Terms and Conditions
Please read this document carefully. It governs Your commercial relationship with Us and sets out legally binding provisions which regulate Your use of Our Website and Platform and the products and services that We make available through them.
To assist You, We have prepared summaries of Our Terms of Service. Our summaries are in the right hand column below. The summaries are not a substitute for reading the operative provisions of Our Terms of Service (i.e those in the left hand column below). The operative provisions of Our Terms of Service are legally binding. Our summaries are not legally binding and do not limit the scope or operation of the operative provisions.
1. Acceptance and modification of these Terms of Service
1.2 We may modify and/or replace these Terms of Service from time to time without notice (unless You are a Registered User of Our Platform – in which case We will notify You of the update using the email address that You enter into Your Platform Account at the time of registering a Platform Account or that You enter into the Website when purchasing any Virtual Product).
1.3 We will always upload the latest version of these Terms of Service to http://force4change.com/change-agent-terms-and-conditions/.
1.4 If You do not wish to accept these Terms of Service, You must not and cannot use the Website or Platform or any part of either of them.
2. Definitions and Interpretation
In these Terms of Service:
Advice Call means a request for assistance with a change management matter that a Customer may issue to Us via the Portal independently of a Project.
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means Monday – Friday excluding public holidays in New South Wales.
Business Hours means 9:00am – 5:00pm on Business Days.
Change Agent means a person who registers a Platform Account as a “change agent” and whose registration is accepted by Us.
Customer means a person who registers a Platform Account as a “customer” and whose registration is accepted by Us.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Non-Excludable Guarantee means a non-excludable guarantee implied by the Australian Consumer Law.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
Platform means the force4change online platform owned by Us, the homepage URL of which is http://changeagent.force4change.com/ and also includes the Platform Services and any content, images, text and other information appearing on any page or screen of the platform and any source code and object code in the platform, but excludes the Website.
Platform Account means Your account on the Platform that is setup when You register on the Platform.
Platform Services means as set out in the Platform Services Description.
Platform Services Description means as set out at http://force4change.com/changeagent-how-it-works/.
Problem means a change management matter that a Customer may request our assistance with via the Portal independently of a Project.
Registered User means as set out in clause 5.1.
Registered User Data means as set out in clause 11.1.
Terms of Service means the terms and conditions set out at http://force4change.com/changeagent-termsandconditions/,as amended by Us from time to time.
Virtual Products means the documents that We offer through the Website.
Website means the force4change website owned by Us, the homepage URL of which is http://force4change.com/ and also includes the Virtual Products and any content, images, text and other information appearing on any page or screen of the website and any source code and object code in the website, but excludes the Platform.
We, Our and Us means force4change Pty Ltd of Level 6, 393 George St, Sydney NSW 2000, Australia.
You means you, the person who accesses the Website or Platform for any reason, whether or not You are a Registered User.
In these Terms of Service:
(a) Headings and underlinings (and the summaries in the right hand column of these Terms of Service) are for convenience only and do not affect the construction of these Terms of Service.
(b) A provision of these Terms of Service will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
(c) Currency refers to American dollars.
(d) A reference to a statute or regulation includes amendments thereto.
(e) A reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of these Terms of Service.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(g) A reference to time is to time in New South Wales.
(h) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(i) The words “includes”, “including” and similar expressions are not words of limitation.
3. Change Management Services provided via Change Agents
3.1 We provide change management services to Customers via Change Agents. Change Agents are our subcontractors. We do not employ Change Agents and Change Agents are not our agents, joint venturers or partners.
3.2 We may also provide change management services in other ways.
3.3 Our Platform facilitates communication between Us and Customers (including any communications We make to Customers via Change Agents) and the administration of change management services and other services that We provide to Our Customers via Change Agents.
3.4 If You are a Change Agent, any services that You provide on Our behalf must be provided in a professional manner in compliance with Our policies, directions and requirements.
