GIFTA’S TERMS OF SERVICE

INTRODUCTION

Welcome to GIFTA! By signing up for a GIFTA Account (as defined in Section 2) or by using any Services (as defined below), you are agreeing to be bound by the following terms and conditions (“Terms of Service”).

The Platform is owned by Gifta Australia Pty Ltd and its Affiliates (together “GIFTA”, "we”, "our”, or "us”) and these Terms of Service explain our rights and obligations as a service provider and your rights and obligations as a single merchant or as a person acting for and on behalf of multiple merchants (“you” or “your”) as identified in the Merchant Agreement. If you are acting for and on behalf of multiple merchants, where an obligation in these Terms of Service requires you to perform an obligation you agree to procure that each merchant performs that obligation.

GIFTA provides a commerce Platform that provides merchants with solutions to sell their products, experiences and services to the GIFTA network of consumer and corporate customers. Any such service or services offered by GIFTA are referred to in these Terms of Service as the “Service(s)”. Any new features or tools which are added to the current Services will also be subject to the Terms of Service. 

We may change these Terms of Service at any time by notice to you in the manner set out in these Terms of Service, and your continued use of our Services or the Platform following such notice will constitute an agreement by you to be bound by the Terms of Service as amended.

By using the Services or accessing the Platform, you acknowledge that you have read and understood and agree to be bound by these Terms of Service and that these Terms of Service together with the Merchant Agreement will form a standing agreement between you and GIFTA (“Agreement”). In entering into this Agreement, you acknowledge that you have the authority to act on behalf of any person or entity for whom you are using the Services or accessing the Platform, and you agree to this Agreement both personally and on behalf of that person or entity/entities. You must tell us immediately if that authority is withdrawn.

GIFTA is not a party to the contracts entered into directly between Merchants and Customers, nor is GIFTA responsible for the delivery or insurance of the products, services or experiences offered by Merchants via the Platform. GIFTA is not acting as an agent in any capacity for either a Merchant or Customer, except as explicitly specified these Terms of Service.

Please read these Terms of Service carefully and if you do not agree to them, you must not continue to use the Services or the Platform. 

DEFINITIONS

Dictionary

Capitalised words and phrases used in this Agreement have the meanings given to them where they are followed by bolded brackets, or otherwise have the meanings given to them in:

  • clause 25.2 (Dictionary); or where not specified therein
  • the Corporations Act; and
  • the GST Act.

Interpretation 

The interpretation clause in clause 25.2 (Dictionary) sets out the rules of interpretation for the Agreement.

 

ACCOUNT TERMS

  • To access and use the Services, you must register for a GIFTA account (“Account”). To complete your Account registration, you must provide us with your full legal name or entity name, ABN, business address, primary contact person, phone number, a valid email address, and any other information indicated as required. We may reject your application for an Account, or cancel an existing Account, for any reason, at our sole discretion.
  • You confirm that you are receiving any Services provided by GIFTA for the purposes of carrying on a business activity and not for any personal, household or family purpose.
  • You acknowledge that GIFTA will use the email address you provide on opening an Account or as updated by you from time to time as the primary method for communication with you. You agree to monitor the email address you provide to us for the purpose of receiving the Services.
  • You are responsible for keeping your password secure. GIFTA will not be liable for any loss or damage from your failure to maintain the security of your Account and password.

 

LICENCE

  • GIFTA grants to you a non-exclusive, non-transferable, non-sublicensable licence for the Merchant’s to use and access the Platform during the Term on the terms set out in the Agreement (“Licence”).
  • In exchange for GIFTA granting the Licence to you, you agree to pay the Fees on the terms set out in this Agreement, including as set out in clause 11. 
  • If this Agreement is terminated for any reason, then the Licence together with GIFTA’s provision of the Services, will immediately terminate.

 

TERM

  • The term of the Agreement will commence on the Commencement Date and continue until terminated in accordance with the Agreement (“Term”).

 

  • The Agreement may be terminated by either party for convenience in accordance with clause 17(a), provided that the terms of this Agreement will continue to apply to the parties up to the date of termination.

