Magic Elevator - Terms & Conditions

definitions

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The following terms are used regularly throughoutthese Terms & Conditions and have a particular meaning:

(a) ABN means Australian Business Number.
‍(b) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
‍(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Sydney, Australia.
‍(d) Client means any registered user of the Services that accepts a Proposal.
‍(e) Client Data means all information, data, documents and other such materials created and owned by the Client but does not include derivative data (such as analytics).
‍(f) Company means Magic Elevator Pty Ltd ABN 52 657 257 586
‍(g) Confidential Information means any written or verbal information that:

i. Any information expressed as confidential under these Terms & Conditions;
ii. A party informs the other party that it considers it confidential and/or proprietary;
iii. A party would reasonably consider to be confidential in the circumstances; and
iv. Is personal information within the meaning of the Privacy Act and GDPR.

but does not include information that a party can establish:

v. Was in the public domain at the time it was given to that party;
vi. Became part of the public domain, without that party’s involvement in any way, after being given to the party;
vii. Was in party's possession when it was given to the party, without having been acquired (directly or indirectly) from the disclosing party; or
viii.Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.

(h) Fee means a fee charged by the Company for access to and use of the Services.
(i) GDPR means the EU General Data Protection Regulation 2016/679.
(j) GST has the meaning given by the A New Tax System (Goods and Services Tax)Act 1999 (Cth).
(k) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
(l) Ongoing Fee means the Fee charged by the Company for ongoing access to and use of the Services, as set out in the Proposal and/or on the Site.
(m) Package Type means the different types of packages with unique inclusions and service levels offered by the Company, as described on the Site.
(n) Payment Gateway means Stripe or such other payment system the Company may adopt from time-to-time.
(o) Privacy Act means the Privacy Act 1988 (Cth).
(p) Privacy Policy means the Company’s privacy policy as updated from time-to-time, which can be found at the Site.
(q) Proposal means the Company’s written quotation or proposal specifying, amongst other things, the scope of Services and applicable Fees.
(r) Services means the services to be provided by the Company to the Client as set out in the Proposal.
(s) Site means the website found at https://www.magicelevator.co, or such other URL used by the Company from time-to-time.
(t) Stripe means the cloud payments platform accessible at https://www.stripe.com/.
(u) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(v) Terms & Conditions means the terms and conditions under which the Services are provided by the Company, as updated from time-to-time.
(w) Third Party Account means a registered account with a third party service set up by the Company on behalf of the Client.
(x) Third Party Account Fees means the fees charged to register and/or maintain a Third Party Account.
(y) Third Party Service Provider means an independent service provider engaged by the Company on behalf of the Client.
(y) Third Party Service Fees means the professional fees charged by the Third Party Service Provider.
(aa) Transfer Fee means the Fee paid by the Client upon termination of the Services for the assignment of ownership of Third Party Accounts, as set out in the Proposal or otherwise notified to the Client in writing, and in default shall be equivalent to the value of the Ongoing Fee for a three month period.
(bb) Upfront Fee means the Fee paid by the Client to formally engage the Company for the Services, as set out in the Proposal and/or on the Site.

1. THE Services

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1.1 Client Access

(a) To access the Services, the Client must:

i. Accept the Proposal;
ii. Agree to the Terms & Conditions; and
iii. Pay the Upfront Fee.

(b) The Client agrees that its access to and use of the Services is subject to these Terms & Conditions.
(c) The Company may suspend or restrict the access of any Client that breaches these Terms & Conditions.

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1.2 Third Party Services

(a) The Company shall engage Third Party Service Providers to assist with completion of the Services in its complete discretion.
(b) Unless notified by the Company or otherwise agreed between the parties,the Company shall manage the relationship directly with the Third Party Service Provider on behalf of the Client.
(c) The Company accepts no responsibility for any interaction between the Client and Third Party Service Providers.
(d) The Client agrees to provide the Company and/or the Third Party Service Provider (as the case may be) all information reasonably necessary to complete the Third Party Services in a timely manner.
(e) The Client acknowledges that where information that is necessary to complete the Third Party Services is not provided by the Client in a timely manner, this will delay completion of the Third Party Services for the Client.
(f) The Client acknowledges that where information is provided to the Company for completion of Third Party Services, the Company will disclose such information to the relevant Third Party Service Provider as necessary to provide instructions to complete the Third Party Services for the Client.
(g) The Company shall bear the Third Party Service Fees subject to the Client’s payment of all Fees payable to the Company, to the extent the Third Party Service Fees are within the scope of the Proposal and/or Package Type.
(h) For clarity, where the Third Party Service Fees relate to services outside the scope of the Proposal or Package Type, then such fees will be additional and payable by the Client.
(i) The Client agrees that the Company shall not be responsible or liable in any way for any errors or negligence on the part of the Third Party Service Provider, except to the extent such is caused by the Company’s error or negligence.

