1. APPLICABILITY AND ACCEPTANCE OF THESE TERMS & CONDITIONS
1.1 These Terms and Conditions apply to each order that Focal Attractions Pty Ltd (ACN 121 918 090) (we) accepts from a customer (you) for the supply of products or services via the website at www.mumbrella.com.au/pro (Website) and to your use of the Website. These Conditions do not apply if you are a reseller or you purchase products and services for which there are separate terms and conditions specific to those products and services. Contact your customer service representative for the relevant terms.
1.2 Your acceptance of products and services (including any subscription) from us and/or your use of the Website is deemed acceptance of these Conditions. No variation by you of these Conditions will be valid unless our authorised representative gives you written confirmation that that variation is accepted.
1.3 We may make changes to these Conditions from time to time to accommodate changes in law, business practice or the introduction of new products or services. If we do, we will notify you in writing (which may be via electronic communication) at least 30 days before those changes take effect. Your acceptance of further products and services and/or payment of further instalments due and/or your use of the Website after the date we notify you of a change is deemed acceptance of those changes. If you do not want to accept the changes, you are entitled to terminate any ongoing subscription affected by notice to us before the changes take effect. Your cancellation will be effective at the end of your current billing cycle.
1.4 For the purposes of these Conditions:
(a) a reference to writing includes any method of representing words, figures or symbols in a permanent and visible form including online or in an electronic communication;
(b) a reference to online or to an electronic communication includes a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy, including by means of the Internet.
2. PRICES, CHARGES AND PAYMENT
2.1 The minimum subscription period for the Website is one (1) month. If you pay your subscription fee on a monthly basis your subscription will continue on a rolling monthly basis (Monthly Subscription) unless you cancel or we terminate your Monthly Subscription in accordance with these Conditions. If you pay your subscription fee on an annual basis your subscription will continue on a rolling annual basis (Anuual Subscription) unless you cancel or we terminate your Annual Subscription in accordance with these Conditions. By subscribing to the Website and providing us with your credit card details, you authorise us to charge your credit card a Monthly Subscription fee, or an Annual Subscription Fee, which ever applies to you, at the then current monthly rate for the Website, or the then current annual rate for the Website, which ever applies to you, in accordance with this Clause 2.
2.2 Notwithstanding your form of subscription to the Website, be it a Monthly Subscription, Annual Subscription, or any other form of subscription, if your subscription refers to the capacity for unlimited users to access the Website through your account, we hold and will exercise the final and unfettered discretion as to who may access the Website through your account. For clarity, any reference to unlimited users is referring to an unlimited number of users from any one agency, business or brand, and not an agency, business or brand’s broadly associated or affiliated companies, or a group of companies that may be united under one broader commercial banner.
2.3 Your access to the Website may include a free trial period or other promotional discount or benefit (Promotional Offer). We reserve the right to offer, withdraw change, cancel or determine your eligibility for any Promotional Offer in our absolute discretion. Promotional Offers may be subject to terms and conditions which shall apply in addition to, and prevail to the extent of any inconsistency with, these Conditions. Promotional Offers may include an option to pay the first 12 months of your subscription upfront at a discounted rate notified to you at the time. After the initial 12 months expires, we will commence billing your Monthly Subscription fees on a monthly basis, unless you cancel your subscription before the end of the initial 12 month period.
2.4 Where offered, free trials are open to new subscribers only. If your subscription commences with a free trial, you will be required to provide your credit card details when you subscribe but you will not be charged for the free trial period. We will commence billing your Monthly Subscription fees at the end of the free trial period, unless you cancel your subscription before the end of the free trial period.
2.5 Where offered, $1-for-one-month trials are open to new subscribers only. If your Monthly Subscription commences with a $1-for-one-month trial, your credit card will be debited $1 for the first month (30 days) of your Monthly Subscription. We will commence billing your Monthly Subscription fees at the end of the trial period, unless you cancel your subscription before the end of the trial period.
2.6 The Monthly Subscription fee will be charged to your credit card in advance of each Monthly Subscription period. Your first Monthly Subscription period begins when you subscribe to the Website, subject to any Promotional Offer. At the end of each Monthly Subscription period, we will automatically renew your Monthly Subscription and charge your credit card the Monthly Subscription fee unless and until you cancel your subscription.
