1.1 These Terms of Services form an agreement (Agreement) between Taggd Pty Ltd ABN 76 169 801 665 (Company), an Australian company, and each customer that uses its Services (Customer).
2.1 The following definitions apply in this document:
(a) Agreement means these Customer Terms of Service and any Special Conditions.
(b) Background IP means all Intellectual Property of the Company incorporated in Taggd.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Melbourne, Australia.
(d) Confidential Information means any written or verbal information that:
i Is about each party’s business or affairs;
ii Is about the conduct of each party under this Agreement and the during the term of this Agreement;
iii A party informs the other party that it considers it confidential and/or proprietary;
iv A party would reasonably consider to be confidential in the circumstances; and
v Is personal information within the meaning of the Privacy Act.
but does not include information that a party can establish:
vi Was in the public domain at the time it was given to that party;
vii Became part of the public domain, without that party’s involvement in any way, after being given to the party;
viii Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
ix Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
(e) Customer means any legal person that accepts the terms of this Agreement and uses Taggd.
(f) Customer Assets means:
i The Customer’s website;
ii The Customer’s social media accounts; and
iii Any other media asset (including film, print and digital) of the Customer.
(g) Customer Content means any copyright which the Customer:
i Owns; and/or
ii Has the rights to use (including User Generated Content).
(h) Content means content that is accessed or used via Taggd, which shall generally be sourced from third-party Customers of a TPS.
(i) Fees means the fees for use of Taggd (if any) in accordance with clause 11.
(j) Intellectual Property means all rights (present and future) conferred by common law, equity or statute (and all moral rights) connected with business names, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
(k) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(l) New IP means any new Intellectual Property generated by the Company in the process of providing Taggd.
(m) Online Advertising means any online advertisement served by a third party, including without limitation advertising on networks and services operated by Google, Facebook and Instagram.
(n) Portfolio means a portfolio of Content accessible from the Customers Website via Taggd.
(o) Product Matching means the process of matching Content to a Customer or Product Page via Taggd.
(p) Product Page means a webpage from which a product is available for purchase from a Customer.
(q) Related Bodies Corporate has the meaning given to it in section 9 of the Corporations Act.
(r) Special Conditions means any further agreement or other terms and conditions agreed by the parties in writing.
(s) Taggd means the systems and services provided by the Company including as described in clause 4.1.
(t) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(u) Term means the duration of this Contract
(v) Third Party Marketplace means any online marketplace which has visible and shoppable content, including (but not limited to) the brand marketplace operated by Afterpay Pty Ltd ABN 151 693 429 47.
(w) TPS means Third Party Services as described in clause 5.1.
(x) User Generated Content means copyright created by a third party user (typically an individual) of a TPS.
(y) User means the Customer’s employees, agents or contractors (but excluding the Company) who are authorised by the Customer to access Taggd from time to time during the Term.
3 AGREEMENT & TERM
3.1 As consideration for the other party entering this Agreement:
(a) The Company grants the Customer a non-exclusive license to use Taggd on the terms of this Agreement; and
3.2 The features and inclusions provided to the Customer shall be as advertised (and agreed) to by the Company to the Customer from time-to-time.
3.3 This Agreement shall be ongoing until validly terminated in accordance with clause 15.
3.4 The Company may update the terms of this Agreement by giving the Customer no less 5 Business Day’s written notice. If the Customer does not accept those new terms, it may terminate this Agreement in accordance with clause 15.
(a) Makes Customer Content visible and/or shoppable:
i On Customer Assets;
ii On Online Advertisements; and
iii Third Party Marketplaces; and
(b) Where necessary, procures the right for the Customer to use User Generated Content.
4.2 The Company may provide the Customer with additional services including (without limitation) Product Matching, subject to further agreement between the Customer and the Company. Such further agreement may take the form of Special Conditions.
5 USER GENERATED CONTENT
(a) Taggd uses User Generated Content where so authorised, from certain third-party services (TPS) (specifically Facebook and Instagram, but without limitation) in providing Taggd.
(b) In accordance with the applicable TPS terms and conditions, prior consent to the use of User Generated Content is not required to be obtained from the TPS, the subject or contributor to the TPS. If this changes, or where consent is required, the Company shall ensure that the necessary consent has been obtained prior to such use of User Generated Content in accordance with the terms of this Agreement.