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1.3 Third Party Accounts

(a) The Company shall set up Third Party Accounts on behalf of the Client as part of the Services.
(b) Unless and until termination of these Terms & Conditions, the Company shall remain the owner of the Third Party Accounts and provide the Client with administrator access.
(c) The Client shall notify the Company if they require additional permissions or user access to Third Party Accounts.
(d) The Client shall bear the Third Party Account Fees and must ensure that such fees are paid as and when required.
(e) The Client acknowledges that their access to Third Party Accounts may be restricted or lost in the event that the Third Party Account Fees are not paid as required.
(f) The Client agrees that the Company shall not be responsible or liable in any way for any interruptions to the availability of Third Party Accounts due to late payment of Third Party Account Fees, except to the extent such is caused by the Company’s error or negligence.

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1.4 Fees

(a) The Upfront Fee must be paid in full to successfully engage the Company pursuant to the Proposal.
(b) The Ongoing Fee shall be charged by the Company and paid by the Customer in advance on an ongoing monthly or annual basis, as elected by the Client, via the Payment Gateway or invoice.
(c) The Company may vary the Fee, or introduce new Fees, by giving the Customer written notice. Such changes will apply from the beginning of the next subscription period only.

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1.5 Refunds

No refunds are offered on Fees other than as required by law, in particular the Australian Consumer Law, unless otherwise agreed by the Company in its sole discretion, including circumstances where:
(a) The Ongoing Fee is paid by the Client and these Terms & Conditions are terminated prior to the end of the paid billing period;
(b) The Client is dissatisfied with the conduct or services of any Third Party Service Provider; or
(c) The Client does not use all the available inclusions offered in their Package Type.

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1.6 Late Payment

(a) Where the Client does not payany Fees as required, the Company may suspend the provision of the Services tothe Client until outstanding Fees are paid.
(b) If Fees are not brought out of arrears within 14 days of becoming overdue, the Client’s access to the Services will be automatically terminated by written notice and these Terms & Conditions shall come to an end.
(c) The Client agrees that the Company shall not be responsible or liable in any way for:

i. Interruptions to the availability of the Services in the event of (a);
ii. Loss or damage suffered in the event of (b).

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1.7 Currency

All Fees are quoted in Australian dollars, however transactions maybe processed in an equivalent foreign currency (such as US dollars).

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1.8 GST

GST is applicable to any Fees charged by the Company to the Client in Australia. Unless expressed otherwise, all Fees shall be deemed inclusive of GST. The Company will provide the Client with a Tax Invoice for any payments.

2. General conditions

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2.1 Modification of Terms

(a) The terms of these Terms &Conditions may be updated by the Company from time-to-time.

(b) Where the Company modifies the terms, it will provide the Client with written notice and such changes will take effect at the commencement of the Client’s next billing cycle. The Client will be required to accept the modified terms in order to continue using the Services.

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2.2 Support

The Company provides different tiers of support for the Client in accordance with the Package Types, or as otherwise described in the Proposal.

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2.3 Privacy

(a) The Company maintains the Privacy Policy in compliance with the provisions of the Privacy Act for personal data that it collects about its Clients.
(b) The Privacy Policy does not apply to how the Client handles personal information.
(c) We may use cookies (a small electronic tracking code) to improve a Client’s experience while browsing, while also sending browsing information back to the Company. The Client may manage how it handles cookies in its own browser settings.

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2.4 Client Data

(a) The Client grants the Company an immediate, worldwide, royalty-free license to use and incorporate the Client Data for the purposes of providing the Services.
(b) The Company shall not access,use, modify or otherwise deal with Client Data except where required by compulsion of law or upon the Client’s authority (such as to provide the Services and instruct Third Party Service Providers).

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2.5 Intellectual Property

(a) Trade marks. The Company has moral and registered rights in its trade marks and the Client shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
(b) Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Client agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws,both domestically and internationally. The Client warrants that it shall not infringe on any third-party rights through its participation in the Services.
(c) Content. All content (excluding Client Data)submitted to the Company becomes and remains the Intellectual Property of the Company, including (without limitation) any analytics, insights, ideas, enhancements,suggestions or other information provided by the Client with respect to the Services.

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2.6 Third Party Dependencies

The Client agrees and acknowledges that the Services has third party dependencies which may affect its availability, including(without limitation) hosting services, and that the Company has no means of controlling the availability of such dependencies and shall not be liable for any interruptions to such.