4.1 Unregistered users of the Platform may not use the Platform Services.
4.2 We reserve the right to accept or reject any person’s registration on the Platform in Our absolute discretion and using such eligibility or approval criteria that We determine in Our absolute discretion.
4.3 If You submit an application to register on the Platform, You:
(a) will be deemed to have irrevocably warranted that during the application process You provided truthful and accurate information only;
(b) will be deemed to have irrevocably warranted that You applied for registration on the Platform on behalf of and with the authority and consent of any business entity that you entered into the Platform Account registration form;
(c) will be deemed to have irrevocably agreed to be jointly and severally liable for any breach of these Terms of Service by that business entity.
4.4 You must ensure that You provide a valid email address at the time of registration.
4.5 We reserve the right to send an email to You with a hyperlink which requires You to verify that You are the owner or operator of the email address entered by You during registration and to cancel/not approve Your registration on the Platform if Your rights to the email address are not so verified, or where You do not satisfy any of Our other eligibility or approval criteria.
4.6 If any of Your contact details or other information change, You must promptly update Your registration details in Your Platform Account with Your up-to-date details and information.
4.7 You must not provide Your Platform Account name or the password for Your Platform Account to any person. You agree and acknowledge that You shall be solely responsible for the confidentiality of Your username and password and for any use of Your Platform Account (including unauthorised use).
4.8 You must immediately notify Us if You become aware of any unauthorised use of Your Platform Account.
5. Registered Users
5.1 Only users who have registered on the Platform and have a Platform Account (“Registered Users”) may access the Platform Services. Users may register as either a Customer or a Change Agent.
5.2 You agree and acknowledge that if You become a Registered User You will have a non-exclusive, non-assignable, non-sublicensable, revocable right to access the Platform Services for the purposes expressly described in the Platform Services Description.
5.3 Each Customer must pay the fees and charges set out in the Platform Services Description (or as otherwise agreed between Us and the Customer in writing), in consideration for the Customer’s access to and use of the Platform Services and the change management services that We provide via the Platform (“Service Charges”) at the time and in the manner set out in the Platform Services Description, plus any GST that is applicable in respect of the supply of those services to the Customer. Any applicable GST is payable at the same time as the Service Charges.
5.4 A Registered User may only access the Platform Services solely for the purpose(s) specified in the Platform Services Description and subject to the provisions set out in the Platform Services Description and in these Terms of Service.
5.5 You must pay all costs associated with Your use of and access to the Platform, including internet access costs, web browser and computer and smartphone equipment costs, telecommunications costs, data costs, roaming charges and, if You are a Customer, Service Charges.
5.6 Without limiting Our rights and any other provision of these Terms of Service, if a Customer fails to pay the Service Charges in accordance with the requirements of these Terms of Service, We may suspend and/or terminate the Customer’s access to the Platform Services and delete its Registered User Data stored in the Platform.
6. Payment Gateway
6.1 We utilise a third party payment gateway provided by PayPal Australia Pty Limited (“Payment Gateway”) to process payments made to Us via the Platform and Website.
6.2 Each time You make a payment using the Payment Gateway You will be deemed to have acknowledged, understood and agreed:
(a) that the Payment Gateway may be affected by delays, defects, faults and/or other matters which render the Payment Gateway unusable. These matters may be caused by factors including technical difficulties with the performance or operation of Our or the Payment Gateway’s software or hardware or due to problems or malfunctions with the Internet or other telecommunications networks;
(b) that except in respect of any Non-Excludable Guarantees, We do not warrant, guarantee or represent that unauthorised access to information and data cannot occur, and that We are not responsible for the performance or non-performance of the Payment Gateway;
(c) that You have relied on Your own independent assessment and judgment in determining whether the Payment Gateway meets Your requirements; and
6.3 You indemnify Us in respect of all and any loss or damage We incur as a result of any breach by You of the Payment Gateway Agreement.
