Terms and Conditions of Trade
These terms and conditions of trade apply in relation to the supply of Good and/or Services provided by Olinqua to You. If you have any enquiries regarding these terms and conditions, please contact us at firstname.lastname@example.org.
It is a condition precedent of your engagement of the goods and/or services provided by Olinqua that You warrant that you have agreed and accepted these terms and conditions. In the event of any conflict between these terms and conditions and any other agreement you make with Olinqua, these terms and conditions supersede such other agreement and these terms and conditions prevail.
It is a further condition precedent of the supply of Goods and/or Services provided by Olinqua to You that You have obtained Informed Consent from any Person whose Information may, directly or indirectly, be captured, accessed, disclosed or used in use and/or operation of the Goods and/or Services provided by Olinqua to you.
The following definitions apply to the terms and conditions:
- Acts means any legislation or statutory instrument of a State or Territory of Australia or of the Commonwealth of Australia;
- Application means the mobile and/or Website application provided by Olinqua.
- Australian Consumer Law means schedule 2 of the Competition and Consumer Act 2010 (Cth);
- Australian Law means any law in force at the time of acceptance of these terms and conditions.
- Business Day means any day other than a Saturday, Sunday or public holiday in Queensland, Australia;
- Confidential Information means any information in any form which includes:
– the existence of and the terms of these conditions; and all information, know-how, ideas, concepts, technology, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form) relating to or developed in connection with or in support of the business of a party or a Related Body Corporate of a party which is disclosed, communicated or delivered to, learnt by, or which otherwise comes to the knowledge of or into the possession of the other party under or in connection with these terms;
but does not include:
– information which is or becomes generally available in the public domain (other than through any breach of confidence);
– information rightfully received by the other party from a third person who is under no obligation of confidentiality in relation to the information and who has not obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to the first party; or information which has been independently developed by the other party.
- Consequential Loss means any loss, damage or costs incurred by a party that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity;
- Defect means an imperfection in the Goods and/or Services caused by a design flaw or fault that renders the Goods and/or Services dangerous or unfit for purpose;
- Force Majeure Event means a strike, industrial action, compliance with a government request, a shortage of supply, flood, fire, tempest or any other cause beyond the reasonable control of Olinqua;
- Goods means any chattel, whether tangible or intangible, or intellectual property provided or made available to You by Olinqua;
- GST has the meaning set out in section 195-1 of the GST Act;
- GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended;
- Information means any information including but not limited to recorded data and Confidential Information;
- Insolvency Event means:
– they are (or state they are) an insolvent under administration or insolvent (each as defined in the Corporations Act 2001 (Cth));
– they have had a controller (as defined in the Corporations Act 2001 (Cth)) appointed, are in liquidation, in provisional liquidation, under administration or wound up or have had a receiver or a receiver and manager appointed to any part of their property;
– they are subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved, (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by Olinqua);
– an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with them, which is preparatory to or could result in any of the things referred to in paragraphs (a) to (c) inclusive above;
– they are taken (under section 459F of the Corporations Act 2001 (Cth)) to have failed to comply with a statutory demand or have committed an act of bankruptcy as defined in the Bankruptcy Act 1966 (Cth);
– they are the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 (Cth) (or they make a statement from which Olinqua reasonably deduces they are so subject);
– they are otherwise unable to pay their debts when they fall due; or
– something having a substantially similar effect to any of the things referred to above happens in connection with them under the law of any jurisdiction.
- Intellectual Property includes all copyright, registered and unregistered trademarks, design, patent, patent application, business, company or domain names, rights to have confidential information kept confidential, other proprietary rights or any rights to registration of such rights existing anywhere in the world whether created or in existence before or after the You accepting these terms and conditions.
- Loss means all actions, claims (including third party claims), costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities, losses (including Consequential Loss);
- Olinqua means Olinqua Pty Ltd and its related and associated entities, assignees and licensees.
- Purchase Price has the meaning given in Clause 5.
- Representatives mean the officers, employees, agents, representatives, contractors and subcontractors of the relevant party;
- Person means any individual whose namesake, likeness, personal, sensitive or health information (as those terms are understood in Australia law) is used, directly or indirectly, in relation to the Goods and/or Services;
- Services means any service whether tangible or intangible, or intellectual property provided or made available to You by Olinqua;
- Tax Invoice means an invoice which complies with the GST Act in relation to the production and form of tax invoices for GST purposes;
- Termination Event means any of the events specified in Clause 10.
