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Yomconnect

Services Terms & Conditions

Welcome to yomconnect and Yomstar.   In these Services Terms & Conditions (“Services T&Cs”), “we” or “us” means Yomstar Australia Pty Ltd, also trading as yomconnect and “you” means a user to whom we provide the Additional Services (as defined below).   We offer a range of optional studio and media services, including implementation, design, engagement creation, website development, campaign delivery, media delivery, social media strategy and more (“Additional Services”)   This Services Agreement governs our provision of the Additional Services to you, and your use of the Additional Services. It forms part of our agreement with you, along with your Order Form, the Yomstar T&Cs (if applicable)our Privacy Policy, and any other applicable terms or policies incorporated by reference (“Agreement”).   By requesting to receive the Additional Services from us either by selecting Additional Services on your Order Form, or by contacting us and requesting Additional Services, you agree to be bound by these Services T&Cs. Other terms, policies and agreements may also apply to you. Part 10 sets out the definitions that apply to these T&Cs.  

1. PROVISION OF ADDITIONAL SERVICES

Order Form: If Additional Services are specified on your Order Form, we will provide the Additional Services on the terms and conditions of your Agreement including these Services T&Cs. Contacting Us: If you decide that you would like to receive Additional Services from us, please contact us. If we agree to provide you with the Additional Services, the provision of those Additional Services will be on the terms of these Services T&Cs, which will form part of our Agreement with you. Service Fee: Additional Services may be subject to a Service Fee, which will be payable either up-front or on an ongoing basis, as indicated on the Order Form or as otherwise agreed by us in writing. We can change the Service Fee payable by providing you with 30 days’ notice. During this 30 day period, you can terminate the Additional Services by notifying us in writing. If you do not notify us that you wish to terminate the Additional Services, the increased fee will apply. Payments: All payments must be made in Australian currency. We reserve the right to charge interest at a rate of 4% per annum on any overdue payments and (without prejudice to any of our other rights) to suspend access to the Additional Services until all outstanding amounts are paid. Term: The Additional Services will either be provided on a month-to-month ongoing basis, for a fixed term, or based on a fixed event (such as for the duration of a promotion, or until a certain milestone is reached) as outlined on the Order Form. Automatic Renewal: If the Additional Services are provided on a month-to-month ongoing basis, we will continue providing the Additional Services to you each month for the minimum period set out in the Order Form. After this period, you may terminate the Additional Services by providing 30 days’ written notice to us. Modifications to Agreement: We may make changes to these Services T&Cs during the term. We will notify you if we consider that any amendments will have a materially negative effect on the Additional Services or your rights or obligations under the Agreement. In the event that you do not wish to accept any such changes, you are entitled to terminate the Agreement within 30 days of being notified of the changes.

2.  NATURE OF ADDITIONAL SERVICES

Service Specifications: We will provide the Additional Services to you in accordance with the Service Specifications outlined in the Order Form or an associated proposal. Services Offered: We offer a range of Additional Services which may change from time to time. We may notify you of any new Additional Services as they become available, and if you wish to proceed with the Additional Services, they will be covered by the terms of these Services T&Cs. 

3.  YOUR GENERAL OBLIGATIONS

Use of Additional Services: You agree that in procuring the Additional Services, you will not: use the Additional Services, in whole or in part other than for the purpose for which they are provided to you (as set out in the Service Specifications, either expressly or impliedly), or otherwise as contemplated or permitted by the Agreement;  

(a) procure, or attempt to procure any Additional Services for any illegal, unethical or any other purpose that could potentially bring our reputation into disrepute;

(b) sell, lease, licence, sub-licence, rent, loan, distribute or otherwise transfer the Additional Services (or the product of any Additional Services) in whole or in part to any other person; or

(c) provide, disclose, divulge, make available to, or permit use of the Additional Services (or the product of any Additional Services), in whole or in part, by any unauthorised third party.

Compliance: You must strictly comply with:

(a) your Agreement with us; and

(b) any applicable laws and regulatory requirements (including, without limitation, the Privacy Laws, the Spam Act, and any applicable laws and regulations relating to intellectual property, trade promotions, competitions and lotteries, defamation, discrimination, vilification and obscenity).

Prohibited Conduct: In using the Additional Services (or any product of the Additional Services) you must not:

(a) act unlawfully, fraudulently, dishonestly, inappropriately, mislead or deceive, or engage in improper behaviour of any kind;

(b) harass, abuse or harm any person;

(c) send unwelcome or unauthorised communications;

(d)infringe any rights or invade or violate the privacy of another person;

(e) impersonate another person, hide your identity or falsely represent an association with another person;

(f) contact or otherwise harm Minors or retain or use information in an identifiable form received from or relating to Minors, except where all necessary and express consents have been obtained from the Minor’s legal guardians; or

(g) interfere with, gain unauthorised access to or disrupt the availability of the Additional Services, (including but not limited to any servers or networks connected with our Site) or Site.

