Terms and Conditions

 

1 General

1.1 These Terms and Conditions govern the provision of Services by Fluent Commerce to the Client.

1.2 These Terms and Conditions apply to any Order Form entered into by Fluent Commerce and the Client.

1.3 These Terms and Conditions are effective upon an Order Form being executed by the Client and Fluent Commerce.

1.4 These Terms and Conditions may be amended from time to time. The latest version of these Terms and Conditions is available here at fluentcommerce.com/terms-and-conditions

2 Definitions

In these Terms and Conditions, unless the contrary intention appears:

(1) Applicable Law in relation to any person, action or thing means the following in relation to that person, action or thing:

(a) any law, rule or regulation; or

(b) any obligation under any license; or

(c) any lawful and binding determination, decision or direction of a regulator;

(2) Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made;

(3) Confidential Information means in relation to either party, information (whether in oral, written or electronic form) belonging or relating to that party, its business affairs, technologies, designs, personnel, copyrights, concepts, methodologies, software or activities which is not in the public domain and which:

(a) either party has marked as confidential or proprietary;

(b) either party, orally or in writing has advised the other party is of a confidential nature; or

(c) due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential;

but does not include information which:

(a) is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;

(b) is lawfully received by a party from a third party free of any obligation of confidence at the time of disclosure;

(c) is independently developed by the recipient, its officers, employees, agents or contractors; or

(d) is required by law, a court or governmental order to be disclosed;

(4) Client means the recipient of any Services as set out in an Order Form;

(5) Client Data has the meaning given to it in clause 5.1;

(6) Fees means the fees set out in an Order Form;

(7) Fluent Commerce means Fluent Retail Pty Ltd (ACN 132 599 154) of Level 5, 68 Harrington Street, The Rocks, New South Wales, 2000, Australia trading as Fluent Commerce;

(8) Insolvency Event in respect of a party means the occurrence of any of the following events:

(a) the party becomes an externally-administered body corporate under the Corporations Act 2001 (Cth) or steps are taken by any person towards making the party an externally administered body corporate;

(b) a controller (as defined in section 9 of the Corporations Act 2001 (Cth)) has been appointed over any of the property of the party or any steps taken for the appointment of such a person;

(c) the party has been served with a demand under section 459E of the Corporations Act 2001 (Cth) with which is it taken, under section 459F of the Corporations Act 2001 (Cth), to have failed to comply;

(d) a resolution is proposed or is passed by the shareholders or directors of the party in relation to any reduction of capital, compromise with any creditor or the appointment of any person to administer the affairs of the party;

(e) the party is insolvent; or

(f) any occurrence analogs to any of (a) to (e) above under the law of the jurisdiction in which the party is registered or carries on business;

(9) Intellectual Property Rights means:

(a) any patent, trade mark (whether registered and whether within or outside Australia), copyright, registered design or other design right and any corresponding property or right under the laws of Australia or any other jurisdiction;

(b) any right under the laws of Australia or any other jurisdiction to apply for the grant or registration of a patent, trade mark, copyright, design, or any corresponding property right; and

(c) any rights and the benefit of any obligation owed in respect of an invention, discovery, trade secret, know-how, concept, data, information, process, methodology, formula or Confidential Information;

(10) Order Form means an order form executed by the parties;

(11) Personal Information has the meaning given to it in the Privacy Act 1988 (Cth) as amended from time to time;

(12) Professional Services means the professional services set out in an Order Form;

(13) Service Descriptions means the service description set out in https://lingo.fluentcommerce.com/COMMERCE-APPS/

(14) Services means the services ordered by a Client using an Order Form and as described in the Service Descriptions, together with any Professional Services;

(15) Site means the location at which Professional Services will be performed;

(16) Service Levels means the service levels that will apply to the Service based on the selected support levels as set out at https://lingo.fluentcommerce.com/FLUENT-ORDER-MANAGEMENT/support-sla/support/ as amended from time to time; and

(17) Terms and Conditions means this document, including any schedule or annexure to it.

