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TERMS AND CONDITIONS OF SERVICE BETWEEN You AND fleurieuguide.com and or Emjay Technology Systems
By having any information or listing by you included on the fleurieuguide.com
website or directory, You agree to the following Terms and Conditions of Service.
RECITALS
This is a legal agreement between You and fleurieuguide.com.
The terms and conditions outlined below are designed to protect and benefit all
clients. In particular, the terms and conditions attempt to ensure that the
website and directory is used only for legal and appropriate purposes, and that
no client uses an "unfair" proportion of system resources.
Before placing Your information on the fleurieuguide.com website/directory, You
must read the Agreement and accept its terms and conditions.
If You do not wish to be bound by the terms and conditions of the Agreement,
You MUST NOT place any information, or any part thereof on the
fleurieuguide.com website/directory.
Definitions
"account" means all aspects of the Service provided to you under this
Agreement.
"Agreement" means these Terms and Conditions of Service.
"Claim" means any action, claim, demand, cost, loss, damage, (whether special,
indirect, consequential, general or any other damage), expense or other
liability (including for death and injury, and the costs of defending or
settling any Claim) whether arising in contract, negligence or any other
tortious action.
"Client" means any person to whom fleurieuguide.com or Emjay Technology Systems
provides the Service.
“Directory”, "directory listing" or “listing” means one or more entries into
the database that displays listing entries in the fleurieuguide.com online
directory whether paid or free.
"Force Majeure" means circumstances beyond the control of a party which
includes (but is not limited to) acts of God, perils of the sea or air, fire,
flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion
or civil authority, including acts of local government and parliamentary
authority, materials, breakdown of equipment and labour disputes of whatever
nature and for whatever cause arising including (but without prejudice to the
generality of the foregoing) work to rule, overtime bars, strikes and lockouts
and whether between either of the parties hereto and any or all of its
employees and/or any other employer and any or all of its employees and/or
between any two or more groups of employees (and whether of either of the
parties hereto or any other employer), acts of war (declared or undeclared) or
terrorism.
"fleurieuguide.com", "we", "our" and "us" means fleurieuguide.com or Emjay
Technology Systems which are both registered SA businesses and any of their
employees, proprietors or associates personnel. "person" includes an
individual, a body corporate, office, commission, authority, committee,
tribunal, board, institute, organization or other body however described.
"Service" means the listing of Your information on the fleurieuguide.com
website directory and website.
"website" includes all aspects of the Service (website, mail facilities, FTP
access etc).
"You" and "Your" means the person who agrees with fleurieuguide.com to have a
listing or information hosted on fleurieuguide.com directory.
Order Details and Processing
You confirm that the details You have provided to fleurieuguide.com
when registering and placing listings are complete and correct.
We reserve the right to decline Your inclusion in the directory. If Your
listing(s) is declined then we will refund Your associated payment (if any)
within seven days.
Conduct
You must not:
access the accounts and listings of other Clients, other than in the course of
ordinary, legal, business or consumer access;
hinder the operation of our service in any way; attempt to access or list any
files and/or directories that are not Your own;
obtain, or attempt to obtain, any system information unless it is required to
complete ordinary website management tasks.
Password Security
You must keep confidential, all passwords created or used in relation
to the Service.
You must not:
make any password created or used in connection with the Service, available to
the public or to groups of people;
allow the public or any other groups of people to access any of Your accounts,
other than as agreed by fleurieuguide.com.
Acceptable Content
Your listings must not contain any material, or contain a link to any material
or website, which is unlawful, pornographic, sex-industry-related, sexually
explicit, gambling-related, threatening, hateful, obscene, racist, libelous,
defamatory, highly controversial or which encourages unlawful behaviour.
This includes, any information, website or web page which contains depictions
of nudity, material relating to hacking or any pirated software.
If we determine, at our sole discretion, that Your listing contains any
unacceptable content, or a link to any unacceptable content, we may cancel Your
account and inclusion immediately, and without notice.
