The following terms are used regularly throughout these Member Terms of Use and have a particular meaning:
| (a) |
ABN means Australian Business Number. |
| (b) |
DSPANZ Website means the DSPANZ web-service accessible from www.dspanz.org, or any other URL
operated by DSPANZ from time-to-time.
|
| (c) |
Agreement means the agreement formed between the Users and the Company under, and on the terms of, these Member Terms of
Use.
|
| (d) |
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for the general
banking business in Sydney, Australia.
|
| (e) |
Company means Australian Business Software Industry Association Limited ABN 72 165 915 640 t/a Digital Service
Providers Australia New Zealand.
|
| (f) |
Constitution means the Constitution of the Australian Business Software Industry Association Limited accessible here.
|
| (g) |
End User means an unregistered user of the DPANZ Website.
|
| (h) |
Fee means a fee charged by the Company for use of the DSPANZ Website, for webinars or for other goods/services supplied
by the Company.
|
| (i) |
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
|
| (j) |
Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs,
circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of
intellectual property.
|
| (k) |
Listing means a listing within the Member Directory that describes a Member's organisation.
|
| (l) |
Member means a registered user of the DSPANZ Website, that has signed up to a Member account in accordance with these
Member Terms of Use.
|
| (m) |
Member Directory means the directory of Member organisations accessible on the DSPANZ Website.
|
| (n) |
Member Terms of Use means these terms and conditions of using the DSPANZ Website that apply to all Members, as updated
from time-to-time, which can be found at https://www.dspanz.org/legal/member-terms-of-use/.
|
| (o) |
Membership Fee means a Fee charged by the Company for use of the DSPANZ Website as a Member and/or membership with
ABSIA.
|
| (p) |
Privacy Act means the Privacy Act 1988 (Cth).
|
| (q) |
Privacy Policy means the Company's Privacy Policy as updated from time-to-time, which can be found at https://www.dspanz.org/legal/privacy-policy/.
|
| (r) |
Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
|
| (s) |
User means any Member or End User that uses the DPSANZ Website.
|
| (t) |
User Content means images, information, documents or other data that is uploaded or input into the DSPANZ Website by the
User or that forms part of the User's Intellectual Property, including a Listing.
|
| (u) |
Website Terms means the DSPANZ Website Terms of Service accessible at https://www.dspanz.org/legal/website-terms-of-service/.
|
| (b) |
Each Member is responsible for ensuring the accuracy of all information described in a Listing.
|
| (c) |
The Company makes no representation as to the accuracy of any information contained in a Listing.
|
| (d) |
A Member may nominate a User to have edit rights in respect of the Member's Listing. Members shall ensure that only authorised Users
are given access to their Listing. The Company may require new Users to verify whether they are employed by the particular
organisation before access is granted to edit a Listing. The Company may decline access to a Listing in its sole discretion, if the User
fails to satisfy the Company that the User is authorised to make or access the Listing. The Company may require the Member and/or User to
provide such additional information as the Company may reasonably request.
|
| (e) |
The Company may restrict or provide additional features in relation to a Listing depending on the Member's class of membership, as
described on the DSPANZ Website.
|
| (f) |
The Company may at its absolute discretion decline, remove or edit any Listing, including any Listing that the Company determines to
be offensive or inappropriate.
|
2
|
Fees, payments & refunds
|
2.1
|
Fees
|
| (a) |
In order to be a Member, Members must pay the Membership Fee, which is payable in advance (after any free trial period has expired).
|
| (b) |
Each Fee applies in accordance with such membership class, features, and/or services subscribed for by the Member in accordance with the
pricing described on the DSPANZ Website, or as otherwise agreed with the Company.
|
| (c) |
The Member agrees to make payment in advance for all Fees due at such frequency, or on such dates as the Member has subscribed for.
|
| (d) |
All payments shall be made by credit card via the online payment gateway within the DSPANZ Website, or in such other manner as the
Company may direct from time-to-time.
|
| (e) |
The Member agrees that it has no right to access the features available to Members on the DSPANZ Website if it fails to make payments of
the Membership Fees when due.
|
| (f) |
The Company reserves the right to introduce or change any Fees from time-to-time by giving the User no less than 14 days' written notice.
