Terms and conditions

Acceptance

1. You accept this Agreement by the earlier of:

   1. signing and returning this Agreement to us;

   2. confirming by email that you accept this Agreement;

   3. confirming that you accept this Agreement via the platforms or applications through which we provide this Agreement to you, including our Site;

   4. clicking a box on the Site indicating your acceptance of this Agreement;

   5. instructing us (whether orally or in writing) to proceed with the provision of the Services; and

   6. making part or full payment of the Fees.

2. The Term of this Agreement will be:

   1. if a Schedule is attached to this Agreement, as described in the Schedule; or

   2. if no Schedule is attached to this Agreement, subject to each Party’s right to terminate this Agreement in accordance with its terms, this Agreement commences on the Commencement Date and will continue for 1 Calendar Month (Initial Term). On the expiry of the Initial Term, this Agreement will be automatically renewed for subsequent 1 Calendar Month periods (each a Renewal Period), unless either Party provides 7 Business Days’ written notice before the end of the Initial Term or the end of the then-current Renewal Period (as applicable) that it does not wish to renew this Agreement.

Services

1. In consideration of your payment of the Fees, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

2. SKUTOPIA will not be responsible for any Services unless expressly set out in the inclusions in the Schedule or on the Site Order Form.

3. Subject to any other provisions of this Agreement, SKUTOPIA will commence providing the Services within a reasonable time after the Commencement Date, or as otherwise agreed between the Parties in the Schedule or on the Site Order Form.

SaaS Solution

1. In consideration of your payment of the SKUTOPIA Subscription Fee, SKUTOPIA will supply you with the SaaS Solution in accordance with the Schedule.

2. During the Term, and subject to your compliance with this Agreement, SKUTOPIA grants you and your Authorised Users a non-exclusive, non-transferable, non-sublicensable and revocable licence to access and use the SaaS Solution solely for your business purposes and as contemplated by this Agreement (SaaS Licence).

3. You will ensure each Authorised User complies with the terms of this Agreement.

4. As part of the SaaS Solution, SKUTOPIA may make available to you application programming interfaces (API) to connect with your relevant Systems that are required for the operation of the SaaS Solution for the Delivery Services. You must ensure that your Systems provide all information required by the SaaS Solution, in the manner contemplated by, and otherwise in conformance with, the API. You acknowledge and agree that we are currently capable of integrating with the Couriers set out on the Site on the Commencement Date, and we will have no obligation to provide the SaaS Solution or APIs for other Couriers.

Account

1. You will require an Account in order to access and use the SaaS Solution.

2. Each Authorised User will require a login (which is linked to your Account), in order to access and use the SaaS Solution.

3. You must ensure that any information provided to us for any Account or login is accurate and complete, and you warrant that you are authorised to provide this information to us.

4. You and your Authorised Users must keep your Account and login details secure and confidential. You agree to immediately notify us if you become aware of, or have reason to suspect, any suspicious or unauthorised access to your Account or use of any login details linked to your Account.

5. We may suspend access to your Account where we believe there has been any unauthorised use of or access to the SaaS Solution. Where we do so, we will notify you of the suspension, and the Parties will work together to resolve the matter.

SaaS Licence – Additional Conditions of Use

1. You must not (and you must ensure that each Authorised User does not):

   1. access or use the SaaS Solution except as permitted by the SaaS Licence, or other than through the interface that is provided by us;

   2. access or use the SaaS Solution in any way that is improper or breaches any Laws, infringes any person’s rights (including Intellectual Property Rights and privacy rights), or gives rise to any civil or criminal liability;

   3. interfere with or interrupt the supply of the SaaS Solution or our System, or any other person’s access to or use of the SaaS Solution;

   4. introduce any Harmful Code into the SaaS Solution or our System;

   5. directly or indirectly use, copy, decompile or reverse engineer the SaaS Solution;

   6. allow others to access or use your Account (or in the case of Authorised Users, their login details), including any password or authentication details;

   7. use the SaaS Solution to carry out security breaches or disruptions of a network;

   8. attempt to access any data or log into any server or account that you are not expressly authorised to access;

   9. circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or

   10. access or use the SaaS Solution to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.

Availability

1. From time to time, we may perform reasonable scheduled and emergency maintenance and updates in relation to the SaaS Solution in order to continue to supply the SaaS Solution to you and our other customers (Scheduled or Emergency Maintenance). You agree that access to, or the functionality of all or part of the SaaS Solution, may need to be suspended for a time in order for us to perform Scheduled or Emergency Maintenance, and to the maximum extent permitted by law, we will not be liable to you for any interruptions or downtime to the SaaS Solution as a result of any Scheduled or Emergency Maintenance.

2. We will endeavour to provide you with reasonable notice, where possible, of any interruptions to access and availability of the SaaS Solution.

Viruses and Defects

1. SKUTOPIA agrees to use reasonable commercial efforts to supply the SaaS Solution free from defects and viruses. To the extent commercially feasible and reasonable, we further agree to remediate any such defects and viruses (with the exception of Third Party Inputs) within a reasonable time and as we become aware of them. If you become aware of any issues during the Term, please notify us as soon as reasonably possible.

Third Party Inputs

1. You acknowledge and agree that the Services may interact with, or be reliant on, certain Third Party Inputs, including your operating system, web browser or online store provider (for example, Shopify).

2. You acknowledge and agree that, unless we have expressly agreed to provide the services described in this clause 8.2 in the Schedule or on the Site Order Form:

   1. you are responsible for obtaining and managing all licences for the relevant Third Party Inputs;

   2. you are responsible for paying all fees related to the Third Party Inputs; and

   3. you agree to comply with terms and conditions applicable to the relevant Third Party Inputs at all times.

