Terms of Service
Last update on March 24, 2020
SUCH TERMS OF SERVICE INCLUDE, AMONG OTHER ITEMS, A BINDING ARBITRATION CLAUSE THAT INCLUDES A CLASS ACTION WAIVER. YOU CAN FIND OUT MORE ABOUT IT UNDER SECTION 20.
Tapwise Technologies Pty Ltd (“the Business,” “we,” “us,” “Tapwise” and “our”) provides a system of incentives in Australia to help customers save money and merchants gain valuable customer intelligence.
Such Terms of Service(‘Terms’) regulate your access to, and use of
our website located at www.tapwise.com.au and any other sites to which these Terms are posted (collectively, the’ Website’);
our or any third-party mobile applications which embed our services to which these Terms are posted (collectively, the’ Application’);
any programs, software and functionality made accessible by us through the Website or the Application; “You” and “Your” apply to any User of the Services in these Terms.
1. YOUR ACCEPTANCE OF THESE TERMS
2. CHANGES TO THESE TERMS
We can discontinue the Services or alter the Services without prior notice or liability to you by removing features or functionalities or adding limitations, even though these alterations that affect the Tapwise (as described below) that you are given. We can also amend these Terms from time to time, subject to applicable law, at our absolute discretion. When we review these Words, we will post a revised version on both the Website and the App. You are free to determine whether or not to accept an updated version of these Terms, but your continued access to and use of the Services includes accepting these Terms, as updated. If you disagree with these Terms or with any amended version of these Terms, your only recourse is to terminate your access and use of the Services. Except as specified by us, the version of these Terms in force at the time of your request or usage will be subject to your request to and use of the Services.
3. ADDITIONAL TERMS
You may be subject to additional terms, regulations, policies and conditions enforced by us in conjunction with your access to or use of the Services (‘Additional Terms’), which are incorporated by reference in these Terms. Those Terms shall govern to the degree of any ambiguity between these Terms and any Additional Terms unless specifically given otherwise by us.
There are currently no fees for the Services for buyers or “Card Holders”, but in the future, we reserve the right to charge the Services fees. Before charging any fees for the Services, we will inform you by notifying you electronically, by publishing such fees as appropriate on the Website and Application, or by any other form allowed by proper legislation. If after such notice you want to use or access the Services, you are expected to pay all fees applicable to the Services.
There are fees Merchants incur for using Tapwise services. Tapwise shows prices clearly and transparently.
5. THE SERVICES
The Services seek to help you save money with minimal effort by rewarding you for certain eligible transactions and other activities.
(A) Certain Conditions
You are solely responsible for maintaining the security of your account login information and keeping this information secure. You agree not to allow the use of your account for any other reason by any other user. Except as otherwise specified by applicable law, you are solely responsible, whether authorised by you or not, for all purchases and other activities permitted or carried out using your account. If you suspect that any of your account credentials, such as your password, have been accessed or used by some unauthorised individual or you are aware of any other violation or attempted violation of the security of the Services or your Account, you must immediately notify us.
(B) Linking your Bank Account
You must link at least one valid bank account to your account to earn rewards from us for qualified purchases of products or services or for referring other users to access the Tapwise program. Please note that you can not link credit or debit cards directly to your account. Tapwise retrieves your cards and bank accounts when you log in your bank account within the Tapwise system. All determinations as to whether a Payment Card or Bank Account is valid are at our absolute discretion. For e.g., some Visa, Mastercard and American Express cards are not eligible to be connected to your account, including but not limited to: prepaid cards, corporate cards, gift cards, store cards that can only be used in their respective retail stores, government-prepaid cards (including Electronic Benefit (EBT) cards), healthcare cards (including Healthcare cards). Your card must be issued by an Australian bank to qualify as valid. If your cards or bank accounts are already connected to other reward programs, you are still able to connect to Tapwise.