SET-UP SERVICES

  • GIFTA will provide the Set-Up Services for the Merchants.
  • You must give GIFTA reasonable assistance to allow GIFTA to provide the Set-Up Services, including by providing GIFTA with copies of logos and branding assets and any other information and assistance as GIFTA may reasonably require from time to time.
  • In the event that a Merchant does not approve of the Set-Up Material published (such approval not to be unreasonably withheld, delayed or conditioned), you will notify GIFTA within two (2) days of publication. GIFTA will use its commercially reasonable endeavours to address and rectify your reasonable concerns in respect of any Set-Up Material.
  • You grant to GIFTA a royalty-free, worldwide, non-transferrable licence to use and publish any of the Merchant’s Intellectual Property Rights in the Set-Up Material, including trademarks and copyright in any Set-Up Material provided by the Merchant.

 

API ACCESS

During the course of performing under this Agreement, GIFTA may assign Merchant certain confidential API authorisation keys for use with the API (API Key), in which you agree:

  • to store on a secure server with controlled access, firewall and intrusion detection, network monitoring and other reasonable requirements as may be communicated to the Merchant by GIFTA in writing from time to time;
  • that the API Key must be concealed or encrypted to prevent unauthorized access and/or use;
  • that GIFTA may change the API Keys from time to time and such modifications of the API Key may affect Merchant’s API access requiring the Merchant to make changes to continue to be compatible with or interface with the API; and
  • that the API Key is the property of GIFTA and may not be sold, transferred, sublicensed or otherwise disclosed to unauthorized third-parties by Merchant.

 

YOUR OBLIGATIONS

Provide Information

You may be required to provide GIFTA with documentation, information and assistance reasonably required by us to perform the Services, including billing details and other account information (“Financial Information”) if you do not hold a Stripe account and require that we set one up for you, to allow the processing of payments for products and services that the Merchants wish to provide via the Platform.

Compliance with Laws

You agree that by receiving or requesting the Services, you:

  • will not breach any applicable Laws (including any applicable privacy laws); 
  • have a current and valid:
    • ABN/business registration;
    • Appropriate insurance policies; and
    • if the Merchants sell alcoholic beverages, liquor licence, when applicable as required under relevant state legislation; and
  • are not and will not infringe the Intellectual Property Rights or other rights of any third party, or breach any duty of confidentiality.

Use of Platform

You must not:

  • use the Platform in any way that damages or could damage the reputation of GIFTA, or the goodwill or other rights associated with the Platform;
  • charge any third party to use the Platform;
  • provide Customers with any information about GIFTA that is false, misleading or inaccurate. Without limiting this clause 7.3(c), you must not make any warranty, representation or statement to any Customer relating to GIFTA, the Platform or any Payment Platform, other than those:
    • contained in materials provided to you or the Merchants by GIFTA;
    • set out on our Website; or
    • as otherwise expressly permitted by GIFTA in writing,

and if GIFTA is concerned that any content or materials displayed on your Account, websites or in-store does not comply with this clause, we may request (and you shall immediately comply with that request) that you or the Merchants modify or delete the relevant content or materials, or remove them from display;

  • except as expressly permitted by this Agreement:
    • reproduce, make error corrections to or modify or adapt the Platform or create any derivative works based upon the Platform;
    • de-compile, disassemble or otherwise reverse engineer the Platform or directly or indirectly allow, cause or permit any third party to do so; or
    • modify, remove or whitewash any copyright or proprietary notices on the Platform; or
  • access, store, distribute or transmit any viruses, or any material during your use of the Platform that:
    • is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or discriminatory;
    • facilitates illegal activity;
    • depicts sexually explicit images;
    • causes damage or injury to any person or property; or
    • violates any applicable laws,

You shall use all reasonable endeavours to prevent any unauthorised access to, or use of your Account or the Platform and, in the event of any such unauthorised access or use, promptly notify GIFTA.

GIFTA reserves the right, without liability to you or the Merchants, to disable your Account to or remove any material published on the Platform that breaches the provisions of this clause.

