These Terms are between you or the company or personthat you represent (the Principal)and Awayco Pty Ltd ACN 617 972 139 (Awayco,we, us or our). If you areentering into these Terms on behalf of a Principal, you warrant that you havethe requisite authority to do so. These Terms apply unless you have anotheragreement with us in respect to access to the Platform.
These Terms provide the terms on which Awayco permits Users to:
(a) access and use theAwayco Platform (Platform) includingusing our website at www.awayco.com, services and functionality made available through thePlatform;
(b) view and interact withany content, information, communications, advice, text or other materialprovided by Awayco on the Platform (PlatformContent); and
(c) upload content, includingpictures, photographs, graphics, information, comment, content, communications,text or other material (User Content) tothe Platform.
You or the Principal may be a customer,an employee, agent, consultant, service provider, subcontractor (including athird party supplier) or a third party nominated by a Customer from time totime (collectively, you or your). You agree to be bound by these Terms when you use, browse or access anypart of the Platform.
Awayco may from time to time review and update theseTerms including to take account of new laws, regulations, products ortechnology. Your use of the Platform will be governed by the most recent Termsposted on the Platform. By continuing to use the Platform, you agree to bebound by the most recent Terms. It is your responsibility to check the Platformregularly for updated versions of the Terms.
If Awayco updates the Terms and you believe that thischange will have a detrimental impact on you or on your use of the Platform,you are entitled to terminate these Terms by giving Awayco notice of yourdecision no later than 30 days after the effective date of the change bycontacting Awayco at firstname.lastname@example.org with the subject line "Terminationfor Change", with a description of your request to terminate and yourcontact details. If you are moving to anaccount on our SaaS Platform, it is your obligation to take a copy of your UserContent to transfer to that account before providing this notice to Awayco aslater access may not be granted. Any other free account you have on thePlatform may also be cancelled and you must no longer access or use thePlatform under the suspended account(s).
You accept that Awayco provides a Platform only. Youruse of the Platform is permitted solely to allow you to view information ortrial our SaaS Platform products in a sandbox environment. You must not makeany User Content created and/or uploaded to the Platform available to thegeneral public or any third party, or use our Platform to promote, offer orsupply any products or services to any third party.
(a) if you are a Customer,you acknowledge and agree that:
(i) the Platform is a software servicethat enables you to view information or trial our SaaS Platform products in asandbox environment;
(i) the scope of our services under theseTerms consists of providing and making available the Platform; and
(ii) you are solely responsible for, andwe bear no responsibility for the User Content you create or upload to thePlatform, including any liability for its compliance with applicable laws.
(a) for all other viewers, youacknowledge and agree that:
(i) the scope of our services under theseterms consists of providing and making available the Platform; and
(ii) we make no representation about andwe bear no responsibility for User Content, including for compliance withapplicable laws.