2.7 The Annual Subscription fee will be charged to your credit card in advance of each Annual Subscription period. Your first Annual Subscription period begins when you subscribe to the Website, subject to any Promotional Offer. At the end of each Annual Subscription period, we will automatically renew your Annual Subscription and charge your credit card the Annual Subscription fee unless and until you cancel your subscription.
2.8 If you subscribe to an online service that permits you to purchase access to additional data on a transactional basis, you will be charged per transaction.
2.9 If we have to convert the price or the charge for the cost of importation from another currency, you agree that we have absolute discretion in relation to the exchange rate used to make the conversion.
2.10 All American Express payments are subject to a surcharge. We reserve the right to make changes to this surcharge from time to time or to extend the surcharge to other methods of payment. If we do make any changes, we will give you reasonable notice in writing before the changes take effect.
2.11 We may make available or send documents and information to you, including invoices, by means of an electronic communication. You acknowledge that we are not liable in respect of:
(a) any error, omission or loss of confidentiality arising from an electronic communication;
(b) any unauthorised copying, recording or interference with a document;
(c) any delay or non delivery of a document; or
(d) any damage caused to your system or files by such electronic transmission (including by any computer virus).
2.12 Your subscription to the Website is not confirmed until validation of payment and the first full Monthly Subscription fee or the first full Annual Subscription Fee (whichever applies to you) is credited to us.
2.13 You must ensure that the details of your credit card remain up to date and accurate. If we are unable to collect the Monthly Subscription fee, Annual Subscription fee (or any other fees or charges payable) for any reason including, without limitation, expiry or lack of funds, you remain responsible for any uncollected amounts and we may suspend or cancel your subscription or order for products or services without giving you notice.
2.14 We may change the price of our service from time to time, including the applicable Monthly Subscription fee; however, any price changes will apply to you no earlier than 30 days following notice to you. If under a Monthly Subscription, you have paid the first 12 months of your subscription upfront or have subscribed for 12 months at a fixed monthly rate (where offered) any changes in the Monthly Subscription fee will apply to you after the expiry of the initial 12 month period. If you have subscribed for an Annual Subscription, any changes in the Annual Subscription fee will apply to you after the expiry of the 12 month period.
3. RISK AND TITLE
3.1 Your entitlement in relation to any service is limited to a licence only for the subscription period. Ownership is reserved to us.
3.2 We grant to you a non-exclusive, non-transferable limited licence to:
(a) access and use data made available on the online service operated by us that you have chosen to subscribe to in your order;
(b) download and temporarily store insubstantial portions of such data to a storage device under your exclusive control;
(c) internally display such downloaded data; and
(d) reproduce such data subject to the further limitations set out in these Conditions.
3.3 You are licenced to access and make use of such data in Australia only, unless specified otherwise in your order.
3.4 Where you have purchased access to data on a transactional basis, that data will be made available to you on a single subscriber basis only for a period of 24 hours. You may not distribute that data to other users or third parties unless you have obtained an express licence from us for that purpose.
3.5 The purchase of a subscription does not constitute the assignment of any intellectual property rights in the works provided as part of that subscription to you.
4. SUPPLY OF SUBSCRIPTION PRODUCTS AND SERVICES
4.1 When your order for a subscription product or service is accepted, we will:
(a) supply that product or service to you for an initial subscription period of one month, or for an initial subscription period of twelve months, which ever applies to you, (initial period); and
(b) continue to supply that product or service to you after the initial period has expired in accordance with clause 6.
4.2 We can immediately cancel or suspend your subscription to a product or service at any time in accordance with clause 7.
5. USE OF THE PUBLICATIONS
5.1 The publications appearing on the service are not a substitute for legal or other professional advice.
5.2 Information appearing in the publications available on the service may only be used by authorised users in the ordinary course of business and expressly for:
(a) the purposes of research, study, supplying educational services or the giving of professional advice; or
(b) inclusion in essays, theses, professional advices, papers, submissions, communications to and publications for students, clients and potential clients, the preparation of tenders, reports, submissions and other like documents (work product), provided:
(i) reproduction of content in work product does not represent a substantial proportion of the content of any single publication accessed via the service;
(ii) users may not undertake these activities for or on behalf of a third party unrelated to your organisation;
(iii) the work product is not made available for sale;
(iv) attribution to the author is expressly made;
(v) where you have subscribed to a news service, you may not communicate, download or reproduce any content from that service at all without first obtaining our express prior written permission; and
(vi) recipients of the work product are not permitted to make further reproductions of such material.
