ONLINE PLATFORM AGREEMENT

TABLE OF CONTENTS


1.          definitions

1.1         Parties

1.2         Definitions

2.          LEGAL RELATIONS

2.1         This Agreement is a legal contract

2.2         Amending this Agreement

3.          Listing eligibility and application

3.1         Eligibility for listing

3.2         Assessing your listing application

4.          acceptance of your listing application

4.1         Agreement to display Listing

4.2         Non-exclusive

5.          Listing RULES

5.1         Populating Your Listing

5.2         Listing content

5.3         Checking your Listing

5.4         Copyright licence

5.5         Safeguarding Your log-in

6.          LISTING PERIOD

6.1         Listing Period

6.2         You may cancel your listing

6.3         We may cancel your listing

7.          Payment

7.1         Initial Listing Period payment

7.2         Further Listing Period payment

8.          Notices

8.1         Notices in writing

8.2         How notices are given

8.3         When notices are deemed to be given

9.          INDEMNITY AND LIABILITY

9.1         Our warranties to you

9.2         Our liability to You for third party conduct

9.3         Our liability to you – general

9.4         Your warranties to Us

9.5         Your indemnity to Us

10.         FORCE MAJEURE

11.         APPLICABLE LAW

11.1 Applicable law

11.2 Determination of dispute

12.         Severance

13.         Counterparts and multiple originals

14.         Assignment




ONLINE PLATFORM AGREEMENT

IMPORTANT NOTICE: BY CLICKING ON “I ACCEPT” AT THE FOOT OF THIS DOCUMENT, YOU AGREE TO ENTER INTO A LEGALLY BINDING AGREEMENT WITH US.
1.          definitions

1.1          Parties

In this Agreement:

(a)          “LISMN”, “Us” and “We” means LISMN Pty Ltd (ACN 168 562 150) of PO Box 304, Narre Warren North, Victoria 3804, Australia.

(b)          “You” means the individual named in the Particulars.

1.2          Definitions

In this Agreement unless stated otherwise:

“ABN” has the same meaning as under the A New Tax System (Australia Business Number) Act 1999 (Cth);

“ACL” means the Australian Consumer Law contained in Schedule 2 of the CCA;

“Agreement” means this Agreement including the schedules thereto;

“ASB Code” means a code issued by the Advertising Standards Bureau Ltd (ACN 084 452 666);

“Business Day” means any day other than a Saturday, Sunday or a public holiday in the “metropolitan municipal district” under the Public Holidays Act 1993 (Vic);

“Business Hours” means the hours of 8.30 am to 5.30 pm Melbourne time on a Business Day;

“CCA” means the Competition and Consumer Act (Cth) 2010 and any regulations made under that legislation and as amended from time to time;

“Corporations Act” means the Corporations Act 2001 (Cth) and any regulations made under that legislation and as amended from time to time;

“Directory” means an online directory of businesses related to the School community; Directory may often be referred to as a platform.

“Force Majeure” means any event or condition not existing at the date of this Agreement, not reasonably foreseeable as of such date and not reasonably within the control of any party, which prevents in whole or in material part the performance by one of the parties of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable, including (but not limited to):

(a)          war or warlike conditions, riot or civil commotion, terrorism, mobilisation, insurrections;

(b)          import or export bans, blockades or embargoes;

(c)          statutory or union contract reductions in working hours, strike or lockout or other labour conflicts; or

(d)          natural catastrophe, earthquakes, storms, weather, floods, fires, epidemics;

“Further Listing Fee” means the fee payable in respect of Further Listing Periods set out in the Particulars;

“Further Listing Period” means one or more listing periods after the end of the Initial Listing Period of the duration set out in the Particulars;

“Government Authority” means any governmental or semi-governmental or local government authority, administrative or judicial body, tribunal or court, department, commission, public authority, Minister, statutory corporation, authority or instrumentality.

