Retailer terms and conditions
1. Services and Order
(a) Giftnote agrees to provide the Retailer’s Users with personalised gifting services (Services).
(b) The Retailer acknowledges and agrees that Giftnote will not be required under any circumstances to re-provide the Services if the relevant item purchased by the User from the Retailer is returned to or re-provisioned by the Retailer.
(a) A User may place an Order with Giftnote by requesting that Giftnote provide the Services to the Requested Recipient through the Retailer’s Platform.
(b) Giftnote will notify the User and the Retailer within 24 hours if is unable to accept an Order.
2. Giftnote’s obligations
(a) Giftnote agrees to perform the Services:
(i) in accordance with the Provided Information;
(ii) efficiently with due care, skill and diligence; and
(iii) in accordance with all laws relating to the performance of the Services.
(b) Giftnote will provide the Retailer with information relating to the Requested Recipient where necessary for the Retailer to fulfil any Order.
(c) Giftnote must maintain, at its cost, any licences, accreditations, certifications or registrations required by law to perform the Services.
3. Retailer’s obligations
(a) The Retailer must:
(i) ensure that Giftnote can receive all information and data reasonably necessary, including without limitation the Provided Information and the Delivery Information, through the Widget as required by Giftnote to allow it to complete the Services in a timely manner and as required by Giftnote;
(ii) co-operate with Giftnote in all matters relating to the Services;
(iii) comply with all reasonable directions and instructions given by Giftnote relating to the Widget;
(iv) ensure that Giftnote’s Terms are incorporated into the Retailer’s Platform such that each User has a reasonable opportunity to read, understand and agree to Giftnote’s Terms;
(v) provide Giftnote with true and relevant information regarding the Retailer, its Delivery Agent and its business;
(vi) comply with all applicable laws; and
(vii) comply with all of Giftnote’s instructions and directions relating to the Services.
3.2 Accuracy of information
The Retailer acknowledges that Giftnote has relied on information that the Retailer has provided in agreeing to and providing the Services.
(a) Use of and access to the Service may be subject to a subscription fee (Subscription Fee), which is payable on a recurring basis.
(b) Use of and access to the specific elements of the Service may be subject to a service fees (Service Fee), payable as described.
(c) Fees are not refundable or partially refundable, except as required by law.
(d) All payments received by Giftnote are processed through third party secure transaction service providers.
5. Intellectual Property Rights
(a) The Intellectual Property Rights in the Services and the Widget are, and shall remain the property of Giftnote, and we reserve the right to grant a licence to use the Services and the Widget to any other party or parties.
(b) The Retailer must do all things that Giftnote reasonably requires to perfect its right, title and interest in and to the Intellectual Property Rights in the Services and/or the Widget.
(c) The Retailer shall use reasonable endeavours to prevent any infringement of Giftnote’s Intellectual Property Rights in the Services and/or the Widget and shall promptly report to Giftnote any such infringement that comes to its attention.
Giftnote grants the Retailer a revocable, non-exclusive, non-transferable and royalty-free right to use the Widget to the extent necessary to obtain the full benefit of the Services.
5.3 White Label
If a ‘White Label’ version of the Widget is being supplied, Giftnote agrees to licence to the Retailer a White Label version of the Widget for use in accordance with clause 6.2.
5.4 Provided Information
As between the parties, all Intellectual Property Rights in the Provided Information remain the property of the User, and nothing in this document shall be construed as giving either party any rights to such Intellectual Property Rights.
5.5 Retailer’s warranty and indemnity
(a) The Retailer warrants that:
(i) it holds any necessary licence of or consents relating to all Intellectual Property Rights in the Provided Information; and
(ii) in utilising any Provided Information, Giftnote will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
(b) The Retailer indemnifies Giftnote from and against any liability arising out of any claim by a third party that the Provided Information violates or infringes any Intellectual Property Rights owned by a third party.