3. We do not make any warranty or representation in respect of any Third Party Inputs.

4. Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with any Third Party Inputs.

5. This clause 8 will survive the termination or expiry of this Agreement.

Support Services

1. In consideration of your payment of the SKUTOPIA Subscription Fee, we will supply you with the applicable Support Services as specified on the Company’s website.

2. To receive Support Services, you or your Authorised User must first place a request through our online portal, or if applicable, contact your dedicated account manager.

3. We will use our best endeavours to make the Support Services available to you during the Term.

4. Unless otherwise agreed, support under this Agreement is not to be used to support any other products or services and does not include training, installation of software or hardware, software development or modification, deletion or recovery of data or any on-site services.

5. You agree to the reasonable usage of the Support Services. Where we consider your usage of the Support Services to be unreasonable, or unreasonably above average (compared with our other customers):

   1. we agree to notify you in writing of our concerns; and

   2. following your receipt of such notice, the Parties will use all reasonable endeavours to work together to resolve the matter.

6. If:

   1. we have provided you with the notice in accordance with clause 9.5(a); and

   2. the Parties are unable to resolve the matter pursuant to clause 9.5(b),
      we may (at our discretion):

   3. adjust our response time accordingly; and/or

   4. vary the Fees to reflect your increased use of our limited resources, effective on and from us giving you written notice of the new Fees; or

   5. terminate this Agreement by giving 30 days’ notice in writing to you, in which case clause 33.2 will apply.

Additional Services

1. You may request Additional Services, including support and assistance on a consultancy basis or bespoke customisation to the scope or functionality of the SaaS Solution, by providing written notice to us.

2. We may, at our discretion, provide you with written notice in the form of a statement of work, setting out (among other things) the Additional Services requested and any further fee required for us to undertake the Additional Services (Statement of Work).

3. If you agree to the Statement of Work for the Additional Services, we will provide the Additional Services to you in consideration for payment of the additional fee, which will form part of the Fees.

4. Each Statement of Work will be subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties in writing. To the extent of any ambiguity or discrepancy between a Statement of Work and this Agreement, the terms of this Agreement will prevail.

General Delivery Services

1. This Agreement constitutes a “standing offer” under which, during the Term, you may engage us to provide the General Delivery Services under separate Orders.

2. You may issue a request for us to provide the General Delivery Services through the SaaS Solution (Order Request).

3. The Order Request is to specify the following information:

   1. details of the Consignment, including the volume and nature of the Goods to be delivered;

   2. whether the Consignment contains any fragile or perishable Goods, or where we have agreed in accordance with clause 17.1(a), any Dangerous Goods;

   3. the requested Collection Time and Collection Location;

   4. the requested Delivery Location and details of the Delivery Recipient (including the entity name, contact person, contact details, and any specific details associated with the Delivery Location); and

   5. all other information required when sending an Order Request through the SaaS Solution.

4. Following receipt of an Order Request from you, the SaaS Solution may display relevant Couriers for the relevant Consignment and the applicable Rates that apply to the Order Request you make at that time (which will be considered a formal Order from us).

5. SKUTOPIA may, at our discretion, accept or reject an Order Request (including where we are unable to find an available Courier in accordance with clause 11.4). If we accept the Order Request, and once the Order is agreed by you clicking “book” on the SaaS Solution, the Order will be binding on the Parties in accordance with the terms of this Agreement and the Order.

6. Once the Order is booked, you will be able to print the relevant label for the Consignment.

7. If you wish to avail of your own rates agreed with Couriers, you agree to provide us with details of your rate card with the Courier through your Account or provide us with access to your rate card through an API that allows us to obtain these details directly from the Courier. If we cannot confirm your rates agreed with the Courier, we reserve the right to only offer you the Rates as displayed on our SaaS Solution at the time of the Order Request.

8. You agree to be bound by any terms and conditions of a Courier, that we make accessible to you on the Order.

9. Each Order is subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties in writing. To the extent of any ambiguity or discrepancy between an Order and this Agreement, the terms of this Agreement will prevail.

Premium Delivery Services

1. This Agreement constitutes a “standing offer” under which, during the Term, you may engage us to provide the Premium Delivery Services under separate Orders.

2. You may issue a request for us to provide the Premium Delivery Services through the SaaS Solution (Order Request).

3. The Order Request is to specify the following information:

   1. details of the Consignment, including the volume and nature of the Goods to be delivered;

   2. whether the Consignment contains any fragile or perishable Goods, or where we have agreed in accordance with clause 17.1(a) any Dangerous Goods;

   3. the requested Collection Time and Collection Location;

   4. the requested Delivery Location and details of the Delivery Recipient (including the entity name, contact person, contact details, and any specific details associated with the Delivery Location); and

   5. all other information required when sending an Order Request through the SaaS Solution.

4. Following receipt of an Order Request from you, the SaaS Solution may display available Premium Delivery Service options for the relevant Consignment and the applicable Rates that apply to the Order Request you make at that time (which will be considered a formal Order from us).

5. We may, at our discretion, accept or reject an Order Request (including where we are unable to find an available Courier in accordance with clause 11.4). If we accept the Order Request, and once the Order is agreed by you clicking “book” on the SaaS Solution, the Order will be binding on the Parties in accordance with the terms of this Agreement and the Order.

6. Once the Order is booked, you will be able to print the relevant label for the Consignment.

7. Each Order is subject to, and will be governed by, this Agreement and any other conditions agreed to by the Parties in writing. To the extent of any ambiguity or discrepancy between an Order and this Agreement, the terms of this Agreement will prevail.

