These Terms of Service, together with our Privacy Policy, Website Terms of Use and any terms and conditions set out in an Invoice or otherwise expressly agreed in writing by ArchiPro and the Customer together constitute the agreement between ArchiPro and the Customer in relation to the Customer’s Membership of ArchiPro’s Online Services (the “Agreement”).
Terms updated September 2023.
1. DEFINITIONS
1.1. “Advertising Services” means all advertising services provided (whether digital or otherwise), or made available, to the Customer by ArchiPro in connection with the Customer’s Membership and, where the context requires, includes Additional Advertising (as defined in Schedule 1).
1.2. “ArchiPro” means ArchiPro Pty Ltd, and/or any agents, officers or employees thereof, together with any of its successors or assigns (and “we” or “us” has a corresponding meaning).
1.3. “ArchiPro Website” means www.archipro.com.au or any related websites as may exist from time to time (including those with overseas based top-level domains).
1.4. “ACL” means the Australian Consumer Law (contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended or replaced from time to time).
1.5. “Business Analytics Product” means the metrics and tracking tool added to your ArchiPro Dashboard to provide insight into the Customer Profile and advertising performance.
1.6. “Commencement Date” has the meaning set out in clause 2.1.
1.7. “Content” means all information and/or material which is provided by the Customer, or on the Customer’s behalf, to ArchiPro (including, for the avoidance of doubt, by direct upload to the Customer’s Profile), and/or which is sourced by ArchiPro from the Customer’s publicly available collateral, advertising, website, social media or other publications and includes, without limitation, images, photos, trademarks, text or other visual elements.
1.8. “Customer” means the person named as the Customer in an Invoice and shall include any person acting on behalf of and with the authority of the Customer, or any of its successors, assigns or administrators (and “you” or “your” has a corresponding meaning).
1.9. “Customer Profile” means a profile created by or on behalf of the Customer in connection with your Membership which is hosted on, and accessible via, the ArchiPro Website.
1.10. “Invoice” means any invoice issued by ArchiPro to the Customer from time to time (which may relate to payment of Membership Fees by the Customer or any additional services supplied in accordance with the terms of this Agreement).
1.11. “Ecommerce Service” means the Ecommerce functionality on the ArchiPro Website enabling the Customer to list and sell their products to other users of the ArchiPro Website;
1.12. “Membership” means the Customer’s annual subscription to ArchiPro’s Online Services as selected by the Customer from the membership options specified in ArchiPro’s current Membership Presentation.
1.13. “Membership Fees” means the fees payable by the Customer in respect of the Customer’s Membership (plus GST) as set out in an Invoice.
1.14. “Online Services” means the services to be provided by, or on behalf of ArchiPro to the Customer in connection with your Membership, including on or via the ArchiPro Website, and may include, as applicable:
(a) the Customer Profile;
(b) the Business Analytics Product;
(c) the Advertising Services; and
(d) the Ecommerce Service.
1.15. “ArchiPro Pixel” means a code that is embedded on the Customer’s website in conjunction with the Business Analytics Product which enables ArchiPro and you to track a third party user or customer’s activity on and from your Customer Profile through to your website to continue the insight of the third party’s browsing activity.
1.16. “Renewal Date” means each anniversary of the Commencement Date.
1.17. All fees and amounts are quoted in Australian dollars.
2. MEMBERSHIP
2.1. ArchiPro shall provide, and the Customer shall have access to, the Online Services and related deliverables associated with the Customer’s chosen Membership. Membership commences when the Customer signs and accepts a quote for their selected Membership, including acceptance of the terms of this Agreement (“Commencement Date”). Where a Customer’s Membership includes the following Online Services, the Customer acknowledges and agrees that additional terms shall apply as follows:
(a) for the Advertising Services, the terms set out in Schedule 1 shall apply; and
(b) for the Ecommerce Service, the terms set out in Schedule 2 shall apply,
and in each case those terms will be in addition to, and not in substitution of, the terms and conditions herein.
2.2. The Customer acknowledges and agrees that ArchiPro may, from time to time and for any reason:
(a) amend the description and applicable deliverables of each tier of Membership;
(b) change the terms and conditions of this Agreement (including, for the avoidance of doubt, the terms of the Privacy Policy and Website Terms of Use); and
(c) change the nature and extent of the Online Services, including adding, removing or discontinuing any feature (whether in whole or part),
in each case upon written notice to the Customer.
2.3. Subject to clause 2.4 below, any changes to this Agreement, your Membership or the Online Services in accordance with clause 2.2 will be effective immediately upon our giving you notice of such amendments. Your continued use of the Online Services after receiving notice of such amendments constitutes your acceptance of such amendments.
2.4. Unless otherwise agreed in writing with the Customer, any amendments referred to in clause 2.2 above which we consider (acting reasonably) will materially affect the Membership will apply with effect on and from the next Renewal Date. Where you do not agree with any such amendments, you may exercise your right to terminate this Agreement in accordance with clause 4 below.
2.5. ArchiPro will use all reasonable endeavours to confirm that you wish to renew your Membership prior to a Renewal Date. Your Membership shall automatically renew on each Renewal Date unless:
(a) you or we have terminated the Agreement in accordance with clause 4 below; or
(b) you have elected to change your Membership by notice in writing to us not less than 30 days prior to the Renewal Date.
