1. AGREEMENT AND TERM
1.1 This “Repairy Platform Agreement” (Agreement) is entered into by Repairy Pty Ltd (ABN 56 619 121 087) of 1101/580 Collins Street, Melbourne, VIC 3000 (Repairy) and the entity listed as the “Subscriber” on the Order (Subscriber).
1.2 This Agreement governs the use of the Repairy Platform described in the Schedule (Service) which is made available to the Subscriber at https://www.repairy.com.au/terms-of-use or such other Internet address as Repairy may determine from time to time. This Agreement also governs the interaction between Repairy and the Subscriber via telephone and any other means of communication regarding the Service.
1.3 This Agreement commences on the acceptance by Repairy of an Order placed by the Subscriber and continues for the Initial Term unless extended in accordance with clause 1.5 or terminated earlier in accordance with its terms. On acceptance of the Order, Repairy will email the invitational link to the Subscriber in accordance with clause 3.1.
1.4 This Agreement consists of:
(a) this document;
(b) the Repairy Platform End User Terms as they exist from time to time (a copy of the terms as they exist as at the dated of this Agreement are annexed at Schedule 2); and
(c) the terms of the accepted Order.
To the extent of any inconsistency between the documents listed in this clause 1.4, the document highest in order will prevail
1.5 This Agreement will automatically extend for a period equal to the Initial Term (i.e. one (1) month for Monthly Subscriptions or twelve (12) months for Annual Subscriptions) (each such period being an Extension Period) on the expiry of the Initial Term or then current Extension Period unless either party gives the other party written notice that it does not wish to extend the Agreement at least 30 days before the end of the Initial Term or then current Extension Term.
1.6 Repairy may amend this Agreement from time to time on providing 5 business days’ notice to the Subscriber. If the Subscriber does not agree with any amendments to this Agreement, it must cease using the Service and clause 17 applies.
2. ACCESS TO THE SERVICE
Subject the Subscriber paying the Subscription Fee, Repairy will provide the Subscriber with access to the Service for the Term on the terms of this Agreement.
3. SECURITY
3.1 To access the Service, Repairy will email an invitational link to the Subscriber’s nominated email address which will direct the Subscriber to the Service. When first accessing the Service, the Subscriber must enter its nominated email address and select a password.
3.2 All email addresses and passwords attached to any accounts associated with the Subscriber (Login Details) are confidential. The Subscriber must ensure that the Service is kept secure from unauthorised access, use or modification, including by:
(a) keeping all Login Details secure and confidential; and
(b) ensuring that employees, officers, agents, and individual contractors and representatives of the Subscriber who use the Service (Permitted Users) keep their own and/or the Subscriber’s Login Details secure and confidential.
3.3 The Subscriber is solely responsible for any use (and any misuse) of the Service by its Permitted Users and must ensure that each Permitted User:
(a) is aware of and complies with the terms of this Agreement, all laws and all guidelines, user manuals and any directions issued by Repairy under clause 3.6 in using the Service; and
(b) does not engage in any activity which puts the security or integrity of the Service at risk.
3.4 The Subscriber and its Permitted Users must not interfere with or disrupt the integrity or performance of the Service or attempt to gain unauthorised access to the Service or the systems or networks on which the Service is hosted.
3.5 Repairy may suspend any or all access to, or use of, the Service if there is an actual, threatened or suspected breach of security, including any unauthorised access or use of any Login Details, the Service or any user account. The Subscriber acknowledges and agrees that any such suspension of the Service is without any liability to Repairy.
3.6 In using the Service, the Subscriber:
(a) is also bound (and all of its Permitted Users are also bound) by the Repairy Platform End User Terms (which are presented to all end users at the registration stage). To the extent of any inconsistency between this Agreement and the Repairy Platform End User Terms, the terms of this Agreement prevail; and
(b) must comply (and ensure that any Permitted Users comply) with all laws in connection with its use of the Service and with all user guidelines, user manuals and reasonable directions regarding use of the Service issued or amended by Repairy from time to time.