 Fulfillment Services

1. You agree to (and to ensure your Personnel) adhere to all points described in the Fulfillment Services Operational Guideline which is updated regularly and can be viewed here.

2. You agree that we have the right to deliver the Order in a way that we see best, including selecting the most suitable delivery provider, as well as the date of delivery.

Premium Delivery Services

1. We will use our best endeavours to (or to ensure our Couriers use their best endeavours to):

   1. collect the Consignments from the relevant Collection Location and deliver the Consignments to the relevant Delivery Location by the Estimated Delivery Time;

   2. load, secure and deliver the Goods in a safe and secure manner;

   3. prevent the Goods from being stolen, lost, damaged, contaminated or spoiled during transit;

   4. assess the state of the Goods at the Delivery Location and notify you of any damage to or issues with the Goods in transit; and

   5. provide details related to proof of delivery.

2. You agree to (and to ensure your Personnel):

   1. not include Prohibited Items in any Consignment;

   2. cooperate with us and the Couriers in all matters relating to the Delivery Services;

   3. ensure each Consignment is ready for collection at the Collection Location by the Collection Time;

   4. ensure the Goods, the subject of each Consignment, are properly packaged and packed so as to prevent or minimise the risk of loss, damage, spoilage or breakage during transit;

   5. notify us if any Consignments contain fragile or perishable Goods, and where we have agreed in accordance with clause 17.1(a), any Dangerous Goods;

   6. provide authority to leave instructions (for example, requiring the Recipient to sign a POD), at the Delivery Location upon delivery of the Consignment, in relation to each Consignment;

   7. to comply with all other requirements specified in the applicable Operational Guidelines for each Delivery Service.

3. Under the General Delivery Agreement and the Premium Delivery Agreement, SKUTOPIA will not be liable:

   1. for loss of or Damage to Goods;

   2. for any delay in delivery, forwarding or transit or failure to deliver the Goods;

   3. for any deterioration, contamination, evaporation or any consequential loss or loss of market in relation to the Goods;

   4. for failure to follow instructions given to it by or on behalf of the Customer whether or not such failure is negligent or willful;

   5. for any damage or expense arising from or in any way connected with marks, numbers, brands, contents, quality or description of any Goods or the provision of the Services; whether caused by the negligence, wrongful act or default of SKUTOPIA, its employees, agents or subcontractors or by any other cause whatsoever.

4. SKUTOPIA:

   1. makes no warranties or representations under this Agreement;

   2. is not liable to the Customer for any loss arising from breach of any warranty or representation, save that this Agreement is subject to applicable State, territory and Commonwealth law including, without limitation, the Competition and Consumer Act 2010 and the Australian Consumer Law which forms part of that Act.

   3. Certain statutory guarantees (including without limitation the consumer guarantees under the Australian Consumer Law) form part of this Agreement but only to the extent that they cannot otherwise be excluded.

   4. To the extent permitted by law, the liability of SKUTOPIA in relation to any breach of the said statutory guarantees is limited at SKUTOPIA’S option to:

   5. in the case of any Goods associated with the Services, to the replacement or repair of the Goods or the supply of equivalent Goods or the cost of replacing or repairing the Goods or of acquiring the equivalent Goods;

   6. in the case of a supply of Services, the supplying of the Services again or the payment of the cost of having the Services supplied again.

   7. Subject to the preceding clause and the application, where relevant, of the Australian Consumer Law guarantees, SKUTOPIA will not be liable under any circumstances for loss or damage resulting from or attributable to any quotation, statement or representation (whether oral or in writing) made or given by or on behalf of SKUTOPIA or by any servant, employee or agent of Bader Investments Pty Ltd or Workit Pty Ltd as to the classification of, the liability for, or the amount, scale or rate of customs and/or excise duty or other impost, tax or rate applicable to any Goods, whether resulting from negligence or from any other cause whatsoever.

   8. By choosing the General Delivery Service the Customer agrees to the terms and conditions of any agents or subcontractors which are used in the supply of the services and agrees to release SKUTOPIA, its employees or agents from liability and to indemnify SKUTOPIA against any claims arising out of the use of subcontractors.

   9. In respect of the General Delivery Service and the Premium Delivery Service any term of this agreement that excludes or limits the liability of SKUTOPIA, in addition to acting for itself, SKUTOPIA is acting as agent and trustee for each of its employees, agents and subcontractors who will be deemed to be parties to this agreement so that they shall have the same protection as SKUTOPIA. In so far as may be necessary to give effect to this clause, SKUTOPIA will hold the benefit of these terms for its employees, agents and subcontractors.

   10. The Customer undertakes that no claim or allegation shall be made by the Customer or any other person in respect of the services which imposes or attempts to impose any liability whatsoever and howsoever arising (including negligence) against any employee or agent or any subcontractor (including employees and agents of the subcontractor). If such a claim should nevertheless be made, the Customer shall indemnify SKUTOPIA and the person against whom the claim is made against the consequences of such claim or allegation.

Service Levels and Service Credits

1. This clause 15 only applies if a Schedule is attached to this Agreement, and the Schedule states that Service Levels and Service Credits are applicable.

2. We will endeavour to provide all Services in accordance with the Service Levels.

3. Subject to the terms of this Agreement, if we fail to meet any Service Level (Service Level Incident), then you may be entitled to recover the applicable Service Credit amount specified in Schedule 1 as a refund against the Fees that you have paid (or that are payable).

4. In order for SKUTOPIA to consider your claim for a Service Credit, you must, within 3 Business Days of the Service Level Incident, submit the claim in writing to us and provide all necessary information for us to assess the claim. This will include but not be limited to the following in relation to the Service Level Incident: a detailed description, time and duration, number and location of affected Orders, and a description of your attempts to resolve the issue in a timely manner.