3 Provision of Services

3.1 Fluent Commerce agrees to:

(1) make the Services available for use by the Client;

(2) provide the Services with reasonable skill and care and in accordance with these Terms and Conditions;

(3) use reasonable endeavors to achieve the Service Levels selected by the Client in the provision of the Services; and

(4) use reasonable endeavors to ensure that the Services materially comply with the Service Descriptions.

3.2 Fluent Commerce may make changes to the Services from time to time. These changes may include updates, new releases and changes to the user interface. Once incorporated, these changes form part of the Services.

4 Client responsibilities

4.1 The Client must:

(1) provide its own internal facilities (including terminals, software, modem, telecommunications facilities and internet connectivity) necessary for utilizing the Services;

(2) do all things necessary so that Fluent Commerce is able to provide the Services in accordance with these Terms and Conditions, including but not limited to providing Fluent Commerce with all necessary access to information Fluent Commerce may need to provide the Service, including the Client Data;

(3) comply with Fluent Commerce’s reasonable directions with regards to the Services, including but not limited to:

(a) platform use limitations as described here;

(4) maintain the confidentiality of each login name and password allocated to the Client and its users and not disclose them to any third party; and

(5) use the Services in accordance with the Applicable Law.

4.2 If there is a delay or failure by the Client in performing its obligations:

(1) Fluent Commerce is not responsible for any delay or failure to provide the Services as a consequence; and

(2) the Client must pay any additional cost incurred by Fluent Commerce because of any delay or failure by the Client in performing its obligations.

5 Client Data

5.1 The Client may provide the following information to Fluent Commerce:

(1) information relating to the Client’s organization and business processes;

(2) information relating to its customers and end users, such as their name, email address and telephone number;

(3) order data and server usage analytics; and

(4) any other information which might be entered by the Client or provided via the Services to Fluent Commerce. (together, the Client Data)

5.2 The Client is responsible for the integrity, accuracy and quality of any information supplied.

5.3 Fluent Commerce shall follow its archiving procedures for Client Data in accordance with its standard Back Up Policy from time to time. In the event of any loss, corruption or damage to Client Data, Client’s sole and exclusive remedy shall be for Fluent Commerce to use reasonable endeavors to restore Client Data, that is lost, corrupt or damaged, from the latest back-up of Client Data maintained by Fluent Commerce. Fluent Commerce shall not be responsible for any loss, destruction, alteration, damage, corruption or disclosure of Client Data as a result of any act or omission of Client or any third party.

5.4 The Client authorises Fluent Commerce to:

(1) use Client Data to perform (and improve the performance of) the Services, and in the course of performing the Service to use Client Data (and all Intellectual Property Rights therein);

(2) use Client Data to inform Client of other products or services that Fluent Commerce may offer from time to time or in relation to third party products and services; and

(3) share Client Data, in an aggregated anonymized form, with a related entity, affiliate or other third party (with whom Fluent Commerce may contract or be affiliated with from time to time) for the purposes of performing or improving the Service.

5.5 Notwithstanding anything else, nothing herein will prevent the ability of Fluent Commerce to conduct analytics processing on the client-side software, including, in order to collect anonymous data relating to user browser, user device, location and search data and all data arising from such processing (including all Intellectual Property Rights contained therein) will be solely owned by Fluent Commerce.

6 Use of the Services

6.1 The Client must not use the Services:

(1) in a way that interferes (or threatens to interfere) with the efficiency and security of the Services;

(2) to distribute Trojan horses, worms, malicious or destructive code or any instructions activating such code;

(3) to reverse engineer the Services; or

(4) in a manner that infringes any person’s Intellectual Property Rights (including Fluent Commerce’s), Confidential Information or other rights.

7 Professional Services

7.1 The Services provided by Fluent Commerce may include Professional Services.

7.2 Where Professional Services are required, Fluent Commerce will provide such Professional Services as set out in an Order Form.

7.3 Professional Services will be provided from the site set out in the Order Form. If a change to the site is necessary additional Fees may be incurred.

7.4 The Client must not, at any time from the commencement of Professional Services under an Order Form till six months following expiration of that Order Form, either for its own benefit or the benefit of another, directly or indirectly solicit, procure, induce or entice away from Fluent Commerce or employ or attempt to employ any person who is, or has been engaged as an employee or subcontractor of Fluent Commerce.

