Terms & Conditions
(c) In addition to facilitating property administration, Kolmeo Software also facilitates the transfer of money through third party software technology that acts as the interface between a supplier and an acquirer for the purpose of validating the credentials You use to obtain access to the Kolmeo Software including a username and password (Access Credentials) and ensuring sufficient funds are available from the payor's bank account or credit card or debit card (Payment Gateway).
(f) The Services are to be used within Australia only.
2 ACCESS TO AND USE OF SERVICES
(b) Access to the Services may only be available to compatible devices that meet specific system or software requirements specified by Kolmeo from time to time on Our Website. We give no warranty or guarantee that access to or use of the Services will be available to all devices and You are solely responsible for ensuring that any device You use meets the system, software or other requirements specified by us from time to time on Our Website.
(d) You must not, nor cause or permit a third party to: (i) access and/or use the Services in a manner or for a purpose which is improper, immoral, illegal or fraudulent; (ii) access and/or use the Services in a manner or for a purpose which infringes any person’s intellectual property rights including without limitation the following rights: (1) copyright, trade marks, patents, designs, circuit layout rights, trade secrets, know-how and any right to have confidential information kept confidential; (2) any application or right to apply for registration of any of the rights referred to in item (1) of this clause; and (3) all rights of a similar nature to any of the rights referred to in items (1) and (2) of this clause, that may subsist anywhere in the world, (Intellectual Property Rights); or (iii) access and/or use the Services in a manner or for a purpose which restricts or interferes with the provision of the Services by Kolmeo to any other users; (iv) reverse engineer, reverse assemble, reverse compile, copy, duplicate, modify, make derivate works of, re-sell, re-supply or share all or part of the Services (or any of Kolmeo’s Intellectual Property Rights in the Services); (v) enter into a transaction relating to access or use of the Services with, or disclose any part of the Services (or any part of Kolmeo’s Intellectual Property Rights) to a party other than Kolmeo without the written consent of Kolmeo; (vi) gain, attempt to gain or assist or request any person to gain unauthorised access to any data, information, content or other material uploaded to the Kolmeo Software (Content) via Access Credentials and/or Services, computer systems or networks connected to the Services, including through hacking, password mining or any other means; (vii) transfer or allow to be transferred Your Access Credentials between or amongst other individuals or systems; or (viii) allow any other person to access, use or modify the Services by using Your Access Credentials.
(e) You acknowledge and agree that You are solely responsible for any use of the Services or Documentation under Your Access Credentials (or, if You are an Owner, an Agent (as defined in clause 3(a)(i) below), or the Personnel (as defined in clause 2(e)(iii) below) of an Agent, pursuant to Your Agent Authority (as defined in clause 3(a) below)) by: (i) You; (ii) an Agent; (iii) an Agent's officers, employees, agents, contractors and subcontractors (Personnel) or any third party, whether authorised or not and indemnify and will defend and hold harmless, Us and Our Personnel in relation to any claim, notice, demand, action, proceeding, litigation, investigation, judgment or Liability (being any liability or obligation (whether actual, contingent or prospective) including any loss, damage, cost, charge liability (including tax liability) or expense (including legal costs and expenses), irrespective of when the acts, events or things giving rise to the liability or obligation occurred), however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute (Claim) by a third party relating to: (iv) their use of the Services; (v) the Content; and (vi) the disclosure, transfer or exchange of the Content by Kolmeo to or with the provider of any third party software, application, product or service integrated with or used in conjunction with the Services from time to time (Approved Third Party Application).
3 AUTHORISATION OF USE OF THE SERVICES BY AGENT OR AGENT'S PERSONNEL
(a) If You are a party who lets, or offers, attempts or agrees to let, real property (Rental Property) either on Your own behalf or together with the other owners of that Rental Property (Owner) You may authorise: (i) a third party who is an agent licenced under applicable legislation, regulations or rules relating, or relating among other things, to the leasing of real property and/or the regulation of real estate agents (Agent); and (ii) an Agent's Personnel, to use the Services on Your behalf and on behalf of any other owners of the Rental Property (Co-Owners), including to initiate the transfer of money by You to the Agent and/or a third party (Agent Authority).