(C) Use of Registered Cards and Transaction Data
Through authorising a Payment Card in conjunction with the monitoring of transactions, you enable us to share your payment details with third parties allowing us to provide the Services(‘Third-Party Service Providers’) and your Payment Card Network (e.g. Visa, Mastercard, American Express) so that it knows that you have registered. You allow the Payment Card Network to track transactions on your linked Payment Card(s) or Bank Account(s) in order to identify valid purchases to decide if you have qualified or received an offer linked to your Payment Card, and for the Payment Card Network to share these transaction details with us in order to enable your card-linked offer(s) and target offer(s) that may be relevant to you. You accept that your transactions with the participating merchants can be treated by the Business and third-party service providers. You allow participating merchants to provide historical transaction data for the Business.
For more details about how we use your transaction information, see the white paper section called “8.1 Technology and Security.” On the Payment Card(s) or Bank Account(s) you have registered, you can opt-out of transaction monitoring by unlinking the account from the Services or terminating your account. You are allowed to so at any time without any need to specify reasoning. Your bank account will be disconnected immediately.
You can immediately discontinue any use of the Services to terminate your Account and this Agreement, including your right to use the Services at any time and for any reason and without justification. Please note that if you opt-out of transaction tracking, you may not be able to access certain features of the Services or the output of certain features of the Services may be limited or not function at all.
(D) Receiving cashback
Subject to these Terms, when you buy qualifying products or services with your Payment Card or perform other qualifying acts specified by us, we will automatically provide cashback to You. The Company, in its absolute discretion, sets out the terms and conditions for each eligible transaction or activity and decides whether you have met specific terms and conditions for obtaining cashback. These terms and conditions shall be set out on the Website and the Application and may be revised, changed, suspended or cancelled by the Company in its absolute discretion at any given time. All deals via the Tapwise system made available to you are temporary and can become inaccessible without warning. You may also be granted a limited, defined time to take advantage of a program or offer. Please search for deals currently open to you on the Tapwise website.
Not all valid transactions made with your Payment Card may qualify for cashback if we are unable to obtain such transaction details from the Payment Card Network linked to your bank account for any reason. Tapwise reserves the right to evaluate on a case by case scenario.
Without excluding any of the other terms of these Terms, if you return, chargeback, cancel, appeal, or otherwise request a refund for a valid payment for which you have already earned cashback, we will deduct the same amount from your rewards balance, which will reduce your rewards payment.
If for any reason we believe you make use of Tapwise illicitly we reserve the right to ban your account immediately and without notice.
The cashback you earn from a valid transaction from a local retailer will usually be reflected in your account within 1-3 business days after the purchase date. Cashback obtained as a result of a qualified online transaction will be deposited in your account after your minimum threshold of $50 is reached. Please note that you have to request a withdraw after the minimum threshold is reached for Tapwise to send you a payout. For certain situations, receiving cashback in your account may take longer. “Business Day” means Monday through Friday for the purpose of these Terms, except the federal banking holidays. If you do not obtain cashback automatically for the purchase of qualified products or services with your Payment Card or for other valid acts as defined by us, you shall have thirty (30) days from the date of the transaction if made in-store or ninety (60) days from the date of the transaction if made online to contact us, provide proof of purchase and request cashback. All cashback requests received after these deadlines will not be honoured, and the transaction-related cashback will be forfeited.
Without excluding any of the other provisions of these Agreements, if we erroneously grant a cashback to you (e.g., we later conclude that you have not complied with the terms and conditions of a qualifying transaction, or if you refund a qualifying transaction), we reserve the right to delete the appropriate cashback from your account. You are responsible for maintaining the correct balance of cashback reflected in your account. If you do not think your account correctly represents cashback you are entitled to earn, please contact us.
Cashback will remain in your account until we authorise cashback redemption as listed below.
(E) Redeeming cashback
You can request, subject to these Terms and our approval, to redeem cashback from your account. (i) You must verify an email address associated with your account before you redeem cashback rewards, (ii) cashback can only be redeemed from your account via the Website and the Application, (iii) the amount of cashback in your account must be at least $50 for redeeming, and (iv) you must have made an offer-qualifying transaction with a participating merchant. We will usually redeem cashback from your account and credit your approved Australian bank account, PayPal account or any other payment method allowed by us and specified by you (“Redemption Process”) within 1-5 Business Day(s) of receiving your request for redemption. Credits to your bank account may take within 2-3 business days from the time we receive the request for redemption. Payments to your PayPal account can be completed on the same day that we receive the request for redemption or up to 5 business days after we receive your request.
