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 You must tell us immediately if that authority is withdrawn.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.
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:
The interpretation clause in clause 25.2 (Dictionary) sets out the rules of interpretation for the Agreement.
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:
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.
You agree that by receiving or requesting the Services, you:
You must not:
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;
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.
You will:
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.
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.
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.
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.
You acknowledge that:
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.
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:
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.
You acknowledge and agree that:
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:
|
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:
|
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:
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. |