(b) You must notify Us in writing if You have given an Agent Authority and provide Us and the Agent with: (i) information regarding: (1) the duration of the Agent Authority; and (2) any restrictions You wish to place on the Agent Authority; and (ii) any other information relating to the Agent Authority reasonably required by Us, (the Authority Information).
(c) You acknowledge and agree that on Our receipt of the Authority Information, We will, to the extent possible, issue the Agent with the necessary credentials and authorisations which will allow the Agent and the Agent's Personnel to use the Services on Your behalf, as authorised, including to initiate the transfer of money by You to the Agent and/or a third party (Agent Credentials).
4 SUSPENDING OR TERMINATING ACCESS TO THE SERVICES
(b) We may terminate this Agreement and Your access to the Services: (i) at any time and without cause by providing You with not less than 30 days' written notice of termination; (ii) immediately if the Platform Services Agreement (as defined in clause 7(l) below) is terminated; or (iii) immediately if a Force Majeure (as defined in clause 6(b)(iv) below) event has continued for more than 60 consecutive days.
(c) To the maximum amount permitted by law, We exclude all Liability to You if We suspend or terminate the Services under this clause.
(d) The termination of this Agreement is without prejudice to the parties' other rights accrued under this Agreement or at law.
5 RESTRICTIONS ON SERVICES
In using the Services, You must not, nor cause or permit a third party to:
(a) provide Us with inaccurate or incomplete information;
(b) violate any applicable laws, or use the Services for any purpose that is unlawful;
(c) distribute viruses, spyware, corrupted files, or any other similar software or programs that may damage the operation of any computer hardware, software or the Services;
(d) engage in any other conduct that is improper or brings Us or the Services into disrepute;
(e) engage in, or otherwise accept payments in connection with, a Prohibited Transaction (as defined in clause 9(a)(i) below); or
(f) knowingly, by any act or omission, cause Us, the Payment Gateway Provider (as defined in clause 7(g)(i) below) and/or any of its service providers to: (i) breach any law, industry code or technical standard; or (ii) jeopardise Our or their participation in any payment system, Card Network (as defined in clause 9(a) below) or the New Payments Platform promoted and operated by NPP Australia Limited ABN 68 601 428 737.
6 SERVICE AVAILABILITY, SUPPORT AND MODIFICATIONS
(a) You expressly acknowledge and agree that Service continuity is not assured, the Services and access to the Content are provided on an ‘as is’ basis and Kolmeo is not liable for any failure in Service continuity.
(c) In the case of technical problems that adversely affect Your use of the Services, You must make all reasonable efforts to investigate and diagnose the problem. If You still need technical assistance after first attempting to investigate, diagnose and resolve the problem, or You require any assistance with the use of the Services, You may seek assistance via the contact details provided for assistance in the Kolmeo Software.
(d) We may impose reasonable usage limitations on Services from time to time, at Our discretion.
(e) Kolmeo may temporarily limit or suspend the availability of all or part of the Services or Content if it is reasonably necessary (including for security, maintenance or public safety reasons, or if there are interoperability, data protection or other operational or technical reasons) and where practicable We will notify You in advance.
(f) Kolmeo may modify or update the Kolmeo Software from time to time in its discretion.
7 TRANSFER OF MONIES
(a) We do not handle any transfers of funds using Kolmeo Software (Transactions) between You (or, if You are an Owner, an Agent, or the Personnel of an Agent, pursuant to Your Agent Authority) and any other party.
(b) All Transactions will be processed and validated via a Payment Gateway.
(c) You acknowledge and agree that once a Transaction is initiated by You, the money may, to the extent permitted by law, be disbursed by the recipient at their absolute discretion. Such disbursement may include (but is not limited to) disbursement by Owners: (i) to Agents for commissions; or (ii) to suppliers for property maintenance services and other costs.
(d) You acknowledge and agree that the money, or part of the money, being transferred as part of a Transaction, may not be able to be paid into the bank account of one or more of the intended recipients (Undeliverable Funds) by the Payment Gateway Provider (as defined in clause 7(g)(i) below).
