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Terms of Use

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING OR USING OUR KWIXX SERVICES. BY ACCESSING OR USING OUR KWIXX SERVICES YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE THEN YOU MUST NOT ACCESS OR USE OUR KWIXX SERVICES.

1. Introduction

Kwixx Pty Ltd ABN 97 640 186 563 trading as Kwixx (“we”, “us” or “our”) makes available priority and related services for purchase through our Kwixx application (“Kwixx App”) on behalf of organisations (“Kwixx Partners”) who have registered on our Kwixx website www.kwixx.com (“Kwixx Site”) as providers of these services.  These priority and related services may be purchased through our Kwixx App by customers of our Kwixx Partners (“Kwixx Partner Customers”) who have registered on our Kwixx App.  We do not ourselves provide any of these priority or related services as all such services are independently provided by our Kwixx Partners who are not employed by us.

2. Legal agreement

Kwixx Services
These Terms of Use govern your access and use of our Kwixx App, Kwixx Site and related services (“Kwixx Services”).  Our Kwixx Services include all information, documents, files, text, logos, graphics, images, photographs, videos, material, software and other content (“Kwixx Content”) available through our Kwixx Services.  In these Terms of Use, a reference to our Kwixx Services includes our Kwixx Content unless the contrary intention appears.
Agreement to be bound
By accessing or using our Kwixx Services you agree to be bound by these Terms of Use which constitute a legally binding agreement between you and us that applies to all matters arising out of, or in connection with, our Kwixx Services.  If you are a representative of one of our Kwixx Partners then you agree to be bound by these Terms of Use on behalf of our Kwixx Partner and you warrant that you have full legal authority to bind our Kwixx Partner to these Terms of Use.  If you do not agree to be bound by all of these Terms of Use then you must not access or use our Kwixx Services.
Compliance with Terms of Use
When using our Kwixx Services you must at all times comply with these Terms of Use, any directions given by us and all applicable laws.  These Terms of Use include our Kwixx Privacy Policy and any other terms and conditions or policies provided or made available through our Kwixx Services from time to time.  In the event of a conflict between the provisions of these Terms of Use and any such other terms and conditions or policies then these Terms of Use will prevail to the extent of the inconsistency.  In these Terms of Use, the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions.
Updates of Terms of Use
We may update these Terms of Use from time to time by giving you notice of updated Terms of Use through our Kwixx Services.  You will be deemed to have agreed to be bound by such updated Terms of Use by continuing to access or use our Kwixx Services after we have given you notice of such updated Terms of Use.  You are responsible for regularly reviewing the current Terms of Use which are available through our Kwixx Services.  If at any time you do not agree to these current Terms of Use then you must immediately cease accessing and using our Kwixx Services.

3. Use of Kwixx Services

Licence
Subject to you complying with these Terms of Use, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use our Kwixx Services in accordance with these Terms of Use.  We may update, change, modify, alter, amend, restrict, limit, suspend, withdraw or discontinue all or any part of our Kwixx Services at any time and for any reason without notice which may affect your ability to continue to access and use our Kwixx Services.
Prohibited uses
You must not: (i) copy, reproduce, adapt, modify, distribute, republish, resell, download, display, communicate or transmit in any form or by any means all or any part of our Kwixx Services without our prior written approval except to the extent expressly permitted by these Terms of Use; (ii) interfere with, impair or disrupt the use of our Kwixx Services by any other user; (iii) interfere with, impair or breach any security or authentication measures of our Kwixx Services; (iv) use data mining, screen scraping or any similar technologies to gather or extract data from our Kwixx Services without our prior written approval; (v) develop or use any third-party application or other software that interacts with our Kwixx Services without our prior written approval; (vi) reverse engineer, decompile or disassemble our Kwixx Services except to the extent permitted by law; (vii) access or use our Kwixx Services to distribute any virus or other harmful code; (viii) access or use our Kwixx Services to engage in any fraudulent activity or any other activity that we determine in our sole discretion to be inappropriate or unsuitable; (ix) access or use our Kwixx Services for any purpose that may damage or adversely affect our business interests including, without limitation, for the purpose of operating a business which competes with our business or soliciting users to use any service which competes with our Kwixx Services; (x) access or use our Kwixx Services in any way that may damage or adversely affect our reputation or goodwill or the reputation or goodwill of any other user; (xi) access or use our Kwixx Services in breach of any applicable law; or (xii) access or use our Kwixx Services otherwise than in accordance with these Terms of Use.
Access fees and charges
You are responsible for obtaining and paying any applicable fees and charges for any network services and compatible hardware and software products required by you to access and use our Kwixx Services.  We do not guarantee that any particular hardware or software product will be compatible with our Kwixx Services or that access to our Kwixx Services will be uninterrupted or error-free.  If you access our Kwixx Services using an application developed by a third party then you will be responsible for complying with the applicable terms and conditions of the third party.