You are solely responsible for checking the authenticity and completeness of any credits performed by us hereunder for your Redemption Process. You must notify us of any errors within 14 days of the availability of such information. If you do not inform us of any such errors within 14 days, you will forfeit the right to appeal a transaction, except to the extent that such forfeiture is prohibited by applicable law.
There may be limitations applicable to your redemption. For e.g., unless otherwise allowed by us, you can only redeem cashback up to $500 in any day. Without excluding any of the other terms and conditions of these Terms, we can at any time, in our absolute discretion, change the terms and conditions of redemption for cashback.
All sums paid to you are free of any related withholding, sale, use, excise, value-added or other taxes. You understand and accept that you are responsible for assessing, charging, collecting, filing and reporting all taxes, duties and other government penalties connected with your Services operation. We are not responsible for deciding whether you owe taxes in connexion with your access to or use of the Services or for collecting, reporting or remitting taxes resulting from your access to or use of the Services, except for our income tax. You promise to reimburse and indemnify us immediately and in full for all taxes, fines and interest paid by any taxing body in respect of any sums owed by you under these Terms.
Based on the tax regulations in place, the receipt of remuneration can be subject to notification to other tax authorities. In compliance with these regulations, we can be required to apply to you and to file with the tax authorities such forms, such as Miscellaneous Income, for any year in which you receive payments. When we request information from you in order to complete the necessary tax form, and you do not provide the required details, you will be disqualified from redeeming cashback from your account until we obtain the information necessary.
(g) Additional Terms, Representations and Conditions
You may only use and access the Services for your own personal, non-commercial use and not for the benefit of or on behalf of any third party. You can not use Tapwise to make transactions, pass funds to third parties or for any other reason, except as specifically allowed by us. You agree that Tapwise: (i) is distributed exclusively by the Organisation and not subscribed, subsidised, endorsed or provided otherwise by any third party, including but not limited to the Cashback Networks or our retailers, brands, or other clients, or business partners; (ii) has no cash or other monetary value and does not substitute for real currency; and (iii) rewards are not redeemable or exchangeable by the Corporation or any other third party for real currency or other monetary value, except as expressly given in these Terms or otherwise permitted by relevant legislation. You consent, by accessing or using the Services, not to try to negotiate or otherwise demand cashback from third parties like but not limited to the Tapwise Network, our merchants, brands or other consumers or business partners.
You accept and agree that: (i) the Company may in its absolute discretion enforce restrictions, conditions and specifications on cashback, including but not limited to, limitations on the amounts of cashback which may be obtained and reimbursed and may change the balance of the cashback into your account. You are expected to settle any conflicts relating to any goods or services charged directly with the relevant vendor and or financial institution issuing your payment card.
You shall not, except as specifically allowed and subject to applicable law, move, grant, sell, donate, exchange, convert, lease, subscribe to, rent or distribute cashback unless specified by Tapwise concisely. Every disposition or attempted disposition of Tapwise in breach of these Terms shall be void and result in your account being immediately terminated. We do not accept or approve any third-party service used to sell, swap, move or otherwise dispose of Tapwise, and do not take responsibility for these transactions, and do not help them.
In addition to the other assurances and promises in these Terms, you endorse and warrant not using or accessing the Facilities for any criminal, fraudulent or other illegal operation. In order to redeem cashback from the Services, you must include any information or documentation that we request, including, but not limited to, your representations and promises, in order to confirm your identity and comply with these terms and conditions. For our purpose of enforcement and to provide services to you, you hereby authorise us to obtain, verify and record information and documents directly or through third parties for the verification of your identity, your Bank Account/s and the Payment Card and Redemption Account information.
6. SEGMENTED OFFERS; RIGHT TO CHECK
Not all users are offered the same programs. The selection of deals can differ based on a range of factors such as geographical location, transaction history, transaction patterns and account tenure (the Best Match). Based on your transaction history, offered appearance and bid sum can also vary with a particular retailer, transactional patterns and account keeping. We reserve the right to use different search algorithms or methods to tailor the best match results for the experiences of individual users. On the Company’s mobile Application, search results and order can appear different from those on its website. The Business retains the right to conduct periodic trials that are limited in time but can alter how we view deals to enhance the experience for both merchants and consumers.