7. Projects and Proposals
7.1 If you register on Our Platform as a Customer You will be entitled to create Projects on the Platform.
7.2 In order to create a Project, You will need to provide the following particulars of the Project to Us when completing the new project form on the Platform:
(a) a Project name and budget;
(b) a brief description of the Project;
(c) the date by which you require Proposals for the implementation of the Project;
(d) the date on which you require the Project to commence;
(e) other details regarding the Project that are requested in the Project form set out on the Platform.
7.3 If You create a Project on the Platform You will be able to publish it so that it is visible to Us and Our subcontractors (including any and all Change Agents registered on the Platform).
7.4 Alternatively, if You prefer that We not publish the Project to all of our subcontractors, You may decide to keep the Project unpublished in which case if your Project remains unpublished for more than 48 hours We will use reasonable endeavours to contact You to discuss the appointment of one of Our Change Agents to Your Project.
7.5 If You create a Project, You will not be able to publish Your Project until You have verified Your email address. You can verify Your email address by clicking the verification link in the email that We will send You after You complete the registration process to register as a Customer on the Platform.
7.6 If You create a Project, You can edit the details of your Project via the Platform at any time prior to a Proposal being accepted for the Project.
7.7 If You are a Customer, You can also use Your account on the Platform to view the status of your Projects and to cancel Your Projects if necessary.
7.8 A Project can only be cancelled before You accept a Proposal.
7.9 Subject to clause 5, if a Project is published on the Platform, it will be visible to all Change Agents registered on the Platform and any such Change Agent may at any time before a Proposal is accepted by You:
(a) submit questions to You, on Our behalf, through the Platform about the Proposal;
(b) submit a Proposal to You, on Our behalf, to carry out the Project.
7.10 Any questions and any Proposals referred to in clause 9 will be visible to You, Us and all Change Agents registered on the Platform.
7.11 As all Proposals submitted via the Platform are submitted by Us, or by Change Agents on Our behalf, all Proposals are subject to Our approval. If You are a Change Agent registered on Our Platform, before any Proposal is published on the Platform or made visible to the Customer whose Project the Proposal relates to, the Proposal will be reviewed by Us and only published and made available to that Customer if We consider the Proposal to be reasonable and one that We wish to make to the Customer in Our absolute discretion.
7.12 If You are a Customer and You accept a Proposal submitted on the Platform for the completion of Your Project:
(a) You and Us will be deemed to have entered into a legally binding contract under which You agree to pay Us to carry out the Project and We agree to perform the Project (via a Change Agent);
(b) We will invoice You for, and You must pay Us, a deposit of USD350.00.
7.13 The deposit is non-refundable except as otherwise specified in these Terms of Service.
7.14 Following payment of the deposit, the Project status will become “Work in Progress” (WIP) and the Customer will be able to designate milestones for the Project using Our Platform.
7.15 Once a deposit has been paid for a Project, subject to the Customer’s compliance with its obligations under these Terms of Service, We will use Our best endeavours to complete the milestones for the Project (via the relevant Change Agent), and if You are a Change Agent assigned to the Project, You agree to complete those milestones on Our behalf.
7.16 We may choose to replace a Change Agent at any time during the course of a Project in Our absolute discretion.
7.17 When a milestone has been completed, We or the Change Agent who performed the milestone may update the status of the milestone to “completed”. We will invoice the Customer at the completion of each milestone that the Customer specifies for the Project and the Customer must pay that invoice in accordance with the payment terms set out in Our Platform Services Description.
7.18 If We disagree with a Customer or Change Agent as to whether or not a milestone has been completed, Our decision shall be final and may not be challenged or appealed.
7.19 A Customer cannot close or cancel a milestone while it is in progress. However, a Customer can put a Project on hold at any time via the Platform. A Project may only be put on hold temporarily for the maximum amount of on hold time specified in the Platform Services Description after which time it shall automatically continue.
7.20 Following completion of a Project, We may ask the Customer to complete a short survey via the Platform regarding the Customer’s experience with the Platform. Completion of Our surveys are optional and are designed to allow Us to improve user experience of the Platform.