Your Terms and Conditions: In connection with the Additional Services, you may be given the opportunity to include text or a link in your campaign or engagement to certain terms and conditions or a privacy policy which you wish to apply to the campaign or engagement, including in relation to collection of personal information or any Reward or Trade Promotion offered by you. You are entirely responsible for ensuring the necessity, accuracy and completeness of any applicable terms or policies, their effectiveness and enforcement, and the keeping of any records.  

4.  PROMOTIONS & REWARDS

Trade Promotions and Rewards: In addition to and without limiting your other obligations under these Services T&Cs, if you offer or advertise a Reward or Trade Promotion in connection with the Additional Services, you must:

(a) ensure that any Reward or Trade Promotion and the promotion and administration of the Reward or Trade Promotion complies with all applicable laws and regulatory requirements. You acknowledge and agree that you are solely responsible for obtaining any necessary consents, permits or licences;

(b) not act unlawfully, fraudulently, dishonestly, mislead or deceive or engage in improper behaviour in relation to the promotion or administration of the Reward or Trade Promotion;

(c) ensure that the Reward or Trade Promotion does not promote, involve or constitute gambling, alcohol, drugs, tobacco or any other item prohibited or restricted under applicable law;

(d) include or provide a link to any terms or conditions relating to the Reward or Trade Promotion where required to do so in the engagement and ensure you comply with those terms; and

(e) make it clear that the offer is provided by you and not misrepresent that we sponsor, endorse, conduct or have any responsibility or liability in relation to the Reward or Trade Promotion.

You must not offer or promote a Reward or Trade Promotion which does not comply with the above requirements. You are solely responsible and liable for the promotion, administration and fulfilment any Reward or Trade Promotion  

5.  INTELLECTUAL PROPERTY

Ownership of Intellectual Property: You acknowledge that any and all Intellectual Property in or to the Additional Services (or any Intellectual Property created as a result of the performance of the Additional Services), excluding Your Materials, are our property. You acquire no right, title or interest in or to any of above by virtue of these Services T&Cs and will not take any action, or assist any person to take any action that may jeopardise, limit, challenge or interfere with our ownership of or rights in the Additional Services (or any Intellectual Property created as a result of the performance of the Additional Services). We grant you a non-exclusive, royalty free licence to use such Intellectual Property to the extent necessary to obtain the benefit of this Agreement for your internal business purposes only. Your Materials: Subject to the above, you own any Intellectual Property in Your Materials. You grant to us a non-exclusive, royalty free licence to use, reproduce and modify Your Materials to the extent necessary to perform the Additional Services in accordance with this Agreement. You warrant that our use, reproduction or modification of Your Materials does not infringe the Intellectual Property rights of any third party.

6.  INDEMNITY

Indemnity from you: You agree to hold harmless, defend, indemnify and release us and our affiliates and our respective officers, employees, consultants and agents from and against all claims, actions, proceedings and demands (including those brought by third parties), Loss and any other costs (including those incurred in satisfying, defending or settling such claim, proceedings or demand) of any nature arising out of or in connection with:

(a) any claim that our use of Your Materials in accordance with the Agreement infringes the Intellectual Property rights of any third party;

(b) any breach of the Agreement (whether by you or your officers, employees, consultants, principals or agents) ;

(c) any Reward or Trade Promotion organised or promised by you.

7.  LIMITATIONS

No Warranties: To the extent permitted by law, we do not warrant:

(a) the accuracy, reliability or completeness of the Additional Services or that they will be error free; or

(b) your use of any product of the Additional Services will not infringe the Intellectual Property rights of third parties.

Limitation of implied warranties: All representations, warranties, terms and conditions which would otherwise be implied or imposed in the Agreement are excluded to the maximum extent permissible by law (including, where permitted, any warranty with regard to merchantability, durability, fitness for purpose, or non-infringement of third party rights). Limitation of Liability: To the maximum extent permitted by law:

(a) our maximum aggregate liability in contract, tort (including negligence), in equity, pursuant to statute or otherwise arising out of, or relating to, the Additional Services is an amount equal to the Service Fees payable by you under the Agreement; and

(b) neither we nor our affiliates or our respective officers, employees, consultants or agents will be liable to you for any indirect, special or punitive, exemplary or consequential loss or damage, or any loss of profit or business opportunity, any business interruption or loss of business information and data (even if we have been advised of possible damage)

Limitation of Prescribed Terms: Where by law we are unable to exclude any guarantee, warranty, representation, condition or other term or to limit our liability as set out above, but are entitled to limit it, then our liability to you under such terms is limited, at our discretion, to the supply Additional Services again or paying the cost of having the Additional Services supplied again or, if this is not permitted by law, then otherwise to the maximum extent permitted by applicable law.  