4. User registration

Registration requirement
Kwixx Partner Customers must register on our Kwixx App to purchase priority or related services through our Kwixx App from our Kwixx Partners.  Our Kwixx Partners must register on our Kwixx Site to make available and manage priority or related services which may be purchased through our Kwixx App by their Kwixx Partner Customers.
Registration eligibility
In order to register on our Kwixx App to use our Kwixx Services as a Kwixx Partner Customer you must be at least eighteen (18) years of age or, if you are not at least eighteen (18) years of age, your parent or guardian must consent to your use of our Kwixx Services and register to use our Kwixx Services on your behalf.  In order to register on our Kwixx Site to use our Kwixx Services on behalf of one of our Kwixx Partners you must be at least eighteen (18) years of age.
Registration information
You agree that all information including, without limitation, credit card or other payment information which you provide to us for the purpose of registering to use our Kwixx Services will be accurate, complete and current.  You agree to maintain the accuracy, completeness and currency of such information whilst you remain a registered user of our Kwixx Services.  We are not responsible for any loss or damage that you suffer as a result of us or any other user or third party relying upon any such information which is not accurate, complete and current.
Registration refusal and cancellation
We reserve the right in our sole discretion to refuse to register you to use our Kwixx Services for any reason including, without limitation, if you provide us with any information which is not accurate, complete and current.  We may cancel your registration to use our Kwixx Services if you: (i) breach these Terms of Use; (ii) attempt to register more than once; or (iii) do not log in to use our Kwixx Services for more than thirty (30) days after receiving a cancellation notice from us.
Account security
You must at all times keep secure and confidential your password for your account for our Kwixx Services.  You must immediately notify us and change your password if you suspect or become aware that another person has made or may make unauthorised use of your account.  You must not: (i) knowingly allow another person to use your account to access our Kwixx Services; or (ii) use another user’s account to access our Kwixx Services.  You are solely responsible for all use made of our Kwixx Services when a person uses your account to access our Kwixx Services.

5. Information handling

Personal information
You agree that we may collect, hold, use and disclose your personal information in accordance with our Kwixx Privacy Policy.  Our Kwixx Partners may use and disclose personal information about their Kwixx Partner Customers for the purpose of providing them with any priority or related services which they have purchased through our Kwixx App from our Kwixx Partner.  Our Kwixx Partners must: (i) not without consent use or disclose any personal information about their Kwixx Partner Customers that we have disclosed to them except for the purpose of providing their Kwixx Partner Customers with any priority or related services which they have purchased through our Kwixx App from our Kwixx Partner; and (ii) comply with all applicable privacy laws when doing any act or engaging in any practice in connection with our Kwixx Services.
Additional Kwixx Partner information
In addition to the information required to be provided to register to use our Kwixx Services, each of our Kwixx Partners agrees to promptly provide us with any additional information that we may request at any time in connection with their use of our Kwixx Services including, without limitation, identity verification and creditworthiness information.  Each of our Kwixx Partners agrees that: (i) any additional information which they provide to us at our request will be accurate, complete and current; (ii) they will promptly update any such additional information to ensure that it remains accurate, complete and current; and (iii) we may take any steps that we consider necessary to verify any such additional information including, without limitation, undertaking a credit check with a credit reporting agency.
Kwixx Partner information use
Each of our Kwixx Partners agrees that we may use their information for: (i) any purpose relating to providing our Kwixx Services; and (ii) complying with our legal and regulatory obligations.
Kwixx Partner information disclosure
Each of our Kwixx Partners agrees that we may disclose their information for: (i) any purpose relating to providing our Kwixx Services; and (ii) complying with our legal and regulatory obligations.  Each of our Kwixx Partners agrees that we may disclose their information to: (i) an actual or potential purchaser, acquirer, financier or insurer of all or any part of our business which is responsible for providing our Kwixx Services; and (ii) a body to which is transferred all or some of our functions that involve providing our Kwixx Services.