- Website means the website located at https://olinqua.com/ as it exists from time to time; and
- You means any person(s) using the Goods and/or Services provided by Olinqua.
In these terms and conditions, the following interpretation applies:
- words importing the singular number shall include the plural number and vice versa, and words importing one gender shall include the other genders;
- if You consist of more than one person, these conditions shall be deemed to have been entered into jointly and severally by those persons and the provisions hereof shall have effect accordingly;
- any agreement not to do something includes an agreement not to permit it to be done;
- a reference to an Act includes regulations and any statutory instruments or binding determinations made under any of them, and consolidations, amendments, re-enactments or replacements of any of them;
- the expressions “including”, “for example” or “such as” or any form of them in these conditions do not limit what else is included and must be construed as if they were followed by the words “without limitation”.
You acknowledge and agree that you have accepted these terms and conditions by:
- accessing the Website;
- accessing (including using) the Goods and/or Services;
- conduct; and/or
- express acceptance of these terms and conditions by clicking “I accept”.
You must register an account to use the Application and access the Goods and/or Services (“Account”).
You agree to provide Olinqua with Information for the purpose of the creation of an Account.
You agree that you will only register one (1) Account and that you are solely responsible for keeping your Account details, including your password and any Information collected, accessed or disclosed via the Goods and/or Services, confidential and secure.
You agree that Olinqua may procure third-party services to verify your identity and warrant that the Person who is listed as the Account holder will be solely responsible for access to the Account.
You warrant and agree that You are solely liable for any unlawful use, access or disclosure of the Account and any against any Consequential Loss associated with use of an Account, including by any user of an Account.
You agree to immediately notify Olinqua of any unauthorised use of your Account.
You agree that Olinqua may access your Account at any time, with or without notice, for the purpose of ensuring security integrity and ongoing development of the Goods and/or Services.
You agree that Olinqua may contact you via any Information provided in connection with the creation of your Account.
You agree that the following are prohibited uses of an Account and that, at its sole discretion, Olinqua may terminate or suspend an Account as a consequence of a breach of these terms and conditions, including these prohibited uses:
- any unlawful use;
- any solicitation of any other Person to participate in an unlawful act(s);
- any infringement of Intellectual Property;
- any harassment, abuse, defamation, denigration or discrimination of any other Person;
- uploading or transmission of any virus or malicious code;
- the collection and tracking of Information regarding any other Person; and
- interference with or circumvention of any security feature of the Goods and/or Services.
You agree that Olinqua may charge a fee for the creation, use and/or access to an Account.
In consideration for providing the Goods and/or Services, Olinqua may charge You a service fees (including any third party payment processing fees) as set out on the Account. To the extent permitted by law, these fees are non-refundable (to the extent permissible at law) and includes any payment processing fee and will be included in such fees.
Any Intellectual Property that might be utilised, accessed or exposed by You is by way of a non-exclusive licence without the right to grant sub-licenses to use the Intellectual Property.
You must not use any Intellectual Property subsisting in the Goods and/or Services for your own purposes.
The Intellectual Property is Confidential Information, and You:
- must not at any time during the term of these conditions, after its termination or expiration disclose such confidential material to any person or corporation without obtaining prior written consent of Olinqua;
- must take such steps as may be necessary to ensure that any of its employees or agents do not disclose such material; and
- must comply, within a reasonable time, with all directions issued by Olinqua regarding the manner of use of the Intellectual Property.
Upon termination of these conditions:
- You must deliver to Olinqua all documents and other materials (including all copies) in its possession relating to the Intellectual Property and do such further things as may be reasonable required by Olinqua to protect its right, title and interest in the Intellectual Property.
If there is any failure by Olinqua to comply or any delay in complying with any of these conditions due to a Force Majeure Event:
- Olinqua is not in breach of these conditions by reason of the Force Majeure Event;
- Olinqua’s obligation to supply or deliver the Goods and/or Services is suspended for the duration of the Force Majeure Event;
- if the delay or failure continues for in excess of 7 days’, Olinqua may terminate any existing Account by notice in writing to You.
Olinqua is not liable for any Loss incurred by You by reason of such suspension or termination.
Limitation of Liability
Subject to clause 8(c) or any other laws, all terms, conditions, warranties or undertakings whether express or implied, statutory or otherwise, oral or written relating in any way to the sale of the Goods and/or Services, are excluded including, without limitation, any warranties of merchantability or fitness for purpose.
