.
9.12. If you have a bank account located in Australia, we will transfer money via the Internet, in full.
9.13. You must have a bank account in Australia.
9.14. We will send you an invoice within 7-14 days of confirmed dispatch of an order for our charges.
9.15. If we do or could earn interest on any cash balance in our control for the period between payment by a customer and our accounting to you, we are free to keep that interest and have no obligation to account for it to you.
9.16. If an action by a customer results in a charge back to our account, and you were found to be at fault, you agree that we may deduct the sum charged back together with any fee paid to our service provider and bank, from any sum due to you.
9.17. If you or we accept any return from a customer and consequently refund this payment, we are not obliged to repay Commission to you.
9.18. If in our discretion we believe that your performance as a seller results in a significant number of charges back and / or customer disputes or if we believe you are in breach of this agreement, we are free to hold back payments to you until we are satisfied that disputes have been settled and / or breaches rectified.
10. Goods and services tax
10.1. Fees and commissions specified in Our agreement and Website are exclusive of GST.
10.2. If you are located in Australia, we will show and retain the amount of GST due on our charge for our services in addition to the amount of Commission and Fees due to us.
10.3. Payday Deals has the right to demand additional information about your business so far as it may affect your GST registration, at any time, from you or from a governmental authority.
10.4. If GST is payable by a supplier (or by the representative member for a GST group of which the supplier is a member) on any supply made under or in relation to this Agreement, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as the net consideration for the supply.
10.5. This clause is subject to any other specific agreement regarding the payment of GST on supplies.
11. Advertising your Product
If you accept our offer to advertise, market or promote your Product, the following conditions apply.
11.1. We may use the services of a specialist internet marketing business associated with us.
11.2. Without prior consent of the other; neither we nor you will contract with any other person or company for specialist services. Here your obligation is limited to the extent of the price charged and due to us.
11.3. The price charged to you will include all payments we make to others.
11.4. We give no guarantee as to the success of any advertising placed.
11.5. We shall receive no secret commission on advertising services. But note that the service supplier is associated with us.
12. Your warranties
You warrant that:
12.1. any Product you place on Our Website for sale:
12.1.1 does not infringe the intellectual property rights of any person;
12.1.2 is not intended primarily to advertise any business, except your business, so far only as it is carried on through Payday Deals;
12.1.3 all information relating to the Products which you Post on the Website is accurate, complete, up to date and complies with all Applicable Laws;
12.1.4 is not the subject of a product recall; and
12.1.5 will meet the required safety standards and complies with all Applicable Laws.
12.2. you own the intellectual property rights in any Product you place on Our Website for sale, or that you have the permission of the copyright owner:
12.2.1 to place the Product on Our Website for sale;
12.2.2 to receive the net proceeds of such sales as arise;
12.2.3 to defend the copyright in the Product.
12.3. you have all necessary authority to sell the Product on Our Website;
12.4. you will only use the Website to sell the Products and for no other purpose;
12.5. all the conditions of use, including any age restrictions, relevant to the Product are stated in the Product listing;
12.6. you will provide a valid tax receipt and proof of purchase to any customer;
12.7. you validly exist;
12.8. you are duly authorised to enter into this agreement;
12.9. you are not a party to any litigation proceedings;
12.10. you are not the subject of an Insolvency Event;
12.11. there is no impediment for the you to offer and supply the Products for sale on Our Website;
12.12. you have procedures and processes to manage and maintain quality control of the Products in accordance with best industry practices;
12.13. you will comply with all return and delivery policies as set out in this agreement;
12.14. you are able to meet your obligations under this agreement;
12.15. you shall comply with all Applicable Laws in relation to advertising and listing of the Products on Our Website and the sale of the Products including any conditions, warranties, guarantees and representations you make.
13. Indemnity
13.1. You agree to indemnify us against any loss, damage or liability, suffered by us at any time and arising out of:
13.1.1 any act, neglect or default of yours in connection with this agreement or with any Product of yours or with your use of our Services or Our Website;
13.1.2 your breach of this agreement, the Privacy Policy, the Service Level Agreement and any of Our policies;
13.1.3 your failure to comply with any Applicable Law;
13.1.4 any act, neglect or default by any agent, employee, licensee or customer of yours;
13.1.5 a contractual claim arising from your use of the Services; or
13.1.6 any claim by a customer against Payday Deals arising from your dealings or sale of a Product to the customer.
13.2. You will be solely liable for all Loss suffered by Payday Deals as a result of a breach of this Agreement by you, or anything that you do or fail to do under or in connection with this Agreement.