Any new or changed Fees will apply at the next billing period after the Member has been given such notice.
|
| (g) |
If a Member does not accept a change to any Fees, then it can simply terminate its Account, by email to hello@dspanz.org.
|
| (h) |
If Fees are not brought out of arrears within 28 days of becoming overdue, the Company may terminate the Member's Account without
notice and end the Agreement.
|
3.3
|
Liability & Indemnity
|
| (a) |
The Member agrees that it uses the DSPANZ Website at its own risk.
|
| (b) |
The Member acknowledges that the Company is not responsible for the conduct or activities of any User and that
the Company is not liable for such under any circumstances.
|
| (c) |
The Member agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or
in connection with the Member's use of or conduct in connection with the DSPANZ Website, including any breach by the Member of these
Member Terms of Use.
|
| (d) |
In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of
property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar
or analogous loss resulting from the Member's access to, or use of, or inability to use the DSPANZ Website, whether based on warranty,
contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility
of such damage, or business interruption of any type, whether in tort, contract or otherwise.
|
| (e) |
Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other
States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company
and the Company's related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the
Company's liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company's option to:
|
|
(b)
|
Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority
to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
|
| (c) |
Subject to clause (d), a party must not bring court proceedings in respect of any Dispute unless it
first complies with the requirements of the dispute resolution mechanism outlined in this clause.
|
| (d) |
Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory
relief in respect of a Dispute.
|
| (e) |
Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related
agreements.
|
3.6
|
Electronic Communication, Amendment & Assignment
|
| (a) |
The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have
the same meaning.
|
| (b) |
The Member can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement.
The Company will notify the Member of a change of details from time-to-time.
|
| (c) |
The Company will send the Member notices and other correspondence to the details that the Member submits to the Company, or that the
Member notifies the Company of from time-to-time. It is the Member's responsibility to update its contact details as they change.
|
| (d) |
A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be
physically delivered under law.
|
| (e) |
Notices must be sent to the parties' most recent known contact details. |
| (f) |
The Member may not assign or otherwise create an interest in this Agreement.
|
| (g) |
The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
|
3.7
|
General
|
| (a) |
Special Conditions. The parties may agree to any Special Conditions to this
Agreement in writing.
|
| (b) |
Prevalence. To the extent this Agreement is in conflict with, or inconsistent with the
Website Terms, the terms of this Agreement shall prevail. To the extent this Agreement is in conflict with, or inconsistent with any Special
Conditions made under this Agreement, the terms of those Special Conditions shall prevail. To the extent this Agreement, the Website
Terms or any Special Conditions is in conflict with, or inconsistent with the Constitution, the terms of the Constitution shall
prevail.
|
| (c) |
Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other
party, other than as set out in this Agreement.
|
| (d) |
Relationship. The relationship of the parties to this Agreement does not form a joint venture
or partnership.
|
| (e) |
Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided
in writing.
|
| (f) |
Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full
effect to this Agreement and the transaction facilitated by it.
|
| (g) |
Governing Law. This Agreement is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to
the non-exclusive jurisdiction of courts with jurisdiction there.
|
| (h) |
Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the
invalidity or unenforceability without affecting the remaining clauses of this Agreement.
|
| (i) |
Interpretation. The following rules apply unless the context requires otherwise:
|
|
i |
Headings are only for convenience and do not affect interpretation.
|
|
ii |
The singular includes the plural and the opposite also applies.
|
|
iii |
If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
|
|
iv |
A reference to a clause refers to clauses in this Agreement.
|
|
v |
A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any
subordinate legislation issued under it.
|
|
vi |
Mentioning anything after includes, including, or
similar expressions, does not limit anything else that might be included.
|
|
vii |
A reference to a party to
this Agreement or another agreement or document that includes that party's successors and permitted substitutes and assigns (and, where
applicable, the party's legal personal representatives).
|
|
viii |
A reference to a person, corporation, trust, partnership,
unincorporated body or
other entity includes any of them.
|
|
ix |
A reference to information is
to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or
programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
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