(e) You authorise the transfer of any Undeliverable Funds to: (i) Your Agent, if You are an Owner; or (ii) the Owner's Agent, if You are a person who rents, or offers, attempts or agrees to rent a Rental Property on Your own behalf or together with others (Tenant), and You authorise the relevant Agent to disburse those Undeliverable Funds to the intended recipients.
(f) If any Undeliverable Funds are unable to be transferred in accordance with clause 7(e), You authorise the return of those Undeliverable Funds to the party who initiated the Transaction.
(g) You acknowledge and agree that: (i) Kolmeo may engage Assembly Payments Platform Pty Ltd (and its related companies) and/or any other person, from time to time to provide a Payment Gateway (Payment Gateway Provider); (ii) Kolmeo does not act for or on behalf of a Payment Gateway Provider; and (iii) beyond engaging the Payment Gateway Provider to provide a Payment Gateway, Kolmeo has no influence or control over any Transaction initiated by You.
(h) Kolmeo makes no representations or warranties regarding the security of any Payment Gateway.
(j) You must provide to a Payment Gateway Provider and its service providers, directly or through Us, all necessary information and authorisations to enable a Payment Gateway Provider and its service providers to: (i) accept payments from You; and (ii) comply with their obligations and exercise their rights under the rules of any payment system, including BPAY Payments the electronic payments service promoted and operated by BPAY Pty Limited ACN 079 137 518.
(k) If You are an Owner, you authorise Kolmeo to: (i) issue receipts to Your Tenants for rent paid by them which is transferred to You and/or any Co-Owners through the Payment Gateway (Rent Receipts); and (ii) include a statement on each Rent Receipt directing queries about the Rent Receipt to Your Agent.
(l) If there is any inconsistency between the terms of this Agreement, the agreement for platform services entered into by Us and a Payment Gateway Provider (Platform Services Agreement) and/or the Payment Gateway User Agreement, the terms will be given priority in interpretation and application as follows to the extent of any inconsistency: (i) the Platform Services Agreement; (ii) this Agreement; and (iii) the Payment Gateway User Agreement.
8 AUTHORISATION TO ACT
9 PAYMENT DISPUTES, MANDATORY REVERSALS AND REFUNDS
(a) For the purposes of this Agreement, a Mandatory Reversal is a reversal which refunds a party to the Transaction, up to the full amount of the Transaction as a result of: (i) the Transaction being: (1) unauthorised, unlawful, suspicious or fraudulent; or (2) related to businesses, business activities or business practices that are prohibited by the Payment Gateway Provider, a Card Brand (as defined below) or financial institution involved in the Transaction (Prohibited Transaction); or (ii) a claim in respect of which the Payment Gateway Provider is required to refund a party to the Transaction up to the full amount of the Transaction under: (1) the terms of its arrangements with its banks or other financial institutions including any applicable credit card scheme, debit card scheme or other banking or payment industry rules or regulations (Banking/Payment Arrangements); or (2) any law, and includes any Chargeback under the Banking/Payment Arrangements, being a Transaction that the network that powers credit card and debit card transactions for Visa and MasterCard or such other networks that power credit card and debit card transactions as agreed by Kolmeo and the Payment Gateway Provider (Card Network) reverses by returning money to a Kolmeo Software user pursuant to the relevant Card Network rules.
(b) If a Transaction is disputed or a Mandatory Reversal or a voluntary reversal of a Transaction approved by You (Refund) is being sought by a Platform User, You agree: (i) to be bound by any payment industry or banking rules and regulations applicable to the dispute or Mandatory Reversal; (ii) to take all reasonable action to assist in resolving any dispute involving a Transaction, potential Mandatory Reversal or Refund in a timely manner; (iii) to provide timely assistance and information reasonably requested by Us for provision to a relevant party, including a Card Network, the Payment Gateway Provider, the Payment Gateway Provider's processor or any financial institution; (iv) to provide Your instructions (if any) in relation to any relevant disputed Transaction, potential Mandatory Reversal or Refund: (1) to the Payment Gateway Provider; or (2) to Us to provide to the Payment Gateway Provider; and (v) that if a Refund is being sought, to provide, in a timely manner, the Your instructions including whether to accept or reject the Refund request.