8.  TERMINATION

Termination for breach: We may terminate the Agreement by immediate notice to you if you are in breach of any of the Agreement (including these Services T&Cs). You may terminate the Agreement by notice if, following 30 days’ notice by you of a material breach by us, we have failed to remedy the breach. Termination for convenience: Except in accordance with the provisions relating to termination for imposing an increase on the Service Fee or termination of the automatic renewal of Additional Services in part 1, you may not terminate this Services Agreement for convenience. Termination for non-payment or non-use: Without limiting our other rights of termination under this Services Agreement, we may terminate the Agreement immediately by providing notice to you if you fail to pay any Service Fees and any other sums payable by you in relation to the Yomstar Services when due. Termination: Upon termination of the Additional Services (or the Agreement as a whole), you will no longer be provided with the Additional Services, and any product of the Additional Services that is hosted by us will no longer be available. 

9.  GENERAL

Use of Name: Subject to the limitations (if any) set out in the Order Form, you agree that we may refer publicly to the fact that you have utilised the Additional Services in any press release, advertising or other promotional material. Assignment: You may not assign or transfer your rights or obligations under the Agreement unless with our prior written consent (which may be granted or withheld at our sole discretion). Notices: All notices provided by you under these Services T&Cs must be provided to the email identified on the Support Page. All notices provided by us will be emailed to you at the email address provided to us on the Order Form, unless you notify us of a change in email address. Severance: If any provision of these Services T&Cs are held invalid, unenforceable or illegal for any reason, this Services Agreement will otherwise remain in full force apart from such provision which shall be deemed deleted. No Waiver: Any delay or failure by us to enforce our rights under these Services T&Cs is not to be construed as a waiver of those rights. Force Majeure: If the performance of these Services T&Cs or any obligations under the Agreement (except for the making of required payments) is prevented, restricted, or interfered with by reason of Force Majeure, the affected party, upon giving prompt notice to the other party, is excused from such performance to the extent of such prevention, restriction, or interference. The affected party must use its best efforts to avoid or remove the Force Majeure or to limit the impact of the event on its performance and must continue performance with the promptly when the Force Majeure is removed. Governing Law: These Services T&Cs are governed by the laws of Queensland and you submit to non-exclusive jurisdiction of the courts of Queensland, Australia.  

10.  INTERPRETATION

In these Services T&Cs, unless the context otherwise requires, capitalised terms have the meaning given out below, or as otherwise set out in these Services T&Cs, or another document forming part of the Agreement. Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, future copyright, all rights in relation to inventions, patents, plant varieties, registered and unregistered trademarks, registered and unregistered designs, circuit layouts and rights to require information be kept confidential, and including the right to register such rights anywhere in the world, but does not include moral rights that are not transferable. Loss means any direct or indirect cost, expense, debt, obligation, compensation, charge or liability of any kind (including loss of profits, damage to goodwill and loss of business opportunity) whether or not arising from a third-party claim. Minor means a person under the age of majority in their country of residence. Order Form means the online or physical order form you completed to order the Additional Services. Privacy Law means any applicable privacy or data protection law (including those in any jurisdiction where the Additional Services are provided, used or accessed) and all guidelines issued by the Office of the Australian Information Commissioner (and any similar regulatory body). Privacy Policy means our privacy policy, as updated from time to time which you can find here: https://yomconnect.com/privacy-policy/ Reward means any offer, discount, coupon or other benefit offered by you for completing an engagement or responding to a promotion. Service Fee means the fees payable by you for the Additional Services as outlined on the Order Form or as otherwise notified to you by us. Service Specifications means the specifications of the Additional Services as outlined on the Order Form, or as otherwise agreed. Spam Act means the Spam Act 2003 (Cth) as amended from time to time. Trade Promotion means any lottery or game of chance conducted with a view to promoting your goods or services or any other form of competition where the respondent is not guaranteed a prize, which is offered by you to a respondent in connection with the Additional Services. YomStar Services has the meaning given in the YomStar T&Cs. Yomstar T&Cs means the document entitled Yomstar Terms & Conditions which may form part of the Agreement if you are also receiving the Yomstar Services from us. Your Materials means any content, data, information, trade mark or other materials or documents in whatever form provided to us in connection with the Additional Services, by you or on your behalf, including without limitation any text, Reward, Trade Promotion, survey, question, opinion, response, message, graphic, terms conditions and policies. Interpretation Principles: In this agreement, unless the contrary intention appears:

(a) a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;

(b) a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;

(c) ‘including’ and similar words are not words of limitation;

(d) a reference to currency is to Australian currency; and

(e) to the extent of any inconsistencies between any parts of the Agreement, the Order Form will prevail.

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