5. SKUTOPIA may request additional information from you after receipt of the relevant claim, and you provide such information promptly following such request. We will then evaluate all information reasonably available to determine if a Service Credit is owed to you within 30 days of receipt.

6. All Service Level disputes are governed by the terms outlined in Schedule 1. Where a dispute cannot be resolved according to the terms in Schedule 1 SKUTOPIA’s decisions are final and bind all parties where they do not conflict with Australian Consumer Law.

7. Where payable by us, we will remit Service Credits to you within 30 days after the end of the month in which such Service Level failure occurred, or, at our option, we may deduct the Service Credits from the next invoice or from other amounts due by you under this Agreement. Any Service Credits are forfeited on expiry or termination of this Agreement.

8. Service Credits will not be payable, and we will not be liable to you, for any Service Level failure caused or contributed to by:

   1. Scheduled or Emergency Maintenance;

   2. any act or omission by you or any Authorised User;

   3. a Force Majeure Event; and/or

   4. a Third Party Input.

   5. You acknowledge and agree that Service Credits will be your sole and exclusive remedy against us arising from or in connection with our failure to meet the Service Levels.

Title and Risk

1. We will not insure any Goods received from the Customer or in the possession or custody of SKUTOPIA, its employee or agents for the provision of the Services.

2. The Customer will maintain insurance in respect of the Goods whilst they are in the custody and/or possession of SKUTOPIA for the provision of the Services or for any other reason.

3. SKUTOPIA shall maintain insurance in respect of the premises which are operated by it for the warehousing of the Goods.

4. The Customer will arrange Goods in Transit insurance for the Goods for not less than the full value of the Goods covering any transits undertaken by SKUTOPIA, its employees or agents in the provision of the Services.

Dangerous Goods

1. You agree to (and to ensure your Personnel):

   1. ensure no Order Requests are submitted, or Consignments include, any Dangerous Goods, unless pre-agreed to by us;

   2. comply with all applicable Laws and any reasonable instructions provided by us or a Courier relating to the consigning, labelling, packaging, carriage, and delivery of the Goods (including the requirements under the Australian Dangerous Goods Code) if we agree to provide the Delivery Services in relation to any Consignments containing Dangerous Goods; and

   3. declare all Dangerous Goods, if we agree to provide the Delivery Services in relation to any Consignments containing Dangerous Goods.

   4. If required by Law, we (or the Couriers) may immediately destroy, dispose of, abandon or render harmless Dangerous Goods without seeking your prior permission, without compensation to you, and without prejudicing our rights to payment of the Rates. Upon our request, you must instruct us on the method of disposal, and indemnify us for the costs incurred by us or our Personnel in destroying, disposing of, abandoning or rendering harmless such Dangerous Goods.

Dangerous Goods

1. Subject to the terms of this Agreement, we will establish and maintain appropriate, reasonable technical and organisational security measures in accordance with good industry practice to keep Your Data secure.

Security Incidents

1. If either Party becomes aware of or reasonably suspects that a security incident has occurred arising from our provision of the Services, such that Your Data has or may have been compromised (for example, unauthorised access) (each a Security Incident), that Party must promptly notify the other Party and we agree to, within a reasonable time:

   1. conduct an investigation to determine whether a Security Incident has occurred, and where one has, the cause and impact of it on Your Data; and

   2. where a Security Incident is deemed to have occurred, remediate the Security Incident to the extent that this is operationally, commercially and technically feasible.

2. You agree that we may suspend the Services where a Security Incident has or may have occurred and this is considered necessary or prudent (as determined by us, at our reasonable discretion) to address or deal with the Security Incident.

3. We will bear our costs in conducting any investigation or remediation required under this clause, unless the incident triggering the Security Incident was caused or contributed to by you (or any Authorised User), in which case, you will be liable for those costs reasonably and necessarily incurred by us arising from the Security Incident.

Notifiable Data Breaches

1. This clause 20 will only apply to the extent the notifiable data breaches scheme under Part IIIC of the Privacy Act 1988 (Cth) (Notifiable Data Breaches Scheme) applies to us.

2. If as a result of our investigations in accordance with clause 19.1 of this Agreement, we believe a Security Incident has occurred that we consider to be notifiable under the Notifiable Data Breaches Scheme, we will:

   1. promptly notify you of this by telephone or email;

   2. provide notice to the Office of the Australian Information Commissioner in accordance with the Notifiable Data Breaches Scheme; and

   3. be the sole Party to notify the individuals who are likely to be at risk of serious harm arising from the Security Incident.

3. Where we do not have the contact details of affected individuals, we will provide you with a statement to provide to affected individuals.

Variations

1. You may request a variation or change to the Services, including the timing for the provision of the Services (Variation), by providing written notice (including by email and our online portal) to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with this Agreement as varied by any Variation Request accepted in writing.

2. If we consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with this clause 21.

3. Any Variation will apply within a reasonable time after our acceptance of your Variation Request, and if applicable, any increase to the Fees will be charged on a pro-rata basis if such increase occurs during the then-current Fee period.

Your Obligations and Representations

1. You agree:

   1. to comply with this Agreement and all applicable Laws;

   2. to comply with all the requirements specified in the applicable Operational Guidelines for each Service,which are updated regularly and can be viewed here;

   3. to provide all assistance, information, documentation, access, facilities and other things reasonably necessary to enable us to comply with our obligations under this Agreement or at Law;

   4. to provide us and our Personnel with reasonable, convenient and safe access to your premises and Systems to the extent reasonably necessary in order for us to supply the Services, and at the times agreed between the Parties;

   5. to ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked;

   6. to ensure all information provided to us is kept up-to-date and the email address you provide is valid and regularly checked;

   7. to ensure that any Systems used in connection with the Services have all necessary approvals and comply with all Laws;

   8. that you have reviewed and understand the terms of this Agreement (including our Privacy Policy), and that you (and Authorised Users) will use the Services in accordance with them;

   9. to notify us of any breach or suspected breach of this Agreement by you (or an Authorised User), within 48 hours of becoming aware or any such breach or suspected breach; and

   10. that you are responsible for all Authorised Users and other users within your organisation or within your control using the Services, including your Personnel.