(c) Without prejudice to anything to the contrary in this Agreement, it is a condition of providing Taggd that the Customer approves any User Generated Content for use on its website;
(d) The Company shall use best endeavours to ensure the Customer is not in breach of any TPS terms and conditions applicable to the User Generated Content. However, the Customer remains responsible for their use of the User Generated Content and compliance with any TPS terms and conditions. The Customer shall remove from User Generated Content from Company Assets if legally required by any TPS or licensor of Customer Generate Content.
(e) The Company shall be authorised to permanently remove and delete User Generated Content in its absolute discretion (acting reasonably), and by first notifying the Customer or, if not possible or practical, as soon as possible after the removal/deletion, including on request from any TPS or author; and
(f) The Company is entitled to reasonable attribution of its Services on the Customer’s website, which attribution is to be made at the Customer’s sole discretion (acting reasonably).
5.2 The Company warrants that it shall comply at all times with the terms & conditions of any TPS used in providing Taggd.
6 DEPENDENCY ON THIRD PARTY SERVICES
6.1 The Customer agrees that:
(a) Access to Taggd may be unavailable if a TPS becomes unavailable, and that the Customer and/or its Customers may lose functionality or Content that is shared between the TPS and the Company;
(b) The connection between the Company and the TPS may be disconnected at any time outside of the control of the Company;
(c) The Company has no fixed contractual relationship with any TPS and cannot guarantee the efficacy of any TPS connection.
6.2 In the event that Taggd is affected by the unavailability of a TPS or if Taggd is otherwise unavailable for use by the Customer (other than due to a fault or cause by the Customer), then either party reserves the right to suspend Taggd without penalty until resolved for a period of no longer than 30 days. If the suspension is likely to continue or does continue for more than 30 days, the Customer may end this Agreement by written notice and if so, will be reimbursed for amounts paid in advance for Services, starting from the date the date of termination. Any payment owed by the Customer during a suspended period will also be suspended for the duration of the suspension.
7.1 By accepting the terms and conditions of this Agreement, the Customer is granted a limited, non-exclusive and revocable licence to access Taggd for the Term, in accordance with the terms and conditions of this Agreement.
7.2 The Customer may assign the licence granted pursuant to this clause to any Related Bodies Corporate without obtaining the Company’s consent. However an assignment to any other entity will require the Company’s prior consent, which shall not be withheld unreasonably.
7.3 The Company may revoke or suspend, as is reasonable, the Customer’s license for any breach of the terms and conditions in this Agreement by the Customer or any of its Customers (including failure to pay any agreed Fees & Charges as provided for under clause 11). The Company will advise the Customer of any suspension or revocation however it is under no obligation to do so.
8 ACCESS & USE
8.1 Both parties agree that it shall only use or provide Taggd for legal purposes and shall not use them to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the other party in its discretion.
8.2 The Customer agrees and accepts that the functional elements of Taggd may be:
(a) Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the servers operated by the Company and is not available ‘locally’ from the Customer’s systems; and
(b) Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Taggd is available to the Customer unless expressly agreed in writing.
8.3 The Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Taggd.
8.4 The Company takes the security of Taggd and the privacy of its Customers very seriously.
8.5 The Customer agrees that the Customer shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
8.6 The Company agrees that it shall not do anything to prejudice the security or privacy of the Customer’s systems or information, or that of the Customer’s clients’ systems or information.
8.7 The Customer agrees that the Company shall provide access to the solution to the best of its abilities, however it accepts no responsibility for ongoing access to Taggd.
9.1 The Customer may require the Company to use particular systems from time-to-time. The Customer agrees to grant the Company access to such systems (with appropriate controls) in order to do all such things so required to perform Taggd.
9.2 The Customer will keep the Company aware of any policies or guidelines it has with respect to its business that the Company must follow.
9.3 Where the Company considers, acting reasonably, that it is unable to comply with such policies or guidelines, it shall notify the Customer of the same in writing. Parties agree to meet (virtually or otherwise) in good faith within 5 business days to discuss alternative policies or guidelines to allow the Company to be able to perform Taggd in accordance with this Agreement.
9.4 Subject to clause 9.5, the Company must do all things reasonable to accommodate the alternative policies or guidelines within 10 business days, otherwise the Customer may terminate this Agreement on written notice and all sums pre-paid by the Customer relating to a period after the date of such termination shall be refunded to the Customer within 10 business days.