1. Definitions and Interpretation
Account has the meaning set outin clause 2.1;
ACL means the Australian Consumer Law, beingSchedule 2 to the Competition andConsumer Act 2010 (Cth);
Affiliate of a Party means anyentity, whether incorporated or not, that Controls, is Controlled by, or isunder common Control with such Party;
Business Day means a day which is nota Saturday, Sunday, public holiday or bank holiday in the place where a thingneeds to be done;
Confidential Information means:
(a) these Terms, includingInformation submitted or disclosed by either Party during negotiations,discussions and meetings relating to these Terms;
(b) Information that at thetime of disclosure by a Disclosing Party is identified to the Receiving Partyas being confidential; and
(c) all other Informationbelonging or relating to a Disclosing Party, or any Affiliate of thatDisclosing Party, that is not generally available to the public at the time ofdisclosure other than by reason of a breach of these Terms or which theReceiving Party knows, or ought reasonably to be expected to know, isconfidential to that Disclosing Party or any Affiliate of that DisclosingParty;
Control, Controls or Controlled meansthe ability, whether directly or indirectly, to direct the affairs of anotherby means of ownership, contract or otherwise;
Customer means the Principal onwhose behalf an Account is registered in the Platform;
Disclosing Party means the Party to whomInformation belongs or relates;
Government Agency means any government orany public, statutory, governmental (including a local government),semi-governmental or judicial body, entity, department or authority andincludes any self-regulatory organisation established under statute;
Information means any information,whether oral, graphic, electronic, written or in any other form, including:
(a) forms, memoranda, letters,specifications, processes, procedures, statements, formulae, technology,inventions, trade secrets, research and development information, know-how,designs, plans, photographs, microfiche, business records, notes, accountingprocedures or financial information, sales and marketing information, names anddetails of customers, suppliers and agents, employee details, reports, drawingsand data;
(b) copies and extracts made of or fromthat information and data, whether translated from the original form,recompiled, partially copied, modified, updated or otherwise altered; and
(c) samples or specimens disclosed byeither Party;
Intellectual Property Rights means allpresent and future intellectual and industrial property rights conferred bystatute, at common law or in equity and wherever existing, including:
(a) patents, inventions, designs,copyright, trade marks, brand names, product names, domain names, databaserights, rights in circuit layouts, plant breeder's rights, know how, tradesecrets and any other rights subsisting in the results of intellectual effortin any field, whether or not registered or capable of registration;
(b) any application or right to apply forregistration of any of these rights;
(c) any registration of any of thoserights or any registration of any application referred to inparagraph (b); and
(d) all renewals, divisions andextensions of these rights;
Law means in any jurisdiction that is applicableto this Agreement:
(a) any statute, regulation, by-law,ordinance or subordinate legislation in force from time to time to which aParty is subject;
(b) the common law and the law of equityas applicable to the Parties from time to time;
(c) any binding court order, judgement ordecree;
(d) any applicable regulation, industrycode, policy or standard enforceable by law; or
(e) any applicable direction, policy,rule or order that is binding on a Party and that is made or given by anyGovernment Agency having jurisdiction over a Party or any of that Party'sassets, resources or business;
Loss means any loss, damage, cost or expense;
Party means you orAwayco;
Personal Information means information or anopinion (including information or an opinion forming part of a database),whether true or not, and whether recorded in a material form, electronic formor otherwise, about an identified individual or an individual who is reasonablyidentifiable, and includes without limitation anything that is defined aspersonal information or as sensitive information or as personal data in therelevant Privacy Laws;
Privacy Law means any applicable Law,statute, regulation, ordinance, code, standard or requirements of anygovernment, governmental or semi-governmental body which relates to privacy andthe protection of Personal Information;
Receiving Party means the Party to whomInformation is disclosed or who possesses or otherwise acquires Informationbelonging or relating to a Disclosing Party;
Services means the servicesprovided by Awayco to Users set out in clause 3;
Terms means these agreed terms;
User has the meaning set out in clause 2.1; and
VAT (GST) has the meaning set outin clause 13.