Obligations in respect of Orders

  • When a Customer makes an Order using the Platform, the Merchant will be issued with a notification (“Order Notification”).
  • When a Customer makes an Order in relation to a Product, you must:
    • dispatch all standard delivery products within 24 hours of receipt of Order;
    • ensure the tracking number is added to the Product within 2 days from the date of the Order;
    • ship and/or deliver the Product to the Customer via the Platform only;
    • notify the Customer of any delays to the shipment of the Product; and
    • ensure that if an Order is unable to be completed for whatever reason, you must notify the Customer and submit a refund via the Platform within 24 hours of receiving the Order.
  • GIFTA is not responsible for:
    • the deliver of the Product and the Merchant acknowledges that it is responsible for ensuring that the Product is properly shipped to the Customer;
    • damages Products;
    • warranty of the Products;
  • The Merchant is responsible:
    • to ensure all services and experiences are provided as advertised and to a high standard to ensure Customer satisfaction;
    • to ensure Products or services are provided as advertised;
    • for updating and keeping all stock inventory or booking calendars up to date.

Obligations and Restrictions on Use of Integrations  

  • Merchant must:
    • prevent unauthorised access to, or use of the Integrations and notify GIFTA promptly of any such unauthorized access or use (including any unauthorised access or use caused by misuse or misappropriation of the API Key or passwords);
    • notify GIFTA promptly if the API Key is disclosed, lost or stolen;
    • comply with its obligations under all laws applicable to Merchant’s use of the Integrations, including all applicable laws related to privacy, data security, and data protection; and
    • co-operate with any of GIFTA’s reasonable direction in relation to the processing of any personal information for the purposes of complying with GIFTA’s Privacy Policy.
  • Merchant must not:
    • use the Integrations in violation of applicable laws; 
    • in connection with the Integrations, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights;
    • send or store malicious code in connection with the Integrations; 
    • interfere with or disrupt performance of the Integrations or the data contained therein;
    • attempt to gain access to the Integrations or their related systems or networks in a manner not provided by this Agreement or as otherwise permitted by GIFTA in writing;
    • modify, copy or create any derivative works based on the Integrations;
    • license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer as a service, or otherwise make the Integrations available to any third party;
    • reverse engineer or decompile any portion of the Integrations;
    • access the Integrations in order to build any competitive or commercially available product or service;
    • copy any features, functions, integrations, interfaces or graphics of the Integrations; or
    • allow, permit or assist any third party to do any of the foregoing.

Additional Merchant Obligations

You will:

  • Ensure that the Merchant’s inventory for its Products are kept up to date on their Account.
  • co-operate with GIFTA in any way reasonably required by GIFTA to provide business efficacy to this Agreement;
  • carry out your obligations in a timely and efficient manner;
  • do all things reasonable to ensure that you, the Merchants and your Customers use the Platform in accordance with the terms and conditions of this Agreement and GIFTA’s Terms of Use [https://giftagiftcards.com.au/terms-condition] and Privacy Policy [https://giftagiftcards.com.au/privacy-policy]; 
  • be responsible for customer service relating to all Orders and delivery quality; 
  • act in good faith when requests are made by GIFTA to promptly resolve disputes with Customers (including where necessary, taking any action reasonably directed by GIFTA as may be required to protect our legitimate business interests;
  • not commence advertising or offering Restricted Goods for sale without the prior written consent of GIFTA;
  • obtain and shall maintain all necessary hardware and third-party software licences necessary to be able to access the Platform; and
  • be solely responsible for procuring and maintaining network connections and telecommunications links from the Merchant systems to the Platform, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Merchant’s network connections or telecommunications links.

Indemnity

You shall indemnify, and keep indemnified and hold harmless, GIFTA from and against all Loss suffered or incurred by GIFTA or its Affiliates as a result of a breach of this clause 6.

 

OUR OBLIGATIONS

  • Subject to the terms of the Agreement, we will provide you with access to the Platform and the Services.
  • In order for you to obtain the benefit of the Platform, we will provide you with a plugin to our platform (Plugin Access) and where the Plugin Access is not available, access to our application programming interface (API Access) will be provided.
  • We agree to provide the Services, including the Set-up Services, resolving access issues with the Platform and updating any Merchant related information on the Platform to which the Merchant does not have access.
  • We reserve the right to change, suspend, remove, or disable access to any feature of the Platform or Services at any time without notice and GIFTA will not be liable for such change, suspension, removal or disabling of access. We may also impose limits on the use of or access to the Platform if we determine that it is in the interests of our genuine business needs in our sole discretion without any notice or liability.