6. Purchase of priority services

Customer purchases
Kwixx Partner Customers may use our Kwixx App to purchase priority and related services directly from our Kwixx Partners subject to: (i) these Terms of Use and the applicable terms and conditions of our Kwixx Partners notified or made available to them; and (ii) the right of our Kwixx Partners to vary, substitute, withdraw, cancel, reschedule or relocate any of their priority or related services at any time.
Payment of purchase price
Each Kwixx Partner Customer agrees that: (i) the purchase price for any priority or related services made available for purchase through our Kwixx App by any of our Kwixx Partners may change at any time without notice including as a result of any promotion or special offer; (ii) payment by them of the purchase price for the purchase of any priority or related services made available through our Kwixx App will be considered to be a final, non-refundable payment made by them directly to our Kwixx Partner unless otherwise specified in these Terms of Use; and (iii) as agent of our Kwixx Partner we will use a third party payment processing service to facilitate payment by them of the purchase price for the purchase of any priority or related services made available through our Kwixx App.
Payment processing
Kwixx Partner Customers must use a third party payment processing service to make payment for any priority or related services which they purchase through our Kwixx App from any of our Kwixx Partners subject to the applicable terms and conditions of the third party payment processing service provider.  We will not disclose to our Kwixx Partners the full credit card number, expiration date or security code used by their Kwixx Partner Customers to purchase through our Kwixx App any of their priority or related services.  We are not liable to Kwixx Partner Customers for any unauthorised payment or transaction which occurs as a result of their use of the third party payment processing service.  Kwixx Partner Customers are responsible for raising directly with the third party payment processing service provider any disputed payment or transaction which occurs as a result of their use of the third party payment processing service.
Contract formation
Each Kwixx Partner Customer who purchases through our Kwixx App any priority or related services from any of our Kwixx Partners agrees that: (i) a contract will be formed directly between them and our Kwixx Partner which will be deemed to include the applicable provisions of these Terms of Use and the applicable terms and conditions notified or made available to them by our Kwixx Partner; (ii) in the event of a conflict between the applicable provisions of these Terms of Use and the applicable terms and conditions notified or made available to them by our Kwixx Partner, then the applicable provisions of these Terms of Use will prevail to the extent of the inconsistency; (iii) they will be solely responsible for complying with and enforcing the terms and conditions of the contract between them and our Kwixx Partner; (iv) we will not be responsible for providing them with any services which they have purchased from our Kwixx Partner; and (v) we will not be liable to them for any loss or damage which they suffer as a result of any act or omission of our Kwixx Partner in connection with the contract between them and our Kwixx Partner.
Purchase orders
Each Kwixx Partner Customer who purchases through our Kwixx App any priority or related services from any of our Kwixx Partners agrees that: (i) a purchase order which they place for the purchase of the services will only be confirmed when we receive payment from them of the full purchase price for the services; (ii) we will not issue or provide them with any tickets for the services until we have received payment of the full purchase price for the services; (iii) if their payment of the purchase price for the services is declined or refused for any reason then they must pay to us on demand any costs that we incur as a result of the payment being declined or refused; (iv) if a pricing or other system error occurs then we may cancel their purchase order and provide them with the opportunity to repurchase the services where applicable; and (v) if they purchased the services in error then we may charge them any and all costs, charges and expenses that we incur in cancelling their purchase order including, without limitation, any chargeback or transaction reversal charges that we are unable to recover from our Kwixx Partner.
Tickets
Each Kwixx Partner Customer who purchases through our Kwixx App any priority or related services from any of our Kwixx Partners agrees that: (i) their tickets for the services will be provided to them through our Kwixx App; (ii) if they do not receive their tickets for the services within one hour then they should contact us immediately by email to support@kwixx.com; (iii) we are not responsible for any delay or failure in providing them with their tickets for the services; (iv) they are responsible for protecting the security of their tickets for the services; and (v) we are not responsible for any loss, theft or unauthorised use of their tickets for the services.
Priority service changes
In the event of any changes to any priority or related services which any of our Kwixx Partners have made available for purchase through our Kwixx App (including, without limitation, any cancellation, rescheduling or relocation of the services) then our Kwixx Partner must immediately: (i) update the terms and conditions for the services which have been made available through our Kwixx App; and (ii) notify all of their Kwixx Partner Customers who have purchased the services of the changes.

7. Provision of priority services

Ticket presentation
Kwixx Partner Customers must present a valid ticket (including any applicable concession or companion card used to purchase the ticket) to our Kwixx Partner in any required form at the nominated time, date and place in order to receive any priority or related services which they have purchased through our Kwixx App from our Kwixx Partner.
Identity verification
Each of our Kwixx Partners is responsible for verifying the identity of each of their Kwixx Partner Customers before providing them with any priority or related services which they have purchased through our Kwixx App.
Service provision
Each of our Kwixx Partners unconditionally agrees to provide to each of their Kwixx Partner Customers with all of the priority and related services which they have purchased through our Kwixx App in accordance with the terms and conditions of the contract between them and their Kwixx Partner Customer.
Service refusal
Kwixx Partner Customers may be refused all or part of any priority or related services which they have purchased through our Kwixx App from any of our Kwixx Partners (including, without limitation, being removed from any venue, event or function operated or organised by any of our Kwixx Partners) without being entitled to a refund where: (i) the authenticity or validity of their ticket is not able to be verified; (ii) they do not have sufficient or valid identification documents; (iii) they are under 18 years of age and not accompanied by a parent, guardian or adult carer; (iv) they arrive late to an event or function but they will be permitted entry during an intermission or break in the event or function; (v) they are wearing inappropriate attire; (vi) they appear to be intoxicated or affected by drugs; (vii) they have in their possession any items prohibited by our Kwixx Partner; (viii) they refuse to submit to any search of their person or possessions required by our Kwixx Partner; (ix) their mobile phone is not turned off or switched to silent when required by our Kwixx Partner; (x) they use or attempt to use any camera or other photographic or recording device when not permitted by our Kwixx Partner; (xi) they are engaging in unsociable, reckless or dangerous behaviour as determined by our Kwixx Partner in the sole discretion; (xii) they refuse to comply with any reasonable direction given by our Kwixx Partner; (xiii) they do not comply with the terms and conditions of the contract between our Kwixx Partner and them; or (xiv) our Kwixx Partner otherwise determines in their sole discretion that they have reasonable grounds to refuse to provide them with all or part of the service.