“GST” means any tax calculated by reference to the value of goods or services provided, calculated and levied at the point of sale or supply of the goods or services and includes GST within the meaning of that abbreviation in the GST Act;

“GST Act” means A New Tax System (Goods and Services) Tax Act 1999 (Cth) and includes other GST related legislation and regulations under the legislation and as amended from time to time;

“Indemnified Persons” means Us, Our Related Entities, the School, and their officers, employees and contractors;

“Initial Listing Period” means the initial listing period as defined in clause 6.1(a);

“Intellectual Property” means all current and future registered and unregistered trademarks, trade names, business names, service marks, domain names, patents, inventions, processes, technical know how, slogans, logos, emblems, registered and unregistered designs, copyright and other intellectual property rights;

“Listing” means a listing in the Directory;

“Listing Period” means the Initial Listing Period and any Further Listing Periods;

“Listing Restrictions” means restrictions on certain businesses or types of businesses being listed in the Directory as determined by the School from time to time;

“Publication” means a written publication, film, audio recording, all being in electronic downloadable format without any physical media;

“Related Entity” means a related entity as defined by the Corporations Act 2001 (Cth);

“School” means the school named in the Particulars;

“Taxable Supply” has the same meaning as under the GST Act;

“Tax Invoice” has the same meaning as under the GST Act;

“Work” means a “work”, “cinematograph film” or “sound recording” as those words are defined under the Copyright Act 1968 (Cth).
2.          LEGAL RELATIONS

2.1          This Agreement is a legal contract

(a)          This Agreement is intended to create a legally binding contract between You and Us, on the terms set out herein.

(b)          This Agreement comprises these terms and conditions and the Particulars.

2.2          Amending this Agreement

(a)          We may amend this Agreement from time to time by giving You notice.

(b)          You are deemed to have agreed to the amendment, and will be bound by the new Agreement, unless you do not give us notice within 10 Business Days to terminate this Agreement.
3.          Listing eligibility and application

3.1          Eligibility for listing

(a)          The Directory is specific to a particular School community.

(b)          To be eligible to list your business in such Directory or Platform:

(i)          where You operate your business as a sole trader or partnership, You must meet the School Community Requirements;

(ii)          where You operate your business as a body corporate, You must be:

(A)          an owner of at least 5% of the shares in that body corporate;

(B)          a director of that body corporate; or

(C)         a senior manager within that business; and

(iii)          your business must not contravene the Listing Restrictions.

(c)          You must remain eligible at all times that you maintain a listing in the Directory.

3.2          Assessing your listing application

(a)          We will consider your listing application after We receive it. We will notify You of the acceptance or refusal of your listing application.

(b)          We may refuse your listing where:

(i)          We or the School does not believe that you meet the eligibility requirements under paragraph 3.1(b); or

(ii)          the School alters its Listing Restrictions so that you are no longer eligible for listing.
4.          acceptance of your listing application

4.1          Agreement to display Listing

(a)          Once We give You notice of acceptance of your listing, We agree to display your listing in the Directory, subject to the terms of this Agreement and your continued eligibility pursuant to clause 3.1.

(b)          Your Listing will appear in alphabetical order within Your relevant Listing category, subject to any priority listings that You or other persons have purchased.

4.2          Non-exclusive

Our arrangement with You is not exclusive. We may also allow similar businesses in the Directory.
5.          Listing RULES

5.1          Populating Your Listing

(a)          You must enter and maintain correct and current information into the Directory, including:

(i)          your legal individual or corporate name, or registered business name;

(ii)          ABN;

(iii)          correct current contact details.

(b)          You are responsible for entering or uploading any text, contact details and images into the Directory. We are not responsible for checking the accuracy of your material.

(c)          You may edit your uploaded material during the Listing Period.

(d)          You acknowledge that your Listing in the Directory is subject to clause 5, and We may suspend, amend and require You to amend material that We believe breaches clause 5.

5.2          Listing content

(a)          Your Listing must not:

(i)          be defamatory, pornographic, discriminatory, offensive, obscene or illegal material;

(ii)          breach third party Intellectual Property rights;

(iii)          be misleading or deceptive, or materially incorrect;

(iv)         breach any law, including the ACL;

(v)          breach any ASB Code;

(vi)         advertise any good or service:

(A)          that you are not licensed to supply (if a licence is required to do so);

(B)          that breaches any third party Intellectual Property rights;

(C)         the supply of which by You would breach any law, including the ACL.

5.3          Checking your Listing

(a)          We may review (but are not obliged to do so) Your listing prior or subsequent to displaying such listing in the Directory.

(b)          We may in our sole discretion without notice to You wholly or partly remove any material that We believe contravenes clause 5 or is otherwise inappropriate or undesirable in our sole judgement.

