Terms of Service
Our Disclosures:
Our complete terms and conditions are contained below, but some important points for you to know before you become a client are set out below:
● we may amend the Terms at any time by publishing updated terms on our website or providing you notice;
● subject to your Consumer Law Rights, we will not refund any amounts paid by you;
● subject to your Consumer Law Rights, we exclude our Liability for, any use of the Product by a person other than you, and your Computing Environment;
● (in respect of any failure by us to comply with relevant Consumer Law Rights) our Liability is limited (at our discretion) to supplying the Subscription Services again or paying the cost of having the Subscription Services supplied again; and
● subject to your Consumer Law Rights, our Liability for the provision of the Services will be limited to, the resupply of the Product or Subscription Services or the repayment of the Price or Subscription Services Fee paid by you to us in respect of the supply of the relevant Product and or Subscription Services to which the Liability relates.
These Terms do not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.
These terms and conditions (Terms) are between Vacayit Pty Ltd (ABN 17 658 608 461), (we, us or our) and you, the party purchasing our sensory audio guides (Product) and, where applicable, the Subscription Services through the online link we provide to you (Site), together the Parties and each a Party.
1. ACCEPTANCE
1.1 You accept these Terms by requesting the Product and purchasing the Product via the Site.
2. PURCHASES OF PRODUCT AND SUBSCRIPTION SERVICES
2.1 In consideration of your payment of the Price or Subscription Services Fee (as applicable), we agree to provide you the Product and, where applicable, the Subscription Services in accordance with these Terms, whether ourselves or through our Personnel.
2.2 Where you request to host the Product on Your Platform (Subscription Services), you agree to pay the annual hosting fees of the Product (Subscription Services Fee) as set out on the Site. You will be billed annually or at the frequency otherwise set out on the Site (Subscription Period).
2.3 It is your responsibility to check the details of your purchase, including selected products, and pricing, before you make payment for the purchase through the Site.
2.4 When you order and pay on the Site and your payment has been validated, we will provide you with a purchase confirmation email, which may include a purchase number, a purchase ID, and a description of what was purchased.
3. PRICE AND PAYMENT
3.1 Product: You must pay us the purchase price of each Product you purchase, as set out on the Site (the Price) in accordance with this clause. All amounts are stated in Australian dollars and are exclusive of Australian GST (where applicable). You must pay the Price upfront using one of the methods set out on the Site.
3.2 Subscription Services: You will be billed for any Subscription Services Fee due at the beginning of each Subscription Period. Our payments methods will be set out on our Site. If you choose to pay your Subscription Services Fee using one of our third-party payment processors, you may need to accept their terms and conditions (if this is the case, these will be set out on our Site).
3.3 You must not pay, or attempt to pay, the Price or Subscription Services Fee (as applicable) by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. Where you request for Subscription Services, if payment is made by direct debit, by providing your bank account details and accepting these Terms, you authorise our nominated third-party payment processor to debit your bank account in accordance with the Subscription Services Fee, and you confirm that you are either the holder or an authorised signatory of that bank account.
3.4 The payment methods we offer are set out on the Site. We may offer payment through a third-party provider, Stripe. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.
3.5 We do not store any credit card details, and all payment information is collected and stored through our third-party payment processor.
3.6 Cancellation: Your Subscription Services continues for the Subscription Period, and at the end of each Subscription Period, provided you have paid all Subscription Services Fee owing, your Subscription Services will be automatically renewed for the same Subscription Period. If you wish to cancel your Subscription Services, you may do so by providing written notice to us. Your cancellation will take effect at the end of your current Subscription Period, and your Subscription Services will not be renewed (meaning you will need to continue paying all Subscription Services Fees due up until your current Subscription Period ends). You also agree to remove the Product from Your Platform.
3.7 Late Payments: If any Subscription Services Fee are not paid on time, we may:
(a) suspend your access our Subscription Services; and
(b) charge interest on any overdue payments at a rate equal to the Reserve Bank of Australia’s cash rate, from time-to-time, plus 2% per annum, calculated daily and compounding monthly.
4. OBLIGATIONS AND WARRANTIES
4.1 We agree to:
(a) comply with these Terms; and
(b) where applicable, to use our best endeavours to provide the Subscription Services with due care and skill to you.
4.2 You represent, warrant and agree:
(a) to comply with these Terms and all applicable laws;
(b) that you will not publish any Product purchased on any other platform, including our competitor platforms, apart from Your Platform; and
(c) where applicable, the Subscription Services are provided to you, solely for your benefit and you will not (or you will not attempt to) disclose, or provide access to, our Services to third parties without our prior written consent; and
(d) that the information and documentation you provide to us is true, correct and complete.
5. TERMINATION
5.1 These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of these Terms, and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
5.2 Upon termination or expiry of these Terms:
(a) we will immediately cease providing the Subscription Services where applicable;
(b) without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
(c) you are to pay for all Subscription Services provided prior to termination, including Subscription Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms; and
(d) you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or material owned by us that is in your possession or control, subject to any rights you may have to any Intellectual Property in accordance with clause 8.
