These Restocq Terms of Service are an agreement between the person visiting, browsing, accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Platform (such person, the “Customer”) and Restocq Pty Ltd (“Restocq”, Restocq and Customer, the “Parties” and each, a “Party”), and is entered into the earlier of: (a) the date Customer first uses any part of the Platform; and (b) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
BY USING THE PLATFORM (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE PLATFORM. CUSTOMER REPRESENTS AND WARRANTS TO RESTOCQ THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO RESTOCQ THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
a. Provisioning of the Platform. Subject to Customer’s compliance with the terms and conditions of this Agreement, Restocq will make the Platform available to Customer on the terms and conditions set out in this Agreement.
Limitation, Suspension, or Termination of Access; Platform Upgrades and Scheduled Downtime. Restocq may, at its discretion and without notice: (i) suspend, terminate, or limit Customer’s access to or use of the Platform or any component thereof; or (ii) Modify the Platform. Restocq will use commercially reasonable efforts to provide reasonable advance notice of such suspension, termination, or limitation.
a. Restocq expressly reserves all rights, title, and interest in, and Customer will not acquire any right, title or interest in: (i) the Platform (or any part thereof) and any other materials or content provided by Restocq under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all intellectual property rights in any of the foregoing (clauses (i) and (ii) are collectively, the “Property”). All right, title and interest in the Property will remain with Restocq (or Restocq’s third party suppliers, as applicable). For greater certainty, while the Property is made available to the Customer pursuant to Section 2 of this Agreement, the Property is not “sold” to Customer.
a. Customer grants (and if applicable, will cause each User to grant) to Restocq: (i) a non- exclusive, royalty-free, irrevocable, fully paid-up, and worldwide right and license during the Term to reproduce, perform, Modify, develop, access, collect, store and use all Customer Data, including any data, information or other content forming part thereof, in connection with this Agreement; and (ii) with regards to all De-Identified Data, which will be in aggregate form only and will not identify Customer or User or the identity of a customer’s vendors or customers, a non-exclusive, royalty-free, irrevocable, fully paid-up, perpetual, sublicensable, transferable and worldwide right and license to reproduce, perform, Modify, develop, access, collect, store, use, sell, exploit, resell, distribute, provide, and transfer, including any data, information or other content forming part thereof.
a. Customer User Account. Upon Customer’s request, Restocq will issue an account (a “Customer User Account”) to Customer for use by individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Platform (each, a “User”). Customer will ensure that Users only use the Platform through the Customer User Account. Customer will not allow Users to share the Customer User Account with any other person. Customer will promptly notify Restocq of any actual or suspected unauthorized use of the Platform. Restocq reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
b. Use Restrictions. Customer acknowledges and agrees that it is responsible for the compliance by all Users with this Agreement, any guidelines and policies published by Restocq from time to time, and the activities of all Users on the Platform. Without limiting the generality of any of the foregoing, Customer will not, and will not permit any other person (including any Users) to:
i. use the Platform to send, upload, collect, transmit, store, use, disclose or process, or ask Restocq to obtain from third parties or perform any of the above with respect to, any Customer Data:
A. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
B. “Fees” has the meaning set out in Section 8.
C. that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or
ii. disable, overly burden, impair, or otherwise interfere with servers or networks connected to the Platform (e.g., a denial of service attack);
iii. attempt to gain unauthorized access to the Platform;
iv. use any data mining, robots, or similar data gathering or extraction methods, or copy, Modify, reverse engineer, reverse assemble, disassemble, or decompile the Platform or any part thereof or otherwise attempt to discover any source code, except as expressly provided for in this Agreement;
v. use the Platform for the purpose of building a similar or competitive product or service; or
vi. use the Platform other than as permitted by this Agreement.
a. Fees. Customer will pay to Restocq the applicable fees set out in the Order Form (the “Fees”) during the Term in accordance with the payment terms set out herein and in the Order Form. If service fees for a paid subscription as described herein are not received by Restocq, pursuant to terms below, Restocq will terminate Customer’s right to access the Platform and Services. Any data Customer enters into the Platform during a period which is unpaid (where applicable) will be permanently lost unless Customer purchases a paid subscription.
b. Invoicing. Restocq will prepare and send to the Customer, at the then-current contact information on file with Restocq, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in the Order Form, Customer will pay all invoiced amounts within 30 calendar days of the invoice date. By providing credit card billing information to Restocq, Customer authorizes Restocq to charge such credit card for Fees and any other payment to be made under this Agreement. For greater certainty, Customer’s subscription to the Services will automatically renew at the expiry of the Term for the same period of time as the initial Term pursuant to Section 12, [at the then-applicable Fees as modified at Restocq’s discretion], and Restocq will invoice or charge Customer on a recurring basis.