 

SUPPORT SERVICES

  • GIFTA will provide the Support Services, which includes seeking to resolve access issues with the Platform and updating any Merchant related information on the Platform to which the Merchant does not have access. 
  • You will promptly give GIFTA such reasonable assistance as GIFTA considers necessary to ensure that it can provide the Support Services.

 

PAYMENT PROCESSING

  • All financial transactions made through the Platform between the Merchants and Customers are to be processed via the Payment Platform.
  • GIFTA will provide the Financial Information to the Payment Platform, or may require that the Merchants provide      their Financial Information to the Payment Platform directly.
  • GIFTA shall not authorise any Payment Platform to use the Financial Information in any way other than to process payments for Orders.
  • GIFTA shall not be liable for any losses of the Merchants arising out of or in relation to the processing of payments through the Platform, but will liaise with the Payment Platform to facilitate a resolution of any issues regarding payment that arise in respect of the Merchant’s Accounts or any Orders.
  • The Merchants appoints GIFTA as its agent for the purposes of accepting payment from Customers who use the Platform to place Orders (Customer Payments).
  • GIFTA shall remit the Customer Payments (less the Fees) to the Merchants on each Remittance Date.

 

FEES

  • You agree to pay the Fees to GIFTA on the terms of this Agreement.
  • GIFTA will accept the Customer Payments and will deduct the Fees and Pass-Through Costs from those funds prior to remitting the balance to the Merchants on each Remittance Date.
  • Interest shall be payable at the Penalty Interest Rate on the late payment of any Fees required to be paid by you under this Agreement, accruing on a daily basis from the due date until payment is made in full, both before and after any judgment.

 

REFUNDS, REVERSALS & CHARGEBACKS

  • You shall be responsible for all costs related to reimbursement to the Customer in the event that a Customer requests a refund in relation to an Order.
  • In the event of a Chargeback or Reversal, you acknowledge and agree that you must pay:
    • the Fees;
    • the Chargeback Fee (in the event of a Chargeback); and
    • any other associated fees incurred by GIFTA in respect of the Chargeback or Reversal.

 

HOSTING AND INTEGRATION

  • The Platform will be hosted on a cloud server operated by a third party.
  • You acknowledge and agree that GIFTA will not at any time host the Platform, and accordingly GIFTA will not be liable for any losses occasioned by you or the Merchants arising out of or in connection with the hosting of the Platform.
  • GIFTA will notify you of: 
    • any violations of the Privacy Act, or violations of the terms of this Agreement of which it becomes aware; and
    • any request, claim, order, authority report made by any government or statutory authority in respect of the Platform or the data generated by the Platform.

 

REPRESENTATIONS AND WARRANTIES

  • Each party hereby represents and warrants to the other that:
    • it has the right to deal with the Intellectual Property Rights and has the authority to grant its respective rights under this Agreement;
    • it is a corporation duly organized, validly existing, and in good standing under the laws of Australia; 
    • the grant, execution, delivery, and performance of its obligations under this Agreement have been duly authorised by all necessary action; and
    • this Agreement is a legal, valid, and binding obligation.
  • Notwithstanding anything else in this Agreement, GIFTA:
    • does not warrant that the Merchant's use of the Platform will be uninterrupted or error-free;
    • is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including cloud and internet services, and you acknowledge that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and

 

INTELLECTUAL PROPERTY RIGHTS

  • Nothing in this Agreement constitutes an assignment from GIFTA to you or the Merchants of any Intellectual Property Rights in connection with the Platform.
  • You:
    • acknowledge that GIFTA holds all Intellectual Property Rights in the Platform;
    • will not directly or indirectly do anything that would or might invalidate or put in dispute GIFTA’s title in the Platform; 
    • will not share login details to the Platform with any third party, unless GIFTA first provides approval in writing; and
    • will not copy, modify, reverse engineer, decompile or attempt to extract the source code of the Platform, Website or any other associated functionality.
  • GIFTA shall retain all Intellectual Property Rights in any of the material that it creates for you and the Merchants under this Agreement.