2. You acknowledge and agree that:

   1. the technical processing and transmission of the Services, including Your Data, may be transferred unencrypted and involves transmissions over various networks; and changes to conform and adapt to technical requirements of connecting networks or devices;

   2. the Services are provided to you and your Authorised Users, solely for your and your Authorised Users’ benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent;

   3. you will be responsible for the use of any part of the Services by your Authorised Users and any other person you provide with access to the Services, and you must ensure that no person uses any part of the Services:

      1. to break any Law or infringe any person’s rights (including Intellectual Property Rights);

      2. to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or

      3. in any way that damages, interferes with or interrupts the supply of the Services; and

   4. you will not alter or modify the Services in any way that is not contemplated by the purposes of the Services.

Payment

1. You agree to pay us the Fees, and any other amount payable to us under this Agreement in accordance with the Payment Terms.

2. If you purchase an amount of the Services above the Credit Limit, you will be required to pay us the amount of the Fees, and any other amounts payable to us under this Agreement, that is above the Credit Limit, via direct debit through our payment processor. If required, you also agree to complete a direct debit request form and/or direct debit request service agreement. If a direct debit is the payment method, you agree that the Fees, and any other amounts payable to us under this Agreement, will be automatically direct debited from your credit card or nominated bank account. The direct debit arrangement may be subject to additional terms and conditions from third-party payment providers.

3. If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):

   1. after a period of 5 Business Days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so; and/or

   2. charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms.

4. You agree that we may vary our Fees by providing at least 10 Business Days written notice to you of such variation. Where we provide this notice, the new Fees will take effect on the date specified in the written notice. If you do not agree to any Fee variation:

   1. you agree to notify us in writing within 5 Business Days of the Fee variation coming into effect; and

   2. following receipt of such notice by us, the Parties will use all reasonable endeavours to work together to resolve the matter.

5. If:

   1. you have provided us with the notice in accordance with clause 23.4(a); and

   2. the Parties are unable to resolve the matter pursuant to clause 23.4(b),

   3. you may elect to terminate the Agreement prior to the end of the Initial Term or the then Renewal Period in accordance with the notice period in Schedule 1 or as set out in clause 1.2, and in which case, clause 33.2 will apply.

6. To the maximum extent permitted by law, there will be no refunds or credits for any unused Services (or part thereof).

7. You agree that we may set off or deduct from any monies payable to you under this Agreement, any amounts which are payable by you to us (whether under this Agreement or otherwise).

Lien

1. Subject to the law and to the Personal Properties Securities Act 2009 (Cth) all of the Goods and documents relating to the Goods will be subject to a particular and general lien for monies due to SKUTOPIA either in respect of such Goods or any particular or general balance of other monies due from the Customer, the senders, owners or consignee.

2. If any monies due to SKUTOPIA are not paid within one calendar month after notice has been given to the person from whom the monies are due that such goods are detained, they may be sold by auction or otherwise at the sole discretion of SKUTOPIA and at the expense of such person and the proceeds applied in or towards satisfaction of such particular and general lien.

Warranties

1. SKUTOPIA agrees:

   1. that we are properly constituted and have the right and authority to enter into this Agreement;

   2. that we will use reasonable efforts to ensure all of our obligations under this Agreement will be carried out by suitably competent and trained Personnel and in an efficient and professional manner;

   3. that all pre-existing Intellectual Property Rights in the Services (with the exception of the property rights in any Third-Party Inputs) will be owned, held or licensed by us;

   4. that the provision of the Services does not and will not infringe any other person’s Intellectual Property Rights; and

   5. that the Services will operate and be provided in accordance with this Agreement (including any Specifications).

2. You represent, warrant and agree that:

   1. you will provide us with any information that we require in order to provide the Services to you (for example, information that we need to set up the Accounts, or get you onboarded);

   2. there are no legal restrictions preventing you from entering into this Agreement;

   3. all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;

   4. you have not relied on any representations or warranties made by us in relation to the Services (including as to whether the Services are or will be fit or suitable for your particular purposes), unless expressly stipulated in this Agreement;

   5. you are not and have not been the subject of an Insolvency Event;

   6. if applicable, you hold a valid ABN which has been advised to us; and

   7. if applicable, you are registered for GST purposes.

Intellectual Property

Intellectual Property

1. As between the Parties, you acknowledge and agree that we own all Intellectual Property Rights in:

   1. Our Materials;

   2. New Materials or Improvements; and

   3. any Feedback,
      ‍
      and as between the Parties, these Intellectual Property Rights will at all times vest, or remain vested, in us, and nothing in this Agreement constitutes an assignment or transfer of such Intellectual Property Rights. To the extent that ownership of these Intellectual Property Rights does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.

2. In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel and your Authorised Users do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.