3. MEMBERSHIP FEES AND PAYMENT
3.1. The Customer shall pay the applicable Membership Fees, in advance, for each year of Membership. The initial annual term may include eight weeks free membership and accordingly be for a 14-month term rather than 12 months, allowing time for the Customer’s profile to be ready to go live. If a Customer’s profile is not live after the initial free month, the Membership will commence regardless, and Membership Fees are payable as per the Invoice.
3.2. Unless otherwise agreed with ArchiPro, the Customer shall select one of the following payment options:
(a) Option A;
Upfront Payment: The Customer shall pay the annual Membership Fees in one lump sum in accordance with the Invoice issued at Membership confirmation.
(b) Option B:
Monthly Payments: Only applicable to Customers who enrol a credit card for auto billing at the time of Membership acceptance and throughout the duration of their Membership. ArchiPro will issue an Invoice to the Customer for the annual Membership Fees with an initial deposit payment of two months’ Membership Fees due immediately, and a schedule of monthly payments for the balance of Fees due for the annual term, with payment due each month in advance.
Where the initial term includes two free months, the third month and fourteenth month of Membership will not be charged to you. The balance of Membership Fees is payable monthly in advance from the fourth month of Membership onwards.
Where the Customer does not select or confirm a payment option, Option A will apply as the default option. All Invoices are to be paid in accordance with the instructions set out in the relevant Invoice. All Invoice payments are to be made in full, without set-off or deduction.
3.3. The Customer acknowledges and agrees that ArchiPro may, from time to time, amend the applicable Membership Fees for any reason and, unless otherwise agreed in writing with the Customer, any such amendment to the Membership Fees will apply to the Membership from the next Renewal Date.
3.4. Where any Membership Fees are not paid by the due date specified in an Invoice, then:
(a) if the Invoice relates to any initial payment on commencement of a Membership (whether a deposit payment or lump sum payment), ArchiPro will delay the commencement of the Customer’s access to the relevant Online Services until payment of the Membership Fees is received by ArchiPro. Non-payment, or a delay in the commencement of the Customer’s access to the Online Services, will not result in a delay to the Commencement Date or any extension of the term of the Membership.
(b) if the Customer’s Profile is live on ArchiPro and the Invoice is overdue by 30 days, with notice of outstanding payment, ArchiPro will disable the Customer’s Profile and suspend access to all other Online Services until payment for the outstanding Invoice is received in full.
(c) if the Invoice is overdue by 45 days (including an Invoice for an initial payment, whether by deposit or lump sum), ArchiPro may, at its sole discretion, take debt recovery action against the Customer.
4. TERMINATION
4.1. We may terminate this Agreement and your Membership with immediate effect by notice in writing to you at any time where we consider (acting reasonably) that you are in breach of the terms of this Agreement (including, for the avoidance of doubt, the Privacy Policy, Website Terms of Use and any other specific terms expressly agreed in writing between ArchiPro and the Customer).
4.2. You may terminate this Agreement and your Membership by giving ArchiPro notice in writing of such termination not less than two months before the Renewal Date, with such termination to take effect at the end of the then current term of your Membership (and not earlier). If you give us notice of termination outside the time frame specified in this clause 4.2, we may, in our absolute discretion, accept or reject such notice of termination. Where we elect to reject such notice, your Membership will be deemed to renew and continue in full force and effect on and from the next Renewal Date and you shall be obliged to pay any associated Membership Fees. For the avoidance of doubt, if you elect to terminate part way through the term of the Membership and not within two months of the Renewal Date, then:
(a) in the case of a monthly payment Membership (Option B payment terms under clause 3.2(a)), you remain liable for any remaining payments until the end of the then current term; and
(b) in the case of a lump sum payment Membership (Option A payment terms under clause 3.2(b)), you shall not be entitled to a refund of the Membership Fee already paid (whether in whole or in part).
4.3. Following termination of your Membership in accordance with clause 4.1 or clause 4.2 (as the case may be), you will cease to have access to the Online Services, and your Customer Profile and, to the extent it is possible to do so, any other Content will be removed from the Online Services.
4.4. Termination of this Agreement and your Membership will not affect clauses 7 to 15 (inclusive) of this Agreement, which are intended to survive termination.
5. CUSTOMER PROFILE
5.1. Where your Membership includes the establishment and maintenance of a Customer Profile, you may, by notice to ArchiPro on or before the commencement of your Membership, choose:
(a) for ArchiPro to have primary responsibility for the creation of that Customer Profile, in which case the terms of clause 5.2 shall apply; or
(b) to have primary responsibility for the creation of your own Customer Profile, in which case the terms of clause 5.3 shall apply to the creation of that Customer Profile, and
in either case, you warrant and represent to ArchiPro that you are a principal or employee of the Customer who is authorised to create, or approve the creation of, the Customer Profile for and on behalf of the relevant Customer.