7.21 Subject to Our receipt of a valid tax invoice from the relevant Change Agent for each relevant milestone in each case, We will pay Change Agents in the following circumstances and as follows:
(a) We will only pay a Change Agent in respect of a Proposal that is accepted by a Customer via the Platform;
(b) We will only pay Change Agents following receipt of payment from a Customer for the relevant milestone;
(c) We will pay the Change Agent on a weekly basis during the course of a Project. The amount paid will be a proportion of the amount received by Us from the Customer for the relevant Milestone during the previous week.
(d) We will pay the Change Agent in the amount and via the method specified in the Platform Services Description.
7.22 A deposit paid by a Customer for a Project, is non refundable and is a fee for use of the service and ensures commitment from the Customer when they confirm by accepting a proposal to engage with the change agent to deliver work outlined in the proposal that the customer accepts.
8. Advice Calls and Problems
8.1 If You require ad hoc assistance with a change management task that is not the subject of a Project, You may contact Us via the Platform by submitting an Advice Call and/or via a request for assistance with a Problem. Advice Call submissions and Problem assistance can be made and requested via the Platform.
8.2 Advice Calls and Problem assistance is subject to the fees and charges specified in the Advice Call and Problem sections of the Platform. Those fees and charges are payable in accordance with the payment terms specified in the Platform Services Description.
9.1 If You are a Registered User, You must not procure the performance of any change management services from any other Registered User, independently of the Platform, without Our prior written consent.
9.2 For the avoidance of doubt, a Customer must not pay a Change Agent or any third party for change management services the subject of any Project or Proposal without our prior written consent. Change Agents must not counsel or encourage any Customer to pay them directly.
9.3 If You are a Registered User, You indemnify Us for all loss and damage We may suffer as a result of Your breach of this clause 9.
10. Virtual Products
10.1 We provide Virtual Products via Our Website. If You wish to download a Virtual Product, You can add the Virtual Product to Your shopping cart on the Website.
10.2 Each Virtual Product is offered by way of licence only. You may obtain a non-exclusive, non-assignable, perpetual licence to use 1 copy of a Virtual Product on one computer by paying us the relevant licence fee via the Payment Gateway.
10.3 You must not resell, distribute or otherwise provide any Virtual Product that You obtain from Us to any third party.
11. Responsibility for and ownership of Registered User Data
11.1 If You are a Customer, We agree that as between You and Us, You own all data that You transmit through or upload into the Platform Services (“Registered User Data”) unless and to the extent specified otherwise in these Terms of Service.
11.2 You agree and acknowledge that:
(a) the Platform Services and Registered User Data may be hosted by Us or Our suppliers on hardware or infrastructure located in or outside Australia; and
(b) We may not own or operate the infrastructure upon which the Platform Services and/or the Registered User Data is hosted.
11.3 If You are a Registered User, You warrant, agree and represent that:
(a) You will only upload, input and transfer Registered User Data into and/or via the Platform Services or disclose Registered User Data to Us, which You are fully entitled and authorised to upload, input, transfer and disclose; and
(b) Your Registered User Data and Our collection, use, storage and/or disclosure thereof in the course of providing the Platform Services, will not breach any applicable law or right of any person.
11.4 If You are a Registered User, You license us on an irrevocable, non-exclusive, royalty-free, worldwide basis to use and publish your Registered User Data on the Platform as required by Us to provide the Platform Services and any relevant change management services.
11.5 Each Registered User is solely responsible for the accuracy, legality and quality of all its Registered User Data and for obtaining any permissions, licenses, rights and authorisations necessary for Us to use, host, transmit, store and disclose the Registered User Data in connection with the provision of the Platform Services.
11.6 If You are a Registered User, except in respect of any Non-Excludable Guarantee, You agree that You, not Us, are solely responsible for backing up and archiving all Registered User Data.
11.7 If You are a Registered User, You acknowledge that Your access to Your Registered User Data that is hosted by the Platform Services is subject to Your compliance with these Terms of Service, including payment of any applicable Service Charges.