8. Refunds

Customer refunds
Kwixx Partner Customers must directly contact our Kwixx Partner from which they have purchased through our Kwixx App any priority or related services to request a refund for their purchase.  In respect of any priority or related services purchased through our Kwixx App by a Kwixx Partner Customer from any of our Kwixx Partners, each Kwixx Partner Customer agrees that: (i) our Kwixx Partner will be solely responsible for providing any refund of the purchase price for the services; (ii) they will only be able to obtain a refund of the purchase price for the services to the extent permitted or required by the applicable terms and conditions of the contract between our Kwixx Partner and them or otherwise where required by the Australian Consumer Law; (iii) they will not be entitled to a refund of the purchase price for the services if they change their mind unless otherwise required by the applicable terms and conditions of the contract between our Kwixx Partner and them; and (iv) we will not be responsible for any loss, damage, cost, charge or expense directly or indirectly arising out of, or in connection with, any failure or refusal by our Kwixx Partner to provide them with a full or partial refund of the purchase price for the services.
Refund policy
Each of our Kwixx Partners must: (i) have a refund policy consistent with these Terms of Use that applies to payments made by their Kwixx Partner Customers for the purchase through our Kwixx App of their priority or related services; (ii) ensure that their refund policy is notified or made available to their Kwixx Partner Customers; and (iii) notify us of any refunds which they have agreed to make of any payments made through our Kwixx App by their Kwixx Partner Customers which will be processed by us using a third party payment processing service unless otherwise agreed with them.
Authorised refunds
Each of our Kwixx Partners authorises us to make refunds to any of their Kwixx Partner Customers who have purchased through our Kwixx App their priority or related services where: (i) our Kwixx Partner has requested or approved the refund being provided to their Kwixx Partner Customer; (ii) the services have been cancelled or not provided to their Kwixx Partner Customer; (iii) we determine in our sole discretion that it is appropriate to provide a refund where our Kwixx Partner has not notified or made available a refund policy to their Kwixx Partner Customers or has otherwise breached these Terms of Use; (iv) we determine in our sole discretion that the services were purchased in error or fraudulently by or on behalf of their Kwixx Partner Customer; (v) we determine in our sole discretion that their Kwixx Partner Customer is entitled to a refund in accordance with these Terms of Use; or (vi) we determine in our sole discretion that failing to provide a refund to their Kwixx Partner Customer would likely result in a chargeback or transaction reversal or their Kwixx Partner Customer otherwise having a legal claim against our Kwixx Partner or us.  Each of our Kwixx Partners agrees to indemnify and release us from any and all costs, charges and expenses arising out of, or in connection with, any refunds that we make to their Kwixx Partner Customers in accordance with these Terms of Use.

9. Agency

Appointment
Each of our Kwixx Partners hereby appoints us as their agent for the purpose of: (i) making available on their behalf priority and related services for purchase through our Kwixx App in accordance with these Terms of Use; and (ii) processing, holding, disbursing, retaining, refunding and managing payments received from their Kwixx Partner Customers for the purchase of their services.  Each of our Kwixx Partners warrants that they have obtained all necessary permits, licences, approvals and consents which are required by law for making available for purchase and providing all priority and related services which they make available for purchase through our Kwixx App.
Signage and promotional advertising
Each of our Kwixx Partners agrees to display any signage or promotional advertising for any priority or related services which they make available for purchase through our Kwixx App in accordance with any requirements which are notified to them through our Kwixx Services.
Priority service terms and conditions
Our Kwixx Partners must ensure that all terms and conditions which apply to any priority or related services which they make available for purchase through our Kwixx App are consistent with these Terms of Use and notified to their Kwixx Partner Customers.
Priority service pricing
Our Kwixx Partners must specify in Australian dollars (including goods and services tax) the purchase price for any priority or related services which they make available for purchase through our Kwixx App.  Each of our Kwixx Partners warrants that they have an Australian Business Number and are registered for goods and services tax.
Payment processing
We use a third party payment processing service to process payments received from Kwixx Partner Customers for the purchase of priority and related services which are made available for purchase through our Kwixx App by our Kwixx Partners.  Upon receipt of payment from a Kwixx Partner Customer for the purchase of any priority or related services from any of our Kwixx Partners, we will: (i) provide our Kwixx Partner with confirmation of the purchase of their services; and (ii) on behalf of our Kwixx Partner issue their Kwixx Partner Customer with a unique ticket number for the services purchased.  Each of our Kwixx Partners agrees to indemnify and release us from any and all costs, charges and expenses arising out of, or in connection with, any chargebacks, transaction reversals or refunds in respect of any payments made by their Kwixx Partner Customers for the purchase through our Kwixx App of any of their priority or related services.
Deemed payment receipt
Each of our Kwixx Partners agrees that our receipt on their behalf of payment from any of their Kwixx Partner Customers for the purchase through our Kwixx App of their priority or related services will be deemed to constitute the receipt of payment by our Kwixx Partner and entitle their Kwixx Partner Customer to be provided with all of the services purchased notwithstanding that we have not yet released all or any part of the payment to our Kwixx Partner.
Account balance
The balance of any monies that we receive on behalf of our Kwixx Partners from their Kwixx Partner Customers for the purchase through our Kwixx App of their priority or related services will be shown in their account only as an amount in respect of which they have an unsecured claim and will not represent a stored value amount.