4. SUPPORT AND REPORTING UNAUTHORISED USE
4.1 If any Permitted User experiences any issues accessing the Service, or has any questions in relation to the use of the Service, the Permitted User should contact Repairy at [support@repairy.com.au] (Repairy Support).
4.2 If the Subscriber suspects or becomes aware that its account has been accessed without the Subscriber’s authorisation, it must immediately report the actual or suspected unauthorised access to Repairy Support. The Subscriber must also change its Login Details as soon as it becomes aware of or suspects such unauthorised access to its Service account.
5. REPAIRY RESPONSIBILITIES FOR THE SERVICE
Repairy will host the Service and the Subscriber Data and will be responsible for maintaining the Service. Repairy will provide the services listed in Schedule 1 to the Subscriber on the terms of this document.
6. SUBSCRIBER RESPONSIBILITIES
6.1 The Subscriber must not (and must ensure that its Permitted Users do not):
(a) disclose any Personal Information to Repairy;
(b) enter any Personal Information into the Service or any databases related to the Service; or
(c) disclose any Personal Information via the Service,
unless it has the relevant individual’s consent to the relevant disclosure if required by law.
6.2 The Subscriber must ensure the accuracy and completeness of all materials and information it makes available on or through the Service.
6.3 The Subscriber uses the Service at its own risk. The Subscriber is solely responsible for any services it delivers via the Service.
6.4 The Subscriber must not (and must ensure that its Permitted Users do not):
(a) grant any person access to the Service who is not a Permitted User;
(b) use the Service for or on behalf of, or for the benefit of any person who is not an employee or contractor of the Subscriber;
(c) interfere with or disrupt the integrity or performance of the Service including by introducing any malicious software or code (such as viruses and malware etc);
(d) use data mining or similar data gathering tools or attempt to copy any of the data available via the Service (unless permitted to do so by the Service or Repairy);
(e) reverse engineer, decompile or disassemble or otherwise attempt to derive the source code of the Service or any part thereof;
(f) remove any copyright or trade mark notices from any materials provided or made available to the Subscriber in connection with this Agreement;
(g) use the Service to mislead or deceive any Customer or any other user of the Service;
(h) upload any materials to the Service or display any content which is defamatory, obscene, unlawful or which infringes the rights of any person (including privacy rights, Intellectual Property Rights and Moral Rights);
(i) impersonate, or otherwise misrepresent its identity or affiliation with any other person or entity using the Service;
(j) send any marketing or advertising material via the Service, or otherwise use the Service for marketing or advertising unless permitted by law (including the SPAM Act 2003 (Cth));
(k) use the Service or any data collected via the Service for research purposes without Repairy’s written consent; or
(l) collect data or Personal Information from other users of the Service without their express written consent.
7. PAYMENT AND FEES
7.1 The Subscriber is required to pay Repairy the Subscription Fee for the use of the Service.
7.2 Repairy will provide a tax invoice to the Subscriber monthly in arrears which the Subscriber must pay within 7 days of receipt.
7.3 The Subscription Fee includes GST.
7.4 The Subscriber is responsible for all costs associated with accessing and using the Service, including all telecommunications access charges, network infrastructure, equipment and other software.
7.5 The Subscriber acknowledges that, to the extent permitted by law and subject to clause 17.3(a), Subscription Fees are non-refundable.
8. MONITORING, MAINTENANCE AND SUSPENSION
8.1 Repairy reserves the right at any time to:
(a) monitor any Permitted User’s use of the Service to ensure they are complying with the terms of this Agreement and the Repairy Platform End User Terms;
(b) modify any aspect of the Service (including its functionality) without notice, provided that such modification does not disrupt the Service or substantially change the functionality of the Service; and
(c) suspend or limit the Subscriber’s or any Permitted User’s access to the Service if the Subscriber is in breach of this Agreement or the Subscriber or any Permitted User is in breach of the Repairy Platform End User Terms
8.2 Repairy may suspend access to, and use of, the Service in order to perform scheduled maintenance on the Service. Repairy will provide the Subscriber with at least 5 business days’ notice of the maintenance and the expected duration of the maintenance.