3. You also agree that:

   1. we may use Feedback in any manner which we see fit (including to develop new features) and no benefit will be due to you as a result of any use by us of any Feedback;

   2. you must not whether directly or indirectly, without our prior written consent:

      1. copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any part of the Services or otherwise attempt to discover any part of the source code of the SaaS Solution;

      2. use any unauthorised, modified version of the Services, including (without limitation) for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to the SaaS Solution;

      3. unless authorised under this Agreement, use the Services in a web-enabled form for the purposes of third-party analysis or view via the internet or other external network access method;

      4. rent or sublicence the use of the Services to any third parties, without our prior written consent or as otherwise permitted under this Agreement;

      5. take any action that may compromise or jeopardise our Intellectual Property Rights in the Services or otherwise;

      6. remove or deface any confidentiality, copyright or other proprietary notice placed on the Services; or

      7. use the Services in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing.

         Your Intellectual Property Rights

4. As between the Parties, you will continue to own all Intellectual Property Rights in Your Materials.

5. You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Your Materials, solely for the purposes for which they were developed and for the performance of our obligations under this Agreement, and as otherwise contemplated by this Agreement.

6. If you or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with this Agreement, you agree to (and agree to ensure that your Personnel) consent to our use or infringement of those Moral Rights.

   Your Data

7. As between the Parties:

   1. Your Data is and will remain your property; and

   2. you retain any and all rights, title and interest in and to Your Data, including all copies, modifications, extensions and derivative works.

8. You grant us a limited licence to copy, transmit, store, backup and/or otherwise access or use Your Data during the Term (and for a reasonable period after the Term), to:

   1. supply the Services to you and your Authorised Users (including to enable you and your Personnel to access and use the Services), and otherwise perform our obligations under this Agreement;

   2. diagnose problems with the Services;

   3. enhance and otherwise modify the Services;

   4. perform Analytics;

   5. develop other services, provided we de-identify Your Data; and

   6. as reasonably required to perform our obligations under this Agreement.

9. You acknowledge and agree that:

   1. we are not responsible for the integrity or existence of any data on the Computing Environment, network or any device controlled by you, your Authorised Users or your Personnel; and

   2. we assume no responsibility or liability for Your Data. You are solely responsible for Your Data and the consequences of using, disclosing, storing or transmitting it. It is your responsibility to back up Your Data.

10. You represent, warrant, acknowledge and agree that:

    1. you have obtained all necessary rights, releases and permissions to provide or have Your Data provided to us and to grant the rights granted to us in this Agreement;

    2. Your Data (and its transfer to and/or use, collection, storage or disclosure by us as contemplated by this Agreement) does not and will not violate any Laws (including those relating to export control and electronic communications) or the rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and

    3. the operation of the Services is reliant on the accuracy and completeness of Your Data, and the provision by you of Your Data that is inaccurate or incomplete may affect the use, output and operation of the Services.

11. This clause 26 will survive termination or expiry of this Agreement.

Analytics

1. You acknowledge and agree that we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Services, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

   1. does not contain any identifying information; and

   2. is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.

2. We and our licensors own all rights, titles and interests in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all Intellectual Property Rights in the foregoing.

3. We may use and disclose to our service providers anonymous data about your access and use of the SaaS Solution for the purpose of helping us improve the SaaS Solution. Any such disclosure will not include details of your, or any Authorised User’s, identity or personal information.

Confidential Information

1. Each Receiving Party agrees:

   1. not to disclose the Confidential Information of the Disclosing Party to any third party;

   2. to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and

   3. to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

2. The obligations in clause 28 do not apply to Confidential Information that:

   1. is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;

   2. is authorised to be disclosed by the Disclosing Party;

   3. is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or

   4. must be disclosed by Law or by a regulatory authority, including under subpoena.

3. Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 28. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of clause 28.

4. This clause 28 will survive the termination of this Agreement.

Privacy

1. For the purposes of this clause, Personal Information and Sensitive Information have the meanings given in the Privacy Act 1988 (Cth), and also include any similar terms as defined in any other privacy law applicable to you.

2. You must, and must ensure that your Personnel and your Authorised Users, at all times comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam Laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement (Privacy Laws).

3. Without limiting this clause 29, you must ensure that:

   1. you have collected, used, stored and otherwise dealt with Your Data in accordance with all Privacy Laws; and

   2. we are capable of collecting, using, storing and otherwise dealing with Your Data, in the manner contemplated by this Agreement, without infringing any third party rights or violating any Privacy Laws.

4. Without limiting this clause 29, you agree to only disclose Your Data, to the extent, it contains Personal Information if:

   1. you are authorised by Privacy Laws to collect the Personal Information and to use or disclose it in the manner required by this Agreement;

   2. you have informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties; and

   3. where any Personal Information is Sensitive Information, you have obtained the specific consent to that disclosure from the individual to whom the Sensitive Information relates.

5. We agree to handle any Personal Information you provide to us, solely for the purpose of performing our obligations under this Agreement, and in accordance with any applicable Laws and our Privacy Policy.

Australian Consumer Law

1. Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights).

2. If the ACL applies to you as a consumer, nothing in this Agreement excludes your Consumer Law Rights as a consumer under the ACL. You agree that our Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

3. Subject to your Consumer Law Rights, we exclude all express and implied warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.

4. This clause 30 will survive the termination or expiry of this Agreement.

Exclusions to Liability

1. To the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

   1. any interruptions or downtime to the SaaS Solution as a result of any Scheduled or Emergency Maintenance;

   2. your Computing Environment;

   3. your, your Authorised Users, or your Personnel’s acts or omissions;

   4. any use or application of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;

   5. any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;

   6. any Third Party Inputs;

   7. any act or omission of a Courier, including any delay or failure to collect or deliver the Goods the subject of a Consignment; and/or

   8. any event outside of our reasonable control (including a Force Majeure Event, and a fault, defect, error or omission in the Computing Environment or Your Data).