(c) You authorise the Payment Gateway Provider to give effect to: (i) the payment of any amount to settle a disputed Transaction as authorised by You; (ii) Mandatory Reversals; and (iii) Refunds, including by direct debit of the relevant amount from Your nominated account or credit card or debit card.
(a) For each Transaction initiated by You, (or, if You are an Owner, an Agent, or the Personnel of an Agent, pursuant to Your Agent Authority), You must pay Us: (i) the relevant Transaction Fee as that term is defined in the Transaction Fees Table annexed to this Agreement; and (ii) if the circumstances set out in the Additional Fees Table annexed to this Agreement apply to You, the relevant Additional Fee as that term is defined in the Additional Fees Table, (the Fees), unless Your Agent (if You are an Owner) or the Owner's Agent (if You are a Tenant) has agreed with Us to pay the applicable Transaction Fees and/or the Additional Fees.
(b) You authorise the Payment Gateway Provider to: (i) collect Transaction Fees on Our behalf by adding the relevant Transaction Fee to the amount payable in respect of a Transaction; and (ii) collect any Additional Fees on Our behalf by direct debit from Your nominated account or credit card or debit card.
(c) You must provide a completed Direct Debit Authority to Us to authorise the direct debit of: (i) money to give effect to Transactions initiated by You; (ii) Fees; and/or (iii) any other amounts due and payable by You under or in accordance with this Agreement, from Your nominated account or credit card or debit card.
(d) If the Payment Gateway Provider does not collect the Fees under clause 10(b), We may invoice You for the Fees, in which case the Fees are due and payable seven days from the date of the invoice (or the next day on which the banks are open for business in Melbourne, Victoria other than a Saturday, Sunday or public holiday in Melbourne, Victoria (Business Day)).
(e) Unless otherwise stipulated, the Fees do not include any applicable goods and services tax (GST) or other applicable taxes and in addition to the Fees, You must pay the applicable GST or other applicable taxes as directed by Us.
(f) We may change the Fees at any time by providing You with at least 30 days’ notice.
(g) If such changes to the Fees are not acceptable to You, You may terminate this Agreement by: (i) giving Us notice of such termination; (ii) instructing Us that any Agent Authority given by You has been revoked; and (iii) ceasing to use Your Access Credentials to access the Services.
11 YOUR CONTENT
(a) We acknowledge and agree that all rights, title and interest in and to the Content will at all times remain owned by You.
(b) You acknowledge that Kolmeo may use the Content and information derived from the Content to produce any data, information, content or other material that is de-identified such that it does not identify any individual, including You (De-identified Data), which De-identified Data may include similar content and information from other customers of Kolmeo. Kolmeo owns all right, title and interest in and to the De-Identified Data and information and may use and commercialise the De-Identified Data and information at its absolute discretion.
(c) You are responsible for ensuring the accuracy and completeness of the Content You upload to the Kolmeo Software.
(e) You are responsible and must adopt reasonable measures to limit Your exposure to the potential loss, corruption, disclosure and damage of the Content. To the maximum extent permitted by law, Kolmeo expressly excludes Liability for any loss of Content no matter how caused.
(f) You acknowledge and agree that Kolmeo is not responsible for any errors, omissions, losses or damages of any kind resulting directly or indirectly from any inaccuracies in Content provided by You or any failure by You to ensure the integrity, completeness or accuracy of Content before providing it to Kolmeo or inputting it into the Services.
(g) You warrant that: (i) You have the right to, or have otherwise obtained all licences, consents, authorisations and approvals and made all disclosures necessary to, collect, store, disclose, use, upload, reproduce, permit Kolmeo to reproduce and/or transfer the Content using the Services, including any Personal Information (as defined in the Privacy Act 1988 (Cth) (Privacy Act)) included in the Content; (ii) the Content will not violate or infringe upon the rights (including Intellectual Property Rights) of any other person; (iii) the Content will not contain a virus or other harmful component; and (iv) the Content will comply with any other guidelines specified to You by Us.