9.5 Subject to clause 9.4, the Customer must do all things reasonable within 10 business days to adjust the alternative policies or guidelines, or otherwise do what is necessary to enable the Company to provide Taggd for the term of this Agreement, and where the Company is not reasonably able to provide Taggd due to those alternative policies or guidelines, or by the failure of the Customer to do all things reasonable and necessary, then the Company shall have the right to terminate this Agreement on written notice.
9.6 For clarity, nothing in this clause 9 shall obligate the Company to undertake any work, or reconfiguration of its systems, or incur any expenses, outside the scope of the agreed Services without payment of its reasonable costs by the Customer.
10 AUTHORISED USERS
10.1 The Customer may authorise Users to access Taggd in its absolute discretion.
10.2 The Company accepts no liability for access by Users authorised by the Customer or using login details of Customers authorised by the Customer.
10.3 Each User is solely responsible for the security of its username(s) and password(s) for access to Taggd.
10.4 The Customer 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, including for any defamatory, offensive or illegal conduct of any Users of Taggd.
11.1 The Company may allow the Customer to use Taggd at no cost as consideration for the licence granted to the Company under clause 3.1(b), which may be for a fixed or unfixed duration (Trial Period).
11.2 The Company may require the Customer to pay Fees to continue using Taggd following the Trial Period. Those Fees shall be agreed between the Company and the Customer.
11.3 The Company reserves the right to change the Fees at any time at its absolute discretion (including introducing new Fees) by providing the Customer with no less than 28 days’ written notice (which may be through Taggd), and such new Fees shall apply at the commencement of the next billing cycle for the Customer.
11.4 Unless explicitly stated otherwise in writing, all Fees are exclusive of GST.
11.5 The Company shall provide a Tax Invoice for all Fees if the Customer is an Australian entity.
11.6 The Company may, without penalty or liability, suspend the Customer’s license to access Taggd if any Fees remain overdue for more than 7 days.
12 INTELLECTUAL PROPERTY
12.1 Proprietary Information. Taggd may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Customer will use the proprietary systems and Intellectual Property in accordance with the Company’s lawful and reasonable directions and warrants that it shall not otherwise infringe on any third-party rights through the use of Taggd. The Company warrants that it shall not infringe on any third-party rights through the provision of Taggd.
12.2 Company IP. The Customer agrees and accepts that any Background IP or Intellectual Property generated by the Company in the process of providing Taggd is owned absolutely by the Company and vests in the Company immediately, including:
(a) The Company trade marks, logo and design; and
(b) Copyright in the selection, coordination, arrangement and enhancement of content, as well as in the content original to it;
(c) All source code, usage data, ideas, enhancements, feature requests, suggestions or other information generated in the course of using Taggd (with the exclusion of Customer IP).
12.3 Customer IP.
(a) The Company acknowledges that the Customer Intellectual Property remains the property of Customer. If Customer provides Customer Intellectual Property to the Company, Customer grants the Company a non-exclusive, royalty free licence during the term to use the Customer’s Intellectual Property solely for the purposes of providing Taggd to Customer under the terms of this Agreement. This licence shall end on the termination of this Agreement.
(b) The Customer authorises the Company to use the its name, logo and social content for the Company’s reasonable promotional purpose. The Customer can revoke this authority by the giving the Company written notice.
12.4 New IP. New IP shall be the property of the Company; and
(a) To the extent that the Customer may at any time acquire any Intellectual Property Rights in the New IP in or from Taggd, the Customer, by this document, agrees to assign to the Company all such rights, title and interest in the New IP.
(b) Subject to payment in full of all fees under this Agreement, the Company grants the Customer a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the New IP to the extent that it is contained within Taggd.
(c) In addition to this Agreement, the parties may enter into a formal written agreement to govern the assignment of Intellectual Property Rights, the terms of which shall prevail if there is any inconsistency with the terms of this Agreement.
12.5 Customer Covenant. The Customer further warrants that by using Taggd the Customer will not:
(a) Use any Intellectual Property of the Company without express permission;
(b) Copy any part of Taggd for the Customer’s own commercial purposes outside of what is allowed under this Agreement; or
(c) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in any documentation associated with it.
12.6 Company Covenant. The Company further warrants that in providing Taggd, it shall:
(a) Comply with all applicable laws, codes and regulations, including without limitation, with regards to advertising and data protection.
(b) It shall take all reasonable steps to ensure all Content complies with all applicable laws, codes and regulations, including without limitation, with regards to advertising and data protection, and that such Content does not infringe the intellectual property rights of any third party.