11.8 Except in respect of any Non-Excludable Guarantee, You agree that We are not responsible for any loss, corruption or hacking of any Registered User Data.
11.9 You indemnify Us in respect of any loss and damage We or any of Our suppliers incur in respect of any claim that any of Your Registered User Data is lost, unavailable or corrupted or the transmission, storage, disclosure, or access to any of Your Registered User Data infringes the Intellectual Property Rights or other rights of any person or breaches any law, regulation, code or standard.
12. Availability of Website and Platform Services
12.1 Subject to clauses 2, 12.3 and 12.4, if You are a Customer, We agree with You to use Our best endeavours to procure hosting of the Platform Services and Your Registered User Data and to ensure that the Platform Services are available.
12.2 The availability of the Platform Services to You will be subject, in addition to any other provisions set out in these Terms of Service, to any bandwidth limitations, database size limitations, throughput limitations and other technical and non-technical limitations or restrictions set out in the Platform Services Description, and any planned and unplanned maintenance of the Platform and/or Our hosting providers.
12.3 You agree and acknowledge that the accessibility and use of the Platform, the Platform Services and the Registered User Data hosted by the Platform Services is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which the Platform and/or Platform Services and/or Registered User Data operate, interface with or connect to.
12.4 Except in respect of any Non-Excludable Guarantee, We do not guarantee that the Platform, Platform Services or any Registered User Data or access thereto will be uninterrupted or error-free.
13. Usage Restrictions
3.1 You may not make any use of the Platform or Website except as permitted by these Terms of Service and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights in the Platform or Website. Without limiting the foregoing provisions, You must not, under any circumstances, sell or resell access to the Platform or Website or scrape, republish, mirror or otherwise rent, lend, lease, sell, redistribute, sublicense, copy or duplicate the Platform or Website or any content You obtain via the Platform or Website (other than Your Registered User Data if You are a Customer). In addition, You must not, nor may You permit any person to:
(a) copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, licence, create derivative works from or enhance the Platform or Website and/or any content in the Platform or Website (except any of Your Registered User Data if You are a Customer) (except as expressly permitted by the Copyright Act 1968 (Cth));
(b) do any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights or those of Our licensors;
(c) use the Platform or Website in any way that infringes Our rights or the rights of any third party;
(d) use the Platform or Website to create any product or service that competes with the Platform or Website; or
(e) take any steps to circumvent any technological protection measure or security measures in the Platform or Website.
13.2 You must not use the Platform or Website or any part of the Platform or Website in any way which is in breach of any statute, regulation, law or legal right of any person.
13.3 You must not use the Platform or Website or any part of the Platform or Website in breach of these Terms of Service.
14. Acceptable Use Policy
14.1 You agree that:
(a) using the Platform or Website to violate all or any legal rights of any person or company or other entity in any jurisdiction is strictly prohibited;
(b) using the Platform or Website in relation to crimes such as theft and fraud is strictly prohibited;
(c) using the Platform or Website in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of “pirated” software or otherwise, is strictly prohibited;
(d) introduction of malicious programs into Our network or servers (e.g., viruses, worms, Trojan horses, e-mail bombs) is strictly prohibited;
(e) revealing Your account password to others or allowing use of Your Platform Account by others is strictly prohibited;
(f) using another person’s name, username or password or otherwise attempting to gain access to the Platform Account of any other person is strictly prohibited;
(g) using the Platform or Website to make fraudulent offers of goods or services is strictly prohibited;
(h) using the Platform or Website to carry out security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which You are not an intended recipient or logging into a server or account that You are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
(i) using the Platform or Website to execute any form of network monitoring which will intercept data not intended for You is strictly prohibited;
(j) using the Platform or Website to circumvent user authentication or security of any of Our hosts, networks or accounts or those of Our customers or suppliers is strictly prohibited;
(k) using the Platform or Website to interfere with or deny service to anyone is strictly prohibited;
(l) using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any person’s use of the Platform or Website is strictly prohibited;
(m) sending unsolicited email messages through or to users of the Platform or Website in breach of the Spam Act 2003 is strictly prohibited;
(n) using the Platform or Website to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages is strictly prohibited; and
(0) use of the Platform or Website in breach of any person’s privacy (such as by way of identity theft or “phishing”) is strictly prohibited.