5.2. Where the Customer has requested that ArchiPro create the Customer Profile in accordance with clause 5.1(a):
(a) we will request Content for your Customer Profile directly from you or, where your Content is not readily available to be shared with us in a format which we are able to use, we will, to the extent possible, source Content for your Customer Profile from any business website currently operated by you;
(b) once we are satisfied that your Customer Profile is complete and is in a state which we consider is ready to ‘go live’ on the ArchiPro website, we will send you a website link containing the draft profile for you to review. At this stage, we will make any changes to your Customer Profile that are reasonably requested by you; and
(c) upon receipt by us of your confirmation that you are satisfied with your Customer Profile, your Customer Profile will ‘go live’ on the ArchiPro Website and we will provide you with a username and login information to enable you to update and maintain your Customer Profile should you need to do so.
5.3. Where the Customer wishes to build their own Customer Profile and has notified us of its intention to do so in accordance with clause 5.1(b):
(a) we will set up the basic parameters of your Customer Profile (including logo placement, company image, your contact details and other Customer related information);
(b) once the basic parameters of your Customer Profile have been established, we will provide you administration access through a website link to enable you to complete your Customer Profile in its draft state. You will be solely responsible for uploading and modifying any Content to and on your Customer Profile at this stage;
(c) once you are satisfied that your Customer Profile is complete and is ready to ‘go live’ on the ArchiPro Website, we will be notified and required to approve the Customer Profile and its Content to ensure it meets our quality, size and general content requirements; and
(d) once we are satisfied that your Customer Profile meets our requirements, your Customer Profile will ‘go live’ on the ArchiPro Website.
5.4. Irrespective of whether ArchiPro or the Customer is responsible for the creation of the Customer Profile:
(a) you may update, amend, edit, or otherwise alter your Customer Profile at any time during your Membership, subject to the requirements relating to Content set out in clause 7 below and our approval of such changes as may be required from time to time; and
(b) we will provide ongoing support and maintenance of your Customer Profile upon request from you within the Content Loading limits set out in your Invoice.
5.5. ArchiPro does not guarantee specific placements of your Customer Profile or Content on the Online Services except where such placements are paid for as part of your Membership. Any specific Content placement agreed with you as part of your Membership is subject always to the discretion of ArchiPro and the compliance of that Content with any quality, size or other general requirements of ArchiPro from time to time
6. ARCHIPRO PIXEL
6.1. Where your Membership includes the Business Analytics Product, you acknowledge and agree that the ArchiPro Pixel will be embedded on your own business website. By using the Business Analytics Product, you warrant to ArchiPro that you have the necessary consent of the users of your website to collect and use data in the manner required in connection with the Business Analytics Product (and in particular through the use of the Pixel which is a tracking technology) and that your use of the Business Analytics Product (particularly the Pixel) will not breach any obligations you have towards third party users or customers of your website under the Privacy Act 1988 (Cth) or other applicable privacy legislation.
6.2. You agree to indemnify ArchiPro against any loss suffered by ArchiPro as a result of breach of this clause 6.1 or from any claim by a user of your website that your use of the Business Analytics Product and the ArchiPro Pixel as contemplated by, and in accordance with, these terms or any other terms relating to your use of the Business Analytics Product is in breach of any applicable privacy legislation.
7. BETA SERVICES
7.1. ArchiPro may invite you to try beta or early access programs that are integrated into or are separate from the Online Services (“Beta Services”). Any Beta Service will be clearly designated as beta, pilot, developer preview or by a similar description and may be subject to additional terms notified to you at the time of invitation.
7.2. By opting-in to a Beta Service, ArchiPro grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive license to use the Beta Service. You agree that:
(a) any Beta Service is made available to you on an “as is” and “as available” basis with no express or implied warranties;
(b) any Beta Service may contain errors, omissions, bugs, and similar inconsistencies and ArchiPro has no obligation to correct any such errors;
(c) Beta Services do not form part of the Online Services. However, your obligations under this Agreement concerning the Online Services and use of your Content shall apply to your use of any Beta Service;
(d) you assume all risks associated with use of a Beta Service. ArchiPro will not have any liability for any loss or damage arising out of or in connection with a Beta Service and clauses 13 and 14 of this Agreement shall apply to the Beta Service;
(e) you shall provide feedback regarding your experience with the Beta Service, upon our reasonable request; and
(f) ArchiPro may modify or terminate your use of any Beta Service at any time in our sole discretion.
8. YOUR CONTENT
8.1. You acknowledge and agree that, whether or not we are responsible for sourcing, uploading or reviewing your Content, we are not responsible for, nor will we be liable for, confirming the accuracy or legality of the Content. In particular, you represent and warrant that any Content which is used on or in connection with the Online Services (including your Customer Profile and any product listing through the Ecommerce Service):
(a) does not contain anything that is misleading or deceptive or which is likely to mislead or deceive;
(b) complies with the Competition and Consumer Act 2010 (Cth) (including the ACL), the Trade Marks Act 1995 (Cth), the Copyright Act 1968 (Cth), and all other applicable laws and regulations;
(c) complies in every way with the Code of Ethics issued by the Australian Association of National Advertisers and with every other code or industry standard relating to advertising in Australia;
(d) is your own work or you have the necessary permission from the author or owner of the relevant Content to use such Content in the manner contemplated by this Agreement;
(e) does not violate or infringe the moral, intellectual property, privacy or other rights of any other person;
(f) does not constitute or contain confidential information;
(g) is complete and accurate and meets all other quality or procedural requirements for that Content as advised by us to you from time to time;
(h) does not contain any virus, worm, corrupt file, or other forms of malicious code or content that may harm a website or computer; and
(i) does not contain any cookie, tracking tag or other tracking device unless we have provided our prior written consent to such inclusion.