13.3. Without limiting clause 13.2, you are solely responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfilment of Products, and you will reimburse us for any Loss we may incur or refunds we may provide in connection with such delivery errors.
13.4. You are responsible and liable for any nonconformity or defect in, or any public or private recall of or safety alert for any Products and will reimburse us for any Loss we may incur or refunds we may provide in connection with any of the Products as a result.
13.5. You release us and agree to indemnify, defend, and hold harmless us, our affiliates, officers, directors, employees, representatives, and agents against any Loss which we pay, suffer, incur or are liable for, which arises directly or indirectly from or in connection with:
13.5.1 any breach by you of your obligations in this Agreement;
13.5.2 any defect, failure, malfunction, product recall of any Products or Claims arising under the Australian Consumer Law set out in schedule 2 of the Competition and Consumer Act 2010 (Cth);
13.5.3 violation or non-compliance of any Applicable Laws by you or the Products;
13.5.4 your failure to perform or improper performance of your obligations under this agreement;
13.5.5 any breach of any of the representations made, or warranties provided, by you under this agreement;
13.5.6 any actual or alleged infringement of any intellectual property rights relating to Products;
13.5.7 your personnel (including any act or omission of your personnel or any Claim brought or directed by your personnel);
13.5.8 any financial loss or loss of goodwill or reputation, or any damages arising, directly or indirectly, out of your use of or your inability to use Our Website; and
13.5.9 any personal injury, death, or property damage related to the matters in 13.5.1 to 13.5.8 above.
13.6. You will during the term of this agreement and for seven (7) years after at your own cost:
13.6.1 effect and maintain in force with reputable insurers approved by Payday Deals the insurance policies described and for the amounts set out in the Payday Deals Marketplace Seller Application.
13.6.2 provide evidence of such insurance to Payday Deals upon request;
13.6.3 administer the insurance policies and your relationship with its insurance at all times to preserve the benefits for Payday Deals under this agreement;
13.6.4 do nothing to invalidate any such insurance policy or to prejudice the entitlement of Payday Deals under this agreement; and
13.6.5 procure that the terms of such insurance policy will not be altered in such a way as to diminish the benefit to Payday Deals of the policies as provided at the date of this agreement.
This indemnity shall include all costs reasonably incurred by us without the need to prove they were necessary.
14. Restrictions on what you may Post to Our Website
We invite you to contribute Content to Our Website in several ways, as for example to upload information and sales material to promote your Products. We have to regulate your use of Our Website to protect our business and our staff, to protect other users of Our Website and to comply with the law. These provisions apply to all users of Our Website.
We undertake to moderate or check Content Posted. If we believe Content Posted breaches the law, we shall co-operate fully with the law enforcement authorities in whatever ways we can.
You agree that you will not use or allow anyone else to use Our Website to post Content, upload Content or undertake any activity which is or may:
14.1. be unlawful, or tend to incite another person to commit a crime;
14.2. be obscene, offensive, threatening, violent, malicious or defamatory;
14.3. be sexually explicit or pornographic;
14.4. be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity, age or affiliation with any person;
14.5. use a Posting to solicit responses unconnected with the purpose of Our Website or the terms proposed by this agreement.
15. Your Posting: general details and restricted content
15.1. In connection with the restrictions set out below, we may refuse or edit or remove a Posting which does not comply with this agreement, the Privacy Policy, the Service Level Agreement and any of Our other policies.
In addition to the restrictions set out above, a Post must not contain:
15.1.1 hyperlinks, other than those specifically authorised by us;
15.1.2 keywords or words repeated, which are irrelevant to the Content Posted.
15.1.3 the name, logo or trademark of any organisation other than yours.
15.1.4 inaccurate, false, or misleading information;
15.1.5 material or links to material that exploits people in a sexual, violent or other manner, or solicits personal information from anyone under 18 years old.
15.2. If you post a Product for sale on Our Website you agree to provide, at a minimum, the following information to the customer before the customer places an order for the Products, including:
15.2.1 your seller terms and conditions;
15.2.2 all information required by Payday Deals from time to time including relevant information from the Service Level Agreement that a customer would reasonably expect to know:
15.2.3 your details as the seller of the Products;
15.2.4 the total price for the Products including any delivery costs;
15.2.5 delivery time frames and return policies;
15.2.6 the warranty applicable to the Product;
15.3. In the event that you are unable to confirm the delivery costs for a Product at the time of sale, you must subsequently advise the customer of the accurate delivery costs once the order for the Product has been placed, but before the Product is dispatched. The customer may reject or accept the accurate delivery costs at this time. If the customer rejects the accurate delivery costs, the order must be cancelled, and the customer must receive a refund. If the customer accepts the accurate delivery costs, the order will proceed. For the avoidance of doubt, the total price for the Product must include the accurate delivery costs.