5.3 If the service to which you subscribe is a service that contains or comprises precedent forms or agreements, you may download a precedent in whole or in part and merge it with your work product without attribution to the author, provided that you nevertheless comply in all other respects with the provisions of these.
5.4 Certain software you use may not be capable of supporting the service and the performance of the service will vary with the hardware on which it is used. You must check that your network is capable of supporting the service before completing your order.
6. RENEWAL OF SUBSCRIPTIONS
6.1 Your Monthly Subscription will continue on a month by month basis subject to these Conditions, or your Annual Subscription will continue on an annual basis subject to these Conditions, which ever applies to you, as amended from time to time unless you cancel your subscription in accordance with clauses 6.3 and 6.4 below.
6.2 The price for your Monthly Subscription or your Annual Subscription will remain the same unless you are notified in accordance with clause 2.14.
6.3 You may cancel a Monthly Subscription or Annual Subscription at any time. For a Monthly Subscription, cancellation is effective at the end of the current monthly billing cycle and your access to the Website (or any other products and or services under your subscription) will be disconnected from this date. For an Annual Subscription, cancellation is effective at the end of the current annual billing cycle and your access to the Website (or any other products and or services under your subscription) will be disconnected from this date. You will continue to have access to the products and services under your subscription during the cancellation period. If your subscription commenced with a free trial and you cancel your subscription during the free trial period, cancellation is effective immediately and your access to the Website (or any other products or services under your subscription) will be disconnected from the date you cancel.
6.4 Notice of cancellation of your Monthly Subscription or Annual Subscription must be via telephone call to the Website Team on +61 2 8296 0203.
6.5 If under a Monthly Subscription you signed-up to a 12 month subscription paid upfront, you may notify us that you would like to cancel your subscription at any time in accordance with clauses 6.3 and 6.4, but you will not be refunded any amount already paid to us for your subscription. If under a Monthly Subscription you have paid for your 12 months subscription upfront, you will continue to have access to the products and services under your subscription until the end of your initial 12 month period and your access to the Website (or any other products and or services under your subscription) will be disconnected from this date.
6.6 If you signed-up to a Promotional Offer for a 12 month subscription to be paid monthly, you may notify us that you would like to cancel your subscription at any time in accordance with clause 6.4 however you agree that we may debit your credit card for the full 12 months of your initial subscription. You will have access to the products and services under your subscription during this period as per clause 6.5.
7. SUSPENSION OR MODIFICATION OF THE SERVICE
7.1 We may discontinue, cancel, suspend or revise any or all aspects of the service or publications appearing on the service (including, without limitation, the supply of any publication through the service) at our sole discretion and without prior notice to take account of (for example but without limitation) changes in law or circumstance relating to the publication of that service.
7.2 We may suspend or cancel your access to the service, in whole or in part, until further notice, with immediate effect:
(a) for any reason we determine in our sole discretion;
(b) to periodically maintain or improve the publications or the service and related systems;
(c) to comply with any order, instruction or request of any government, any emergency services organisation, or other competent judicial, administrative or regulatory authority;
(d) if we believe that the service or the publications may be used in such a way as may constitute a breach of any provision of these Conditions;
(e) if we have reasonable grounds to suspect that there has been unauthorised access to your subscription or that you have committed or may be committing any illegal or fraudulent activity in connection with your subscription;
(f) if you breach any part of these Conditions; or
(g) if you fail to pay all or part of any fee by the due date.
7.3 We will endeavour, where possible to provide you with reasonable notice of such suspension or cancellation.
7.4 Whilst we will use our best endeavours to minimise disruption to the service, unscheduled outages may occur from time to time.
8. UNANTICIPATED EVENTS
Neither you nor we will be liable for any failure to perform any obligation to the other under these Conditions due to causes beyond your or our respective reasonable control.
If you default in performing your obligations under these Conditions and we incur expenses in enforcing our rights under these Conditions (for example and without limitation, expenses incurred by us in recovering any moneys owed by you to us), you must pay to us any reasonable costs on demand (including all legal costs on a full indemnity basis).
10.2 For any information you provide to us when completing registration on this Website, purchasing subscriptions through this Website or otherwise using this Website or the services offered on this Website, you authorise us to use, store or process any personal information which relates to and identifies you, including but not limited to your full name, residential address, postal address, contact telephone number, mobile telephone number and current and valid email address (Personal Information), to the extent reasonably necessary to supply the subscriptions available through this Website.