In theseTerms, unless the context requires otherwise:
(a) the singular includes the plural andvice versa;
(b) a gender includes the other genders;
(c) the headings are used for convenienceonly and do not affect the interpretation of these Terms;
(d) other grammatical forms of definedwords or expressions have corresponding meanings;
(e) a reference to a document includesthe document as modified from time to time and any document replacing it;
(f) a reference to a Party is to a partyto these Terms and a reference to a party to a document includes the party'sexecutors, administrators, successors and permitted assigns and substitutes;
(g) if something is to be or may be doneon a day that is not a Business Day then it must be done on the next BusinessDay;
(h) the word "person" includesa natural person, partnership, body corporate, association, governmental orlocal authority, agency and any other body or entity whether incorporated ornot;
(i) the word "month" meanscalendar month and the word "year" means 12 months;
(j) the words "in writing"include any communication sent by letter, facsimile transmission or email orany other form of communication capable of being read by the recipient;
(k) a reference to a thing includes apart of that thing;
(l) a reference to all or any part of astatute, rule, regulation or ordinance (statute) includes that statute asamended, consolidated, re-enacted or replaced from time to time;
(m) wherever "include","for example" or any form of those words or similar expressions isused, it must be construed as if it were followed by "(without beinglimited to)";
(n) money amounts are stated inAustralian currency unless otherwise specified;
(o) a reference to time is to Sydney, NewSouth Wales, Australia time;
(p) a reference to any agency or body, ifthat agency or body ceases to exist or is reconstituted, renamed or replaced orhas its powers or functions removed (defunct body), means the agency or bodythat performs most closely the functions of the defunct body;
(q) any agreement, representation,warranty or indemnity in favour of two or more parties (whether those partiesare included in the same defined term or not) is for the benefit of themjointly and severally; and
(r) any agreement, representation,warranty or indemnity by two or more parties (whether those parties areincluded in the same defined term or not) binds them jointly and severally.
2. Registration of Accounts
2.1 In order to access certain features andfunctionality of the Platform (such as uploading User Content and accessingPlatform Content) you will have to register as a user of the Platform (User) and obtain an account (Account) by providing all of theinformation required at registration.
2.2 When creating yourAccount, you become a User and warrant that you are of legal age to form abinding contract with Awayco and have the necessary capacity to enter into abinding legal contract in the place where you are accessing the Platform, andthat all information you have provided is true, accurate and complete. You mustprovide an email address that you own or control.
2.3 You will be fullyresponsible for all acts and omissions of any person using your password andAccount, as if they were your own acts and omissions. You agree that you willnot share, disclose, or permit disclosure of, your password, let anyone elseaccess your Account or do anything that would risk the security of yourAccount. Awayco will not in any event be liable for any Loss arising out of theuse or misuse of your password and Account, and you will indemnify Awaycoagainst all Loss in this regard except to the extent caused by Awayco's grossnegligence, fraud, criminal conduct or wilful misconduct.
2.4 You must notify usimmediately if you become aware of any unauthorised access or use of yourAccount.
2.5 You agree that you willnot create more than one personal Account and if we disable or terminate yourAccount for any reason, you will not create another one without our permission,whether through the use of your own personal details or those related to you orcreated by you.
2.6 We reserve the right torefuse registration of any Account, at our sole discretion.
2.7 Your registration as aUser (and your Account) may be refused if your User Content created or uploadedvia your Account involves:
(a) any of the prohibiteduses as set out in clause 7; or
(b) is otherwise deemedinappropriate in our absolute discretion.
3.1 Awayco provides anonline platform that enables Customers to undertake a free trial of theproducts available on our SaaS Platform.
3.2 The Platform maybe used to create or upload User Content that may display links (to beaccessible by the Customer and its Users only) to products and services thatthe Customer advertises or otherwise makes available from time to time.
3.3 Awayco is not anowner, operator, provider or otherwise in control of any product or serviceadvertised or made available by Customers . The responsibility of Awayco issolely limited to the operation of the Platform.
3.4 In providing thePlatform, Awayco merely permits Users to trial the services available in itsseparate SaaS Platform.. Awayco is not a party to any agreements formed betweena Customer and any other person, nor is it acting as a rental agency, broker,insurer or other equivalent local service providers in your location.
3.5 It isthe Customer's obligation to ensure that it complies with all applicable Laws.Awayco makes no warranty or representation that the Platform or SaaS Platformis suitable for the Customer's products or services.
4.1 User Content
(a) When you use the Platform, you may create or upload UserContent.
(b) Any User Content created or uploadedby you to the Platform:
(i) may only be accessed and viewed byother Users who have created an Account to use on behalf of the same Customer;and
(ii) may be used by Awayco in accordancewith these Terms, including in the promotion of the Platform.
(c) You agree to be solely responsiblefor any User Content that is created on or uploaded to the Platform.