If a third party complains to us that Your listings includes claims about that
third party that are incorrect, libelous, defamatory or derogatory then we may,
at our discretion, insist that the related listing content be removed
permanently from Your listings, or we may remove such content ourselves without
notice.
No Mirroring
You must not use Your listing to mirror any material on any other website
without the written permission of fleurieuguide.com. fleurieuguide.com has sole
discretion to determine whether to grant permission to You to mirror another
website.
Notice
You agree to notify us promptly of any changes to Your email address
or other contact details.
Billing Cycle, Invoices and Payments
Other than free listings, proposed listings with fleurieuguide.com are subject
to approval and receipt of any payment of fees due. We reserve the right to
decline any request for a listing if payment of relevant fees are not received.
If Your payment is overdue then Your listing(s) may be suspended and/or removed
from our directory without notice.
If You accidentally make an additional and unnecessary payment for our service,
we will credit the additional funds to Your fleurieuguide.com account. At Your
request, we may consider refunding the additional monies paid by You, but will
deduct from the refund amount any expenses incurred by us, such as clerical
expenses and finance charges.
Generally, all fees are non-refundable. If however we decide that exceptional
circumstances apply then we will provide a refund, or partial refund, at our
discretion.
Prices
Prices are subject to change without notice. Any change in listing
fees will apply to Your next listing payment period, but will not be payable
for Your current listing period. Upgrades to listing are charged at the rate
current at the time of upgrade request and are current for the duration of the
upgraded listing period.
Goods and Services Tax (GST)
This section only applies to Australian customers. Words or expressions used in
this clause which are defined in the A New Tax System (Goods and Services Tax)
Act 1999 (Cth) have the same meaning in this clause. The following items
include goods and services tax (GST): the fees payable by you for the Service;
and any other Taxable Supply made or provided by us to you, whether or not in
accordance with this Agreement. We will provide a Tax Invoice to you on or
before the time that GST is payable in accordance with this Agreement. GST is
payable to us by you at the same time as you pay the amounts referred to above
to us. If you fail to remit GST to us as otherwise required by this Agreement,
you will indemnify us for any Claim in relation to the GST that you failed to
remit.
Account / Listing Suspension
Fleurieuguide.com may, at its sole discretion, deactivate Your listings and or
account and revoke Your access to our directory. For example, Your listing or
account may be deactivated for late payment, or listing abuse. You acknowledge
that if Your listing or account is deactivated then fleurieuguide.com has no
obligation to provide You with a copy of Your listing content, or to restore
Your account access to enable You to obtain a copy of Your listing content.
Cancellation of Service
You may cancel the Agreement at any time by providing fleurieuguide.com with
written authorization to close Your listing account (the Service).
We reserve the right to cancel the Service for any reason, and at our sole
discretion. If You breach any of the terms and conditions in this Agreement we
may deactivate and/or remove Your listing from our database immediately and
without notice.
You acknowledge that fleurieuguide.com does not keep copies of listings that
are no longer listed with us, and that fleurieuguide.com has the right to
remove all listings at the time the Service is cancelled or discontinued.
Modifications to Service
fleurieuguide.com reserves the right to modify or discontinue the
Service (or any part thereof) as we see fit, with or without notice.
You agree that fleurieuguide.com will not be liable to You or any other party
for such modifications to the Service. fleurieuguide.com reserves the right to
update these Terms and Conditions from time to time.
Any updates to these Terms and Conditions will apply to the Service from the
time that this Agreement is updated on the fleurieuguide.com site.
Right to Outsource
At our sole discretion, we may outsource the Services or the performance of any
work, or part thereof, relating to the Services to any party as we see fit.
Intellectual Property
You agree to indemnify, hold harmless and defend at your own expense
us from and against any and all Claims for infringement of copyright, patents,
trade marks, industrial designs or other intellectual property rights issued
under the laws of any country where the copyright, patents, trade marks,
industrial designs or other intellectual property were provided by you, or
where you represented, expressly or impliedly, that the copyright, patents,
trade marks, industrial designs or other intellectual property were your
intellectual property.