8.2. You, or your relevant licensor’s, will retain all ownership in the Content however you acknowledge and agree that we may use, reproduce, modify, edit, adapt, communicate to the public or display your Content to provide you with the benefits of your Membership, to otherwise meet any obligation we owe to you, and/or to generally operate our business (including without limitation, for the purposes of advertising our services to third parties).
8.3. You grant to us, or shall otherwise procure the granting to us, non-exclusive, royalty free permission to use your Content as set out in this Agreement, including for the purposes of clause 7.2. You must have a license for all images issued by the copyright holder which allows you to use this content to promote your services, including on your ArchiPro profile, EDM and social channels.
8.4. We reserve the right to use, not use, or discontinue using your Content (whether in whole or in part) in our sole discretion at any time. We do not guarantee that we will publish all of your Content.
8.5. To the extent that you have any moral rights (as that term is defined in the Copyright Act 1968 (Cth)) in the Content you provide to ArchiPro, then you waive all such moral rights, and to the extent that such waiver is not possible, then you consent to ArchiPro making all uses, edits and modifications of your Content in its sole discretion, including, without limitation, as further described in this Agreement.
9. TAGGING CONTENT
9.1. You may tag your products in the images or content of other members and users of ArchiPro’s Online Services provided that any such tag complies with the rules for content tagging notified to you by ArchiPro from time to time, including that you must tag the product once only in each image and the specific product in use must be accurately and fully identified.
9.2. You acknowledge that, consistent with your rights contained in clause 8.1 above, other members and users of ArchiPro’s Online Services may tag their own products in your Content from time to time.
9.3. Members or users of the Online Services can request removal of any tags in their Content by sending us a written request which provides a reasonable and clear explanation as to why the tag should be removed. ArchiPro will review any such request as soon as reasonably possible following receipt of such request and will remove the tag if we consider (acting reasonably) that the request is legitimate. ArchiPro will notify you if any request is received to remove a tag you have made.
10. OUR INTELLECTUAL PROPERTY
10.1. You acknowledge and agree that ArchiPro owns all intellectual property rights, title and interest in:
(a) the ArchiPro Website and the Online Services, including any material (other than your Customer Profile or your Content) that we create for you or on your behalf as part of your Membership or the Online Services, whether or not we create such material in conjunction or cooperation with you;
(b) any software, hardware or other technology which underlies or comprises the ArchiPro Website and/or the Online Services, including (without limitation) the ArchiPro Pixel and all code which comprises the ArchiPro Pixel;
(c) our trademarks; and
(d) any other intellectual property (whether registered or not) that we create or develop independently on the Online Services, (“Intellectual Property”).
10.2. All Intellectual Property which exists as at the date of this Agreement, together with any Intellectual Property created or developed by us during the term of this Agreement, is the absolute property of ArchiPro. Where we use any aspect of our creative services in the design or production of an advertisement or publication you acknowledge that we own the copyright and any other Intellectual Property in such work and that such work is not work for which a commission payment has been made or agreed.
10.3. You agree not to use, modify, reproduce, distribute, sell, license, reverse engineer, decompile, or otherwise exploit our Intellectual Property without our express written permission. You acknowledge that you do not acquire any ownership in, or licence to, our Intellectual Property by your use of the Online Services or your Membership.
11. COMMUNICATIONS
11.1. In connection with your Membership, ArchiPro will send you emails containing information and updates about ArchiPro and the Online Services, your Membership (and any updates or notifications relating to your Membership) as well as relevant industry news and other items of interest. You acknowledge that such emails from ArchiPro are a necessary part of your Membership and by becoming a member and continuing to use the Online Services you agree to receiving such emails from ArchiPro from time to time while you remain a member. One or more team members’ email addresses can be nominated to receive these communications, and can be updated as and when needed throughout your Membership term.
12. CONFIDENTIALITY
Unless we agree otherwise in writing, you will not:
(a) use, nor permit to be used, any information that we provide to you, in whatever form, in respect of your Membership or the Online Services (Confidential Information) for any purpose other than to perform your obligations; or
(b) disclose any Confidential Information, except to your employees, officers, agents or professional advisors who have a need to know such information and provided such persons are subject to obligations of confidentiality substantially similar to those contained in this clause 11.
13. NO WARRANTIES, GUARANTEES OR REPRESENTATIONS
13.1. The ArchiPro Website and the Online Services are provided on an “as is” and “as available” basis and, to the extent permitted by law, all warranties, descriptions, representations or conditions, whether express or implied, in respect of the ArchiPro Website and/or the Online Services, including as to fitness for any particular purpose, are expressly excluded. In addition, we make no warranty that the ArchiPro Website, the Online Services, nor any benefits of your Membership, will be free from transcription, transmission or other errors, or that they will be continuously available or fault-free.
13.2. You acknowledge that third party users of our Online Services may access those Online Services via different websites, services, applications, technologies and devices, the underlying technology, functionality and features of which may affect their presentation, appearance and functionality. We do not guarantee how our Online Services, or any element thereof, will be presented to such third-party users, or that all features will be accessible by them.