5.6 Giftnote’s warranty and indemnity
(a) Giftnote warrants that:
(i) it owns, or holds any necessary license of, all Intellectual Property Rights in the Services and the Widget; and
(ii) in utilising the Services and the Widget, the Retailer will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
(b) Giftnote indemnifies the Retailer from and against any liability arising out of any claim by a third party that it and the Services or the Widget violates or infringes any Intellectual Property Rights owned by a third party.
5.7 Restrictions on use
The Retailer acknowledges and agrees that it will:
(a) comply with all applicable laws, regulations and codes of conduct;
(b) promptly report to Giftnote any errors, defects or malfunctions in relation to the Services or the Widget;
(c) not do anything which is intended or reasonably likely to damage, impair, interrupt or interfere with the provision of the Services or the Widget;
(d) not alter, modify, decompile, disassemble, reverse engineer, sublicense or change the Services or the Widget or create a derivative work from the Services or the Widget by any means;
(e) not remove any identification or notices of any proprietary or copyright restrictions from the Services or the Widget or any support material, unless Giftnote has agreed to provide the Retailer with a White Label version of the Widget, whereby the branding of the Widget only may be replaced with the branding of the Retailer; and
(f) not purport to grant to a third party any right to access or use our Services or the Widget except as Giftnote permits.
6.1 Termination for cause
Either party may at any time terminate this document with immediate effect if:
(a) the other party commits a material breach of this document and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party repeatedly breaches any term of this document in such a manner as to reasonably justify the opinion that their conduct is inconsistent with them having the intention or ability to give effect to this document; or
(c) the other party suffers an Insolvency Event.
6.2 Obligations on termination or expiry
On termination or expiry:
(a) Giftnote will cease to provide the Services to the Retailer;
(b) the Retailer will pay or otherwise authorise payment of all amounts owing on amend to Giftnote; and
(c) each party will, on request of the other party, return to the other party all Confidential Information.
(a) Clauses 6, 8, 9, 10 and 14 survive the expiry or earlier termination of this document.
(b) Termination of this document will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
(a) Each party agrees to, and shall ensure each of their officers, employees and contractors:
(i) hold in strict confidence all Confidential Information of the other party;
(ii) use the Confidential Information solely to perform or to exercise their rights under this document;
(iii) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party; and
(iv) use their best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised use, disclosure or copying by third parties.
(b) The obligations in clause 8 do not apply:
(i) to the extent necessary to enable disclosure required by law;
(ii) to any disclosure agreed in writing between the parties; or
(iii) where the Confidential Information has entered the public domain other than as a result of a breach by the Retailer of this document.
8. Limited warranty and exclusion of liability
8.1 Limitation of Liability
(a) This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their employees, agents and subcontractors) to each other in respect of:
(i) any breach of this document;
(ii) any use made of the Services; and
(iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this document.
(b) As far as the law permits and unless otherwise specified in this document:
(i) all liability to a party for any injury, loss damage, cost or expense relating to or arising from this document, except to the extent that the injury, loss, damage, cost or expense arises from the negligent act or omission of a party, is excluded;
(ii) the Retailer shall be solely responsible, as against Giftnote, for any opinions, recommendations, or other conclusions made or actions taken by the Retailer or any other third party based (wholly or in part) on the results obtained from its use of the Services;
(iii) Giftnote shall have no liability for the item purchased by the User from the Retailer including with respect to the item itself and/or delivery by the Delivery Agent;
(iv) Giftnote shall have no liability for any damage caused by errors or omissions in any information or instructions, including without limitation the Provided Information, that the Retailer provides to it in connection with the Services;
(v) Giftnote shall have no liability for the accuracy, completeness or timeliness of any Delivery Agent in connection with the Services;
(vi) Giftnote shall have no liability for any damage of any kind caused by the integration, use or removal of the Widget in connection with the Retailer’s Platform; and
(vii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from this document.
Each party must mitigate any loss they suffer as a result of the breach by the other party to this document or any warranty or indemnity provided under this document.
8.3 Maximum liability
(a) Subject to clause 9.3(b), the total liability of each party arising under or in connection with this document will be limited in the aggregate to the total Fees payable in the previous 12 month period.