12 HOSTING OF CONTENT
(a) You acknowledge that We engage Microsoft Corporation (and its related companies) to provide Content storage services and to host the Services, and may engage any other person from time to time to provide hosting and storage services in connection with the Services and Content (Hosting Service Provider).
(b) The Hosting Service Provider may transmit, maintain and store all or parts of the Content (including Personal Information) on multiple servers across various jurisdictions. Servers in which Content (including Personal Information) may be stored by the Hosting Service Provider are currently located in Australia, although additional or other locations may be used by the Hosting Service Provider in the future, including overseas locations.
(c) Acknowledging all of the above, by providing Kolmeo with Content (including Personal Information) or by accessing or using the Services, You: (i) consent to Kolmeo disclosing and transferring Content (including Personal Information) to its Hosting Service Provider for the purpose of allowing the Hosting Service Provider to host all Content necessary to support the Services and for Kolmeo to provide the Services to You; (ii) consent to Kolmeo and the Hosting Service Provider transmitting, maintaining and storing Content (including Personal Information) between and on servers that may be located overseas; and (iii) agree that the requirement under the Privacy Act for Kolmeo to ensure its Hosting Service Provider and any other third-party provider it may use from time to time comply with applicable Australian privacy laws in respect of Content (including Personal Information) does not apply.
(d) You acknowledge and agree that the transmission of Content (including Personal Information) between Kolmeo and its Hosting Service Provider is necessary for Kolmeo to maintain and provide the Services to You.
13 THIRD PARTY CONTENT
The Kolmeo Software may link to third party websites or feeds that are connected or relevant to the Kolmeo Software. The availability of any link from the Kolmeo Software does not imply that Kolmeo endorses, approves, recommends or accepts responsibility for those websites or feeds, or their content or operators. To the maximum extent permitted by law, Kolmeo excludes all responsibility and Liability for those websites and feeds, including responsibility and Liability for any infringement of third party Intellectual Property Rights arising therefrom.
14 INFRINGING OR OBJECTIONABLE CONTENT
If You believe the Services contain elements that are objectionable, or infringe Intellectual Property Rights or any other rights, please contact Kolmeo at info@Kolmeo.com, and provide particulars of such content and a detailed description of why it is objectionable or infringing.
15 ACCURACY OF INFORMATION
(a) All Services are provided in good faith. We derive Our information from sources which We believe to be accurate and up to date. We, nevertheless: (i) do not guarantee the information contained within the Services is reliable, accurate, up to date or complete, or that Your access to the information will be uninterrupted, timely or secure; (ii) reserve the right to update any information contained in the Services at any time; and (iii) to the maximum extent permitted by law, do not accept responsibility for Liability suffered by You or a third party as a result of Your reliance on the accuracy of information contained in the Services.
(b) The Services are not designed or intended for use (and must not be relied on) as a substitute for accounting, legal or any other advice, including in relation to relevant property and real estate laws and legal requirements, investment reporting, compliance or other associated matters.
(c) We do not warrant that Your use of the Services will make You compliant with the relevant laws that affect You or Your business.
(d) You must not rely on any information provided as part of the Services or its availability, and You must make Your own independent assessments with the aid of qualified independent advice.
(e) The Services do not constitute the provision of ‘professional advice’ or ‘general advice’ as those terms are defined in the Corporations Act 2001 (Cth) (Corporations Act) and Corporations Regulations 2001 (Cth).
16 SPECIFIC WARNINGS AND DISCLAIMERS
(a) You must only use the Services for lawful purposes and ensure that Your access to and the use of the Services is not illegal or otherwise prohibited by laws, regulations or professional conduct obligations which apply to You.
(b) You must take Your own precautions to ensure that the processes You employ for accessing the Services do not expose You to the risk of viruses, malicious computer code or other forms of interference which may damage or otherwise compromise Your computer systems, records or data or any access thereto. We recommend that You install and use up-to-date anti-virus, anti-spyware and firewall software on Your computer systems.
(c) To the maximum extent permitted by law, We do not accept responsibility for any interference or damage of any kind and however occurring to Your computer systems which arises in connection with Your use of the Services or any linked website referred to in clause 13.