(b) if you send us personal correspondence such as an email or letter, then we may collect this information into a file specific to you.
10.4. By accepting these Terms, you agree to the processing and disclosure of your Personal Information for the Purposes. You also agree that the Purposes may be amended to include other uses or disclosures of your Personal Information following notification to you by means of a notice on this Website, which you should check regularly. If you would like to review or modify any part of your Personal Information, then you should log into your account and make the changes necessary or notify us at Mumbrella House, 46-48 Balfour Street, Chippendale, NSW 2008.
11.1 When using the publications and the service, you must comply with the law including, without limitation, copyright laws.
11.2 This data has been seeded to prevent theft. Replication of this data is strictly forbidden without written permission from Focal Attractions Pty Ltd. Focal Attractions Pty Ltd will take all necessary steps to protect its copyright.
11.3 Unless permitted by law or as otherwise expressly permitted in these Conditions, you must not, nor must you authorise any third person to:
(a) reproduce, copy, download, scrape, store, publish, transmit, transfer, communicate, distribute, disseminate, sell, rent, lend or otherwise use the publications or the service, or any part of the publications or service, in any form or by any means;
(b) modify or make any alterations, additions or amendments to any part of the publications downloaded from the service;
(c) make the service available to any person other than an authorised user;
(d) convert material downloaded from the service into an electronic format other than the one in which it was supplied;
(e) reverse engineer, decompile, disassemble or otherwise attempt to discern the source code of the components of the service or reproduce all or any portion of the said components;
(f) remove, alter, circumvent or tamper with any trademarks, copyright notices, copyright protection devices, disclaimers or other legal notices;
(g) combine the whole or any part of the data available on the service with any other software, data or material; or
(h) store or use any part of such data in an archival database or other searchable database except as forming part of any work product.
12.1 In these Conditions the terms “GST”, “supply” and “tax invoice” have the meaning given to those terms in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) or any regulations made pursuant to the GST Act and the term “GST” also includes any penalties or additional tax imposed in relation to the GST payable in relation to the supply of services under these Conditions.
12.2 Any amount payable by you under clause 2 is exclusive of GST.
12.3 If the amount of GST paid or payable by us on a sale made to you differs from the amount of GST you have paid to us for the products or services sold, then the amount of GST paid by you will be adjusted either by further payment by you to us or repayment to you by us of the amount of the adjustment.
12.4 In relation to any GST paid by a party under these Conditions, including any adjustment, the payee will provide the payer with a valid tax invoice, as defined in the GST Act or any regulation made pursuant to the GST Act.
13. TERMINATION FOR BREACH
Without prejudice to any other right at law or under these Conditions, either party may terminate these Conditions by giving written notice, if the other party has failed to remedy a material breach of any term of these Conditions within 21 days of being given written notice of the breach (the notice to include details of the relevant breach). Where you have breached a material term we may elect, in the alternative, to cease supply of products or services to you until we are reasonably satisfied that you have remedied the breach.
14. DISCLAIMER OF LIABILITY AND WARRANTIES
14.1 If any law or regulation including but not limited to the Competition and Consumer Act 2010 (Cth), including the Australian Consumer Law, confers rights and remedies on you in relation to the provision by us of products or services ordered by you which cannot be excluded, restricted or modified (Non-excludable Rights), we do not exclude any Non-excludable Rights but we do exclude all other conditions and warranties implied by custom, law or statute.
14.2 Except as provided for by the Non-excludable Rights:
(a) all products and services ordered by you are provided without warranties of any kind, either express or implied;
(b) we do not warrant that those products and services will be complete or free from all errors;
(c) we do not warrant that information will continue to be available to us to enable us to keep those products and services up-to-date; and
(d) all representations are expressly excluded and you have not relied on any representations in ordering products and services from us.
14.3 Subject to clause 14.1, under no circumstances (including but not limited to any act or omission on our part) will we be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which results from any use, or any inability to use, our products or services.
14.4 To the fullest extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded, but can be limited, is limited, at our option to supply of the good or service ordered by you again or paying for their resupply.
15. GOVERNING LAW
These Conditions will be governed by and construed according to the law of New South Wales and the parties agree to submit to the jurisdiction of the courts and tribunals of or exercising jurisdiction in that State.