These terms and conditions are between Blossoming Speaker Pty Ltd (ABN 24 656 229 506), (we, us or our) and you, the party requesting Services on the Site (you or your), together the Parties and each a Party. These terms and conditions form the entire agreement under which we will provide the Services to you.
1. OUR DISCLOSURES
1.1 Please read this Agreement carefully prior to accepting this Agreement. By accepting this Agreement, you agree that:
(a) your failure to pay the Price and/or Membership Fees in accordance with the Payment Terms may result in us charging you interest, or suspending the provision of the Services until we receive payment;
(b) you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including legal fees, debt collector fees and mercantile agent fees);
(c) subject to your Consumer Law Rights, we exclude our Liability for your (or your Personnel’s) acts or omissions, any use of the Services by a person other than you, any works, services, goods materials or items which do not form part of the Services set out in this Agreement, events beyond our reasonable control (including Force Majeure Events), and for a delay in the provision of the Services; and
(d) subject to your Consumer Law Rights, our Liability for the provision of the Services will be limited to, at our discretion the resupply of the Services or the repayment of the Price and/or Membership Fees paid by you to us.
1.2 This Agreement does not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.
2. ACCEPTANCE
2.1 You have requested the Services set out on the Site, and you accept this Agreement by the earlier of:
(a) clicking “I accept”;
(b) registering on the Site; or
(c) making part or full payment of the Price and/or Membership Fees (including any deposit).
2.2 This Agreement will commence on the Start Date and will continue until the End Date, unless earlier terminated in accordance with its terms.
2.3 This Agreement may be accepted by a Parent or Guardian on behalf of a Minor. In such circumstances:
(a) the "Parent or Guardian" means the parent or legal guardian of the Minor;
(b) the "Minor" means a person under the age of 18 years; and
(c) any references in this Agreement to "you" or "your" will be a reference to both the Minor and the Parent or Guardian.
2.4 By accepting this Agreement, a Parent or Guardian represents and warrants that they have full legal capacity to enter into this Agreement on behalf of the Minor.
2.5 If you are a Minor, your Parent or Guardian is responsible for your use of the Services including payments and third party goods and/or services.
3. SERVICES
3.1 If you request us to provide Services through the Site, you are making an order to receive the Services for the Price listed on the Site. Following successful payment of the Price through the Site, an account will be created for you. You must ensure that any personal information you give to us when creating an account is accurate and up-to-date. All personal information that you give to us will be treated in accordance with our Privacy Policy. It is your responsibility to keep your account details confidential. You are responsible for all activity on your account, including purchases made using your account details.
3.2 In consideration of your payment of the Price, we agree to provide you the Services in accordance with this Agreement, whether ourselves or through our Personnel.
3.3 We will not be responsible for any Services unless expressly set out in the inclusions on the Site.
3.4 You acknowledge and agree that any dates for delivery or for completion notified by us are estimates only. We agree to use reasonable endeavours to provide the Services within a reasonable time.
3.5 All variations to this Agreement must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, or would result in us suffering or incurring any additional cost or delay, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause 3.5.
4. MEMBERSHIPS
4.1 We offer various membership plans that provide access to certain features and Services, as described on the Site (Membership Plan).
4.2 To become a member, you must select and purchase a Membership Plan. Your membership will commence on the date your purchase is confirmed (Start Date) and will continue for the period specified for that Membership Plan (Membership Term), unless terminated earlier in accordance with these terms.
4.3 Membership fees (Membership Fees) for your selected Membership Plan are payable in advance, either annually or on a recurring monthly basis as specified on the Site at the time of purchase. Applicable taxes will be added to the stated Membership Fees. for successive Membership Terms of the same duration as your initial Membership Term. We will notify you at least 30 days in advance of an annual renewal with the option to change or cancel your Membership Plan.
4.4 You may cancel your Membership Plan through your account settings on the Site. If you cancel, you will retain access to your Membership Plan for the remainder of the paid Membership Term, but it will not renew after that.
5. PRICE AND PAYMENT
5.1 In consideration for us providing the Services and Membership Plans, you agree to pay us the Price and/or Membership Fees, and any other amount payable to us under this Agreement, in accordance with the Payment Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).
5.2 You also agree to pay any other expenses reasonably and directly incurred by us, and approved in advance by you, for the purpose of the supply of the Services.
5.3 The payment methods we offer are set out on the Site. We may offer payment through a third-party provider (for example Stripe and PayPal, via Google Meet). You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms and conditions.
5.4 You must not pay, or attempt to pay, the Price and/or Membership Fees by fraudulent or unlawful means. If you make a payment by debit card or credit card, you warrant that you are authorised to use the debit card or credit card to make the payment. We do not store any credit card details, and all payment information is collected and stored through our third-party payment providers.
5.5 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):
(a) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date for payment in accordance with the Payment Terms; and
(b) After a period of 5 Business Days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including legal fees, debt collector fees and mercantile agent fees).
5.6 If and when applicable, GST payable on the Price and/or Membership Fees will be set out on the Site. You agree to pay the GST amount at the same time as you pay the Price and/or Membership Fees.
6. OBLIGATIONS AND WARRANTIES
6.1 Each Party represents, warrants and agrees that:
(a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business;
(b) this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms;
(c) if applicable, it holds a valid ABN which has been advised to the other Party; and
(d) if applicable, it is registered for GST purposes.
6.2 You represent, warrant and agree:
(a) to comply with this Agreement and all applicable Laws;
(b) that you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Services;
(c) that the information and documentation you provide to us is true, correct and complete;
(d) that you will provide us and our Personnel with sufficient access, free from harm or risk to health or safety, to your Premises (including any facilities at your Premises), to enable us to provide the Services, including at the dates and times that we may reasonably request; and
(e) you will not infringe any third party rights in working with us and receiving the Services.