The Customer may have rights under the Australian Consumer Law or other rights in relation to the supply of Goods and/or Services that cannot lawfully be excluded by Olinqua (“Non-excludable Rights”). With the exception of Non-excludable Rights, and notwithstanding any other provision of these conditions, the liability of Olinqua to You, whether arising under or in connection with these conditions or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort for negligence or otherwise, or on any other basis in law or equity is hereby limited and excluded as follows:
- Olinqua shall have no liability whatsoever to the Customer for any Consequential Loss; and
- the total aggregate liability of Olinqua is at all times limited to the amount equal to the price as it relates to the Goods and/or Services, or both.
- To the maximum extent permitted by law, Olinqua’s liability pursuant to any warranty, term or condition implied in these conditions and any non-excludable right is limited to a refund of the fees paid in relation to the Account.
- Olinqua disclaims all liability to You for loss, damage or injury (including death) resulting from the use of the Goods and/or Services for a purpose other than its intended purpose or otherwise than in accordance with its directions for use.
- You indemnify and hold Olinqua harmless against all loss howsoever caused, arising out of or in any way connected with any breach by You of these conditions.
- You acknowledge that it is not necessary for Olinqua to incur an expense or make a payment before enforcing a right of indemnity conferred by these terms and conditions or to mitigate its loss.
Where Olinqua receives, collects or handles Information in the course of processing and administering the Customer’s accounts, Olinqua will ensure that it has taken and continues to take all reasonable technical and organisational measures against the unauthorised or unlawful processing or disclosure of the Personal Information.
It is a Termination Event if:
- You breach these terms and conditions;
- You fail to pay any fee associated with an Account; and
- an Insolvency Event occurs in relation to You or a guarantor.
Any dispute relating to these conditions (“Dispute”) will be dealt with in accordance with this clause.
The party claiming the Dispute will give notice of the Dispute to the other party which will include all facts on which that party relies in relation to that Dispute (“Dispute Notice”).
Within five (5) Business Days after service of a Dispute Notice, each of the parties’ Representatives will meet at least once to attempt, using their reasonable endeavours, to resolve the Dispute in good faith.
If the Dispute has not been resolved within 15 Business Days after the Service of the Dispute Notice, either party may start mediation by serving a written notice setting out the nature of the dispute, the proposed mediator, venue and attendees (“Mediation Notice”).
Within 30 days of the Mediation Notice, the parties must use best endeavours to agree on the mediator, venue and attendees.
If the parties cannot reach agreement about the mediator, either party may refer the matter to the Australian Disputes Centre for the appointment of a mediator.
Each party must pay an equal share of the mediator’s fees and the mediation venue costs.
Each party may be represented at the mediation by a person with authority to settle the dispute.
Any Information disclosed in connection with mediation remains confidential and is privileged from disclosure to third parties or in evidence, except to enforce a settlement agreement reached at the mediation.
Any agreement reached at mediation will not be binding unless it is reduced to writing and signed by the parties.
A party may not start court proceedings in relation to a Dispute until it has complied with the procedures in this clause, unless it commences legal proceedings to preserve any rights it may have.
Nothing in this clause prevents Olinqua from seeking urgent injunctive or interlocutory relief in protecting the Intellectual Property.
Notwithstanding the existence of a Dispute, both parties will continue to perform their respective obligations under these conditions.
Each party (“Recipient”) must keep confidential, and not disclose, any Confidential Information of the other party (“Discloser”) except:
- as permitted under these conditions;
- with the prior written consent of the Discloser; or
- where the Recipient is compelled to do so by law, provided that it gives the other party written notice prior to disclosure.
The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with these conditions.
The Recipient must:
- maintain effective security measures to protect all Confidential Information in the possession or control of the Recipient from unauthorised access, use, copying or disclosure;
- notify the Discloser immediately in writing if the Recipient becomes aware of any anticipated, suspected or actual breach of these conditions by the Recipient and take all reasonable steps required to prevent or stop that breach, at the Recipient’s expense; and
- reasonably assist the Discloser in connection with any action or investigation by the Discloser regarding any anticipated, suspected or actual unauthorised disclosure or misuse of the Confidential Information by the Recipient.
These terms and conditions are governed by and construed in accordance with the laws of Queensland, Australia.
In the construction and interpretation of these terms and conditions, where the circumstances so require:
- the singular shall include the plural and vice versa;
- the neuter shall include the personal gender and vice versa; and
- the word ‘person’ shall include natural persons, bodies corporate or voluntary associations and also the person’s heirs, executors, administrators, successors and/or assigns.
You agree that you have accepted these terms and conditions voluntarily upon your own information, investigation and legal advice.