8 Fees

8.1 Fluent Commerce will invoice the Client for the applicable Fees annually in advance. Each invoice must be paid within 14 days of the invoice date.

8.2 If any supply made under or in connection with an Order Form is a taxable supply, the consideration that the recipient of that taxable supply must otherwise pay or provide for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply, subject to a valid tax invoice being delivered to the recipient. Words or expressions used in these Terms and Conditions which have a particular meaning in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning, unless the context otherwise requires.

8.3 If there is a requirement under any applicable law to make any deduction or withholding from any Fees payable in connection with an Order Form or any such agreement, the consideration payable to us must be increased so we receive the full amount specified under the agreement net of any such deduction or withholding.

8.4 The Client acknowledges and agrees that the Services will not commence until the Fees have been paid.

8.5 Fluent Commerce reserves the right to charge interest on any overdue amounts at the Westpac Bank Indicator Rate plus 2% per annum calculated daily from the due date until the outstanding amount is paid in full.

9 Intellectual property rights

9.1 Fluent Commerce owns (or is an authorised licensee of) the Intellectual Property Rights in the Services and any other material used or provided by Fluent Commerce to use the Services.

9.2 The Client owns (or is an authorised licensee of) the Intellectual Property Rights in the Client Data.

9.3 To the extent necessary to use the Services, Fluent Commerce grants the Client a non-exclusive, non-transferable, revocable license to use the Services in accordance with these Terms and Conditions.

9.4 The Client grants Fluent Commerce a non-exclusive, revocable license to use the Client Data for the purpose of providing the Services in accordance with these Terms and Conditions.

9.5 The parties agree that, other than as provided in this clause 9, nothing in these Terms and Conditions transfers ownership in, or otherwise grants any rights in any Intellectual Property Rights of, a party.

10 Warranties

10.1 Each party warrants that:

(1) it has the authority to enter into and perform its obligations under these Terms and Conditions and any Order Forms; and

(2) these Terms and Conditions and any Order Forms have been duly executed and is a legal, valid and binding agreement enforceable against it.

10.2 The Client warrants that it has not relied on any representation made by Fluent Commerce which has not been stated expressly in these Terms and Conditions or upon any descriptions, illustrations or specifications contained in any document including an Order Form, catalogs or publicity material provided by Fluent Commerce.

10.3 The Client warrants that it has all necessary consents for the Personal Information transferred to Fluent Commerce through its use of the Service in compliance with the Privacy Act 1988 (Cth) as amended from time to time.

10.4 Fluent Commerce warrants that it has and will at all times during the term of any Order Form have the skill, facilities, capacity and staff necessary to perform its duties and obligations under these Terms and Conditions and any Order Form.

10.5 Fluent Commerce does not warrant that the Service:

(1) will operate in an uninterrupted or error free manner; or

(2) will work with all operating systems and browsers,

but that Fluent Commerce will use reasonable endeavors to ensure that it provides the Service in accordance with the Service Levels, subject to any exclusions set out in these Terms and Conditions.

10.6 Where legislation implies in these Terms and Conditions that any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty must be treated as included in these Terms and Conditions. However, the liability of Fluent Commerce for any breach of the condition or warranty is limited, at the option of Fluent Commerce, to one or more of the following:

(1) if the breach relates to goods:

(a) the replacement of the goods or the supply of equivalent goods;

(b) the repair of the goods;

(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(d) the payment of the cost of having the goods repaired; and

(2) if the breach relates to services:

(a) the supplying of the services again; or

(b) the payment of the cost of having the services supplied again.

11 Confidentiality

11.1 A party must not, without the prior written approval of the other party, disclose the other party’s Confidential Information except as necessary to perform obligations or exercise rights under these Terms and Conditions or any Order Form.

11.2 A party is not in breach of clause 11.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.

11.3 Each party must take all reasonable steps to ensure that its employees and agents, and any subcontractors engaged for the purposes of these Terms and Conditions or any Order Form, do not make public or disclose the other party’s Confidential Information.

11.4 Despite any other provision in this clause 11, a party may disclose the terms of these Terms and Conditions or any Order Form (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers or accountants, and must ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to the disclosing party.