6.3 You are responsible for paying any levies or taxes associated with your use of our Services or Membership Plans, for example sales taxes, value-added taxes or withholding taxes (unless we are required by law to collect these on your behalf).
7. TERMINATION
7.1 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:
(a) the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
(b) the Defaulting Party is unable to pay its debts as they fall due.
7.2 Upon termination or expiry of this Agreement:
(a) we will immediately cease providing the Services;
(b) without limiting your Consumer Law Rights, you agree that any payments made by you to us for Services provided are not refundable to you;
(c) you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been charged to you, and all other amounts due and payable under this Agreement;
(d) by us pursuant to clause 6.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including legal fees, debt collector fees and mercantile agent fees); and
(e) you agree to promptly return (where possible), or delete or destroy (where not possible to return), any information, documentation or material owned by us that is in your possession or control, subject to any rights you may have to any Intellectual Property in accordance with clause 9.
7.3 The accrued rights, obligations and remedies of the Parties are not affected by termination of this Agreement.
7.4 This clause 6 will survive the termination or expiry of this Agreement.
8. YOUR CONSUMER LAW RIGHTS
8.1 Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services which cannot be excluded, restricted or modified (Consumer Law Rights). Nothing in this Agreement excludes your Consumer Law Rights as a consumer under the ACL.
8.2 You agree that our Liability for the Services is governed solely by the ACL and this Agreement.
8.3 Subject to your Consumer Law Rights, we exclude all implied warranties, representations and guarantees of any kind (whether statutory or otherwise), unless expressly stipulated in this Agreement.
8.4 This clause will survive the termination or expiry of this Agreement.
9. LIMITATION OF LIABILITY
9.1 Exclusions to Liability: Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) your or your Personnel’s acts or omissions;
(b) any use of the Services by a person or entity other than you, or other than as reasonably contemplated by this Agreement;
(c) any works, services, goods, materials or items which do not form part of the Services, or which have not been provided by us; or
(d) any event outside of our reasonable control,
except to the extent such Liability was caused by our (or our Personnel’s) negligent acts or negligent omissions.
9.2 Limitation of Liability: Despite anything to the contrary, to the maximum extent permitted by law, and subject to your Consumer Law Rights:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to us resupplying the Services to you or, in our sole discretion, to us repaying you the amount of the Price and/or Membership Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
9.3 This clause will survive the termination or expiry of this Agreement.
10. INTELLECTUAL PROPERTY
10.1 As between the Parties, each Party retains all Intellectual Property Rights in its Intellectual Property developed prior to or independently of this Agreement. Nothing in this Agreement constitutes an assignment or transfer of such rights.
10.2 As between the Parties, ownership of all Intellectual Property Rights in any Intellectual Property developed, adapted, modified or created in connection with this Agreement or the performance of the Services will at all times vest, or remain vested, in us.
10.3 You grant us a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, for the duration of this Agreement, to use your and your Personnel’s Intellectual Property solely for the performance of our obligations under this Agreement.
10.4 We grant you a non-exclusive, revocable, perpetual, non-sublicensable and non-transferable right and licence to use Our Materials for non-commercial purposes.
10.5 In the use of any Intellectual Property Rights in connection with this Agreement, you agree that you must not (and you must ensure that your Personnel do not) commit any Intellectual Property Breach. Where you reasonably suspect that such a breach may have occurred, you must notify us immediately.
10.6 This clause will survive the termination or expiry of this Agreement.
11. CONFIDENTIALITY
11.1 Subject to clause 10.2, you must (and must ensure that your Personnel do) keep confidential, and not use or permit any unauthorised use of, all Confidential Information.
11.2 Clause 10.1 does not apply where the disclosure is required by law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this Agreement and provided that you ensure the adviser complies with the terms of clause 10.1.
11.3 This clause will survive the termination or expiry of this Agreement.
12. GENERAL
12.1 Amendment: This Agreement may only be amended in writing and as agreed by the Parties.
12.2 Assignment: Subject to clause 11.3, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
12.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party.
12.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from this Agreement (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction, or will operate to prevent a Party from taking steps to recover any debt.
12.5 Force majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement.
12.6 Further assurance: You agree to promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and your obligations under it.
12.7 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
12.8 Joint and several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under this Agreement.
12.9 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
12.10 Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate, subject to such execution being in accordance with the applicable terms and conditions of that document execution service.
12.11 Precedence: To the extent there is any ambiguity, discrepancy or inconsistency in or between the terms of the Agreement and the Site, this Agreement will prevail.
12.12 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
12.13 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
13. INTERPRETATION & DEFINITIONS
13.1 Words like including and for example are not words of limitation.
13.2 In this Agreement, unless the context otherwise requires, capitalised terms have the following mean:
Agreement means these terms and conditions, and any documents attached to, or referred to in, each of them.
Business Days means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.
End Date the date on which we have completed the provision of the Services to you, as notified to you by us.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
GST has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means any copyright, registered or unregistered designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or Confidential Information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights, including any Intellectual Property Rights of third parties), including using or exploiting our Intellectual Property for purposes other than as expressly stated in this Agreement (including, without limitation, using our Intellectual Property for commercial purposes or on-selling our Intellectual Property to third parties).
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.
Our Materials means all documentation and resources that we may provide to you via the Site or in the performance of the Services.
Payment Terms means the Price and/or Membership Fees, method and timing of payment, as set out on the Site.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Premises means the location where the Services are to be supplied.
Price means the price set out on the Site for the performance of the Services.
Services means the services we agree to perform under this Agreement, as further particularised on the Site.
Site means the website located at www.blossomingspeaker.com
Start Date means the date this Agreement is accepted by you in accordance with its terms.
Last Updated: 29 July 2024