17 LIMITED WARRANTIES AND LIABILITY
(b) In particular, and without limiting clause 17(a): (i) while We endeavour to provide convenient and functional Services, We do not guarantee that Your requirements will be met or that Your use of the Services will be uninterrupted, timely, error free or that Our Website and associated applications are free of viruses or other harmful components; (ii) We cannot be responsible for any loss, corruption or interception which occurs outside of Our computer systems (such as those which occur while information is being sent over the Internet); (iii) while We have no reason to believe that any information contained in the Services is inaccurate, We do not warrant the accuracy, adequacy or completeness of such information; and (iv) We do not warrant, endorse, guarantee or assume responsibility for: (1) assets or services advertised, offered, leased, licensed sold or purchased using Kolmeo Software and We will not be a party to the underlying arrangement to sell or provide assets or services relating to any Transaction between users of Kolmeo Software; or (2) the legality or efficacy of the underlying arrangement to sell or provide assets or services relating to any Transaction between users of Kolmeo Software.
(e) Subject to any Non-Excludable Guarantee, We will not be liable to You for: (i) any incomplete Transaction resulting from: (1) limits on the bank account or credit card or debit card of a party to the Transaction imposed by the party's financial institution or law; or (2) failure by a financial institution to honour any credit or debit to or from any bank account or credit card or dedit card; (ii) any act, omission, fraud or crime of any third party, including: (1) Your financial institution; (2) any service provider; (3) any Payment Gateway Provider or other payment system provider; (4) any provider of telecommunications services, internet access or computer equipment or software; (5) any mail or delivery service; (6) any payment or clearing house system; or (7) any regulator, and including where such act, omission, fraud or crime results in a breach of this Agreement by Us; or (iii) any circumstance beyond Our control, including: (1) acts of God, fire, flood or other natural disaster; (2) war, riot, strike, terrorism, act of civil or military authority; (3) equipment failure, computer virus, filtration or hacking by a third party, provided that We have complied with Our obligations under this Agreement and taken reasonable precautions to prevent same; or (4) failure or interruption of electrical, telecommunications or other utility services.
(f) You acknowledge that that the Payment Gateway Provider and/or any of its service providers may delay or refuse to process a Transaction in certain circumstances, including where the Payment Gateway Provider and/or any of its service providers: (i) considers, in its discretion, that the Transaction is unauthorised, suspicious, erroneous, fraudulent or a Prohibited Transaction; (ii) has any reason to believe that to do so may violate any law, rule, regulation or industry code or standard; or (iii) is ordered or requested by a court, tribunal, government or regulatory body to do so, and, subject to any Non-Excludable Guarantee, We will not be liable to You for any Losses arising as a result of such action.
(g) Subject to clause 17(i) and Our obligations under the Non-Excludable Guarantees, and to the maximum extent permitted by law, Our maximum aggregate Liability to You and all Invited Users collectively, for all Claims under, or relating to any Claim arising under or in connection with, this Agreement, whether in contract, statute, tort (including negligence), equity or otherwise, is limited to an amount equal to the total Fees You have paid to Us during the twelve month period immediately preceding the first event that gives rise to a Claim.
(i) Subject to Our obligations under the Non-Excludable Guarantees, and to the maximum extent permitted by law, We are not liable to You for, and no measure of Liability will under any circumstances include: (i) special, indirect, consequential, incidental, circumstantial, punitive or exemplary damages or losses; or (ii) losses based on loss of profits, opportunity, revenue, goodwill, business, loss on savings on overheads, loss arising from disruption of business, loss of Content or Content use, loss of use of the Services or the inability to use the Services, whether arising under contract, in tort (including negligence) or otherwise and even if We have been advised of the possibility of such Liability.
(a) You indemnify and will defend and hold harmless, Us and Our Personnel against all Claims and Liabilities suffered or incurred by Us that are caused by or arise from: (i) any breach of, or wilful or intentional misconduct in relation to, this Agreement by You, including any misrepresentations or breach of representations and warranties contained in this Agreement; (ii) any negligent or unlawful act or omission by You; (iii) the imposition of a fee, fine or penalty on Us, the Payment Gateway Provider and/or any of its service providers, in relation to the Services, as a result of Your acts or omissions; (iv) any use or misuse of the Services by Your Agent or the Personnel of Your Agent on Your behalf, in accordance with an Agent Authority; and (v) the amount of any disputed Transaction, Mandatory Reversal or Refund that the Payment Gateway Provider pays in relation to a Transaction, for which You are liable, that it is unable to recover from You.