10. User Content

Making available User Content
Our Kwixx Partners may only use our Kwixx Services to make available information, documents, files, text, logos, graphics, images, photographs, videos and other content (“User Content”) which they have the right to make available including, without limitation, all necessary copyright, trade mark and other intellectual property rights.  By making available any User Content through our Kwixx Services each of our Kwixx Partners warrants that they have the right to do so.
User Content licence
Each of our Kwixx Partners hereby grants to us a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, transferable, sublicensable licence to use, copy, reproduce, adapt, modify, alter, communicate and otherwise exploit their User Content in any form and by any means anywhere in the world without reference to them for any purpose.  Each of our Kwixx Partners represents and warrants that they have the right to grant to us this licence of their User Content.
Prohibited User Content
Our Kwixx Partners must not make any User Content available through our Kwixx Services which: (i) is not accurate, complete and current; (ii) constitutes personal information about another person unless otherwise expressly permitted by these Terms of Use; (iii) is defamatory, misleading, deceptive, fraudulent, offensive, discriminatory, racist, sexist, indecent, obscene, hateful, harmful, threatening, harassing, infringing or unlawful; (iv) contains any virus or other harmful code; (v) they do not have the right to make available; (vi) infringes any third party’s rights including, without limitation, any copyright, trade mark or other intellectual property rights; (vii) is determined by us in our sole discretion to be inappropriate or unsuitable; (viii) breaches any applicable law; or (ix) is otherwise prohibited from being made available under these Terms of Use.
Removal of User Content
Our Kwixx Partners must immediately remove or, if unable to remove, notify us of any User Content which they have made available through our Kwixx Services upon becoming aware that the User Content is prohibited from being made available under these Terms of Use.
Rights and responsibilities for User Content
Each of our Kwixx Partners agrees that in respect of any User Content which they make available through our Kwixx Services: (i) we will have the right, but not the obligation, to review and monitor the User Content before and after they make it available; (ii) in our sole discretion we may at any time edit, modify, alter or remove the User Content without providing notice or any reasons; (iii) we may retain the User Content for our purposes; (iv) we may disclose the User Content for the purpose of assisting to resolve any dispute which arises in connection with our Kwixx Services or these Terms of Use; (v) we may disclose the User Content to deal with any legal claim or if required by law; (vi) we are not responsible for the User Content or any other User Content which another user makes available through our Kwixx Services; and (vii) we are not responsible for any loss or damage which they suffer as a result of another user relying on the User Content or another user making available any other User Content through our Kwixx Services.

11. Fees and charges

Payment of fees and charges
Our Kwixx Partners must pay to us all fees and charges (including, without limitation, any fees and charges for the provision of any signage or advertising material which they are required to display for any priority or related services which they make available for purchase through our Kwixx App) notified to them through our Kwixx Services which are applicable to the making available of their priority or related services for purchase through our Kwixx App.  We may at any time change these fees and charges by notifying our Kwixx Partners of new fees and charges through our Kwixx Services.
Overdue payments
All fees and charges will be due and payable by our Kwixx Partners immediately upon their receipt of an invoice from us.  Each of our Kwixx Partners agrees to pay to us interest on any fees or charges due and not paid within the time required by these Terms of Use at the maximum corporate overdraft rate of the Commonwealth Bank of Australia (or any replacement overdraft rate) from receipt of any late payment notice until the amount is paid in full.
Deductions
Each of our Kwixx Partners agrees that before we release to them any monies which we hold on their behalf that we may deduct from such monies: (i) the amount of any fees and charges which are due and payable by our Kwixx Partner; and (ii) the amount of any and all costs, charges and expenses arising out of, or in connection with, any chargebacks, transaction reversals or refunds in respect of any payments made by their Kwixx Partner Customers for any of their priority or related services purchased through our Kwixx App.
Retention
We may retain a proportion as determined by us in our sole discretion of any payments that we receive from Kwixx Partner Customers on behalf of our Kwixx Partners for the purchase through our Kwixx App of their priority or related services: (i) for the purpose of dealing with any disputed payments or transactions, chargebacks or transaction reversals, refunds or complaints; and (ii) to otherwise ensure compliance with these Terms of Use.
Release of payments
Each of our Kwixx Partners agrees that our obligation to make any payment to them is subject to us receiving payment on their behalf from their Kwixx Partner Customers for the purchase through our Kwixx App of their priority or related services.  We will not release any payments that we receive on behalf of any of our Kwixx Partners from any of their Kwixx Partner Customers for the purchase through our Kwixx App of any of their priority or related services until after our Kwixx Partner has provided us with satisfactory evidence that they have completed providing the services to their Kwixx Partner Customers in accordance with the applicable terms and conditions of the contract between them and each of their Kwixx Partner Customers.
Prohibited use
Our Kwixx Partners must not avoid or attempt to avoid paying all or any part of any fees or charges that would otherwise be payable to us for their use of our Kwixx Services by making any of their priority or related services available for purchase through our Kwixx App and completing all or any part of the purchase of the services independently from our Kwixx Services.