5.4          Copyright licence

(a)          You grant to Us a transferable worldwide licence to use, publish and reproduce Your listing for the duration of the Listing Period, and to allow other users of the Directory to do so:

(i)          during the Listing Period;

(ii)          for a reasonable time after the end of the Listing Period to allow Us sufficient time to remove Your Listing; and

(iii)          after the end of the Listing Period where Your listing or any part of Your listing features in any marketing material or social media posts published by Us or the School.

(b)          You agree that You can only terminate that licence by terminating this Agreement.

5.5          Safeguarding Your log-in

Any changes made to or under this Agreement using your log-in name and password will be deemed to have been made by You. We are entitled to treat any such communication as coming from and being authorised by You.
6.          LISTING PERIOD

6.1          Listing Period

(a)          The Initial Listing Period will be:

(i)          where You apply for listing before the initial commencement of the Directory, for 12 months from when the Directory commences public operations;

(ii)          where You apply for listing after the initial commencement of the Directory, for 12 months from when you are notified of acceptance of your application.

(b)          After the 12 month Initial Listing Period, your listing will automatically renew for Further Listing Periods unless and until cancelled.

6.2          You may cancel your listing

(a)          You may cancel your listing at any time after the end of the Initial Listing Period by using the cancellation facility within the Directory.

(b)          If you cancel your listing:

(i)          at least 3 Business Days before the commencement of the next Further Listing Period then the Listing Period will end at the end of the Initial Listing Period or current Further Listing Period as the case may be;

(ii)          less than 3 Business Days before the commencement of the next Further Listing Period then the Listing Period will end at the end of that next Further Listing Period.

(c)          Subject to Your statutory rights under the ACL, refunds are not available for purchases of listing packages.

6.3          We may cancel your listing

(a)          We may in our absolute discretion:

(i)          shut down the Directory; or

(ii)          abolish a category in which You list; or

(iii)          cancel your Listing.

In this case We will refund to You the unused portion of the listing cost for the Initial Listing Period or current Further Listing Period (as the case may be) on a pro rata basis and this will be Your sole remedy.

(b)          We may suspend your listing if:

(i)          you fail to pay the fees for a Further Listing Period;

(ii)          you are in breach of this Agreement;

(c)          We may cancel your listing if your failure to pay under paragraph (b)(i) or your breach under paragraph (b)(ii) continues for more than 5 Business Days.

(d)          In the event of suspension or cancellation under paragraphs (b) or (c) You will not be entitled to any refund.
7.          Payment

7.1          Initial Listing Period payment

(a)          You must pay for any listing at the time of application using such payment facilities as We provide from time to time.

(b)          If your payment is processed before your listing application is considered and your listing application is refused then We will refund that payment.

(c)          If your payment is not processed before your listing application is considered and your listing application is accepted then We will process the payment at that time.

7.2          Further Listing Period payment

(a)          All Further Listing Periods are subject to your payment of the Further Listing Fee.

(b)          Payment of Further Listing Fees will be automatically processed using the payment details that You have provided to Us on the Business Day before the start of the Further Listing Period.

(c)          We may vary the Further Listing Fee by giving you notice of the new Further Listing Fee no later than 5 Business Days before the commencement of the next Further Listing Period. If we give you notice less than 5 Business Days before the commencement of the next Further Listing Period then the new Further Listing Fee will apply to the Further Listing Period immediately after the next Further Listing Period.
8.          Notices

8.1          Notices in writing

Notices under this Agreement must be in English and writing.

8.2          How notices are given

(a)          Notices under this Agreement may be given by email.

(b)          We may give notices to You at the email address that You provided to Us at registration or subsequently.

(c)          You may give notices to Us at accounts@lismn.com.au

8.3          When notices are deemed to be given

(a)          Notices are deemed to have been received one hour after sending.

(b)          If a notice is deemed to have been received under paragraph (a) outside of Business Hours, then the notice will be deemed to have been received at 8.30 am on the next Business Day.
9.          INDEMNITY AND LIABILITY

9.1          Our warranties to you

(a)          We do not warrant that the Directory will be available 100% of the time, and You agree that, subject to clause 9.3, We will not be liable to You where the Directory is unavailable from time to time due to:

(i)          maintenance;

(ii)          server or internet connection outages.

9.2          Our liability to You for third party conduct

(a)          We do not accept responsibility for any material that You or any other person upload or post on the Directory, or that You or any other person send to other registrants through the Directory, irrespective of whether We review such material. Such material, opinions or postings are not necessarily our views or opinions.