14. LIABILITY AND INDEMNITY
14.1. Neither ArchiPro nor the Customer shall be liable for any failure to comply with the Agreement where such failure arises as a result of any act of God, war, terrorism, catastrophic fire or weather event, industrial action involving that party, global pandemic or national health emergency or such other event which is beyond the control of either party.
14.2. Except to the extent set out in Schedule 2 in relation to facilitation of orders through the Ecommerce Service, we are not your agent or representative and are not involved in any way, whether on behalf of either you or third-party users of the ArchiPro Website or the Online Services, in any dealings resulting from the use of our Online Services. We will not have any liability for any dealing between you and any third-party user of our Online Services, whether as a direct result of the use of our Online Services or otherwise.
14.3. You agree to indemnify us against any claims, losses, costs (including legal costs), expenses, demands or liability relating to:
(a) your breach of this Agreement; and
(b) your use of Content, including any failure to comply with clause 7.1;
(c) your failure to properly describe or deliver any product through the Ecommerce Service, or to comply with any applicable laws relating to the sale and purchase of products through the Ecommerce Service (including the Competition and Consumer Act 2010 (Cth) including the ACL).
14.4. To the extent permitted by law, any conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded under this Agreement. However, if a supply under this Agreement is a supply of goods or services to a consumer within the meaning of the ACL, nothing contained in this Agreement excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the ACL, provided that, to the extent that the ACL permits us to limit our liability, then ArchiPro’s liability is limited to:
(a) in the case of services, the cost of supplying the services again or payment of the cost of having the services supplied again; and
(b) in the case of software or other goods, the cost of replacing the goods, supplying equivalent goods or having the goods repaired, or payment of the cost of replacing the goods, supplying equivalent goods or having the goods repaired,
and except in the case of a major failure (as that term is defined in the ACL), ArchiPro can elect as between the remedies set out in paragraphs (a) and (b) above.
14.5. Subject to clause 13.4, and to the extent permitted by law, ArchiPro’s liability to you arising directly or indirectly under or in connection with this Agreement or otherwise in connection with or in any way relating to the Online Services, and whether arising under any indemnity, statute, in tort (for negligence or otherwise) or on any other basis in law or equity, is limited as follows:
(a) ArchiPro excludes all liability for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, or any indirect, consequential or special loss, damage, cost or expense or other claims for consequential compensation, incurred by or awarded against you under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Online Services; and
(b) (except for a liability under paragraph 2.5 of Schedule 1) ArchiPro’s total aggregate liability under or in any way connected with this Agreement or otherwise in connection with or in any way relating to the Online Services, is otherwise limited to the greater of:
(i) AUD$10; and
(ii) the total annual Membership Fees you have paid to us for the Online Services that are the subject of the relevant claim.
15. DISPUTES
15.1. Where a dispute arises between ArchiPro and the Customer in respect of the Agreement (including your Membership or your use of the Online Services), then, as a first step, the parties must use best endeavours to resolve the dispute informally by good faith negotiations between representatives authorised to resolve that dispute on behalf of each party. However, where the dispute has not been resolved within 4 weeks of the dispute first arising, the dispute may be referred by either party to the Resolution Institute (ACN 008 651 232), for facilitation of arbitration in accordance with the Resolution Institute's Arbitration Rules. Such arbitration shall be conducted by a single arbiter appointed by mutual agreement of ArchiPro and the Customer or, failing agreement, either party may request a nomination from the Chair of the Resolution Institute.
16. GST
16.1. In this clause 16:
(a) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth); and
(b) terms used in this clause 16 shall have the same meaning as in the GST Act.
16.2. Unless expressly specified to the contrary, all amounts payable under this Agreement (including Schedules 1 and 2) (consideration) by one party (payor) to the other (payee) have been expressed to be exclusive of GST. The payor will, at the same time as paying the consideration to the payee, pay an additional amount on account of the GST, so that after deduction of GST, the payee receives no less than the amount of the consideration.
16.3. Where a party is required under this Agreement to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party, or to which the representative member for a GST group of which the other party is a member, is entitled.
17. MISCELLANEOUS
17.1. The Customer is not permitted to assign any of its rights or obligations under the Agreement without the prior written consent of ArchiPro. A change in the Customer’s effective ownership or control will be deemed an assignment for the purposes of this clause. ArchiPro may assign, transfer, licence or subcontract any and all of its rights and obligations under the Agreement (including any Customer indebtedness) by notice to the Customer but without requiring the Customer’s consent. Each of ArchiPro’s assignees and transferees will have the same rights and remedies against the Customer as ArchiPro has under the Agreement.
17.2. If any provision of this Agreement is found to be invalid, illegal or unenforceable, then such provision shall be deemed to be amended to the extent required to cure such invalidity, illegality or unenforceability and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.3. No waiver of any breach of, or failure to enforce any provision of, the Agreement at any time by either party shall in any way limit the right of such party thereafter to enforce and compel strict compliance with the provisions of the Agreement.
17.4. The Agreement is governed by, and is to be construed in accordance with, the laws of the State of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of the State of Victoria, Australia or the Commonwealth of Australia and any courts of appeal from these courts.