12. Intellectual property rights

Ownership of intellectual property rights
We are the owner or licensee of all intellectual property rights (including, without limitation, all copyright, patents, trade marks, design rights, trade secrets, know-how and other rights of a similar nature existing anywhere in the world) in our Kwixx App, Kwixx Site and other Kwixx Services.  You acquire no rights or licences in respect of our Kwixx App, Kwixx Site or other Kwixx Services except as expressly provided in these Terms of Use.
Suggestions, ideas and feedback
You hereby assign to us all intellectual property rights (including, without limitation, all copyright, patents, trade marks, design rights, trade secrets, know-how and other rights of a similar nature existing anywhere in the world) and any other rights, title or interest in all suggestions, ideas and feedback that you provide to us in connection with our Kwixx Services.  We may use all suggestions, ideas and feedback that you provide to us in connection with our Kwixx Services in any manner and for any purpose without notice or paying any compensation to you.

13. Liability

Services disclaimer
Our Kwixx Services are provided on an “as is” and “as available” basis.  We do not give any representation, warranty or guarantee regarding the availability, reliability, quality, accuracy, completeness, currency, timeliness or suitability of our Kwixx Services or that our Kwixx Services will be uninterrupted, error-free or free from viruses or other harmful code.  To the full extent permitted by the Australian Consumer Law or any other law, you use our Kwixx Services entirely at your own risk.
Third party services and content
We have no responsibility for any third party websites, applications, services or content linked to from our Kwixx Services.  You use any third party websites, applications, services or content linked to from our Kwixx Services solely at your own risk and subject to the terms and conditions of the third party service provider.  We do not endorse or sponsor any third party website, application, service or content by reason only of providing a link from our Kwixx Services.  We may at any time remove a link to any third party website, application, service or content linked to from our Kwixx Services.
Implied terms
To the full extent permitted by the Australian Consumer Law or any other law, we expressly exclude any condition, representation or warranty which would otherwise be implied (whether by law or otherwise) in these Terms of Use including, without limitation, any implied warranties of merchantability, fitness for a particular purpose or non-infringement of any third party’s rights.  Where any condition, warranty or representation is implied (whether by law or otherwise) in these Terms of Use which cannot lawfully be excluded then our liability for any breach of such condition, warranty or representation will be limited at our option to supplying the services again, paying the cost of supplying the services again, or otherwise to the full extent permitted by the Australian Consumer Law or any other law.
Liability exclusion
To the full extent permitted by the Australian Consumer Law or any other law, we will not be liable to you for or in respect of any and all: (i) personal injury or property damage arising out of, or in connection with, any use of our Kwixx Services even if we have been advised of the possibility of such injury or damage; (ii) loss of data, profit, opportunity, revenue, income, production or management time, or loss of, or damage to, reputation or goodwill; (iii) losses, damages, costs, charges, expenses or liabilities of any kind or nature whatsoever not directly, or naturally in the usual course of things, arising out of, or in connection with, a breach of these Terms of Use (including, without limitation, consequential, special or indirect losses, damages, costs, charges, expenses or liabilities of any kind or nature whatsoever); (iv) losses, damages, costs, charges, expenses or liabilities of any kind or nature whatsoever directly or indirectly arising out of, or in connection with, your access or use, inability to access or use, or your reliance on, our Kwixx Services; (v) claims, actions, demands, proceedings, losses, damages, costs, charges, expenses or liabilities of any kind or nature whatsoever directly or indirectly arising out of, or in connection with, any act or omission of any other user or third party not under our direct control including, without limitation, any act or omission of any other user or third party relating to any priority or related services received or provided by you through our Kwixx Services; and (vi) failure or delay in performing any obligation under these Terms of Use due to any circumstances beyond our reasonable control including, without limitation, equipment failure, network failure, power failure, supplier failure, other user or third party actions, government actions, acts of God, natural disasters, acts of war, cyber-attacks, riots and strikes.
Kwixx Partner Customer liability
To the full extent permitted by the Australian Consumer Law or any other law, our total aggregate liability to each Kwixx Partner Customer for all losses, damages, costs, charges, expenses and liabilities arising out of, or in connection with: (i) in the case of a particular priority or related service which they have purchased through our Kwixx App from any of our Kwixx Partners – the amount that we have received from our Kwixx Partner in respect of their purchase of the service; and (ii) in all other cases – the total aggregate amount that we have received from our Kwixx Partners in respect of their purchase of any priority or related services during the previous period of twelve (12) months.
Kwixx Partner liability
To the full extent permitted by the Australian Consumer Law or any other law, our total aggregate liability to each of our Kwixx Partners for all losses, damages, costs, charges, expenses and liabilities arising out of, or in connection with: (i) in the case of a particular priority or related service which our Kwixx Partner has made available for purchase through our Kwixx App – the amount that we have received from our Kwixx Partner in respect of the making available of the service; and (ii) in all other cases – the total aggregate amount that we have received from our Kwixx Partner in respect of any priority or related services which our Kwixx Partner has made available for purchase through our Kwixx App during the previous period of twelve (12) months.
Indemnity
You irrevocably and unconditionally agree to indemnify and release us from any and all claims, actions, demands, proceedings, losses, damages, costs, charges, expenses and liabilities of any kind or nature whatsoever (including, without limitation, legal costs on a full indemnity basis) directly or indirectly arising out of, or in connection with: (i) any breach by you of these Terms of Use; (ii) your access or use, or attempted access or use, of our Kwixx Services; (iii) any breach by you of any applicable law or the rights of any other user or third party; or (iv) any claim made against us by any other user or third party as a result of your access or use of our Kwixx Services.
Australian Consumer Law
Nothing in these Terms of Use excludes, restricts or modifies any non-excludable right or remedy that you have under the Australian Consumer Law or any other law.  Any disclaimer, exclusion or limitation which is contained in these Terms of Use will apply only to the full extent permitted by the Australian Consumer Law or any other law.