5.3 The accrued rights, obligations and remedies of the Parties are not affected by termination of these Terms.
5.4 This clause 5 will survive the termination or expiry of these Terms.
6. YOUR CONSUMER LAW RIGHTS
6.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services which cannot be excluded, restricted or modified (Consumer Law Rights). Nothing in these Terms excludes your Consumer Law Rights as a consumer under the ACL.
6.2 You agree that our Liability for the Product and Subscription Services are governed solely by the ACL and these Terms.
6.3 Subject to your Consumer Law Rights, we exclude all implied warranties, representations and guarantees of any kind (whether statutory or otherwise) unless expressly stipulated in these Terms.
6.4 Subject to your Consumer Law Rights, all amounts paid by you for the Subscription Services are non-refundable.
6.5 This clause 6 will survive the termination or expiry of these Terms.
7. LIABILITY
7.1 Exclusions to Liability: Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) your Computing Environment; and/or
(b) any use or application of the Product by a person or entity other than you, or other than as reasonably contemplated by these Terms.
7.2 Limitation of Liability: Despite anything to the contrary, to the maximum extent permitted by law, and subject to your Consumer Law Rights:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party’s liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss;
(c) (in respect of any failure by us to comply with relevant Consumer Law Rights) our Liability is limited (at our discretion) to supplying the Subscription Services again or paying the cost of having the Subscription Services supplied again; and
(d) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Product and Subscription Services to you or, to us repaying you the amount of the Price or Subscription Services Fee paid by you to us in respect of the supply of the Product or Subscription Services to which the Liability relates.
7.3 This clause 7 will survive the termination or expiry of these Terms.
8. INTELLECTUAL PROPERTY
8.1 All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with the Terms, and the Product) (Our Intellectual Property) will at all times vest, or remain vested, in us.
8.2 We authorise you to use Our Intellectual Property solely for your own personal use, and in the manner in which it was intended to be used. This right cannot be passed on or transferred to any person, and will be subject to the conditions of your Subscription Services (as set out on the Purchase Details).
8.3 You must not use Our Intellectual Property for commercial purposes, including, for example, for re-sale, or for any other revenue generation activity.
8.4 You must not, without our prior written consent:
(a) copy, in whole or in part, any of Our Intellectual Property;
(b) reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of Our Intellectual Property to any third party; or
(c) breach any intellectual property rights connected with the Product, including (without limitation) altering or modifying any of Our Intellectual Property; causing any of Our Intellectual Property to be framed or embedded in another website; or creating derivative works from any of Our Intellectual Property.
8.5 Nothing in the above clause restricts your ability to publish, post or repost Our Intellectual Property on your social media page or blog, provided that:
(a) you do not assert that you are the owner of Our Intellectual Property;
(b) unless explicitly agreed by us in writing, you do not assert that you are endorsed or approved by us;
(c) you do not damage or take advantage of our reputation, including in a manner that is illegal, unfair, misleading or deceptive; and
(d) you comply with all other terms of these Terms.
8.6 This clause 8 will survive termination or expiry of these Terms.
9. GENERAL
9.1 Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on our website available at https://www.vacayit.com/ , and:
(a) If you are purchasing a Product: Prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any order that has been accepted by us, the terms and conditions that apply will be the ones that were in effect (and which you agreed to) when you placed your order; or
(b) If you are receiving Subscription Services: We will provide written notice to you. By continuing to use the Subscription Services after the notice or 30 days after notification (whichever date is earlier), you agree to the amended Terms. If you do not agree to the amendment, you may cancel the Subscription Services by providing written notice to us. If you cancel the Subscription Services, you will no longer be able to access the Subscription Services and if you have paid Subscription Services Fees upfront, you will be issued a pro-rate refund based on the portion of the Subscription Period remaining.
9.2 Assignment: Subject to clause 9.3, a Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
9.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
9.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from these Terms (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction or will operate to prevent a Party from taking steps to recover any debt.
9.5 Entire agreement: Subject to your Consumer Law Rights, the Terms contain the entire understanding and agreement between you and us in respect of their subject matter.
9.6 Force majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under these Terms.
9.7 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and your obligations under it.
9.8 Governing law: These Terms is governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
9.9 Publicity: You agree that we may advertise or publicise our provision of the Product to you, including on our website or in our promotional material.
9.10 Relationship of Parties: These Terms is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
9.11 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
10. INTERPRETATION & DEFINITIONS
10.1 Words like including and for example are not words of limitation.
10.2 In these Terms:
Business Days means a day on which banks are open for general banking business in Queensland, excluding Saturdays, Sundays and public holidays.
Computing Environment means any computing environment including all hardware, software, information technology and telecommunications services and all other IT systems used by a Party from time to time, including a network.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. The Parties acknowledge and agree that your obligation to pay us the Fees under these Terms will not constitute “Consequential Loss” for the purposes of this definition.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control, including but not limited to acts of God, including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Your Platform means the platform you will host the Product on and as agreed by both parties in the purchase details.