 

LIABILITY

  • To the full extent permitted by law, GIFTA excludes all liability in respect of loss of data.
  • To the fullest extent permitted by law, in no circumstances will GIFTA be liable (whether before or after the expiry or termination of the Agreement) for Consequential Loss as a result of a defect in the Platform or a breach by GIFTA of this Agreement.
  • Nothing in this Agreement excludes the liability of GIFTA:
    • for death or personal injury caused by GIFTA’s negligence; or
    • for fraud or fraudulent misrepresentation.
  • Subject to clauses 16(a), 16(b) and 16(c), GIFTA’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement is limited to the amount of the Fees paid by you under this Agreement in the 12 months preceding the relevant claim.
  • GIFTA shall have no liability for any damage caused by errors or omissions in any information, instructions or material provided to GIFTA by you or the Merchants in connection with the Platform, or any actions taken by GIFTA at the Merchants’ direction.
  • All warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from this Agreement.
  • Except as expressly and specifically provided in this Agreement, the Platform is provided to you on an “as is” basis.

 

TERMINATION

  • Either party may terminate this Agreement at any time by providing 60 days’ written notice to the other party.
  • Either party may terminate this Agreement immediately by notice in writing if: 
    • the other party is in breach of any term of this Agreement and such breach is not remedied within 14 days of receipt of notice;
    • the other party is in breach of a term of this Agreement and such breach is incapable of remedy; or
    • the other party suffers an Insolvency Event.

 

CONSEQUENCES OF TERMINATION

  • If this Agreement is terminated or expires for any reason:
    • the licences (including the Licence) granted under this Agreement immediately terminate and you and the Merchants can no longer use the Platform;
    • GIFTA shall cease providing the Services to you and the Merchants;
    • you must return to GIFTA or delete all copies of any media constituting or containing GIFTA’s Intellectual Property Rights or any other thing provided to you and the Merchants under this Agreement;
    • all amounts owing by you to GIFTA will become immediately due and payable to GIFTA without further notice and interest will accrue on this amount at the Penalty Interest Rate;
    • you must immediately pay all outstanding Fees;
    • termination will not affect the parties accrued rights and obligations prior to the date of termination.

 

CONFIDENTIALITY

  • Each party acknowledges that during the course of this Agreement they may convey to the other party Confidential Information. If any Confidential Information is received by a party, then that party agrees to keep it confidential and use it only for the purposes of performing its rights and obligations under this Agreement (“Permitted Purpose”).
  • Each party shall not disclose the other party’s Confidential Information in whole or in part to any third party, except to those of its or its Affiliates employees, officers, representatives or advisers who need to know such Confidential Information for the Permitted Purpose. Each party shall inform its and its Affiliates employees, officers, representatives or advisers who need to know such Confidential Information for the Permitted Purpose of the confidential nature of the Confidential Information prior to disclosure and at all times is responsible for such persons’ compliance with the confidentiality obligations set out in this clause.
  • Each party may disclose the other party’s Confidential Information to the extent required by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, the receiving party gives the Disclosing Party as much notice of such disclosure as reasonably possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, the receiving party takes into account the reasonable requests of the disclosing party in relation to the content of such disclosure. 
  • This clause continues even after termination of this Agreement.

 

DATA PROTECTION

  • GIFTA agrees to provide you and the Merchants with the customer’s order details (Order Details) to the extent necessary for the Merchants to manage and fulfil the customer’s order (Purpose). To the extent that the Order Details contains any Personal Information of the customer, the parties acknowledge and agree that:
    • you and the Merchants shall not access or use such Personal Information other than as necessary for the Purpose; 
    • you will destroy any copies of such Personal Information as soon as it is no longer needed by the Merchant for the Purpose; and
    • you will comply with the Data Protection Legislation at all times, and shall, upon request, provide reasonable assistance to the other party in the event that a customer exercises its rights under the Data Protection Legislation, or a query or investigation is commenced by a Data Protection Authority.

 

GST

  • Unless otherwise set out in this Agreement, all Fees are exclusive of GST and any other similar duties, levies or taxes (if applicable) which shall be added to the Fees by GIFTA at the prevailing rate.
  • Subject to this clause 21, any amount payable by you to GIFTA under this Agreement is a payment for a taxable supply.
  • Unless otherwise specified, the party acquiring the taxable supply is liable to pay, at the same time and in the same manner as any other money is payable for the taxable supply, the amount of any GST payable in respect of the taxable supply.
  • Costs required to be reimbursed or indemnified under this Agreement must exclude any amount in respect of GST included in the costs for which an entitlement arises to claim an input tax credit.
  • GIFTA’s right to payments under this Agreement is subject to a valid Tax Invoice being delivered to you in respect of such payments.