(d) You hereby assign to us absolutely and beneficially, thewhole of your rights, title and interest including any Intellectual PropertyRights in and to any User Content that you create or upload to the Platform. Wehereby grant you and your Users a non-exclusive, non-transferable, royalty-freelicence only to use and access the User Content you create on or upload to thePlatform in accordance with these Terms and for the purpose of trialling SaaSPlatform products and services on the Platform. If you create an account to usethe SaaS Platform and sign the SaaS Platform terms, on the commencement ofthose SaaS Platform terms we assign to you absolutely and beneficially, thewhole of our rights, title and interest including any Intellectual PropertyRights in and to any User Content that you have created on or uploaded to thePlatform and you grant Awayco a perpetual, non-exclusive, royalty free,irrevocable, transferable and worldwide licence (including the right tosub-license), to use, adapt, copy, communicate, reproduce, modify, display,exploit, publish, re-distribute, broadcast, transmit, create derivative worksfrom and incorporate in other works, the User Content, at any time in thefuture in any form and for any purpose.
(e) You consent to your User Content being altered, edited oradapted by us for any reason including to ensure your User Content does notinfringe these Terms. To the extent that you have any moral rights (pursuant tothe Copyright Act 1968 (Cth)) in the User Content, by agreeingto these Terms, you provide an irrevocable and unconditional consent in favourof us, our successors, assignees, licensees and any other person authorised byany of them to use, modify or deal with your User Content (whether or notcurrently in existence) to:
(i) perform, exhibit, reproduce, adaptand communicate any part of your User Content in any medium and anywhere in theworld without attributing you or any other person as an author of orcontributor to that User Content;
(ii) do any act or omission that wouldconstitute a derogatory treatment of your User Content;
(iii) make any use of your User Contentthat may falsely attribute authorship of the User Content to another person;
(iv) delete or adapt or change any of yourUser Content in any way, including by addition to or subtraction from your UserContent; or
(v) combine or juxtapose your UserContent with anything else.
(f) Where the User Content created by youor uploaded by you to the Platform contains material from third parties, youwarrant that you have obtained the moral rights consents described in clause 4.1(e) from such third parties.
(g) We may access or examine any UserContent and at our discretion monitor, move, remove, block, modify, edit,refuse to upload or disable access to User Content which we consider, in oursole discretion, to breach any Law or these Terms or to be otherwiseunacceptable.
(h) You acknowledge that we:
(i) have no responsibility or liabilityfor the deletion or failure to store any User Content created by you oruploaded by you or any other Users on the Platform; and
(ii) are not responsible for any UserContent created or uploaded to the Platform by you or any User nor under anyobligation to monitor, move, remove, block, modify, edit, refuse to upload ordisable access to it.
(i) You represent and warrant that:
(i) prior to uploading or creating anyUser Content, you own the User Content or have the necessary licences, rights,consents and permissions to publish the User Content you create or upload onthe Platform;
(ii) you have the right and power to grantthe licence contained in clause 4.1(d) (if applicable) to us;
(iii) the User Content created or uploadedby you will not infringe the Intellectual Property Rights of any third party;and
(iv) you will not create or upload UserContent that will cause you to breach these Terms, in particular clause 7.
(j) You understand that we do notguarantee any confidentiality with respect to any User Content you create orupload to the Platform.
(k) You acknowledge and agree that we areunder no obligation to take legal action in relation to commencing, defending,enforcing, settling or compromising (as appropriate) any infringement, claim oraction relating to your Intellectual Property Rights (if any) in User Content.
4.2 Platform Content
(a) The Platform is owned and operated byor on behalf of Awayco.
(b) The Platform Content is for generalinformation and promotional purposes only. In providing a Platform forCustomers to use, Awayco provides no endorsements as to the qualities of anyproducts or services described by Customers on the Platform. Any use of thePlatform Content, materials or information by another person or organisation isat your own risk.