15.4. For the avoidance of doubt, the information listed by you on the Website must include all the information which we require you to Post on your listing and comply with our returns policy, listing procedures and Our policies (as amended from time to time) and such other information reasonably requested by Payday Deals from time to time.
15.5. When you Post a Product on Our Website you must include your own seller terms and conditions as the seller of the Products to the customer. You terms and conditions must include, as a minimum the following:
15.5.1 all your terms and conditions must comply with the Australian Consumer Law and Competition Consumer Act 2010 and any Applicable Laws;
15.5.2 the terms must be consistent with the terms that we enter into with the customers which can be found [here];
15.5.3 an outline of the delivery costs, timeframe, delivery method and returns and exchange process, which at a minimum must comply with the terms of the Service Level Agreement (as applicable);
15.5.4 the Products will be delivered after full payment has been received by Payday Deals and title will pass to the customer on delivery.
16. Removal of offensive Content
16.1. We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility to monitor or police Internet-related activities. However, we may do so without notice to you and without giving you a reason.
16.2. If you are offended by any Content, the following procedure applies:
16.2.1 your claim or complaint must be submitted to us in the form available on Our Website, or contain the same information as that requested in our form. It must be sent to us by post or email.
16.2.2 we shall remove the offending Content as soon as we are reasonably able;
16.2.3 after we receive notice of a claim or complaint, we shall investigate so far as we alone decide;
16.2.4 we are free to either re-instate your content, or not, as we decide.
17. Security of Our Website
If you violate Our Website we shall take legal action against you.
You now agree that you will not, and will not allow any other person to:
17.1. modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it.
17.2. link to Our Website in any way that would cause the appearance or presentation of Our Website to be different from what would be seen by a user who accessed Our Website by typing the URL into a standard browser;
17.3. download any part of Our Website, without our express written consent;
17.4. collect or use any product listings, descriptions, or prices;
17.5. collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
17.6. aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of the Services;
17.7. hide or remove the banner advertisements on any page of Our Website;
17.8. share with a third party any login credentials to Our Website;
18. Storage of data
18.1. We may, from time to time, set a limit on the number of messages you may send, store, or receive through the Service. We may delete messages in excess of that limit. We shall give you notice of any change to your limit, except in an emergency.
18.2. We maintain reasonable procedures for general backup of data for our own purposes but we give no warranty that your data will be saved or backed up in any particular circumstances unless we have made specific contractual arrangements with you in writing.
19. Copyright and other intellectual property rights
19.1. All Content on Our Website, for example page text, graphics, logos, images, audio clips, digital downloads, data compilations, and software, is the property of either us or our affiliates or suppliers of products for sale. It is all protected by international copyright laws.
19.2. You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part, except as is expressly permitted in this agreement or with our written consent.
19.3. For the sake of good order you should note that copyright exists in compilations and graphic images, shapes and styles, as well as in raw text.
20. Disclaimers and limitation of liability
20.1. The law differs from one country to another. This paragraph applies so far as the Applicable Laws allows.
20.2. All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph shall be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
20.3. We make no representation or warranty that our Service will be:
20.3.1 useful to you;
20.3.2 of satisfactory quality;
20.3.3 fit for a particular purpose;
20.3.4 data-secure;
20.3.5 available or accessible, without interruption, or without error.
20.4. We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
20.5. We shall not be liable to you for any loss or expense arising out of or in connection with your use of Our Website, which is indirect or consequential loss, or economic loss or other loss of turnover, profits, business or goodwill. This applies whether in an action of contract, negligence or otherwise, even if such loss was reasonably foreseeable or we knew you might incur it.
20.6. We will do all we can to maintain access to Our Website, but it may be necessary for us to suspend all or part of our Service for repairs, maintenance or other good reasons. We may do so without telling you first.
20.7. You acknowledge that Our Website may also be interrupted for reasons beyond our control.
20.8. You agree that we are not liable to you for any loss whether foreseeable or not, arising as a result of interruption to Our Website .
20.9. You now expressly release us from any and all claims and liability known and unknown, arising in any way from a dispute between you and a customer.
20.10. Our Website contains links to other Internet websites. We have neither power nor control over any such website. You acknowledge and agree that we shall not be liable in any way for the content of any such linked website, nor for any loss or damage arising from your use of any such website.