7. OWNERSHIP AND EXCLUSIVE RIGHTS IN THE SERVICES
All rights, titles and interests in and relating to the Services, including any changes, enhancements and modifications thereof, including any related patents, trademarks, copyrights, masked work rights, trade secrets and other intellectual property rights, belong solely and solely to the Company and its licensors, except as specifically provided for in these Terms.
You understand and accept that copyright, trademark and other intellectual property laws related to the Services are protected. Both words and logos shown in conjunction with the Services marked with the TM or ® symbols are the Company’s trademarks and brand marks, and or their respective owners. The appearance of a third-party trademark in connexion with the Services does not mean that we have any partnership with that third-party or that the Services or the Business are endorsed by that third party.
We hereby grant you a restricted, revocable, exclusive, non-exclusive, and non-transferable right and licence to access and use the Services solely for your own, non-commercial, entertainment purposes, subject to these Terms. You may not use, alter, disassemble, decompile, reverse engineer, replicate, distribute, rent, sell, authorise, print, view, stream, transmit or otherwise exploit the Services in any way whatsoever, except as expressly given by these Terms or as expressly permitted by us otherwise. Without restricting the above, you agree not to (and not to require any third party to): (a) use any robot, spider, scraper, or other automated or manual tool, process, or means of accessing or copying the Services; (b) take any action that imposes or may impose (in our sole determination) an unfair or disproportionately large load on the Services or our infrastructure; (c) use any computer, devise or tool that interferes or may interfere with the Service; (D) rent, lease, copy, provide access to or sublicense any portion of the Services to a third party; (e) use any portion of the Services to distribute or integrate any portion of the Services into any product or service given to a third party; (f) delete or obscure any proprietary or other notices found in the Services; or (g) use the Services for any unlawful or unauthorised reason. We may track your use of the Services, but we are not obliged to.
8. RESTRICTIONS ON USE; GIFT CARDS
Without excluding any of the other aspects of these Terms and except as otherwise specifically allowed by us, you may not: (a) access or use any portion of the Services for any commercial purpose; (b) access or use of the Services for any unlawful purpose; (c) attempt to gain unauthorised access to any other user’s account; (d) change or threaten to alter or in any way affect the Services;
The Company determines in its absolute discretion that you are allowed to invite friends in exchange for an amount that is decided by Tapwise. The Company retains the right to suspend and/or terminate your account and cancel any cashback received as a result of the abuse of the gift card.
9. USER CONTENT
You hereby grant us a royalty-free, worldwide, permanent, non-exclusive, non-restricted, irrevocable, transferable and sub-licensable right and licence to alter, copy, reproduce, distribute, sell, publicly view, transmit, remove, render derivative works from, store and otherwise exploit User Content and allow others to do the same for any reason, including, but not limited to, pure commercial purposes. You understand and accept that you do not obtain any fee whatsoever for granting us this licence to your User Content, and you hereby completely and irrevocably waive any moral or similar rights that you might have in your User Material, even if such User Material is changed or changed in a manner that is not to your advantage. This includes, but is not limited to, any arguments that are based on privacy invasions, misappropriation of information, other breaches of civil rights, or defamation. The licence issued under this section must survive any revocation of these Terms including the associated waiver of any relevant moral rights.
You understand and accept that your interactions with other users through any communication channel via the Services may be public and that you have no privacy requirements about your access to and use of the Services. Via the Services, you are solely responsible for your correspondence and your interactions with other Service users.
10. COPYRIGHT POLICY
(a) Reporting Copyright Infringement
We take the copyright infringement allegations seriously. We will respond to alleged copyright infringement notices that are in line with applicable law. If you believe that any material accessible on or from the website or the Application infringes your copyright, you can request removal from the website and the Application of those materials (or access to them) by sending a written notice to us. The written notice must contain the following in substance: (i) your physical or electronic signature; (ii) description of the copyrighted work that you believe has been infringed or if the argument includes several works on the Web; (iii) description of the material you consider to be infringing in a sufficiently specific manner to allow us to locate the material; (iv) appropriate information by which we can contact you (including your name, postal address, telephone number and, where available, email address); (v) declaration that you are of good faith that the use of copyrighted material is not allowed by the copyright authorisation; (vi) a declaration that the information contained in the written notice is accurate; and (vii) a declaration that you are allowed to act on behalf of the copyright owner, under penalty of perjury.