8.3 Repairy may interrupt or suspend all access to and use of the Service if Repairy needs to undertake urgent repairs or maintenance of the Service or where Repairy is required to interrupt or suspend access to the Service by law. Where practicable, Repairy will provide the Subscriber with reasonable prior notice of such interruption or suspension, or if not practicable, notice will be provided as soon as practicable after the occurrence of the interruption or suspension (as the case may be).
8.4 Without limiting clause 14.1, any interruption or suspension of the Service for the purposes set out in this clause 8 is without any liability to Repairy
9. INTELLECTUAL PROPERTY AND DATA
9.1 Repairy is the owner or licensee of all Intellectual Property Rights in and to the Service, all content and data contained in or made accessible by Repairy on the Service, and any other materials provided by or on behalf of Repairy in connection with this Agreement (Repairy Material). Repairy Material excludes Subscriber Data.
9.2 Repairy grants the Subscriber a non-exclusive, non-transferable, royalty-free, revocable licence to access and use Repairy Material and the Service during the Term, subject to the terms and conditions of this Agreement.
9.3 Except as expressly set out in this Agreement, no other rights or licences in or to the Service or Repairy Material are granted to the Subscriber and all such rights are expressly reserved by Repairy.
9.4 All Intellectual Property Rights in or to the Subscriber Data are owned or licensed by the Subscriber.
9.5 The Subscriber grants to Repairy a perpetual, irrevocable, non-exclusive, royalty-free licence to use, copy, modify and reproduce the Subscriber Data as required in order for Repairy to provide the Service and for its other internal business purposes, including a right to use de-identified Customer data for any purpose
9.6 The Subscriber warrants that:
(a) it has all necessary rights and consents to use the Subscriber Data on the Service and to grant the licence to Repairy in accordance with clause 9.5; and
(b) the Subscriber Data and its use by Repairy and Customers in the manner permitted by this Agreement will not breach any laws or the rights of any person (including Intellectual Property Rights).
9.7 The Subscriber is solely responsible for procuring any third party software and materials required by it in order for the Subscriber and its Permitted Users to access and use the Service (Third Party Items). The Subscriber is solely liable for any fees and charges in connection with obtaining such Third Party Items and must comply with the terms and conditions imposed by third parties in relation to the Third Party Items.
9.8 Repairy may collect diagnostic, technical, usage and related information regarding the use of the Service by the Subscriber and the Permitted Users, and use such information to monitor the Subscriber’s compliance with this Agreement and for the internal business purposes of Repairy (including to update and support the Service).
10. CONFIDENTIALITY
10.1 The Subscriber must keep the Confidential Information confidential and not use it except as required to use the Service as permitted by this Agreement.
10.2 The Subscriber may only disclose the Confidential Information:
(a) to those Permitted Users and Customers who require access to the Confidential Information to make use of the Service as permitted under this Agreement (provided that each Permitted User agrees to comply with clause 10.1 and the other terms of this Agreement);
(b) to its professional advisors who are bound by obligations of confidentiality; or
(c) if required by applicable law (in which case the Subscriber must use best endeavours to provide prior written notice to Repairy so that Repairy may have an opportunity to contest any such disclosure).
10.3 The obligations in this clause 10 do not apply to information that:
(a) is or becomes generally known to the public without breach of any obligation of confidentiality; or
(b) was independently developed without use of or access to that information.
10.4 Repairy will use reasonable efforts in accordance with industry standards to maintain the confidentiality of the Subscriber Data but provides no warranty that the Service (and, accordingly, the Subscriber Data) will be secure from unauthorised access or that the integrity of the Subscriber Data will be maintained. Repairy is not responsible for any disclosure of Subscriber Data which occurs via any:
(a) breach of this Agreement or the Repairy Platform End User Terms by the Subscriber or any Permitted User or Customer, including any unauthorised use of the Subscriber’s Login Details or breach of clause 6.4; or
(b) unauthorised or unlawful use of or access to the Service (including any information technology systems, networks or infrastructure used to provide the Service) by third parties.
10.5 Repairy may engage third parties, including third parties located overseas, to assist Repairy in the development, maintenance, support and hosting of the Service. The Subscriber consents to Repairy disclosing the Subscriber Data on a confidential basis to such third parties to the extent required so that they can perform these services for Repairy.