(c) The Platform Content is obtained and developed from a varietyof sources including but not limited to collaborations with third parties andinformation provided by third parties under licence. Inclusion of PlatformContent is not an endorsement of any organisation, product, service or advice.
(d) Awayco grants you a non-exclusive andnon-transferable right to use the Platform for your own use, subject to therestrictions specified elsewhere in these Terms.
(e) All Intellectual Property Rights,including copyright, in the Platform and the Platform Content are owned orlicensed by Awayco or any of its Affiliates. You must not copy, modify ortransmit any part of the Platform or the Platform Content.
(f) The Platform may contain trade marks,logos and trade names of Awayco or third parties which may be registered orotherwise protected by law. You are not permitted to use any trade marks, logosor trade names appearing on the Platform.
5. Access and Communication
5.1 Subject to theconsumer guarantees provided for in the ACL, Awayco does not warrant that youwill have continuous access to the Platform.
5.2 Awayco will not beliable if the Platform is unavailable to you due to computer downtimeattributable to malfunctions, upgrades, preventative or remedial maintenanceactivities, interruption in telecommunications supply or otherwise.
5.3 Awayco does notguarantee the delivery or security of communications over the internet as suchcommunications rely on third party service providers, and electroniccommunication (including electronic mail) is vulnerable to interception bythird parties.
5.4 Whilst Awaycotakes reasonable precautions to protect information transmitted via thePlatform, Awayco cannot and does not guarantee the security or confidentialityof these communications or the security of the Platform.
5.5 Awayco does notprovide, and has no control over, communications, networks or services, theinternet or other technology required or used across the Platform and acceptsno responsibility for any direct or indirect Loss in any form associated withthem, whether due to congestion, technical malfunction, viruses or otherwise.
6. Customer Obligations
As a Customer, you must:
(a) have the requisite authority andright to include the products and services you describe in User Content;
(b) ensure that your use of the Platform willnot violate or result in the breach of these Terms, any applicable Laws, or anyagreement between you and any third party;
(c) not publish, or otherwise makeavailable a product or service that you are not legally empowered to deal with;
(d) not circumvent the Platform; and
(e) publish, or otherwise make available,hosting data necessary to ensure the operation of the Platform.
6.2 Fees, Pricing and Billing
(a) As a Customer, you are solelyresponsible for:
(i) paying the fees for the use of thePlatform in accordance with this clause 6.2;
(ii) paying all applicable taxes inconnection with your use of the Platform; and
(iii) providing and maintaining accuratecontact and payment information, including without limitation applicable taxinformation such as your Australian Business Number;
(b) Awayco is entitled to invoice you directly for any applicablefees for your use of the Platform.
(c) If you dispute any fees hereunder,you must notify Awayco in writing within 30 days of receiving the relevantinvoice, failure of which will result in a waiver by you of any claim relatingto the disputed fee.
7. Prohibited Uses
7.1 As a User of thePlatform, you (and you must procure that other people who may use the Platformon your behalf) must:
(a) not breach or circumvent anyapplicable Laws;
(b) not damage or tamper with theoperation of the Platform;
(c) not frame any portion of the Platformwithout Awayco's written consent;
(d) not bypass (or attempt to bypass) anysecurity mechanisms imposed by the Platform;
(e) not impersonate or falsely claim torepresent a person or organisation;
(f) comply with all reasonable directionsof Awayco with respect to your use of the Platform;
(g) take all reasonable steps to mitigatethe risks inherent in the use of the Platform, including loss of your own data;
(h) upon Awayco's request, providereasonable assistance in the investigation of any security issue relevant tothe Platform;
(i) use your best endeavours to notintroduce a virus, worm, Trojan horse, malware, spyware, disabling or maliciousdevice or code, time bomb, or any other software or hardware or configurationthat may cause harm or change to the Platform;
(j) immediately notify Awayco if youbecome aware that the Platform may infringe on the Intellectual Property Rightsof a third party;
(k) not remove, modify or obscure anycopyright, trade mark, or other proprietary right notices that appear on thePlatform;
(l) not download, transmit, copy, store,reformat or otherwise modify any element of the Platform; and
(m) not publish, or otherwise makeavailable, data which is illegal, fraudulent, defamatory, or otherwiseoffensive to third parties, or otherwise use the Platform in a manner which isunlawful or would infringe the rights of another person including anyIntellectual Property Rights.