 

VARIATION TO TERMS

We reserve the right to change, modify, add or remove parts of these Terms of Service at any time, subject to providing you with a minimum of 14 days’ notice. By continuing to use or access the Platform and/or Services after the date these changes become effective, you signify that you have read, understood and agree to be bound by the updated Terms of Service.

 

NOTICES

  • Any notice given under this Agreement by either party to the other must be in writing by email and will be deemed to have been given on transmission.
  • Notices must be sent to help@giftagifts.com.au or to any other email address notified by email to you by us.
  • Notices to you may be sent via electronic messages, including email, text message/SMS, or mobile push notifications, to the email address or numbers which you provided when setting up your access to the Platform.

 

GENERAL

Waiver

A waiver of a provision of or right under this Agreement is effective only if it is in writing signed by the party granting the waiver.

Invalidity

Any provision of this Agreement which is invalid or unenforceable in any jurisdiction will, as to that jurisdiction only, be read down or severed to the extent of that invalidity or unenforceability. The remaining provisions of this Agreement which are self-sustaining and capable of separate enforcement without regard to the read down or severed provision in that jurisdiction are and will continue to be valid and enforceable in accordance with their terms.

Assignment

You acknowledge that:

  • You may not assign your rights or obligations under this Agreement without the prior written consent of GIFTA; and
  • GIFTA may assign or transfer its rights or obligations under this Agreement without your consent.

Entire Agreement

This Agreement, together with any documents referred to in this Agreement or provided in conjunction with this Agreement from time to time, comprises the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes and cancels all prior agreements and negotiations.

Inconsistency 

If there is any inconsistency between the documents forming part of or contemplated by the Agreement, then the following order of priority applies to determine which provisions prevail to the extent of the inconsistency: 

  • the Merchant Agreement;
  • the Privacy Policy; and
  • these Terms of Service.

Governing Law

This Agreement shall be governed and construed in all respects in accordance with the laws of Victoria, Australia and, except where restricted by the applicable Law, the parties hereby irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia.

Electronic Agreement

You acknowledge and agree that:

  • a printed version of this Agreement will be admissible in judicial, administrative or arbitral proceedings; and 
  • you waive any rights to originally execute by hand this Agreement.

 

DICTIONARY

Interpretation

  • (singular and plural) words in the singular includes the plural (and vice versa);
  • (currency) a reference to $ or “dollar” is to Australian currency;
  • (gender) words indicating a gender includes the corresponding words of any other gender;
  • (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
  • (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
  • (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
  • (headings) headings and words in bold type are for convenience only and do not affect interpretation;
  • (includes) the word “includes” and similar words in any form is not a word of limitation; and
  • (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.

 

Dictionary

Term

Definition

Applicable Laws

means all applicable laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, or decisions and awards of any court or competent authority or tribunal from time to time in force.

Chargeback 

means any challenge to a Customer Payment filed by a Customer with a credit card issuer or other payment provider.

Chargeback Fee

means the sum of $25.00.

Commencement Date

means the date the Merchant Agreement is signed by both parties.

Confidential Information

means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure (and includes in particular the documentation and all of the Intellectual Property Rights associated with the Platform as disclosed or provided to you and the Merchants by GIFTA pursuant to this Agreement), but excluding:

  • information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement; and

  • information developed independently by a party.

Consequential Loss

means any special, indirect or consequential loss or damage arising from a breach of contract, tort (including negligence), under statute or any other basis in law or equity or any loss of profits, loss of revenue, loss of production, loss of denial or opportunity, loss of access to markets, loss of goodwill, loss of business reputation, future reputation or publicity, damage to credit rating, loss of use or indirect remote, abnormal or unforeseeable loss, loss or corruption to data, the costs arising from the loss of use of the Platform and the costs of any substitute software which a Merchant acquires or any similar loss howsoever arising (whether directly or indirectly and whether or not in the reasonable contemplation of the parties at the Commencement Date).

Copyright Act

means the Copyright Act 1968 (Cth) (as amended).