Copyright Infringements should be submitted to Tapwise Technologies Pty Ltd: 907/5 Cameron St, South Brisbane 4101 QLD; www.tapwise.com.au.
Please note that if you intentionally misrepresent that material or operation on the website or the Application infringes your copyright, you could be liable for damages (including costs and fees for attorneys.
(B) Counter-Notification Procedures
You can file a counter-notification with us (“Counter-Notice”) by sending a written notification to our copyright agent (identified below) if you believe that the material you posted on the Website or the Application has been removed or access to it has been deactivated by mistake or misidentification. According to the DMCA, the counter-notice must include the following: (i) Your signature, physical or electronic. (ii) The description of the material removed or access disabled and where the material appeared prior to removal or access disabled. (iii) Suitable information to contact you (with your name, postal address, telephone number and email address, if available). (iv) A declaration under perjury penalty by you that you are sure that the above-mentioned material has been deleted or deleted because of mistakes or misidentification of the material that should be deleted or deleted. (v) A declaration that you will consent to the jurisdiction of the court in the judicial district in which you are located (or where you live in any judicial district outside Australia that may be used by the website and the Application) and you will approve the service offered by the individual (or agent) who filed the complaint.
Completed counter-notices should be submitted to Tapwise Technologies Pty Ltd: 907/5 Cameron St, South Brisbane 4101 QLD; www.tapwise.com.au.
Please be aware that if by error or misidentification, you intentionally misrepresent the material or operation on the website or the Application has been deleted or disabled; you could be liable for damages (including costs and fees for attorneys).
It is our policy to disable and or terminate the accounts of users who are serial copyright infringers in suitable circumstances.
11. PAYMENT TERMS
By providing us with your payment account information, including payment card and refund method information, you reflect, warrant and consent that: (a) you are legally authorised to provide us with such information; (b) you are legally authorised to make payments and accept payments to a payment account, and (c) such action does not infringe the terms and conditions of the payment account; By approving a payment in conjunction with the Services, you represent, warrant and pledge that appropriate funds or credit are available to complete a payment using the specified mode of payment.
Material The information provided by the Services is made available for general purposes only. We are not warranting that this information is reliable, complete, or useful. Any dependence on this knowledge is solely at your own risk. We waive all liability and liability resulting from any reliance you or any other customer of the Services put upon these materials. The Services can provide third-party content, including content provided by other Service users. All claims and or viewpoints expressed in such content (other than the Company’s content) are solely the views and responsibility of the content provider and do not necessarily represent the Company’s views. We are not responsible for the content delivered by any third party or are liable to you or any third party.
13. THIRD-PARTY SERVICES AND LINKS
The Services can include links to websites, applications and services of third parties which are not owned or controlled by us. Services can also promote the purchasing of goods and services from third parties. We do not monitor any other third-party goods, facilities, websites or applications (collectively, “Third-Party Companies”), or third-party vendors, or any other third-party service providers or sellers. Third-party Companies shall have different terms and conditions. Before accessing or buying any third party services, you can read the terms and conditions carefully. You are responsible for all costs, fees, duties, taxes and appraisals related to your procurement of any Third-Party Services through the Company, except as otherwise covered by relevant legislation. You must settle any conflicts concerning third-party services with the applicable third party offering and or selling third party services.