(b) If You are an Owner, You indemnify and will defend and hold harmless, Us and Our Personnel against: (i) all Claims by any Co-Owners directly or indirectly arising from or related to: (1) Your use of the Services; and/or (2) use of the Services by Your Agent or the Personnel of Your Agent pursuant to an Agent Authority; and (ii) all Liabilities relating to any Claims referred to in clause 18(b)(i).
(c) If You are a Tenant, You indemnify and will defend and hold harmless, Us and Our Personnel against: (i) all Claims by any Co-Tenants directly or indirectly arising from or related to Your use of the Services; and (ii) all Liabilities relating to any Claims referred to in clause 18(c)(i).
(d) You indemnify Us and Our Personnel in accordance with clause 2(e).
19 INTELLECTUAL PROPERTY RIGHTS
(a) You agree that We (or Our licensors) own all right, title and interest in and to the Services, Documentation and De-identified Data, including all developments, changes, modifications and updates to the Services, the Documentation or De-identified Data (Proprietary IP).
(c) Unless expressly permitted by non-excludable laws, You must not do, omit to do, attempt to do, or allow anyone to do anything which infringes the Proprietary IP, including: (i) copy, modify, duplicate, create derivate works from, frame, mirror, republish, download, display, transmit or distribute any part or all of the Services or Documentation (as applicable) in any form or any means; or (ii) decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any part or all of the Services.
(d) If You provide Us with any ideas, comments or suggestions in relation to the Services or Documentation (Feedback): (i) all Intellectual Property Rights in the Feedback and anything created as a result of that Feedback (including materials, enhancements, modifications or derivative works) will be owned by Us and/or Our licensors; and (ii) We may use or disclose the Feedback for any purpose.
(e) You agree to execute all documentation necessary in order to give effect to clause 19 and (if required) to cause Your related entities to execute such documentation.
20 REQUIRED INFORMATION
(a) You agree to promptly provide Us, or Your Agent (if You are an Owner) or the Owner's Agent (if You are a Tenant) with any of the following information at Our or the relevant Agent's request:(i) full legal name; (ii) email address; (iii) current address; (iv) month and year of birth; (v) social security number or tax file number; (vi) bank account details; (vii) government issued ID; (viii) information necessary for the Payment Gateway Provider to establish accounts, comply with applicable laws and payment industry rules or standards; and (ix) any other information reasonably necessary for Us and/or the Payment Gateway Provider to give effect to this Agreement and the delivery of the Services.
(b) If You are operating a registered business (including in the form of a partnership, company, trust or joint venture), You must also provide Us, or Your Agent (if You are an Owner) or the Owner's Agent (if You are a Tenant) with any of the following information at Our or the relevant Agent's request: (i) full business name; (ii) business address; (iii) business EIN or ABN; (iv) business telephone number; (v) full name and contact details of each of the directors of Your business (if any); (vi) information necessary for the Payment Gateway Provider to establish accounts, comply with applicable laws and payment industry rules or standards; and (vii) any other information reasonably necessary for Us and/or the Payment Gateway Provider to give effect to this Agreement and the delivery of the Services.
(c) We may refuse to permit You to use the Kolmeo Software until the information requested under clauses 20(a) or 20(b) (Required Information) has been provided to the party requesting it.
(d) You consent to Us and/or the relevant Agent disclosing the Required Information to:(i) Your Agent (if You are an Owner), the Agent's Owner (if You are a Tenant) or Us; (ii) the Payment Gateway Provider and/or any other party involved in the provision of the Services, to the extent required to deliver the Services; and/or (iii) any party as required by law, to be used and stored to the extent required to deliver the Services and/or by law.
(e) You agree to assist Us, or Your Agent (if You are an Owner) or the Owner's Agent (if You are a Tenant) with verifying the Required Information as required by the Payment Gateway Provider in order to deliver the Services.