12 Liability

12.1 Subject to clause 12.2, the aggregate liability of Fluent Commerce (including the indemnity in clause 13.1), whether arising from breach of contract or tort (including negligence), in equity or any other form of action and whether or not the Client was advised of the possibility of the loss or damage, for claims arising out of or in relation to an Order Form is limited to the Fees paid to Fluent Commerce in the month period prior to the cause of action arising or, where that Order Form has been in operation for less than a month, the Fees that would otherwise have been payable under that Order Form had it been in operation for a period of a month.

12.2 The Client agrees that Fluent Commerce is not liable to the Client under these Terms and Conditions (including the indemnity in clause 13.1) or otherwise for any loss or liability however arising for loss of profits, delay, loss or corruption of data, loss or reputation, loss of business, loss of business opportunities, loss of anticipated savings, loss of goodwill or for any type of indirect, consequential or special loss or damage which may be suffered or incurred or which may arise directly or indirectly in relation to these Terms and Conditions or an Order Form.

12.3 Each party must promptly notify the other as soon as it becomes aware of any act or possible claim, demand or suit which may be brought against either party in relation to the Services or these Terms and Conditions.

12.4 Fluent Commerce disclaims any and all liability for any loss or damage that is incurred by the Client or an individual as a result of relying on information provided by the Service.

13 Indemnity

13.1 Fluent Commerce warrants that the rights granted under these Terms and Conditions do not and will not infringe any Intellectual Property Rights of a third party. Fluent Commerce indemnifies the Client against all expenses, demands and liabilities for any alleged infringement.

13.2 For the avoidance of doubt, the indemnity in clause 13.1 will not apply to the extent that the expense, demand or liability referred to in clause 13.1 is caused or contributed to by the Client.

13.3 The Client must take all reasonable steps to mitigate an expense, demand or liability referred to in clause 13.1.

13.4 The Client warrants that the Client Data does not and will not infringe any Intellectual Property Rights of a third party. The Client indemnifies Fluent Commerce, its employees, agents and related bodies corporate against all expenses, demands and liabilities for any alleged infringement.

14 Service renewal

14.1 The Services in an Order Form commence and continue for the term(s) specified in that Order Form.

14.2 Upon the expiration of a Service in an Order Form, that Service will renew on an annual basis on the then current Fee unless either party provides at least 30 days notice in writing of its desire to end that Service, at which point the Service will end on expiration of the notice period. Fluent will notify the Client at least 60 days prior to the expiration of the Service.

15 Temporary suspension

15.1 The Client acknowledges and agrees that, notwithstanding any other provision of these Terms and Conditions:

(1) Fluent Commerce may temporarily suspend the Client’s right to access or use any portion of the Service immediately upon notice to the Client for:

(a) any non-payment of Fees by the Client;

(b) failure of the Client to comply with any reasonable direction given by Fluent Commerce;

(c) Fluent Commerce reasonably believes that suspension is necessary to prevent or mitigate damage or disruption to the Services;

(d) defects in any third party software or loss of Fluent Commerce’s license rights or restrictions imposed by a third party;

(e) an act or omission of a third party that is not caused by Fluent Commerce (for example a denial of service attack);

(f) compliance with any Applicable Law or government entity; or

(g) any material breach of these Terms and Conditions by the Client.

(2) if the Client’s access to the Services is suspended under clause 15.1(1)(a), 15.1(1)(b) or 15.1(1)(g), the Client remains responsible for payment of the Fees during the period of suspension;

(3) if the Client’s access to the Services is suspended for any reason beyond the control of the Client, the Client will not be responsible for payment of the Fees during the period of suspension.

15.2 If the Client fails to pay any undisputed Fees within 7 days of suspension, Fluent Commerce may terminate all Order Forms entered into with that Client.

Termination

15.3 Either party may terminate one or more Order Forms immediately on written notice to the other if:

(1) the other party is in material breach of these Terms and Conditions which is capable of being remedied and is not remedied within 28 days from the date of notice of that breach;

(2) the other party is in material breach of these Terms and Conditions which is not capable of being remedied; or

(3) an Insolvency Event occurs in relation to the other party.

15.4 The Client may also terminate an Order Form if Fluent Commerce makes a material change to any of the Services in that Order Form in accordance with clause 3.2.