14. SUSPENSION AND TERMINATION
Your account and your access to and use of the Services, including the cashback balance in your account, may be suspended, limited or terminated at our absolute discretion at any time for any cause, without warning or responsibility to you, including but not limited to, if we believe that your access to or use of the Services breaches these Terms or applicable law. By contacting us, you can cease using the Services and terminate your account at any time. Upon termination of your account, all use of the Facilities must be stopped, and you must lose any remaining cashback balance in your account. Your termination of your account and your access to and use of the Services does not affect any of our rights or responsibilities under these Terms until such termination occurs. In the event that you or Tapwise terminate your account, you accept that we can retain your data for one year from the date of termination for audit and merchant invoicing purposes, including personal and transaction details, but excluding any real-time associations and linking with your bank account/s, which will be deleted nearly immediately. Provisions of these Terms which, by their definition, will survive termination of your account and survive such termination of your access to and use of the Services.
You agree to indemnify, hold harmless and (at our request) protect us, our associates and our and their respective staff, officials, directors and agents, as well as Tapwise Networks, against and against all actions, actions, suits, damages, charges, litigation, fines, penalties, liabilities and expenditures arising from any third party, including fair attorney’s fees. We reserve the right to assume, at your expense, the exclusive protection and control of any matter for which you are required under these Terms to indemnify us, and you agree to comply with our protection of those claims.
You understand and accept to the fullest degree allowed by applicable law that your access to and use of the services and all information, products, and other content (including that of third parties) contained in or accessible through the services is at your own risk. To the fullest extent allowed by applicable law, services are delivered “as is” and “as available” without any guarantee of any sort, and we and the network expressly disclaim any and all terms, representations, guarantees, express or implied, statutory or otherwise, including, without limitation, any implied guarantee of title, merchantability, fitness for a particular purpose.
Without restricting the above, we and the payment networks will not guarantee that (a) the services will meet your requirements; (b) the services will be uninterrupted, prompt, secure or error-free; (c) the results obtainable from the use of the services will be accurate or reliable; (d) the quality of any products, equipment, information or other material purchased or obtained by you; (e) any errors will be fixed. No oral or written information or advice will be provided by us or will be produced by any of our approved representatives will create any warranty.
Some jurisdictions do not allow the elimination of implicit warranties, and you are not subject to the exclusions and limitations above. Any limitation, however, has to be established to the full extent of the law.
17. LIMITATION OF LIABILITY
We, our associates, networks and their respective employees, managers, directors and agents shall not be liable for damages of any kind under any legal theory arising from or in connection with your access to or use of the services or any information, products or other content (including third-party content). Without restricting the above and to the fullest extent allowed by applicable law, in the event that you or any other individual or entity are entitled to direct damages arising from or in connection with your access, use or inability to access or use the services or any material, goods or other content (including that of third parties) contained in or accessible through the services, the compilation or use of those services or any data, information or other content (including that of third parties) contained in or accessible via the services, the collective liability of the Organisation, our associates, the networks and our and their respective personnel, officers, directors and agents (regardless of the type of action, whether in contract, tort or otherwise) will not exceed $100.
In addition to and without restricting any of the above, we and the networks will not be held responsible for any malfunction or delay arising from any situation outside our fair control, including, without limitation, acts of religion, acts of terrorism, working conditions, power failures, internet disruptions, or any third party managed services or systems.
The requirements in this section do not affect any liability that cannot be excluded or limited according to applicable law.
We will give you all Services updates and other messages at the email address or physical address you given for your account, as may be changed from time to time. When we send it to the email address or physical address, we have in our records for you, or when we publish such note on the Website or the Application, you will be considered to have received a notification from us about the Services.
Except as otherwise given in these Words, all notifications to us intended to have a legal effect must be sent to email@example.com via email. All these notifications shall be considered to be valid upon us having provided documentation.
19. GOVERNING LAW
These Words shall be regulated by the laws of the State of Queensland, without giving effect to any principle which prescribes the Application of the law of another jurisdiction.
20. DISPUTE SETTLEMENT BY BINDING ARBITRATION; JURY COURT WAIVER; CLASS ACTION WAIVER
For any and all conflicts, disputes, requests or causes of action between you and us (including the meaning and nature of this Clause and the arbitrariness of the conflicts, disputes, demands, claims or causes of action) relating to the Facilities or to these Terms (as well as any current or previous agreement) The opposing party shall inform the other party in writing of any such issue, disagreement, query, allegation or cause of action. Within 30 days of such warning, you and we agree to make fair efforts to try in good faith to settle the conflict. If you and we do not settle the dispute within 30 days of such notification, the complaining party can seek remedies by arbitration only. Except as otherwise specifically established by applicable law, the request for arbitration must be made within a reasonable period of time after the conflict, dispute, allegation, allegation or cause of action in question occurred and, in any case, within two years after the complaining party had known or ought to have learned of the conflict, dispute, claim, or cause of action.