15. Intellectual Property Rights
15.1 You agree and acknowledge that these Terms of Service do not transfer or assign any Intellectual Property Rights to You.
15.2 As between You and Us, except in respect of Customer Registered User Data, We own all Intellectual Property Rights in the Platform and Website.
15.3 You have no rights in the Platform or Website or in any part of them or in any modification or enhancement thereof, other than the rights temporarily granted to You pursuant to these Terms of Service.
14.4 You agree that any Intellectual Property Rights in any comments that You may provide to Us in connection with the Platform or Website or requests for new Platform or Website features (each, an “Improvement Suggestion”) becomes Our sole and exclusive property immediately upon You uploading or posting that Improvement Suggestion to the Platform or Website or otherwise providing the Improvement Suggestion to Us, and You hereby assign all Intellectual Property Rights in all and any such Improvement Suggestions to Us effective as soon as You provide each Improvement Suggestion to Us or upload or post an Improvement Suggestion to the Platform or Website, pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity. You consent to the infringement by Us and any third party We authorise, of all Moral Rights that You may have in any Improvement Suggestions.
15.5 If You are a Change Agent, You agree that any Intellectual Property Rights in all and any content, communications, Proposals and documentation that You develop or create in the course of using the Platform and/or providing change management services in connection with any Project (“Change Agent Content”) become Our sole and exclusive property immediately upon creation, and You hereby assign all Intellectual Property Rights in all and any such Change Agent Content to Us effective immediately upon creation, pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity. If You are a Change Agent, You consent to the infringement by Us and any third party We authorise, of all Moral Rights that You may have in any Change Agent Content.
15.6 You must not take any step to invalidate or prejudice Our (or Our licensors’) Intellectual Property Rights in the Platform, Website or otherwise. Without limiting the foregoing provisions, You must not register any security interest or purchase money security interest on the Personal Property Securities Register, or otherwise encumber or charge the rights granted to You by these Terms of Service.
16. Responsibility for third party claims
16.1 You agree and acknowledge that You are solely responsible for and You indemnify Us in respect of any loss and damage We may incur in connection with any claims and/or complaints made by any third party where the claim is caused directly or indirectly by:
a) Your use of the Platform or Website; and/or
b) Your goods and/or services and/or your advertising and/or sales and/or marketing practices.
17.1 We do not represent, recommend or endorse any websites to which We have linked from the Platform or Website via hyperlink or otherwise.
18.1 To the extent possible by law, We are not liable to any other party for any indirect, special or consequential loss or damage incurred by them, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data.
18.2 Except in respect of any Non-Excludable Guarantees, to the maximum extent permitted by law (and if permitted by law), We will not have any liability to You for any loss or damage howsoever incurred in relation to Your use of or inability to use the Platform, or with respect to any of the circumstances addressed in clause 1.
18.3 Any goods and services supplied by Us through or via the Platform or Website (including for the avoidance of doubt, Virtual Products, Platform Services and change management services) may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depends on whether You are a ‘consumer’ of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where You are a ‘consumer’ for the purposes of the Australian Consumer Law, We are required to provide and shall be deemed to have provided the following mandatory statement to You: “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
18.4 If the goods or services are supplied to You in Your capacity as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended You will have the benefit of certain non-excludable guarantees in respect of those goods or services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable guarantee implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, We limit Our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by Us to You, in respect of each of the goods and services, where it is fair and reasonable to do so, at Our option, to one or more of the following:
(a) if the breach relates to goods:
(i)the replacement of the goods or the supply of equivalent goods;
(ii)the repair of such goods;
(iii)the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv)the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i)the supplying of the services again; or
(ii)the payment of the cost of having the services supplied again.