Corporations Act

means the Corporations Act 2001 (Cth) (as amended).

Customer

means a customer that places an Order through the Platform.

Data Protection Legislation

means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the processing of Personal Information to which a party is subject, including the Privacy Act.

Data Protection Authority

means a person or body which has regulatory or supervisory authority over all or any part of the business or activities of the relevant person in respect of Personal Information.

Fees

means the Service Fee and Payment Platform Fee

GST

has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).

Insolvency Event

means the occurrence of any event or transaction in relation to any party that would cause that party to become insolvent within the meaning of clause 95A(2) of the Corporations Act 2001 (Cth).

Integrations

means GIFTA API or plugins, or any other way that enables the Merchant to connect to the Platform and utilise the Services.

Intellectual Property Rights

means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trademarks, designs, patents or other proprietary rights, Confidential Information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the date of this Agreement, whether registered or unregistered.

Loss 

means any and all losses, damages, costs, expenses (including reasonable legal fees) and other liabilities, including Consequential Loss, and Losses shall be construed accordingly.

Merchant

means each merchant using the Platform and/or any person from where products, experiences and services may be purchased via the Platform, as specified in the Merchant Agreement. 

Merchant Agreement

means the document named ‘Merchant Agreement’ signed by you and forming part of the Agreement.

Order

means an order for products, experiences or services placed through the Platform by a Customer.

Parties

means the parties to the Agreement and ‘party’ means each of them.

Pass-Through Costs

means any cost for which a Merchant is responsible in respect of an Order (including Refunds, Chargeback Fees).

Payment Platform

means Stripe Payments Australia Pty Ltd (ACN 160 180 343) and any other payment platform that GIFTA integrates with from time to time.

Payment Platform Fee

has the meaning given to it in the Merchant Agreement.

Penalty Interest Rate

means the rate of 2% per annum plus the rate for the time being fixed by clause 2 of the Penalty Interest Rates Act 1983 (Vic).

Personal Information

has the meaning given in the Data Protection Legislation.

Platform

means the software known as “GIFTA”, owned by GIFTA and delivered to the Merchants by GIFTA pursuant to the Agreement.

Privacy Act

means the Privacy Act 1988 (Cth) as amended from time to time.

Product

means a product of the Merchant that is sold to Customers via the Platform.

Refunds

means all costs associated with the refund (including return shipping costs) requested by a Customer for an Order and approved by you or the Merchants.

Remittance Dates

means within 24 hours after a Customer confirms receipt of an Order, or 48 hours following the time in which the receipt request is issued to the Customer for confirmation.

Restricted Goods

means:

  • goods or services that infringe third party Intellectual Property Rights;
  • dangerous goods, being goods that cause damage, harm or injury; 
  • tobacco products or alcoholic beverages (except to the extent that such products or beverages are provided as part of your licenced and ordinary course of business);
  • adult merchandise, including (without limitation) sex toys, adult magazines and books, sexual enhancement products and pornographic materials and items;
  • gambling-related content;
  • medicines and dietary supplements;
  • products that encourage dishonest behaviour;
  • cannabis products (prescription or otherwise);
  • without limiting the above, any goods or services which are required by law to be sold to Customers over 18 years of age; and
  • any other goods or services which GIFTA reasonably considers to be dangerous, inappropriate or high risk.

Reversal

means a reversal by GIFTA of any Customer Payment because:

(a) it violates, or we reasonably suspect it may violate, this Agreement; or

(b) of error, negligence, wilful misconduct or fraud on behalf of you or a Merchant (including any employees, contractors, agents of you or a Merchant), Customer or banking and/or payment processor.

Service Fee

has the meaning given to it in the Merchant Agreement.

Services

means any and all of the following:

  • Websites:
  • Platform;
  • API Access;
  • Plugin Access;
  • Set-up Services; and
  • Support Services,

provided by us to you.

Set-up Material

means any material created by GIFTA for the Merchants in performing the Set-Up Services.

Set-up Services

means services to set up the Merchants for trading via the Platform, including setting up the Account and providing set-up support.

Support Services 

means the software support services in relation to Platform, including but not limited to implementation, support, training and development services, provided by us to you.

Websites

means https://giftagiftcards.com.au and any other site operated by us in connection with the Platform or Services.