SCHEDULE 1: ADDITIONAL TERMS RELATING TO THE ADVERTISING SERVICES
1. ADVERTISING INCLUDED IN MEMBERSHIP
1.1. As soon as practical following the commencement of your Membership and your Customer Profile going live on the ArchiPro Website, or following any Renewal Date, we will discuss and agree with you an advertising schedule (including scheduled publication dates) which will apply to the Advertising Services to be supplied by us pursuant to your chosen Membership during the then current term of your Membership. These Advertising Services are included in your Membership at no extra cost to you.
2. ADDITIONAL ADVERTISING SERVICES
2.1. If you request any Advertising Services which are in addition to the advertising services included in the terms of your Membership (“Additional Advertising”), we will charge you for the Additional Advertising at the rates set out in our current rate card (“Advertising Rates”). Unless otherwise stated by ArchiPro, all Advertising Rates specified in our rate cards are exclusive of GST and you will be required to pay GST in addition to such rates.
2.2. We reserve the right to vary our Advertising Rates at any time, with any adjustments communicated to you (if relevant) in writing. The current rates for Additional Advertising are available through your Customer Profile menu.
2.3. Unless otherwise specified in the relevant Invoice relating to the applicable Additional Advertising, payment of the full amount specified in the Invoice is due prior to scheduled date of first publication of the relevant Additional Advertising. All payments due to ArchiPro are to be made in full without set-off or deduction.
2.4. The Customer acknowledges that non-payment of the Invoice amount by the due date specified in the Invoice will result in a delay in the commencement of the supply of the relevant Additional Advertising until payment of the Invoice amount is received by ArchiPro.
2.5. Notwithstanding clauses 13.4 and 13.5 of the Agreement, ArchiPro’s maximum liability under or in connection with any Additional Advertising requested under this clause will be limited to an amount which is equal to the cost of the relevant Additional Advertising as specified in the relevant Invoice.
3. CONTENT FOR ADVERTISING SERVICES
3.1. We may create editorial content for publication on your behalf (“Native Advertising”) using Content uploaded to your Customer Profile (the “ArchiPro Sourced Content”). Such Native Advertising may include (but is not limited to) social media posts and captions, newsletter articles and email content, as agreed with you. All Native Advertising will be consistent with the creative style, tone and quality usually adopted and displayed by ArchiPro. Other than display advertising, all links in Native Advertising formats will direct back to your Customer Profile.
3.2. You may also provide us with your own Content for publication as part of any Advertising Services we have agreed to provide to you (including as an addition to, or in substitution of, any ArchiPro Sourced Content). Such Content must be received by us within the timeframes specified in paragraph 4 below.
3.3. Irrespective of whether the relevant Advertising Service is Native Advertising or otherwise, we will provide you with a proof of the relevant advertising for your review and confirmation. You must confirm your acceptance of, or identify any required changes to, the relevant advertisement in writing within the timeframes notified to you by us at the time of delivery of the proof. Where you fail to respond within the notified timeframes, you will be deemed to have accepted the relevant advertisement in all respects and ArchiPro shall publish that advertisement in the form in which it appeared in the proof. In such circumstances, ArchiPro (and its employees, officers, agents, or contractors) shall not be liable to the Customer in any way for any defect or matter arising out of the relevant advertisement. In any event, the Customer must notify ArchiPro immediately of any such defect or matter arising out of the relevant advertisement and ArchiPro will use reasonable means to rectify the advertisement to the extent that it is possible to do so.
3.4. We allow two rounds of reasonable feedback within one week of receiving the initial proof, however the feedback must comply with our Advertising Guidelines and are not guaranteed to be accepted. Entire changes to the Content after a proof has been sent to you for approval will incur a $200 plus GST production fee for us to create a new advertisement and proof for you.
3.5. Campaign advertising impressions will be counted and recognised by our ArchiPro custom ad-serving engine and our Business Analytics Product. A third party ad-serving engine may also be used but its impression count won’t be recognised unless we agree otherwise in writing. You acknowledge and agree that any calculation of advertising impressions will be measured on the basis of content placed both on-platform and through partner channels, including but not limited to Facebook, Google, our CRM platforms (ie Hubspot, Mailchimp).
3.6. Advertising Services may be used only by the Customer for advertising the Customer’s usual and ordinary business. The Advertising Services may not be on-sold, transferred or otherwise made available to any other person or entity without our prior written consent.
4. CONTENT DEADLINES FOR ADVERTISING SERVICES
4.1. Subject to any timeframes agreed with you in writing, all Content which is to be used in connection with the relevant Advertising Services to be provided to you must be received by us in accordance with the Material Deadlines which are available through your Customer Profile menu.
4.2. ArchiPro reserves the right to charge an additional processing fee of $200 plus GST, in the event that we receive your Content outside of these timeframes but nevertheless agree to continue work to meet the publication dates for the relevant Advertising Services as previously agreed with you.