2. This clause 31 will survive the termination or expiry of this Agreement.

Limitations on liability

1. Despite anything to the contrary, to the maximum extent permitted by law:

   1. neither Party will be liable for Consequential Loss;

   2. a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by the other Party to mitigate its loss; and

   3. our aggregate liability for any liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

2. This clause 32 will survive the termination or expiry of this Agreement.

Termination

1. This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

   1. the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or

   2. the Defaulting Party is unable to pay its debts as they fall due.

2. Upon expiry or termination of this Agreement:

   1. we will immediately cease providing the Services;

   2. we will be entitled to anonymise or permanently delete all Your Data within 1 Calendar Month from expiry or termination of this Agreement;

   3. without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;

   4. you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;

   5. you are to pay us any amount due and payable in accordance with clause 23; and

   6. upon request by us, you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or Intellectual Property owned by us that is in your possession or control, subject to clause 26.

3. We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

4. Where this Agreement is terminated by us pursuant to clause 33 you agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including any reasonably incurred legal fees, debt collector fees and mercantile agent fees).

5. Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

6. This clause 33 will survive the termination or expiry of this Agreement.

GST

1. If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

2. If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.

3. If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

4. The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each have the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Dispute Resolution

1. For the purposes of this clause a “Dispute” is a dispute or difference of opinion arising out of or in relation to this Agreement, or  where an agreement between the parties is required by this Agreement and there is the absence of agreement after a reasonable period.

2. Neither party may commence or initiate any court proceedings in relation to a Dispute until the procedures specified in this clause have been followed.

3. If a Dispute has arisen and a party wishes to take steps to resolve the Dispute, that party must first send a notice to the other party setting out a full description of the Dispute.

4. Once the notice has been served under the preceding clause, the General Manager or Managing Director of each party (or his or her nominee or delegate) must attempt to resolve the dispute in good faith.

5. If the dispute is not resolved within 10 Business Days of the provision of the notice, or any longer time than which the parties may agree in writing, the parties may submit the Dispute to mediation but are not bound to do so.

6. If the Dispute is not resolved within 10 Business Days of the Notice of Dispute or any longer time that the parties may agree in writing and if the parties have not submitted the Dispute to mediation within a further 10 Business Days, legal proceedings may be commenced in respect of the subject matter of the Dispute.

General

1. Access: The Services may be accessed in Australia and overseas. We make no representation that the Services comply with the Laws (including Intellectual Property Laws) of any country outside of Australia. If you access the Services from outside Australia, you do so at your own risk and you are responsible for complying with the Laws in the place you access the Services.

2. Advertising and linked websites: The SaaS Solution may contain links to websites of third parties. You acknowledge and agree that we do not endorse, and we are not responsible for the content contained on, any such linked websites or any hyperlink contained in a linked website. Your access to or use of any linked website is at your own risk.

3. Amendment: This Agreement may only be amended by a written instrument executed by the Parties.

4. Assignment: a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

5. Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third parties.

6. Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.

7. Disputes: Subject to clause 35, you agree to notify us should you have concerns relating to our performance of the Services. A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree on how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

8. Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. To the maximum extent permitted by law, you release us from any liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

9. Entire agreement: Subject to your Consumer Law Rights, this Agreement contains the entire understanding between the Parties and the Parties agree that no representation or statement has been made to, or relied upon by, either of the Parties, except as expressly stipulated in this Agreement, and this Agreement supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

10. Force Majeure: A Party will not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.

11. Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and obligations under it.

12. Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

13. Illegal Requests: We reserve the right to refuse any request for or in relation to any Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with this Agreement.

14. Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

15. Online execution: This Agreement may be executed by means of such third-party online document execution service as we nominate subject to such execution is in accordance with the applicable terms and conditions of that document execution service.

16. Publicity: With your prior written consent, you agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.

17. Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

18. Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

Definitions

1. In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Agreement, the Schedule or the Site Order Form, and:

2. Account means an account accessible to you and/or your Authorised Users to use the Services, including, the SaaS Solution.

3. ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

4. Additional Services means any Services not set out in the Services description in the Schedule or Site Order Form which we agree to provide to you.

5. Agreement means these terms and conditions and any documents attached to or referred to in, each of them.

6. Authorised User, if applicable, means a user permitted to access and use the Services under your Account.

   Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.

   Calendar Month means the period of time beginning on the numeric day in question in a calendar month and for Calendar Months thereafter, beginning on the earlier of (i) the same numeric day of the next calendar month or (ii) the last day of the next calendar month. Each Calendar Month shall end on the day immediately preceding the beginning of the next succeeding Calendar Month.

   Collection Location means the location where the Consignments are to be collected, as particularised in any Order, or as otherwise agreed between the Parties.

   Collection Time means the time for the collection of the Consignments, as particularised in any Order, or as otherwise agreed between the Parties.

   Commencement Date means the date set out in the Schedule, or if no Schedule is attached to this Agreement, the date this Agreement is accepted by you in accordance with its terms.

   Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.

   Confidential Information includes information which:

   1. is disclosed to the Receiving Party in connection with this Agreement at any time;

   2. is prepared or produced under or in connection with this Agreement at any time;

   3. relates to the Disclosing Party’s business, assets or affairs; or

   4. relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

   whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

   Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Fees under this Agreement will not constitute “Consequential Loss” for the purposes of this definition.

   Consignment means the act of collecting and delivering Goods for you as part of the Delivery Services, as particularised in any Order.

   Consumer Law Rights has the meaning given in clause 30.1.

   Courier means the courier companies that we engage to assist us in providing the Delivery Services.

   Credit Limit means the amount set out in the Schedule or Site Order Form, which is the amount up to which you will not be required to pay us the Fees via direct debit.