11. PRIVACY
11.1 Repairy must comply with the Privacy Laws in respect of all Personal Information disclosed to it by the Subscriber in using the Service.
11.2 The Subscriber must comply with the Privacy Laws in respect of all Personal Information which is disclosed to Repairy, or collected by the Subscriber, in using the Service.
11.3 Where the Subscriber discloses or inputs any Personal Information in connection with the Service, it warrants that it has obtained all consents required by law to disclose or input that Personal Information.
11.4 Any Personal Information Repairy collects or holds in providing the Service will be handled in accordance with Repairy’s Privacy Policy. By placing an Order, the Subscriber agrees that it consents to the collection, use and disclosure of Personal Information by Repairy in accordance with Repairy’s Privacy Policy
12. MANAGEMENT OF DATA BREACHES
12.1 In the event of a Data Breach, Repairy will:
(a) promptly notify the Subscriber in writing;
(b) promptly take all reasonable steps to remediate the Data Breach and mitigate the risk of harm (if any) to any individuals affected by the Data Breach; and
(c) co-operate with the Subscriber in investigating what has occurred and the circumstances of the Data Breach, including by providing all information reasonably requested by the Subscriber for the purpose of determining the likelihood that the Data Breach will result in serious harm to any individual affected by the Data Breach.
12.2 If either the Subscriber or Repairy determines or has reasonable grounds to believe that a Data Breach is an Eligible Data Breach, the parties will work together to coordinate any notifications required under applicable Privacy Laws. The Subscriber must not make any required notification unless it has first obtained Repairy’s prior written consent (such consent not to be unreasonably withheld).
12.3 Nothing in this clause 12 requires a party to take any action, or refrain from taking any action, that would result in that party breaching its obligations under any applicable Privacy Law.
13. EXCLUSION AND LIMITATION OF GUARANTEES
13.1 All express and implied terms, conditions, warranties and guarantees which otherwise might apply to, or arise out of, this Agreement are excluded other than:
(a) as expressly stated in this Agreement; and
(b) guarantees which by law cannot lawfully be excluded or modified by agreement.
13.2 Repairy’s liability for a breach of a guarantee described in clause 13.1 will, to the fullest extent permitted by law, be limited to (at Repairy’s option):
(a) supplying the services again; or
(b) payment of the cost of having the services supplied again.
13.3 Subject to clauses 13.1 and 13.2, the Service is provided on an “as is” and “as available” basis and the Subscriber uses the Service at its own risk. The Subscriber acknowledges that:
(a) it has not relied on any statement, representation, warranty, conduct or undertaking made or given by Repairy or any person on its behalf, other than those set out in clauses 13.1; and
(b) it has relied on its own skill and judgment in deciding to use the Service and enter into this Agreement.
13.4 Subject to clauses 13.1 and 13.2, Repairy provides no warranty or guarantee and makes no representation that the Service:
(a) will be uninterrupted, error free or available at all times;
(b) is fit for a particular purpose;
(c) will be compatible with the Subscriber’s hardware, software and other systems;
(d) will not impact the performance of other services, hardware, software and systems and those of third parties;
(e) will be secure from unauthorised access;
(f) will not contain any viruses or disruptive code; and
(g) will not infringe any person’s rights (including Intellectual Property Rights).
13.5 The Subscriber is solely responsible for all back-ups of files and Subscriber Data and Repairy is not liable to the Subscriber for any loss of information or data (including the Subscriber Data).
14. LIABILITY
14.1 Subject to clauses 13.1 and 13.2, to the extent permitted by law:
(a) Repairy is not liable for any loss or damage (including, without limitation, direct, indirect, special or consequential loss, loss of profits, loss of anticipated savings, loss of use, loss of reputation, loss of opportunity, loss of data or business interruption) suffered or incurred by the Subscriber in connection with this Agreement and the use of the Service (including due to any person’s negligence), except for any liability which cannot be excluded by law (in which case that liability is limited to the minimum allowable by law); and
(b) Repairy is not liable (including if caused by the negligent act or omission of Repairy) to the Subscriber for, and the Subscriber hereby releases Repairy from, any loss, damage, expense or claims in connection with the Subscriber’s use of the Service or for any reliance on information contained on or omitted from the Service.