- 18.5 Any warranty against defects provided by Us to You in Your capacity as a ‘consumer’ under the Australian Consumer Law is in addition to Your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
- 18.6 Except in respect of any Non-Excludable Guarantees, all conditions, warranties and guarantees implied in these Terms of Service are excluded, to the extent possible by law.
- 18.7 To the extent that Our liability is not otherwise excluded by these Terms of Service, subject to any Non-Excludable Guarantees, Our liability to You is limited to:
a) the aggregate sum of the Service Charges paid by You to Us, if You are a Customer;
b) the aggregate sum of an monies paid by Us to You, if You are a Change Agent; and
c) if You are any other person, the sum of $10.
19.1 If you are not a Registered User, We may terminate these Terms of Service and Your access to the Platform or Website or any part of them at any time without notice.
19.2 If You are a Registered User, We may terminate these Terms of Service and Your access to the Platform or Website by notice to You if:
(a) You breach any material term of these Terms of Service; or
(b) where reasonably necessary to protect Our legitimate commercial interests.
19.3 We may take down the Platform or Website or any part of them or take the Platform or Website or any part of them offline at any time without notice where reasonably necessary to maintain them and/or to protect Our legitimate commercial interests.
19.4 Termination of these Terms of Service and access to the Platform or Website does not affect any accrued rights of either party.
19.5 Except in respect of termination pursuant to clause 19.2(a), if You are a Customer and We terminate these Terms of Service and/or Your access to the Platform Services, We will refund to You any part of any deposit for a Project that You have paid to Us in advance if We have not carried out services with a value equivalent to the value of the deposit.
20.1 Any notice issued to You from Us or from Us to You shall be in writing and sent by hand delivery, post or email. Where sent from Us to You, We shall use Your contact details for your Platform Account or any email address that You provide to Us.
20.2 You may contact Us or send a notice to Us using Our contact details that are specified on Our website at www.force4change.com.
20.3 Any notice issued by hand shall be deemed delivered upon delivery.
20.4 Any notice issued by post shall be deemed delivered 3 Business Days after posting if posted domestically, or 10 Business Days after posting if posted internationally.
20.5 Any notice issued via email shall be deemed to be delivered upon receipt by the sender of an electronic read receipt or delivery receipt, or upon receipt of confirmation from the recipient that the recipient received the email.
20.6 We may send You email or other electronic messages concerning Your Platform Account and the Platform from time to time and You consent to Us doing so.
21.1 Other rights: All rights not expressly granted to Us in these Terms of Service are expressly reserved by Us.
21.2 Amendment: These Terms of Service may be amended by Us at any time provided that if You are a Customer and You have accepted any Proposal in respect of a Project that has not yet been completed at the time that We amend these Terms of Service, the amendment will only apply to You after the completion of Your Project.
21.4 Severability: If any part of these Terms of Service is deemed invalid by a court of competent jurisdiction, the remainder of these Terms of Service shall remain enforceable.
21.5 Relationship: You and Us are independent contracting entities and these Terms of Service do not create any relationship of partnership, joint venture, or employer and employee. If You are a Change Agent, You cannot bind Us to any agreement without Our prior written consent.
21.6 Australian Consumer Law The exclusions and limitations of liability set out in these Terms of Service shall apply to the fullest extent permissible at law, but We do not exclude or limit liability which may not be excluded or limited by law. Without limiting the foregoing provisions, We do not exclude liability under the Australian Consumer Law which is prohibited from being excluded.
21.7 Entire Agreement: These Terms of Service and any information linked to from these Terms of Service constitute the entire agreement between You and Us and to the extent possible by law, supersede all prior understandings, representations, arrangements and agreements between You and Us regarding its subject matter.
21.8 Jurisdiction: These Terms of Service will be interpreted in accordance with the laws in force in the state of New South Wales (Australia). You and Us irrevocably submit to the exclusive jurisdiction of the courts situated in New South Wales.