(f) You consent to Us disclosing to the Payment Gateway Provider any suspected fraud, erroneous or suspicious activity, Transaction or underlying transaction.
21 PRIVACY AND SECURITY
22 FORCE MAJEURE
(b) To the maximum amount permitted by law, We exclude all Liability to You arising from the suspension of an obligation under this clause.
(b) This Agreement constitutes the entire understanding between the parties and supersedes all previous negotiations, understandings, representations, warranties, memoranda or commitments with respect to the Services.
(c) This Agreement is governed by and is to be construed in accordance with the laws applicable in Victoria, Australia.
(d) Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and any courts that have jurisdiction to hear appeals from any of those courts, and waives any right to object to any proceedings being brought in those courts.
(j) A party is not liable for any loss, cost or expense of any other party caused or contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in the exercise of a right.
(a) A reference to: (i) a statute, ordinance, code or other law includes subordinate legislation (including regulations) and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (ii) a person or entity includes an individual, a firm, a body corporate, a trust, an unincorporated association or an authority; (iii) a person includes their legal personal representatives (including executors), administrators, successors, substitutes (including by way of novation) and permitted assigns; (iv) an entity which has been reconstituted or merged means the body as reconstituted or merged, and to an entity which has ceased to exist where its functions have been substantially taken over by another body, means that other body;
(b) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation;
(c) if the last day for doing an act is not a Business Day, the act must be done instead on the next Business Day;
(d) where there are two or more persons in a party each are bound jointly and severally; and
Annexure A – Payment Gateway Provider Specific Terms
In this Annexure, the following terms have the corresponding meanings:
- Assembly means Assembly Payments Platform Pty Ltd ABN 96 637 632 645;
- Cuscal means Cuscal Limited ABN 95 087 822 455;
You acknowledge that Assembly will provide services to You in respect of a Transaction or Transactions.
By transacting on the Kolmeo Software, You agree to Assembly collecting Your personal information from Kolmeo, or from the financial institution involved in the Transaction, in order to provide You with services. If the personal information is not provided, Assembly may not be able to process Transactions for You.
Assembly may disclose Your personal information to a service provider to verify Your identity or to enable Assembly to provide the services. The disclosure to service providers may include service providers located overseas or who may host or access your personal information overseas.
Assembly may also use Your de-identified personal information for product development and creation of statistical information and data analytics.
LIMITATION OF LIABILITY
By renting property, providing agency services or otherwise selling goods or providing services using the Kolmeo Software, You agree to be bound by the Assembly end user agreement which is located at: https://assemblypayments.com/company/policies/end-user-agreement
Please read the Assembly User Agreement in full and in particular, note that neither Assembly nor any of its Representatives (as that term is defined in the Assembly User Agreement) are liable for any refunds or reversals of any Transactions and are not liable to You for any Losses (as that term is defined in Assembly’s User Agreement) arising out of or in connection with Your use of Assembly's services.
If Assembly's disclaimer of liability is not enforceable for any reason, then, Assembly's maximum aggregate liability arising from or relating to any claim (or series of related claims) by You arising out of or in connection with Assembly's services to You shall not exceed the aggregate amount of 100% of the Fees (as that term is defined in Assembly’s User Agreement) received in relation to Your Transactions during the 12 month period preceding the date such claim(s) is/are made.
In no event shall Assembly be liable for any lost profits, data, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to Assembly's services
Annexure B – Transaction Fees and Additional Fees
All fees listed below are exclusive of GST.
Transaction Fees (Australia)
|Visa/Mastercard Credit Card or Debit Card||1.00% + $0.30 per transaction|
|Direct Debit||No fee|
|Direct Credit Payout||No fee|
|Additional Fee||Amount||Circumstances when Additional Fee is Payable|
|Chargeback Fee||$35.00||Payable for each Chargeback initiated by a Card Network|
|International Disbursement Fee||$25.00||Payable for each Transaction that requires money to be transferred to an account outside of Australia|
|Error/Disputed Payments Fee||$35.00||Payable for each Transaction that is reversed, other than as a Chargeback, at request of a party|