8.1 Obligationsof confidentiality
Subject toclause 8.2, the Receiving Party must:
(a) keep the Confidential Informationconfidential and not directly or indirectly disclose, divulge or communicateany Confidential Information to, or otherwise place any ConfidentialInformation at the disposal of, any other person without the prior writtenapproval of the Disclosing Party;
(b) take all reasonable steps to secureand keep secure all Confidential Information coming into its possession orcontrol;
(c) only use the Confidential Informationfor the purposes of performing, and to the extent necessary to perform, itsobligations under these Terms;
(d) not memorise, modify, reverseengineer or make copies, notes or records of the Confidential Information forany purpose other than in connection with the performance by the ReceivingParty of its obligations under these Terms; and
(e) take all reasonable steps to ensurethat any person to whom the Receiving Party is permitted to discloseConfidential Information under clause 8.3 complies at all timeswith the terms of this clause 8 as if that person were aReceiving Party.
Theobligations of confidentiality under clause 8.1 do not apply to:
(a) any Confidential Information that:
(i) is disclosed to the Receiving Partyby a third party entitled to do so, whether before or after the date of theseTerms;
(ii) was already lawfully in the ReceivingParty's possession when it was given to the Receiving Party and was nototherwise acquired from the Disclosing Party directly or indirectly; or
(iii) is generally available to the publicat the date of these Terms or subsequently becomes so available other than byreason of a breach of these Terms; or
(b) any disclosure of ConfidentialInformation by the Receiving Party that is necessary to comply with any courtorder or applicable Law if, to the extent practicable and as soon as reasonablypossible, the Receiving Party:
(i) notifies the Disclosing Party of theproposed disclosure;
(ii) consults with the Disclosing Party asto its content; and
(iii) uses reasonable endeavours to complywith any reasonable request by the Disclosing Party concerning the proposeddisclosure.
(a) A Receiving Party may discloseConfidential Information to any Affiliate, employee, agent, contractor,officer, professional adviser, banker, auditor or other consultant of theReceiving Party (each a Recipient)only if the disclosure is made to the Recipient strictly on a "need toknow basis" and, prior to the disclosure:
(i) the Receiving Party notifies theRecipient of the confidential nature of the Confidential Information to bedisclosed; and
(ii) the Recipient undertakes to theReceiving Party (for the benefit of the Disclosing Party) to be bound by theobligations in this clause 8 as if the Recipient werea Receiving Party in relation to the Confidential Information to be disclosedto the Recipient.
(b) The Receiving Party is liable for anybreach of this clause 8 by a Recipient as if theRecipient were a Receiving Party in relation to the Confidential Informationdisclosed to the Recipient.
8.4 Breach of Confidence
Each Party must promptly notify theother Party if it becomes aware of any unauthorised access, use or disclosureof all or any part of the Confidential Information and must give that otherParty all reasonable assistance in connection with any claim which it mayinstitute in connection with that unauthorised access, use or disclosure.
8.5 Returnor destruction of Confidential Information
Immediately on the written request ofthe Disclosing Party, a Receiving Party must:
(a) cease the use of all ConfidentialInformation of or relating to the Disclosing Party (or any Affiliate of theDisclosing Party);
(b) deliver to the Disclosing Party alldocuments and other materials in its possession or control containing,recording or constituting that Confidential Information or, at the option ofthe Disclosing Party, destroy, and certify to the Disclosing Party that it hasdestroyed, those documents and materials; and
(c) upon delivery of the ConfidentialInformation under clause 8.5, permanently delete thatConfidential Information from all electronic media on which it is stored, sothat it cannot be restored.