14.2 Without limiting clause 14.1, Repairy is not liable for any loss or damage resulting, directly or indirectly, from any technical errors, service delivery failures or any scheduled or unscheduled periods of unavailability of the Service or payment systems.
14.3 To the extent Repairy is unable to exclude any liability under or in connection with this Agreement (including pursuant to clause 14.1 and 14.2), the maximum cumulative liability of Repairy for all loss, damage, liability and expense suffered or incurred by the Subscriber, whether under contract, statute, in tort (including negligence) or otherwise, is limited to $1,000.
14.4 The Subscriber indemnifies Repairy from and against any liability, loss, damage or expense (including legal fees) Repairy may suffer or incur in connection with any allegation or claim against Repairy:
(a) which is caused by the Subscriber’s breach of this Agreement, any willful or negligent act or omission by the Subscriber or any breach of law by the Subscriber;
(b) made by a Customer or any other user of the Service about the quality or effectiveness of the Service, or any other alleged deficiency with the Service; or
(c) that any services delivered by the Subscriber:
(i) infringe any person’s rights (including privacy rights and Intellectual Property Rights); or
(ii) breach any law (including the Privacy Laws and the Spam Act 2003 (Cth)).
14.5 The Subscriber’s liability under clause 14.4 will be reduced proportionately to the extent (if any) that the loss or liability was caused or contributed to by the act or omission of Repairy.
14.6 Nothing in this Agreement limits any rights of the Subscriber under the Australian Consumer Law (being schedule 2 of the Competition and Consumer Law Act 2010 (Cth)).
15. WARRANTIES
15.1 Repairy warrants that:
(a) it complies with and operates the Service in accordance with all applicable laws; and
(b) it will retain all records in a form and for the period required by applicable legislation.
15.2 Subscriber warrants that it complies with the Privacy Laws and all other applicable laws by which the Subscriber is bound.
16. DISPUTE RESOLUTION
16.1 If a dispute arises between the Subscriber and Repairy, either party may give notice to the other party requesting that the dispute be referred for resolution by negotiation between senior representatives of the parties (Representatives) . The Representatives must have authority to settle the dispute.
16.2 The Representatives must meet and enter into discussions in good faith to resolve the dispute (in whole or in part) within 21 days of the date on which the notice under clause 16.1 was received (or such later date as the parties may agree). Any agreement reached by the Representatives will be recorded in writing and will be contractually binding on the parties.
16.3 In the event that the dispute is not resolved under clause 16.2, the party that gave notice under clause 16.1 is entitled to terminate this Agreement under clause 17.
16.4 Nothing in this clause 16 prevents either party from seeking urgent interlocutory relief.
17. CONSEQUENCES OF TERMINATION
17.1 Either party may terminate this Agreement for any reason by giving the other party:
(a) at least 30 days’ written notice during the Term of an Annual Subscription; or
(b) written notice during the Term of a Monthly Subscription.
17.2 A party may, without prejudice to any other right of action or remedy, terminate this Agreement (in whole or in part) effective immediately by written notice to the other Party (defaulting party) if:
(a) the defaulting party has committed a material breach of this Agreement which cannot be remedied;
(b) the defaulting party fails to remedy a material breach of this Agreement (that is capable of remedy) within 30 days after receiving notice to remedy the breach from the other party; or the defaulting party enters or threatens to enter into bankruptcy, liquidation or other type of insolvency, administration, management or receivership, or if the defaulting party ceases or threatens to cease to conduct business to properly give effect to this Agreement.
17.3 Where the Subscriber terminates this Agreement under clause 17.1 during the Term of:
(a) an Annual Subscription, Repairy must refund the Subscription Fee on a pro-rata basis minus any reasonable costs incurred by Repairy; or
(b) a Monthly Subscription, Repairy will not refund any Subscription Fees paid by the Subscriber.