(b) Clause 9.3(a) will not limit or exclude the liability of either party for any claim arising from:
(i) death or personal injury or damage to property resulting from negligence; or
(ii) fraud or fraudulent misrepresentation; or
(iii) the deliberate default or wilful misconduct of that party or their employees, agents or contractors;
(iv) the non-payment of any Fees; or
(v) the indemnities contained in clauses 6.5 and 6.6.
8.4 Consequential Loss
Neither party, nor their members, managers, officers, employees or agents, shall be liable to the other party for any loss of use, lost or inaccurate data or data corruption, non-compliance with any statutory or legal obligation or deadline, lost profits, failure of security mechanisms, interruption of business, delays or any direct, indirect, special, incidental, reliance or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance.
8.5 Australian Consumer Law
If the Australian Consumer Law applies to the supply of goods or services under this document, Giftnote acknowledges and agrees that its services come with a guarantee that cannot be excluded under the Australian Consumer Law, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to the Retailer will apply:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
(b) The Retailer agrees to comply with all applicable requirements of the Privacy Legislation in relation to any information that it collects from the User in connection with the Services.
(c) Without prejudice to the generality of clause 10(a), the Retailer agrees and warrants that it has all necessary and appropriate consents and notices in place to enable lawful transfer to Giftnote of any personal data or information, including without limitation in connection with the Provided Information, for the duration and purposes of this document so that Giftnote may lawfully use, process and transfer the personal data in accordance with this document.
(d) Giftnote shall notify the Retailer immediately if it becomes aware of any security incident affecting its network and information systems that could potentially affect the Retailer and shall respond without delay to all queries and requests for information from the Retailer about any security incident, whether discovered by Giftnote or by the Retailer.
(e) Except where consent has otherwise been received by the User or Requested Recipient, each party agrees to use the Provided Information and any personal information regarding the Requested Recipient strictly for the purposes of fulfilling their obligations under this document.
10. Force Majeure
(a) Neither party shall be liable for any delay or failure to perform their obligations in a timely manner pursuant to this document if such delay is due to a Force Majeure Event.
(b) If a Force Majeure Event continues for a period of 60 consecutive days, then either party may terminate the Services affected by the Force Majeure Event by providing written notice to the other party.
11. Dispute Resolution
(a) Neither party may commence court proceedings concerning any dispute between the parties arising out of or in relation to this document (Dispute), unless the party starting the proceedings has complied with this clause 12.
(b) A party claiming that a Dispute has arisen must notify the other party in writing, specifying the nature of the Dispute (Dispute Notice).
(c) Following the Dispute Notice being given, a representative of both parties with authority to negotiate and settle the Dispute must endeavour in good faith to resolve the Dispute within 14 days.
(d) If the Dispute is not resolved within 14 days of the Dispute Notice being given, the parties must endeavour in good faith to resolve the Dispute by mediation as follows:
(i) if the parties fail to agree on the appointment of a mediator within 21 days of the Dispute Notice being given, either party may apply to the President of the Law Society of New South Wales or the nominee of the President to nominate a mediator (which nomination the parties must accept);
(ii) if the mediator accepts the appointment, the parties must comply with the mediator’s instructions;
(iii) if the Dispute is not resolved within 21 days of the appointment of a mediator, the mediation ceases;
(iv) the parties will be jointly responsible for the fees of the mediation, and each party is to bear their own costs in relation to the mediation;
(v) the mediation will be held in Sydney, New South Wales;
(vi) the parties may be legally represented at the mediation; and
(vii) the mediation will not be bound by the rules of natural justice and may discuss the Dispute with a party in the absence of any other party and their advisers.
(e) Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.
This document may only be amended by written agreement between all parties.
This document may be signed in any number of counterparts. All counterparts together make one instrument.
12.3 Entire agreement
This document supersedes all previous agreements about its subject matter. This document embodies the entire agreement between the parties.
12.4 No waiver
(a) The failure of either party at any time to enforce any of the terms or provisions of this document or to exercise any right under this document does not constitute a waiver of any such right or affect the party's privilege to enforce that right.