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2.7 Confidentiality

(a) The Company agrees to keep all Client Data in the strictest confidence, and to the extent Client Data is accessed and/or received by the Company it shall be deemed as Confidential Information for the purposes of these Terms & Conditions.
(b) Each party acknowledges and agrees that:

i. the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);
ii. it owes an obligation of confidence to the Discloser concerning the Confidential Information;
iii. it must not disclose the Confidential Information to a third party except as permitted in these Terms& Conditions;
iv. all Intellectual Property rights remain vested in the Discloser, but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
v. any breach or threatened breach by the receiving party of an obligation under these Terms & Conditions may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently,the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

i. any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
ii. any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
iii. any actual, suspected, likely or threatened theft, loss, damage, or unauthorized access, use or disclosure of or to any Confidential Information.

(d) The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

i. any actual, suspected, likely or threatened breach of a term of these Terms & Conditions; or
ii. any theft, loss, damage or unauthorized access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

‍2.8 Liability & Indemnity

(a) The Company make no representations, warranties or guarantees, whether express or implied, that the Client will achieve particular results from its access to the Services,including any business success.
(b) The Client agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the Client’s use of or conduct in connection with the Services, including any breach by the Client of these Terms& Conditions.
(c) In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Client’s access to, or use of the Services, in particular any decision made in reliance on information or advice received as part of the Services,whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise
(d) Each party releases the other party from any liability for any claim arising as a result of delay or failure to provide the Services or to comply with these Terms & Conditions to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable.
(e) Certain rights and remedies maybe available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:

i. The re-supply of services or payment of the cost of re-supply of services; or
ii. The replacement or repair of goods or payment of the cost of replacement or repair.

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2.9 Termination

(a) Either party may terminate these Terms & Conditions by giving the other party 30 days’ written notice.
(b) The Company may terminate these Terms & Conditions if the Client is in breach of these Terms and:

i. That breach is not capable of remedy;
ii. The breach is material, wilful, reckless or repetitious; and/or
iii. The breach can be remedied but is not remedied within 15 Business Days of being given notice of that breach by the Company.

(c) Termination is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way up to the date of expiry or termination.
(d) Upon valid termination of this Agreement, the Company shall transfer ownership of Third Party Accounts to the Client as soon as reasonably practicable, subject to the payment of the Transfer Fee.
(e) For the avoidance of doubt, the Transfer Fee will only be payable by the Client in circumstances where the Client wishes to obtain ownership of Third Party Accounts at termination of this Agreement.

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2.10 Dispute Resolution

(a) If any dispute arises between the parties in connection with these Terms & Conditions (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:

i. Includes or is accompanied by full and detailed particulars of the Dispute; and
ii. Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.

(b) Within 10 Business Days after a Dispute Notice is given, a representative of each party with the authority to resolve the dispute, must meet (virtually or otherwise) and seek to resolve the Dispute.
(c) Subject to clause (d), a party must not bring formal proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
(d) Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive,interlocutory or declaratory relief in respect of a Dispute.
(e) Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.

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2.11 Electronic Communication, Amendment & Assignment

(a) The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
(b) The Client can direct notices, enquiries, complaints and so forth to the Company as set out in these Terms& Conditions.
(c) The Company will send the Client notices and other correspondence to the details that the Client submits to the Company, or that the Client notifies the Company of from time-to-time. It is the Client’s responsibility to update its contact details as they change.
(d) A consent, notice or communication under these Terms & Conditions is effective if it is sent as an electronic communication unless required to be physically delivered under law.
(e) The Client may not assign or otherwise create an interest in these Terms & Conditions.
(f) The Company may assign or otherwise create an interest in its rights under these Terms & Conditions by giving written notice to the Client.

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2.12 General

(a) Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms & Conditions.
(b) Relationship. The relationship of the parties to these Terms & Conditions does not form a joint venture or partnership.
(c) Waiver. No clause of these Terms &Conditions will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
(d) Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms & Conditions.
(e) Governing Law. This Agreement is governed by the laws of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
(f) Severability. Any clause of these Terms& Conditions, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms & Conditions.
(g) Interpretation. The following rules apply unless the context requires otherwise:

i. Headings are only for convenience and do not affect interpretation.
ii. The singular includes the plural and the opposite also applies.
iii. If a word or phrase is defined,any other grammatical form of that word or phrase has a corresponding meaning.
iv. A reference to a clause refers to clauses in these Terms & Conditions.
v. A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
vi. Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
vii. A reference to a party to these Terms & Conditions or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
viii. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
ix. A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten,for example, computer software or programs, concepts, data, drawings, ideas,knowledge, procedures, source codes or object codes, technology or trade secrets.

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