17.4 On the date nominated in any written notice of termination provided under clauses 17.1 or 17.2 (Termination Date):
(a) , all Subscriber rights to use the Service immediately cease;
(b) the Subscriber must return or permanently delete (at Repairy’s election) all Confidential Information and Repairy Material in the Subscriber’s possession or control;
(c) clauses 9.6, 10, 11, 1, 13, 14, 15 16, 17 and 18 , and any other clauses which by their nature survive termination of this Agreement, continue in full force and effect.
18. GENERAL
18.1 This Agreement does not create a partnership, franchise, joint venture, fiduciary or employment relationship between the parties.
18.2 Neither party is liable for any delay or failure to perform its obligations under this Agreement if caused by any event beyond the reasonable control of a party, including any act of God, strikes, industrial disputes, acts of war, terrorism, riots, civil disorder, governmental action, telecommunications failure, equipment failure, traffic congestion, technical malfunction or any failure by subcontractors to provide services.
18.3 All notices under this Agreement must be in writing and either delivered personally, by post or by email, and are effective upon receipt.
18.4 Repairy may assign or novate this Agreement to any other person on written notice to the Subscriber. The Subscriber must not assign, novate or sub-licence any of its rights or obligations under this Agreement to any person without Repairy’s prior written consent. Any purported dealing in breach of this clause is void and of no effect.
18.5 This Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria, Australia. This Agreement contains the entire understanding between the parties as to the subject matter of this document.
18.6 Except as expressly stated otherwise in this Agreement, a party may conditionally or unconditionally give or withhold any consent or approval to be given under this Agreement and is not obliged to give its reasons for doing so.
18.7 A single or partial exercise or waiver by a party of a right relating to this Agreement does not prevent any other exercise of that right or the exercise of any other right.
18.8 Each party must pay their own costs in relation to the negotiation and preparation of this Agreement.
19. INTERPRETATION
19.1 The following terms as used in this Agreement are defined as follows.
(a) Annual Subscription means a subscription to the Service for an Initial Term or Extension Period of 12 months’ duration.
(b) Confidential Information means any information disclosed by Repairy in connection with this Agreement which is designated as confidential or which is, by its nature, confidential, and includes Repairy Material.
(c) Customer means any third party with whom the Subscriber uses the Service to provide services to or otherwise interact with.
(d) Data Breach means, in respect of any Subscriber Data held by Repairy under this Agreement, any
(i) authorised access to, modification or disclosure of; or
(ii) any interference with, loss or misuse of, such data.
(e) Eligible Data Beach has the meaning given to it in the Privacy Act.
(f) Initial Term has the meaning given to it in the Order.
(g) Intellectual Property Rights means all intellectual property rights including existing and future copyright, rights in designs, trade marks, patents and inventions, whether registered or unregistered, anywhere in the world.
(h) Monthly Subscription means a subscription to the Service for an Initial Term or Extension Period of one month’s duration.
(i) Order means the order form submitted by the Subscriber to Repairy to order access to the Service.
(j) Permitted Users is defined in clause 3.2(b).
(k) Personal Information has the meaning given to it in the Privacy Act and includes Sensitive Information (as defined in the Privacy Act).
(l) Privacy Act means the Privacy Act 1988 (Cth).
(m) Privacy Laws means the Privacy Act and all relevant State and Territory privacy legislation and health records legislation, and any other applicable legislation, common law obligations and binding industry codes relating to privacy, by which a party is bound.
(n) Service is defined in clause 1.2.
(o) Subscriber Data means any information, data or document entered into or uploaded to the Service by or on behalf of the Subscriber.
(p) Subscriber Representative means the person listed as the “Subscriber Representative” on the Order Form.
(q) Subscription Fee has the meaning given to it in the Order.
(r) Repairy Material is defined in clause 9.1.
(s) Repairy Support is defined in clause 4.1.
(t) Term means the Initial Term and any Extension Period.
(u) Third Party Items is defined in clause 9.7.
19.2 Unless expressed to the contrary, in this Agreement:
(a) “includes” means includes without limitation;
(b) a reference to:
(i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
(ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
(iii) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced; and
(iv) this or any other document includes the document as novated, varied or replaced and despite any change in the identity of the parties.