(b) A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
(c) A right under this document may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.
Giftnote is an independent contractor of the Retailer and this document does not create a relationship of employment, trust, agency, partnership, power of attorney, or of joint venture between Giftnote and the Retailer.
12.6 Governing law and jurisdiction
New South Wales law governs this document. Each party irrevocably submits to the non-exclusive jurisdiction of the New South Wales courts.
(a) A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.
(b) If any provision of this document is deemed to be or is adjudicated to be unlawful or unenforceable, such provision is to be severed from this document and all other remaining provisions remain in force.
No variation, modification or alteration of any of the provisions of this document is effective unless in writing and signed by each of the parties.
12.9 Assignment and subcontracting
Each party may only assign or subcontract its obligations under this document or a right under this document with the prior written consent of the other party.
12.10 Further assurances
Each party must do all things reasonably necessary to give effect to this document and the transactions contemplated by it.
12.11 No merger
The rights and obligations of the parties under this document do not merge on completion of any transaction contemplated by this document.
Each party bears its own costs in relation to the preparation and signing of this document.
A notice, consent or communication under this document must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as set out in this document.
A notice, consent or communication is given and received:
(i) if it is hand delivered, on the day it is given;
(ii) if it is sent by post, three Business Days after posting (if within Australia) or seven Business Days after posting (if outside Australia); and
(iii) if it is sent by email, that day, if the time of departure from the sender's mail server is before 5.00pm on a Business Day, or the next Business Day in any other case, unless the sender receives an automated message generated by the recipient's mail server (other than an 'out of office' message or other response generated by or at the instigation of the recipient) that the email has not been delivered within two hours.
13. Defined terms & interpretation
13.1 Defined terms
In this document:
(a) Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
(b) Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales.
(c) Confidential Information means any information:
(i) relating to the business and affairs of a party;
(ii) relating to the Users, clients, employees, sub-suppliers or other persons doing business with a party;
(iii) relating to this document;
(iv) relating to the Intellectual Property Rights of a party;
(v) which is by its nature confidential;
(vi) which is designated as confidential by a party; or
(vii) which the other party knows or ought to know, is confidential,
and includes all trade secrets, knowhow, marketing, financial and User information, forecasts, and strategies and any other commercially valuable information of a party.
(d) Delivery Agent means the delivery agent engaged by the Retailer to deliver the relevant item to Requested Recipient.
(e) Delivery Information means all information relevant to the delivery of the item purchased by the User which relates to the Services, including without limitation anticipated delivery details of such delivery to the Requested Recipient.
(f) Fee has the meaning given to that term in the Contract Details.
(g) Giftnote’s Terms means Giftnote’s terms and conditions relating to the Services located at https://giftnote.com/.
(h) GST means goods and services tax.
(i) Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes but is not limited to any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, trade secret, knowhow, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
(j) Retailer’s Platform means the website, app or other platform that the Retailer uses in connection with its business.
(k) Order means the order submitted by the User through the Retailer’s Platform for the provision of the Services in relation to the item purchased by the User from the Retailer.
(l) Provided Information means information and associated content relating to the User and the Requested Recipient as provided by the User through the Widget.
(m) Privacy Legislation means:
(i) the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;
(ii) the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act referred to in (i); and
(iii) all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are being provided that relate to the processing of personal information.
(n) Requested Recipient means the recipient of Services as nominated by the User.
(o) Services has the meaning given to that term in clause 2(a).
(p) User means the end user using the Services through the Retailer’s Platform.
(q) White Label means a set of functionality of the Widget that is produced and provided by Giftnote, which is rebranded to appear as though it originates from or is provided by another provider (such as the Retailer) and does not contain Giftnote’s branding.
(r) Widget means the widget integrated into the Retailer’s Platform and used by Giftnote to provide the Services.
In this document:
(a) a reference to a party to this document or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns;
(b) a reference to a document or agreement (including a reference to these terms) is to that document or agreement as amended, supplemented, varied or replaced;
(c) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(d) if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day; and
(e) a reference to '$' or 'dollar' is to Australian currency.