We undertake to give you prompt notice of any Claim described above that is
made against us or any of our subsidiaries, dealers or customers and you will
forthwith defend any such Claims and make settlements thereof at your own
expense. You acknowledge that any and all of the copyright, patents, trade
marks, industrial designs or other intellectual property rights used or
subsisting in or in connection with our business, marketing and/or support
material relating to our business and all documentation and manuals relating
thereto are and will remain our property and you will not, during or at any
time after the expiry or termination of this Agreement, in any way question or
dispute the ownership by us thereof.
You will not, during or after the expiry or termination of this Agreement,
without the prior written consent of us, use or adopt any name, trade name,
trading style or commercial designation that includes or is similar to or may
be mistaken for the whole or any part of any trade mark, trade name, trading
style or commercial designation used by us.
Severability
If any part of this Agreement is deemed to be unenforceable or
otherwise invalid then that will not affect the validity nor enforceability of
any other parts of this agreement.
Jurisdiction
This agreement shall be interpreted under the laws of the Australian Capital
Territory (ACT), Australia, and both parties agree that any legal action or
proceedings relating to this agreement shall be settled in the courts and/or
tribunals in the Australian Capital Territory (ACT), Australia.
Force Majeure
Neither party will be liable to the other party in respect of anything
which, apart from this provision, may constitute breach of this Agreement
arising by reason of Force Majeure.
Waiver
Failure or neglect by us to enforce, at any time, any of the
provisions of this Agreement will not be construed or deemed to be a waiver of
our rights hereunder nor in any way affect the validity of the whole or any
part of this Agreement or prejudice our rights to take subsequent action.
Headings
The headings of the terms and conditions contained in this Agreement are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of any of the terms and conditions
of this Agreement.
Assignment
You may not assign, attempt to assign nor otherwise transfer any right
or obligation arising out of this Agreement without our written consent.
Limitation of Liability
WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE
FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF (INCLUDING BUT NOT LIMITED TO
DAMAGE, LOSS OR CORRUPTION OF DATA, SERVICE INTERRUPTIONS OR ERRORS, INACCURATE
ADVICE PROVIDED TO YOU AND/OR YOUR CLIENTS, OR LOSS OF PROFIT, BUSINESS,
REVENUE, GOODWILL OR ANTICIPATED SAVINGS), EVEN IF YOU HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE.
THE AGGREGATE LIABILITY OF US FOR ANY CLAIMS HOWSOEVER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED OR TO BE
FURNISHED BY US UNDER THIS AGREEMENT WILL, IN ANY EVENT, BE ABSOLUTELY LIMITED
TO THE AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE APPLICABLE
PRODUCTS AND/OR SERVICES.
YOU ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN
RELIANCE UPON THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT
THE SAME FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE
PARTIES AGREE THAT THE LIMITATION OF LIABILITY SPECIFIED IN THIS AGREEMENT WILL
SURVIVE AND APPLY EVEN IF ANY LIMITATION OF REMEDIES IS FOUND TO HAVE FAILED OF
ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN
WILL LIMIT YOUR LIABILITY FOR ITS OWN WILFUL OR WANTON CONDUCT.
NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED HEREIN, WHERE ANY ACT OF THE
AUSTRALIAN PARLIAMENT IMPLIES ANY TERM INTO THIS AGREEMENT, AND THAT ACT AVOIDS
OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING SUCH TERM, THAT
TERM WILL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT, BUT OUR LIABILITY FOR
BREACH OF THAT TERM WILL BE LIMITED IN ONE OR MORE OF THE WAYS (AT OUR OPTION)
PERMITTED BY SECTION 68A(1) OF THE TRADE PRACTICES ACT 1974 (CTH).
Disclaimer
We make no statement, warranty, representation or promise not
expressly set out in the Agreement, or required by law. We expressly disclaim
all warranties, representations or promises in relation to the Service.