5. CHANGES AND PLACEMENT OF CONTENT FOR ADVERTISING SERVICES
5.1. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that:
(a) we may, in our absolute discretion and without notice, modify, edit, adapt, reject, refuse to publish, or withdraw Content or any agreed advertisement containing such Content from publication without having to give you a reason, provided however that we will not unreasonably exercise this right and will notify you of our decision to do so as soon as is reasonably practicable;
(b) where there is an error or delay in publishing any agreed advertisement containing your Content, we may remedy such error or delay by publishing such advertisement at a time which is different to that which was originally agreed with you (including as part of an agreed advertising schedule) or, where applicable, in the next available publication;
(c) the placement or position of any Content in an advertisement or on the ArchiPro website is at our sole discretion, except where we have agreed on a specific placement with you in writing (and for the avoidance of doubt, this does not include the proof);
(d) unless otherwise agreed with you in accordance with paragraph 5.1(c) above, ArchiPro does not make any guarantee that any Customer product or service featured in an advertisement will be the only product or service of that type featured in the relevant advertisement;
(e) where you have provided us with your own Content for inclusion in an advertisement, we may require that you correct or amend your Content to conform to editorial style, quality and tone, or for other genuine reasons; and
(f) we may indicate above or below any advertisement which we reasonably consider resembles editorial matter that the content is sponsored or paid for.
5.2. You must tell us as soon as possible if there is an error or omission in any Content which you have provided to us, or which we have used on your behalf, as part of any Advertising Service. ArchiPro reserves the right to charge additional amendment fees and additional processing fees to correct any such errors or omissions.
6. POSTPONEMENT AND CANCELLATION
6.1. Subject to paragraph 6.2 below, where we have agreed a schedule for the relevant Advertising Service with you, you may postpone any agreed publication dates for the relevant Advertising Service by giving us written notice of your desire to postpone, such notice to be received by us not less than one month from the scheduled date of publication. Where we receive notice of postponement in accordance with this paragraph 6.1, we will arrange a new date of publication for the relevant Advertising Service as soon as reasonably practicable and only if available during the remainder of the current Membership term.
6.2. Notwithstanding paragraph 6.1 above, if we receive notice of postponement with less than one month’s notice or we receive such notice when the relevant advertisement has been drafted and you have had an opportunity to review and feedback on that advertisement, we reserve the right to consider such notice to be a cancellation notice for the purposes of paragraph 6.3 below.
6.3. If you wish to cancel an advertisement or campaign you must communicate this in writing to us. Upon cancellation, ArchiPro may (at its sole discretion) charge a cancellation fee in accordance with paragraph 6.4 below. You acknowledge and agree that any cancellation fee charged by ArchiPro in accordance with this paragraph and paragraph 6.4 is a genuine pre-estimate of the loss that ArchiPro will suffer as a result of the cancellation of the relevant Advertising Service.
6.4. Where the notice of postponement of cancellation of any ArchiPro Advertising service is received by us:
(a) in accordance with paragraph 6.1, you will incur no penalty and we will not charge any cancellation fee;
(b) within 90 days and 30 days of the scheduled publication date, we reserve the right to charge you and/or not replace your advertising spot, and you agree to pay 50% of the cost of the relevant Advertising Service as specified in the applicable Invoice; and
(c) within 29 days or less of the scheduled publication date, we reserve the right to charge you and/or not replace your advertising spot, and you agree to pay 100% of the cost of the relevant Advertising Service as specified in the applicable Invoice.
6.5. Where your Membership is terminated in accordance with this Agreement, any and all Advertising Services will also be terminated with immediate effect and we will have no obligation to refund any monies paid by you in relation to your Membership or the Advertising Services.
SCHEDULE 2: ADDITIONAL TERMS RELATION TO THE ECOMMERCE SERVICE
1. GENERAL TERMS APPLICABLE TO ECOMMERCE SERVICE
1.1. Where the Customer uses the Ecommerce Service, the Customer acknowledges and agrees:
(a) all sale and purchase transactions are directly between the Customer and the relevant other user of the ArchiPro Website. The Customer is solely responsible for providing any products ordered through the Ecommerce Service;
(b) ArchiPro is not a party to any sale and purchase transaction and provides the Ecommerce Service to facilitate the collection and transmission of purchase orders (and any associated communications between the buying and selling parties); and
(c) to the extent permitted by law, ArchiPro makes no warranty or representation and does not provide any guarantee in respect of any product that may be supplied by the Customer through the Ecommerce Service. You are responsible for complying with all guarantees and warranties, whether express or implied, including applicable statutory guarantees and warranties (e.g. guarantees under the ACL or any other implied terms in relevant consumer or contract legislation);
(d) if the Customer has any dispute with a third party in relation to a product listed through the Ecommerce Service, the Customer shall have no claim against ArchiPro and ArchiPro shall not be required to participate in any way in that dispute. The Ecommerce Service shall include functionality for purchasers to message and communicate with the Customer regarding products and product orders and it is the responsibility of the Customer to respond to these messages/communications.
2. PRODUCT LISTING
(a) The Customer is responsible for maintaining the product profile for any product listed on the Ecommerce Service and for ensuring the accuracy and completeness of all information on the product profile. The product profile must include the following details:
an accurate (and not misleading) description of the product, together with any applicable images that relate to the product;
any product variants (such as available colours and sizes);
(ii) price, including any applicable shipping costs to be added at checkout;
(iii) availability of the product (e.g. whether the product is in stock or made to order);
(iv) available delivery or collection methods for the product (i.e. shipping or “click and collect” or both), including, as applicable, estimated shipping and delivery timeframes and collection point addresses for “click and collect”;
(vi) a link to the returns policy applicable to the product; and
(vii) any other material terms that may be applicable to the supply of the product.