The arbitration must take place inside your residence’s judicial. “We” and “us” means the Company and its branches, associates, ancestors, descendants, and subordinates, and all of our and their respective staff, managers, directors, agents, and representatives as included in this section. Additionally, “we” and “us” shall include any third party offering any Product, Service or benefit in connexion with the Services or these Terms (as well as any similar or prior arrangement that you may have had with us) if such third party is listed as a co-party with us in any conflict, conflict, demand, claim or cause of action subject to this section.
Arbitration would be subject to the International Arbitration Act and not to arbitration rule by any jurisdiction. The arbitration will be held in front of one Australian Centre for International Commercial Arbitration (ACICA) commercial arbitrator with extensive experience in settling trade contract conflicts. As amended by these Terms, and unless otherwise decided in writing by the parties, the arbitration shall be regulated by the Commercial Arbitration Rules of the ACICA and, if considered applicable by the arbitrator, by the Supplementary Procedures for Related Customer Disputes (collectively, the “Rules and Procedures”). You will carefully review this section. To the full degree allowed by applicable statute, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT to challenge or protect your rights EXCEPT for matters you file in the Small Claims Court of the State or Municipality of your residence or as otherwise provided for in the Rules and Procedures within the jurisdictional limits of the Small Claims Court and as long as that matter is pending only in that court. Furthermore, in view of the arbitration agreement included in this section, you and we can request equal emergency relief in the federal court if it has jurisdiction or if it does not have jurisdiction in the federal court of your residence to preserve the status quo pending arbitration, and you and we hereby agree to submit to the exclusive personal jurisdiction of the courts located within the federal judicial district of your residence for such purpose. A request for transitional steps would not be considered a waiver of the arbitration duty.
Your interests shall be decided by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY. You have the right to a FAIR HEARING, but the arbitration process can be EASIER AND MORE RESTRICTED THAN LAWS APPLICABLE IN COURT. The rulings of the arbitrators shall be as enforceable as any court order and shall be subject to VERY RESTRICTED REVIEW BY A COURT.
You and we must abide by the following rules: (A) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (B) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS; MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING; AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) we will pay as much of your filing and hearing fees in connection with the arbitration as required by the Rules and Procedures and/or as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) we also reserve the right, in our sole and exclusive discretion, to assume responsibility for any or all of the costs of the arbitration; (e) the arbitrator will honour claims of privilege and privacy recognised at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (g) subject to the limitation of liability provisions of these Terms, the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (h) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law.
This section must survive termination of these Terms, as well as any voluntary payment by you or any bankruptcy by you or us of any debt in full. With the exception of subparts (A) and (B) of this section (prohibiting arbitration on a class or collective basis), if any portion of this section is considered null, unenforceable or unlawful or clashes otherwise with the Rules and Procedures, the balance of this section shall remain in effect and shall be read in compliance with its terms as if it were unconstitutional, unenforceable, unlawful; However, if any subpart (A) or (B) of this section is found to be unconstitutional, unenforceable or unlawful, then this section will be null and void in its entirety, and neither you nor we shall be entitled to arbitration. If, for whatever occasion, a conflict, dispute, allegation, allegation, or cause of action continues in the trial rather than in arbitration, the issue, dispute, claim, or cause of action shall be taken solely to federal court if it has jurisdiction or, if it does not, to a state court located in your residence’s federal judicial state or territory.
If you wish to opt-out of the Arbitration Agreement found in this Clause, you must inform us of your election in writing within 30 days of the date you first became subject to these Terms or within 30 days of the effective date of any material modification to these Terms by sending us a written notice by certified mail at 907/5 Cameron st. 4101 South Brisbane, QLS; Your notice of opting out will include your name, address, telephone number and email address.
22. CONTACT US
Please contact us if you have any questions about these Terms or the Service.