13.1 A party shall not:
(a) Use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under this Agreement; or
(b) Disclose any of the Confidential Information except in accordance with clause 13.2.
13.2 Subject to clause 13.3, a Party may disclose Confidential Information that a Party is required to disclose:
(a) By law or by order of any court or tribunal of competent jurisdiction; or
(b) By any Government Agency, stock exchange or other regulatory body.
13.3 If a party is required to make a disclosure under clause 13.2, that party must:
(a) To the extent possible, notify the other party immediately after it anticipates that it may be required to disclose any of the Confidential Information; and
(b) Only disclose Confidential Information to the extent necessary to comply.
13.4 Each party must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.
14 LIABILITY & INDEMNITY
14.1 The Customer agrees that it uses Taggd entirely at its own risk, subject to the terms of this Agreement
14.2 The Customer acknowledges that the Company is not responsible for the conduct or activities of any Customer and that the Company is not liable for such under any circumstances, including for any defamatory, offensive or illegal conduct of any Customers of Services.
14.3 The Customer 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 Customer’s use of or conduct in connection with Taggd, including any breach by the Customer of this Agreement.
14.4 In no circumstances will the Company or its officers, directors, employees and agents be liable for any direct, incidental, consequential or indirect damages, 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 Customer’s access to, or use of, or inability to use the Company’s website, Taggd, images or any other Content, or in any way relating to an experience itself (or the provision or non-provision of an experience), 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, to business interruption of any type, whether in tort, contract or otherwise.
14.5 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 its 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:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
(a) Fails to remedy a breach of this Agreement within 10 business days of receiving written notice of that breach;
(b) Commits a serious breach of this Agreement which cannot be remedied;
(c) Proposes or takes any step to enter into any scheme of arrangement with creditors; proposes to or takes any step to appoint a receiver or manager, a liquidator, an administrator or other like person; can not, proposes or suspends the payment of debts generally; proposes or takes any steps to enter bankruptcy, or is presumed insolvent for the purposes of any provision of the Corporations Act 2001 (Cth).
15.3 If the Agreement is terminated by the Company under clause 15.1, or by the Customer under clause 15.2, the Company shall reimburse the Customer any amounts paid in advance Taggd for the period following termination.
15.4 If this Agreement is terminated by the Customer under clause 15.1, or by the Company under clause 15.2 , then no refunds shall be payable to the Customer for any amounts paid in advance.
15.5 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
15.6 All provisions of this Agreement which by their nature should survive termination shall survive termination, including intellectual property rights, limitation of liability, disclaimer of warranty and indemnification, including and especially the grant of licence under clause 3.1(b).
16.1 For any dispute between the Company and the Customer, the following process shall apply:
(a) Negotiation. If there is a material dispute between the parties relating to or arising out of this Agreement, then within 10 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Court Proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause, unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that damages would otherwise be inadequate to compensate.
17.1 The Customer can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the Customer of a change of details from time-to- time.
17.2 The Company will send the Customer notices and other correspondence to the details that the Customer submits to the Company, or that the Customer notifies the Company of from time-to-time. It is the Customer’s responsibility to update its contact details as they change
17.3 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.
17.4 Notices must be sent to the parties’ contact details as specified in the Parties section of this Agreement.
18.2 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Customer.
19.1 Formation. This Agreement is formed when the Customer acknowledges their consent to this Agreement, whether done electronically or physically.
19.2 Electronic Communication & Notices.
(a) The parties acknowledge and agree that this Agreement is binding upon each party if executed digitally and conveyed by electronic communication.
(b) 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.
19.3 Prevalence. To the extent that any Special Conditions are inconsistent with these Terms of Service, the Special Conditions will prevail.
19.4 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.
19.5 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
19.6 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
19.7 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.
19.8 Liability for Expenses. Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement.
19.9 Inconsistency. If this Agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.
19.10 Counterparts. This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
19.11 Time. Time is not of the essence in this Agreement.
19.12 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.
19.13 Governing Law. This Agreement is governed by the laws of Victoria, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
19.14 Interpretation. Headings are only for convenience and do not affect interpretation. The following rules apply in this Agreement unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) A reference to a clause refers to clauses in this Agreement.
(d) A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
(e) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(f) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(g) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(h) 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.
(i) A reference to dollars or $ is to an amount the currency of the United States of America.