(b) By listing a Product through the Ecommerce Service you warrant that you may legally sell the product in all locations that you list the product for sale.
(c) The Customer must ensure that the prices offered through the Ecommerce Service are no less favourable than the prices offered through the Customer’s own website.
3. PRODUCT ORDERS
3.1. Orders for products listed through the Ecommerce Service will be transmitted to the Customer through the Ecommerce Service order management system.
3.2. You must accept or cancel an order submitted through the order management system within one business day of the order being submitted. Once you accept an order, a binding contract is created between you and the purchaser for the supply of the relevant product.
3.3. If an option to modify an order is available through the Ecommerce Service, any request to modify an order is subject to acceptance by the other party to the transaction of that request to modify.
3.4. Following acceptance of an order, you are responsible for updating the status of the order in the Ecommerce Service order management system including for subsequent shipping and delivery of the product. Where the purchaser has opted to “Click and Collect”, you must update the order management system as soon as the product is allocated to the purchaser and ready for collection.
3.5. If you cancel the order, this will be communicated to the purchaser through the order management system and any payments made by the purchaser will be refunded or released to the purchaser.
4. DELIVERY
4.1. The Customer is responsible for shipping and delivery of the product directly to the purchaser (unless the delivery method is “Click and Collect”) and shall use its best endeavours to deliver within any estimated timeframes. Any costs or liabilities incurred arising from, or in connection with, non-delivery or failure to complete delivery are the responsibility of the Customer.
4.2. Title and risk in the product passes from the Customer to the relevant purchaser:
(a) delivery of the product to the purchaser’s specified address, unless otherwise stated in the product listing; or
(b) for “Click and Collect” purchases, upon collection by the purchaser from the relevant collection point address.
ArchiPro is not responsible for holding, delivering or transferring title in any products sold through the Ecommerce Service.
5. PAYMENTS
5.1. All payments made through the Ecommerce Service will be processed through the payments service operated by Stripe Payments Australia Pty Ltd ACN 160 180 343 (“Stripe”) and integrated with the Ecommerce Service. Payments are subject to Stripe’s terms and conditions which include the Stripe Services Agreement and ArchiPro’s Stripe Connect Platform Agreement.
5.2. To use the Ecommerce Service, the Customer must have a Stripe Connected Account and abide by the terms of the Stripe Connected Account Agreement. ArchiPro reserves the right to terminate the Customer’s use of the Ecommerce Service where Stripe does not accept the Customer as a user of its payments service or terminates the Customer’s use of the Stripe payments service.
5.3. All payments processed by Stripe are transmitted to the Customer upon acceptance by the Customer of the relevant order, less:
(a) an applicable transaction fee (if any) which is paid to ArchiPro, as set out in the Invoice;
(b) any applicable processing fees charged by Stripe.
5.4. The Customer acknowledges and agrees that ArchiPro may, from time to time, amend the applicable Ecommerce Service transaction fee for any reason and, unless otherwise agreed in writing with the Customer, any such amendment to the transaction fee will apply from the next Membership Renewal Date.
5.5. Changes to the payment processing fee may be made by Stripe in accordance with Stripe’s terms and conditions. Where the payment processing fee is changed, ArchiPro will update the Schedule to these Terms and notify the Customer. The Customer acknowledges and agrees that any change made by Stripe to the payment processing fee does not constitute a change that materially affects Ecommerce Services for the purposes of clauses 2.4 and 3.3 of these Terms.
5.6. By using the Ecommerce Service, the Customer authorises and consents to ArchiPro submitting payments through the Stripe payments service in accordance with this Agreement.
6. RETURNS AND REFUNDS
6.1. Products sold through the Ecommerce Service are eligible for returns and refunds in accordance with any applicable law and any returns policy that the Customer maintains, or ArchiPro’s default Returns and Refunds Policy. You are responsible for indicating whether a product is eligible for return on the product profile through the Ecommerce Service.
6.2. All complaints/queries regarding returns or faulty product should be submitted by the purchaser by completing a return request through the Ecommerce order management system or by contacting the Customer’s nominated representative. You acknowledge and agree that you are responsible for handling all such complaints and/or queries directly with the purchaser.
6.3. The Customer is responsible for any non-conformity or defects in any products listed by the Customer through the Ecommerce Service. Returns of product must be sent directly from the relevant purchaser to the Customer. You are responsible for determining whether the product should be repaired or replaced in accordance with your returns policy or applicable law. If a purchaser is eligible for a refund, the Customer must issue a refund through the Ecommerce Service order management system, which will be processed and paid to the relevant purchaser through the Stripe payment service.
7. PRIVACY AND DISCLOSURE OF DATA
7.1. By using the Ecommerce Service you consent to the collection, use, storage and disclosure of your data (which may include personal information) in accordance with our Privacy Policy. Data and information may also be transferred to Stripe for the purposes of facilitating payments through the payments platform and will be held by Stripe in accordance with its Privacy Policy.