(b)          We do not accept responsibility for the acts or omissions of:

(i)          the School;

(ii)          any persons who list on the Directory;

(iii)          any persons whose websites We may link to on the Directory.

(c)          You agree that We are not responsible for anything that we are not responsible for under paragraphs (a) and (b). You will not make any demand or claim against us with respect to such material, act or omission.

(d)          You may not make any claim or demand on the School in relation to any act or omission that was solely our own and that did not involve an act or omission of the School.

9.3          Our liability to you – general

(a)          Except to the extent:

(i)          that the exclusion, restriction or modification of certain conditions, warranties, liabilities and rights is prohibited by the ACL; and

(ii)          of any express warranty against defects,

then:

(iii)          any conditions, warranties or rights implied to Your benefit by legislation, conduct or common business practice are hereby excluded to the maximum extent permissible; and

(iv)         We will not be liable for any defects or damage caused in whole or in part by misuse, abuse, neglect, or accident;

(v)          Our total maximum liability in relation to any goods is the amount paid by the You in relation to those goods.

(b)          Where the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Your remedy under Part 3-2 of the ACL, other than in respect of sections 51, 52 or 53, is limited to one or more of:

(i)          the replacement of the goods;

(ii)          the supply of equivalent goods; or

(iii)          the cost of replacing the goods or of acquiring equivalent goods;

(iv)         the cost of having the goods repaired.

(c)          Where any services supplied by Us are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Your remedy under Part 3-2 of the ACL is limited to one or more of:

(i)          the supply of the services again; or

(ii)          the payment of the cost of having the services supplied again.

(d)          Where We are deemed to be a “manufacturer” for the purposes of Part 5-4, Div 3 of the ACL, then where the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Company’s liability under section 274 of the ACL is limited to the lowest of:

(i)          the cost of replacing the goods;

(ii)          the cost of obtaining equivalent goods;

(iii)          the cost of having the goods repaired.

(e)          The limitation in paragraphs (b), (c) and (d) above do not apply where You establish that the limitation is not fair and reasonable.

9.4          Your warranties to Us

(a)          You warrant that all information that You provided to Us at the time of registration is wholly true and correct.

(b)          You must advise us of any material change to such information before continuing to use the Website.

9.5          Your indemnity to Us

You agree to indemnify and hold harmless the Indemnified Persons against any loss, damage or cost arising from any claim made by other registrants or third parties arising out of your use of the Directory or the content of the listing, including with respect to any claim for defamation or breach of Intellectual Property rights.
10.          FORCE MAJEURE

If a Force Majeure arises so as to wholly or partly prevent or delay either party performing its obligations under this Agreement, the affected party will:

10.1 not be liable for failing to perform this Agreement to the extent that it is prevented from doing so by the Force Majeure;

10.2 use reasonable endeavours to remove the Force Majeure as quickly as practicable, but shall not be liable to settle any strike, lockout or other labour difficulty on terms not reasonably acceptable to that party; and

10.3 notify the other party of the Force Majeure, its likely duration and the period (in that party's opinion) of any consequent delays or other relevant events.
11.          APPLICABLE LAW

11.1 Applicable law

This Agreement and any orders made through this Website are subject to the laws, and exclusive jurisdiction of the courts and tribunals, of Victoria, Australia and the federal courts and tribunals of Australia.

11.2 Determination of dispute

In the event of any dispute or claim arising under or related to this Agreement, Your use of the Website, Our use of the Website or any other person’s use of the Website, at Our sole discretion we may insist upon such dispute or claim being dealt with by commercial arbitration in Melbourne, Victoria, Australia under the rules set down by the Commercial Arbitration Act 1984 (Vic) or its successors.
12.          Severance

If any provision of this Agreement shall be held to be invalid or in any way unenforceable, it shall be severed and the remaining provisions shall not in any way be affected or impaired and this Agreement shall be construed so as to most nearly give effect to the parties’ intention when it was originally executed.
13.          Counterparts and multiple originals

This Agreement may be executed in any number of counterparts and all of those counterparts taken together will be deemed to constitute the same instrument.
14.          Assignment

(a)          This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties.

(b)          You may not assign this Agreement.

(c)          We may assign this Agreement by notice to you.

IMPORTANT NOTICE: BY CLICKING ON “I ACCEPT” AT THE FOOT OF THIS DOCUMENT, YOU AGREE TO ENTER INTO A LEGALLY BINDING AGREEMENT WITH US.