   Dangerous Goods means any Goods deemed of a dangerous or hazardous nature including but not limited to Goods which are or may become dangerous, inflammable, explosive, volatile or offensive or Goods which are or may become liable to damage or injure any property or persons, whether you were aware of the dangerous or hazardous nature of the Goods or not, and includes Goods forbidden, limited or restricted from time to time by:

   1. the Australian Code for the Transport of Dangerous Goods by Road & Rail, issued by the National Transport Commission; or

   2. any other applicable Law.

   Delivery Location means the location where the Consignments are to be delivered, as particularised in the relevant Order, or as otherwise agreed between the Parties.

   Delivery Recipient means the recipient of a Consignment at the Delivery Location, as particularised in the relevant Order, or as otherwise agreed between the Parties.

   Delivery Services means as described in the Schedule or the Site Order Form.

   Delivery Services Fee means as described in the Schedule or, if no Schedule is attached to this Agreement, as set out on our Site at the time of the Order.

   Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

   Estimated Delivery Time means the estimated time for the delivery of the Goods, as particularised in the relevant Order, or as otherwise agreed between the Parties.

   Feedback means any idea, suggestion, recommendation or request by you or any of your Personnel and your Authorised Users, your customers, whether made verbally, in writing, directly or indirectly, in connection with the Services.

   Fees means the price set out in the Schedule or the Site, as adjusted in accordance with this Agreement, and includes, as applicable, the SKUTOPIA Subscription Fee, the General Delivery Services Fee, the Premium Delivery Services Fee, the Fulfillment Services Fee, and the Additional Services Fee.

   Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or another catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

   Fragile Goods means the Goods that are of a brittle or delicate nature and are likely to break and includes without limitation glass, china and castings.

   Goods means the goods comprising any Consignment, in relation to which the Delivery Services are provided, as particularised in any Order.

   Harmful Code means any computer program or virus or other code that is harmful, destructive, disabling or which assists in or enables theft, alternation, denial of service, unauthorised access to or disclosure, destruction or corruption of information or data.

   Improvements means any development, modification, adaptation or improvement of Our Materials or any New Materials made by or on behalf of either Party (or any of their respective Personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the Term.

   Insolvency Event means any of the following events or any analogous event:

   1. a Party disposes of the whole or any part of the Party’s assets, operations or business other than in the ordinary course of business;

   2. a Party ceases or threatens to cease, carrying on business;

   3. a Party is unable to pay the Party’s debts as the debts fall due;

   4. any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Party’s assets, operations or business;

   5. any step is taken for a party to enter into any arrangement or compromise with, or assignment for the benefit of, a Party’s creditors or any class of a Party’s creditors; or

   6. any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of a Party’s assets, operations or business.

   Intellectual Property means any copyright, registered or unregistered designs, patents or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.

   Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).

   Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

   Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the provision of the Services.

   Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

   Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

   Our Materials means all work, models, processes, technologies, strategies, materials, information, documentation, Specifications and services that we may provide to you under this Agreement, and which may contain material that is owned by or licensed to us and is protected by Australian and international laws.

   Payment Terms means as described in the Schedule or if no Schedule is attached to this Agreement, the payment of the Fees, and any other amounts due and payable under this Agreement, at the times and using the payment method set out on the invoice, or if the Credit Limit is exceeded, by direct debit in accordance with clause 23.2.

   Perishable goods means such of the Goods as shall be in fact or law liable to deteriorate in quality and/or value and shall include, but not be limited to, fruits, vegetables, dairy products, meat, etc.

   Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

   POD means proof of delivery details provided by us or the Courier to a Delivery Recipient.

   Premises means any premises the subject of the Services.

   Privacy Laws has the meaning given in clause 29.2

   Privacy Policy means any privacy policy set out on our Site.

   Professional Consulting Services means as described in the Schedule.

   Professional Consulting Services Fee means as described in the Schedule.

   Prohibited Items means as described on the Site.

   Receiving Party means the party receiving Confidential Information from the Disclosing Party.

   SaaS Solution means the access to and use of our cloud-based software solution known as “SKUtopia”.

   SKUTOPIA Subscription Fee means as described in the Schedule or the Site Order Form.

   Schedule means a schedule that may be attached to this Agreement.

   Service Credit means, if applicable, as set out in Schedule 1 to this Agreement.

   Service Levels means, if applicable, as set out in Schedule 1 to this Agreement.

   Services mean the services that we agree to perform under this Agreement, as further particularised in the Schedule or Site Order Form.

   Site means skutopia.com.

   Site Order Form means, if applicable, the order form that sets out the commercial details of your purchase of the Services through the Site.

   Specifications means any specifications for the Services, as further particularised in the Schedule or the Site.

   Support Services means as described in the Schedule, or if no Schedule is attached to this Agreement, access to our online help desk between 9 am and 5 pm on Business Days.

   Support Services Fee means as described in the Schedule.

   System means all hardware, software, networks, telecommunications and other IT systems used by a Party from time to time, including a network.

   Term means as described in clause 1.2.

   Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors on which the provision of the Services may be contingent on, or impacted.

   Your Data means the information, materials, logos, documents, qualifications and other Intellectual Property or data inputted by you, your Personnel and your Authorised Users into the Services or stored by or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with this Agreement. Your Data does not include the Analytics, or any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.

   Your Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned or licensed by you or your Personnel before the Commencement Date and/or developed by or on behalf of you or your Personnel independently of this Agreement.

Interpretation

1. In this Agreement, unless the context otherwise requires:

   1. a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

   2. a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

   3. a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

   4. no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

   5. a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

   6. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

   7. words like including and for example are not words of limitation;

   8. a reference to time is to local time in New South Wales; and

   9. a reference to $ or dollars refers to the currency of Australia from time to time.