You agree and acknowledge that youwill fully indemnify Awayco in respect of all Loss, damages, costs, expenses(including legal fees on a full indemnity basis), fines, penalties, claims,demands and proceedings howsoever arising, whether at common law (includingnegligence) or under statute, in connection with:
(a) any breach of these Terms;
(b) your use of the Platform, includingany wrongful, wilful or negligent act or omission;
(c) your communications with Awayco;
(d) your use of third party websiteslinked to the Platform; or
(e) your provision (upload/creation) ofany User Content, except to the extentcaused by Awayco's gross negligence, travel, criminal conduct or wilfulmisconduct.
10. Warranties, Consumer Guarantees and Limitation of Liability
10.1 Subject to clause 10.2, anyrepresentation, warranty, condition, guarantee or undertaking that would beimplied in these Terms by legislation, common law, equity, trade, custom orusage is excluded to the maximum extent permitted by Law. However, you may haverights by law which arise under these Terms and these Terms are subject tothose rights.
10.2 Nothing in these Terms excludes, restrictsor modifies any consumer guarantee, right or remedy conferred on the User bythe ACL or any other applicable Law that cannot be excluded, restricted ormodified by agreement.
10.3 To the fullestextent permitted by Law, the liability of Awayco for a breach of anon-excludable guarantee referred to in clause 10.2 is limited to:
(a) the supplying of the services again;or
(b) the payment of the cost of having theservices supplied again.
10.4 Awayco is not liable to you or to anyother person for any indirect, incidental, special or consequential loss ordamage, loss of profits or anticipated profits, economic loss, loss of businessopportunity, loss of data, loss of reputation or loss of revenue (irrespectiveof whether the loss or damage is caused by or relates to breach of contract,tort (including negligence), statute or otherwise) arising in connection withthe Platform, all links to or from the Platform or any products or servicesreferred to on the Platform.
10.5 Subject to thisclause 10, the maximumaggregate liability of Awayco for all losses, damages and claims arising out ofor in connection with these Terms, including liability for breach, innegligence or in tort or for any other common law or statutory action, islimited to the sum of $500.
11.3 If you are a Customerthat is subject to the EU General Data Protection Regulation (EU2016/679) (GDPR) as acontroller (as that term is defined under the GDPR), you and Awayco each agreethat:
(a) you and Awaycowill be considered 'joint controllers' for the purposes of the GDPR;
(b) you and Awaycowill each comply with the obligations imposed on a controller under the GDPR;
(c) you and Awaycohave entered into and are subject to the controller to controller standardcontractual clauses available at www.awayco.com/privacy which form part of, and are incorporated into, these Terms,to enable the transfer and/or disclosure of Personal Information to Awaycobased in Australia. By accepting these Terms, you agree to be bound by thosestandard contractual clauses.
12.1 Awayco may at any time immediatelyterminate your access (including restricting access) to the Platform or anyfeature of the Platform for any reason (including due to your breach or allegedbreach of these Terms) in its sole discretion and without prior notice.
12.2 Should Awaycodecide to exercise its rights granted by clause 12.1, Awaycomay communicate to Users that your account has been cancelled;
12.3 You may terminateyour Awayco Account at any time by providing Awayco with a notice oftermination in accordance with the termination instructions available on thePlatform. Upon receipt of the termination notice, Awayco will remove yourAccount and may cease displaying your User Content.
12.4 This clause 12 and clauses 1, 4.1(d), 8, 9, 10, 11 and 14 will survivetermination of your access to the Platform in accordance with clause 12 and will continueto the benefit of and be enforceable by Awayco.