16 Effect of termination

16.1 On termination of an Order Form by either party:

(1) each party must pay to the other party all amounts owed by it in connection with the relevant Order Form, including under any indemnities;

(2) the Client must (and the Client must ensure its end users do) immediately cease using the Services set out in that Order Form;

(3) the Client must, at the request of Fluent Commerce, return or destroy all materials or other property of Fluent Commerce provided under that Order Form;

(4) Fluent Commerce may destroy or otherwise dispose of any Client Data provided under that Order Form that is in its possession unless Fluent Commerce receives no less than 10 days after the effective date of termination, a written request for delivery to the Client of the Client Data. Fluent Commerce will then use its reasonable efforts to return a copy of the Client Data within 30 days of receipt of a written request provided that the Client has, at that time, paid all outstanding Fees. Client will pay Fluent Commerce any reasonable fees incurred in returning a copy of the Client Data. In either case, this clause does not prevent Fluent Commerce from maintaining aggregated or analytics data relating to the Client.

16.2 The Client acknowledges that, notwithstanding any other provision of these Terms and Conditions, Fluent Commerce may delete or destroy all Client Data if a written request to return Client Data is not received within 10 days following termination.

16.3 The Client acknowledges and agrees that:

(1) Fluent Commerce has no obligation to provide notice to the Client of any deletion or destruction of Client Data under clause 16.2; and

(2) there is no liability on the part of Fluent Commerce for any loss of Client Data.

16.4 Termination of an Order Form does not affect the accrued rights or remedies of either party under these Terms and Conditions.

16.5 Termination or expiration of an Order Form shall not affect the continuation of these Terms and Conditions or any other Order Form then in force.

16.6 All of the rights and obligations of each party to these Terms and Conditions which are expressed to survive termination of an Order Form, or which by their nature or context must survive termination of an Order Form, will survive the termination of that Order Form, including clauses 9, 10, 11, 12, 13 and 16.

17 Third party providers

17.1 The Client acknowledges that while it may be able to use or access third party products and/or services in conjunction with the Services, if the Client uses or accesses any third party products or services it does so at its own risk.

17.2 Fluent Commerce shall have no liability or obligation whatsoever in relation to the content or use of any such third party products and services used in conjunction with the Services.

18 Force majeure

18.1 Neither party will have any liability under or be deemed to be in breach of these Terms and Condition for any delays or failures in performance of these Terms and Conditions (other than failure by Client to pay any fees to Fluent Commerce) which result from circumstances beyond the reasonable control of that party. If such circumstances continue for a continuous period of more than 10 Business Days, either party may terminate any Order Forms by written notice to the other party.

19 Miscellaneous

19.1 In the event of any inconsistency between these Terms and Conditions and an Order Form the Order Form will take precedence.

19.2 Fluent Commerce may subcontract some or all of the performance of these Terms and Conditions and any Order Form. Fluent Commerce is not relieved of any of its liabilities or obligations under these Terms and Conditions by entering into any such subcontract.

19.3 The Client agrees to be featured by Fluent Commerce in marketing and promotional material such as case studies, press releases, marketing brochures and public websites. Approval of the content of such material remains with The Client, which will not be unreasonably withheld.

19.4 If a party consists of more than 1 person, these Terms and Conditions binds each of them separately and any 2 or more of them jointly. A party which is a trustee is bound both personally and in its capacity as a trustee.

19.5 These Terms and Conditions along with any related Order Forms is the entire agreement and understanding between the parties on everything connected with the subject matter of these Terms and Conditions and any related Order Forms and supersedes any prior arrangements or understandings which were or may have been entered into between the Client and Fluent Commerce.

19.6 An amendment or variation to these Terms and Conditions or any Order Form is not effective unless it is in writing and signed by the parties.

19.7 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

19.8 These Terms and Conditions and any Order Form may be executed in any number of counterparts. Each counterpart is an original but the counterparts together are one and the same agreement.

19.9 The law of the State of New South Wales governs these Terms and Conditions and any Order Form. The parties submit to the non-exclusive jurisdiction of the courts of the New South Wales and of the Commonwealth of Australia.

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