c. Disputed Invoices or Charges. If Customer believes Restocq has charged or invoiced Customer incorrectly, Customer must contact Restocq no later than 30 days after having been charged by Restocq or receiving such invoice in which the error or problem appeared in order to receive an adjustment or credit. In the event of a dispute, Customer will pay any disputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
d. Late Payment. Customer may not withhold or “setoff” any amounts due under this Agreement. Restocq reserves the right to suspend Customer’s access to the Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of two percent (2%) compounded monthly (26.82% annually), or the maximum legal rate (if less) per month or fraction thereof, plus all expenses of collection, until fully paid.
e. Certain Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, and Customer will pay, indemnify and hold harmless Restocq from same, other than taxes based on the net income or profits of Restocq.
f. Fees; Payment; Refund Policy
i. Refund Policy. Restocq represents and warrants to Customer that during the Term the functionality of the Platform and Services at the time of the Order Form shall not materially decrease.
g. Refund Policy Procedure. To submit a warranty claim under this Section, Customer shall (i) reference this Section; and (ii) submit a support request, in writing, to resolve the material decrease in functionality. If the material decrease in functionality persists without relief for more than thirty (30) days after written notice of a warranty claim being provided to Restocq under this Section, then Customer may terminate the applicable Term and receive a refund of any prepaid, unused subscription fees (except for any applicable professional service fees) paid to Customer for the unused period of any such terminated Term. Notwithstanding the foregoing, this warranty shall not apply to any deficiency due to any modification or defect that is made or caused by someone other than Restocq.
a. Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing the terms and conditions of this Agreement and all Property (including any part thereof), whether marked as “confidential” or not, will be Restocq’s Confidential Information and will not be Customer’s Confidential Information.
b. Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Recipient will be deemed to have discharged its confidentiality obligations under this Section 9 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure.
c. Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its employees, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to Restocq’s business; or (iii) in the case of Restocq, to potential assignees, acquirers or successors of Restocq if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Restocq.
a. Customer Warranty. Customer represents and warrants to, and covenants with Restocq that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Restocq to provide the Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Restocq and to or from all applicable third parties.
b. GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE PLATFORM (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY RESTOCQ TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, RESTOCQ HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. RESTOCQ DOES NOT WARRANT THAT THE PLATFORM (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, RESTOCQ EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
c. Indemnity. Each party (“Indemnitor”) shall defend and indemnify the other party (“Indemnified party”) against any third party claim, suit, or proceeding arising out of, related to, or alleging any of the following (any “Indemnified Claim”): (i) unauthorized disclosure of exposure of personally identifiable information resulting from Indemnitor’s acts or omissions or from those of its contractors; (ii) injury to or death of any individual, or any loss of or damage to real or tangible personal property, resulting from Indemnitor’s acts or omissions or from those of its contractors; (iii) intellectual property infringement by software or content Indemnitor contributed to the Platform.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
a. AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF RESTOCQ IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL RESTOCQ’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
b. TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL RESTOCQ BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
a. Term. This Agreement will commence on the Effective Date and continue for the period set out in the Order Form. The agreement will automatically renew for a 12-month term unless the customer provides written cancelation notice 30 days in advance of renew date or the contract is terminated according to Section 12(b) (collectively, the initial term and any renewal term are the “Term”).
b. Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within 14 days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion, in each case unless the material breach is not capable of being cured.
c. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Reservation of Rights), Section 4 (Restocq’s Right to Use Customer Data), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer; Indemnity), Section 11 (Limitation of Liabilities), Section 12(c) (Survival), and Section 13 (General Provisions).
a. Publicity. Restocq may refer to Customer as being a customer of Restocq and may use Customer’s corporate name and logo for this purpose, with prior consent from Customer.
b. Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to Restocq, to the following addresses:
ATTN: Restocq Pty Ltd
LG 02/9-11 Rangers Rd
Neutral Bay 2089
and (ii) if to Customer, to the current postal or email address that Restocq has on file with respect to Customer. Restocq may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Restocq through the Platform current at all times during the Term.
c. Assignment. Customer will not assign this Agreement to any third party without Restocq’s prior written consent. Restocq may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. This Agreement will insure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
d. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Restocq in this Agreement means the right of Restocq to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
f. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond Restocq’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Restocq’s employees), Internet service provider failures or delays, or the unavailability or Modification by third parties of third party websites.
g. Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
h. Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
i. Independent Contractors. Customer’s relationship to Restocq is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Restocq.
j. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
k. Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, RESTOCQ MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY RESTOCQ, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER). YOUR CONTINUED USE OF THE PLATFORM AFTER SUCH AMENDMENT IS ACKNOWLEDGMENT OF AND AGREEMENT WITH SUCH AMENDMENT.
l. English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English