13. Value Added Tax (Goods and Services Tax)
13.1 In this clause 13:
(a) "Laws" means any applicable law, statute, by law, regulation,order, regulatory policy (including any requirement or notice of any regulatorybody), guidance or industry code of practice, rule of court or directive,delegated or subordinate legislation in force from time to time; and
(b) "VAT (GST)" means value added tax, goods and services tax,consumption tax, services tax or any similar taxes from time to time imposed inany jurisdiction.
13.2 All consideration to be paid orprovided pursuant to these terms is expressed exclusive of any VAT (GST)properly chargeable in accordance with Laws.
13.3 Subject to clause 13.5, if VAT (GST) applies to a supply made by Awayco inaccordance with these Terms, you must pay Awayco an additional amount equal tothe VAT (GST) chargeable on the supply.
13.4 You must pay the amount referred toin clause 13.3 to Awayco at the sametime that the first part of the consideration for the supply is to be paid orprovided, subject to Awayco issuing a VAT (GST) invoice or other document asmay be required to be issued by Awayco by any relevant Laws.
13.5 The Parties agree that if any relevant Laws allow or obligeyou to:
(a) treat any supply made by Awaycopursuant to these Terms as made by you (as opposed to Awayco), or
(b) to account for VAT (GST) on thesupply (instead of Awayco accounting for the VAT (GST)),
you must account for VAT (GST) underthe reverse charge procedure or whatever procedure is appropriate according tothe Laws and clause 13.3 does not apply.
13.6 If a Party is entitled to bereimbursed or indemnified under these Terms for a cost or expense whichincludes VAT (GST), the amount to be reimbursed or indemnified must be reducedto the extent that the Party (or another member of a VAT (GST) group of whichthat Party is a member) is entitled to an input VAT (GST) deduction or credit.
13.7 If the VAT (GST) payable on asupply made under these Terms varies from the amount paid by you to Awayco inaccordance with clause 13.3 following a change tothe consideration or otherwise, then:
(a) Awayco must recalculate the amount of VAT (GST)payable under clause 13.3 and notify you of the new amount within 14days of becoming aware of the adjustment or variation;
(b) a corresponding amount must be paid by Awayco to you,or by you to Awayco (as the case requires); and
(c) Awayco will issue you any further appropriate VAT(GST) invoice or a credit note for VAT (GST) purposes which is required toevidence or effect the adjustment.
14.1 Entire understanding
These Termscontain the entire understanding between the Parties concerning the subjectmatter of these Terms and supersede all prior communications between theParties.
14.2 No adverse construction
These Terms,and any provision of these Terms, are not to be construed to the disadvantageof a Party because that Party was responsible for the Terms' preparation.
14.3 No waiver
(a) A failure, delay, relaxation orindulgence by a Party in exercising any power or right conferred on the Partyby these Terms does not operate as a waiver of that power or right.
(b) A single or partial exercise of thepower or right does not preclude a further exercise of it or the exercise ofany other power or right under these Terms.
(c) A waiver of a breach does not operateas a waiver of any other breach.
14.4 Successors and assigns
These Termsbind and benefit the Parties and their respective successors and permittedassigns under clause 14.5.
14.5 No assignment
You cannotassign or otherwise transfer the benefit of these Terms without our priorwritten consent. We are permitted to assign or otherwise transfer the benefitof these Terms without your prior consent.
14.6 Communication and Notice
You consent toAwayco contacting you by electronic means including through email.
Each provision of these Terms is severable fromthe others and no severance of a provision will affect any other provision.
14.8 Governing Law and jurisdiction
These Termsare governed by and must be construed in accordance with the Laws in force inthe State of New South Wales, Australia. The Parties submit to the exclusivejurisdiction of the courts of that State and the Commonwealth of Australia inrespect of all matters arising out of or relating to these Terms, theirperformance or subject matter.
14.9 Operation of indemnities
Unless theseTerms expressly provides otherwise:
(a) each indemnity in these Termssurvives the expiry or termination of these Terms; and
(b) a Party may recover a payment underan indemnity in these Terms before it makes the payment in respect of which theindemnity is given.