14. Disputes

Dispute resolution
Any dispute between you and another user or between you and us which arises in connection with our Kwixx Services or these Terms of Use must be resolved in good faith by the parties to the dispute in accordance with the following dispute resolution procedures.
Dispute notice
If a dispute arises in connection with our Kwixx Services or these Terms of Use then the party to the dispute claiming that the dispute has arisen must give notice of the dispute to the other party to the dispute with details of: (i) the nature of the dispute; (ii) the desired resolution of the dispute; and (iii) the action required to settle the dispute.  The parties to a dispute must use their best endeavours to resolve the dispute within fourteen (14) days (unless another period is agreed in writing between the parties) of a dispute notice being received by a party to the dispute.
Assistance
If you and another user of our Kwixx Services are unable to resolve a dispute within seven (7) days (unless another period is agreed in writing between you and the other user) of a dispute notice being received by a party to the dispute then either party to the dispute may refer the dispute to us by email to support@kwixx.com so that we may assist the parties to resolve the dispute.  If you are a party to a dispute which is referred to us then you: (i) must promptly provide us with all information that we request to allow us to assist with the resolution of the dispute; and (ii) agree to take any action which we determine to be appropriate to resolve the dispute.
Mediation
If the parties to a dispute are unable to resolve the dispute within fourteen (14) days (unless another period is agreed in writing between the parties) of a dispute notice being received by a party to the dispute (whether or not the dispute has been referred to us to assist with its resolution) then the parties may agree to submit the dispute to mediation which must be conducted in accordance with, and subject to, the Resolution Institute Mediation Rules by a mediator agreed by the parties or, failing agreement, appointed by the Chair of Resolution Institute, (ACN 008 651 232, Level 2, 13-15 Bridge Street, Sydney NSW 2000; telephone: 02 9251 3366, email: infoaus@resolution.institute) (“Resolution Institute”).
Arbitration
If a dispute is not able to be resolved by mediation or the parties to the dispute do not agree to submit the dispute to mediation within twenty-eight (28) days (unless another period is agreed in writing between the parties) of a dispute notice being received by a party to the dispute (whether or not the dispute has been referred to us to assist with its resolution) then the dispute shall be submitted to arbitration which must be conducted in accordance with, and subject to, the Resolution Institute Arbitration Rules by an arbitrator agreed by the parties or, failing agreement, appointed by the Chair of Resolution Institute.
Indemnity
You irrevocably and unconditionally agree to indemnify and release us from any and all claims, actions, demands, proceedings, losses, damages, costs, charges, expenses and liabilities of any kind or nature whatsoever (including, without limitation, legal costs on a full indemnity basis) directly or indirectly arising out of, or in connection with, any dispute which arises between you and another user in connection with our Kwixx Services or these Terms of Use.
Confidentiality
A party to a dispute must not disclose to any third party any information relating to the dispute or any mediation or arbitration of the dispute without the prior written consent of the other party to the dispute except where the disclosure is: (i) expressly permitted under these Terms of Use; (ii) necessary for the purpose of mediation or arbitration of the dispute respectively; or (iii) required by law.
Individual actions
To the extent permitted by law, you must only seek to resolve any dispute which arises in connection with our Kwixx Services or these Terms of Use on an individual basis and not as a member of any className or representative action.