20.11. Payday Deals will not be liable for any listing of Products on Our Website, any sale of a Product you make to a customer, mistake or misrepresentation made by you in connection with the Products. You indemnify Payday Deals for and against any loss, cost (including legal fees on a full indemnity basis), damage, expense, or Claim (including for negligence) suffered or incurred by Payday Deals in connection with any listing of Products on Our Website, any sale of a Product you make to a customer, any misrepresentation, mistake, infringement of any person’s rights (including in respect of intellectual property rights), or breach of any Applicable Law in connection with the sale or listing of the Products on Our Website.
20.12. This paragraph (and any other paragraph which excludes or restricts our liability or provides an indemnity to us) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us.
20.13. If you become aware of any breach of any term of this agreement by any person, please tell by writing, and confirming we have received the communication by reply email. We welcome your input but do not guarantee to agree with your judgement.
20.14. Nothing in this agreement shall be construed as limiting or excluding our liability for death or personal injury caused by our negligence.
20.15. Nothing in agreement is intended to exclude or modify, or attempt to exclude or modify, any warranty or guarantee that cannot be lawfully limited, excluded or modified under the Competition and Consumer Act 2010 or under the Australian Consumer Law or any other relevant law.
20.16. If warranties or guarantees are implied by any Applicable Law in connection with this agreement then, to the maximum extent possible, Payday Deals limits its liability in respect of any claim under that law to, at Payday Deals’ election:
20.16.1 in the case of goods, any one or more of the following:
20.16.1.1 the replacement of the goods or the supply of equivalent goods;
20.16.1.2 the repair of the goods;
20.16.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods; or
20.16.1.4 the payment of the cost of having the goods repaired; and
20.16.2 in the case of services:
20.16.2.1 the supplying of the services again; or
20.16.2.2 the payment of the cost of having the services supplied again.
20.17. Where Payday Deals’ liability cannot be excluded in accordance with clause 20.16, you agree that (to the maximum extent permitted by law) our total liability for all Claims and liability is limited, in aggregate, to payment in an amount no greater than $10,000. This limitation applies whether your case is based on contract, tort or any other basis in law.
21. Dispute Resolution
21.1. If there is any dispute between the parties concerning this agreement then the parties must attempt to resolve any such dispute by the dispute resolution procedure set out herein before resorting to alternative avenues, including litigation provided that nothing herein shall preclude a party from seeking urgent interlocutory relief from a court.
21.2. The dispute resolution procedure is as follows:
21.2.1 if a party believes that a dispute has arisen, it must serve a dispute notice on the other party;
21.2.2 the dispute notice must state that a dispute has arisen and identify in sufficient detail what the dispute is;
21.2.3 the dispute notice must be provided to the other party’s chief executive officer (or his/her nominee) following receipt of which the respective chief executive officers (or nominees) of the parties shall meet to seek to resolve the dispute;
21.2.4 if the dispute is not resolved by the parties within 14 days of service of the dispute notice, the parties may jointly request the appointment of a mediator and failing agreement, either party may apply to the President of the Law Institute of Victoria to appoint a mediator;
21.2.5 once the mediator has accepted the appointment, the parties must comply with the mediator’s instructions; and
21.2.6 if the dispute is not resolved within thirty (30) days of the appointment of the mediator, or any other period agreed by the parties in writing, the mediation ceases and the dispute may be actioned as each party independently determines.
21.3. The mediator may fix the charges for the mediation which must be paid equally by the parties.
21.4. If the dispute is settled, all parties must sign the terms of agreement and those terms are binding on the parties.
21.5. The mediation is confidential and statements made by the mediator or the parties as well as discussions between the participants to the mediation before, after or during the mediation cannot be used in any legal proceedings.
21.6. The parties agree that the mediator will act as an aid to assisting them to resolve the dispute and not as a determiner or decider of any matter.
22. Miscellaneous matters
22.2. The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
22.2. The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
22.3. No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
22.4. Any communication to be served on either of the parties by the other shall be delivered by hand or sent by express post or recorded delivery or by e-mail.
22.5. Any communication between the parties shall be deemed to have been delivered:
22.5.1 if delivered by hand: on the day of delivery;
22.5.2 if sent by post within Australia to the correct address: within 72 hours of posting;
22.5.3 if sent by email: when sent by the sender unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee.
22.6. The validity, construction and performance of this agreement shall be governed by the laws of the State of Victoria, Australia and you agree that any dispute arising from it shall be litigated only in that State.
22.7. Each party has had the opportunity to obtain, and have obtained, independent legal advice before entering into this Agreement.
22.8. You cannot assign, charge, encumber or otherwise deal with any of your rights or obligations under this agreement, or attempt or purport to do so, without the prior written consent of us, which consent may be withheld in our absolute discretion. We can assign or novate this agreement at our sole discretion.