15. Termination and breach

Termination by account deletion
Kwixx Partner Customers may at any time terminate these Terms of Use by deleting their account for use of our Kwixx Services.  Our Kwixx Partners may at any time terminate these Terms of Use by deleting their account for use of our Kwixx Services provided that they: (i) no longer have any priority or related services available for purchase through our Kwixx Services; (ii) have completed providing all of their Kwixx Partner Customers with all of their priority and related services which have been purchased through our Kwixx App by their Kwixx Partner Customers; and (iii) are not a party to any unresolved dispute with another user which has arisen in connection with our Kwixx Services or these Terms of Use.
Breach remedies
If you breach any of these Terms of Use then we may in our sole discretion do any one or more of the following: (i) immediately terminate, suspend or restrict your use of all or any part of our Kwixx Services including, without limitation, cancelling your user registration and deleting your account for use of our Kwixx Services; (ii) immediately terminate these Terms of Use; and (iii) institute legal proceedings to recover from you any loss or damage that we suffer as a result of your breach of these Terms of Use.  These Terms of Use will be deemed to be terminated if we cancel your registration or delete your account for use of our Kwixx Services for any reason.  We may at any time in our sole discretion terminate these Terms of Use by giving you thirty (30) days’ notice.
Effect of termination, suspension and restriction
Any termination, suspension or restriction of your use of our Kwixx Services (including, without limitation, any cancellation of your registration or deletion of your account for use of our Kwixx Services) or termination of these Terms of Use will not affect any of our previously accrued rights or remedies under these Terms of Use.  If these Terms of Use are terminated for any reason then the provisions of these Terms of Use with the headings Introduction, Legal agreement, Information handling, Refunds, User Content, Fees and charges, Intellectual property rights, Liability, Disputes, Termination and breach, and General, and any other provisions of these Terms of Use which are capable of having effect after such termination will survive and remain in full force and effect following such termination.

16. General

Linking requirements
You may link to our Kwixx Services provided that the link accurately indicates that it is to our Kwixx Services and we have not requested you to remove the link.  We may in our sole discretion determine that any link to our Kwixx Services is misleading or otherwise inappropriate and request you to remove the link.  If you do not immediately comply with a request by us to remove a link to our Kwixx Services then you must indemnify us against any and all costs, charges and expenses (including, without limitation, legal costs on a full indemnity basis) that we incur in having the link removed.
Notices
You may link to our Kwixx Services provided that the link accurately indicates that it is to our Kwixx Services and we have not requested you to remove the link.  We may in our sole discretion determine that any link to our Kwixx Services is misleading or otherwise inappropriate and request you to remove the link.  If you do not immediately comply with a request by us to remove a link to our Kwixx Services then you must indemnify us against any and all costs, charges and expenses (including, without limitation, legal costs on a full indemnity basis) that we incur in having the link removed.
Entire agreement
These Terms of Use constitute the entire agreement between you and us in connection with their subject matter and supersede all prior statements, representations, warranties, understandings, arrangements or agreements.
Further acts and approvals
You agree, at your own cost, to do everything necessary (including, without limitation, executing documents) to give full effect to these Terms of Use.  We may in our sole discretion give conditionally or unconditionally or withhold any approval or consent under these Terms of Use.
Assignment and transfer
You may not assign or otherwise transfer your account or any of your rights or obligations under these Terms of Use without our prior written approval.  We may at any time by notifying you assign or otherwise transfer our rights and obligations under these Terms of Use to: (i) a related body corporate within the meaning of the Corporations Act 2001 (Cth); or (ii) an entity which purchases or acquires all or any part of our business or assets.  We may provide any such assignee or transferee with any and all information, documents, files, text, logos, graphics, images, photographs, videos, material and other content which you have provided to us in connection with our Kwixx Services including personal information.
Waiver and severability
Any failure by us to exercise any right or remedy under these Terms of Use will not constitute a waiver of that right or remedy or any other right or remedy.  If any provision of these Terms of Use is determined to be illegal, invalid or unenforceable in whole or in part under any law then the whole or part of the provision will be severed to the extent that it is illegal, invalid or unenforceable and be replaced with a provision or part of a provision that is legal, valid and enforceable and to the extent possible has a similar effect for the purposes of these Terms of Use without affecting the validity of the other provisions.
Relationship and representation
These Terms of Use do not create a relationship of employment, agency, partnership or joint venture between the parties unless otherwise expressly stated in these Terms of Use. You must not represent yourself as being an officer, employee or agent of ours or as otherwise able to bind or represent us in any way.
Governing law and jurisdiction
These Terms of Use are governed by, and to be construed in accordance with, the laws of the State of Victoria, Australia.  In the event that a dispute arises in connection with these Terms of Use which is not able to be resolved in accordance with the dispute resolutions provisions contained in these Terms of Use for any reason then the courts of the State of Victoria, Australia will have exclusive jurisdiction in respect of the dispute.
These Terms of Use are effective as of 30 April 2020.