Commercial terms and conditions

1. Application

This Agreement is between Playgroup Victoria Inc. (Playgroup Victoria) and the Client.  These Terms and Conditions of Trade (‘Terms’) apply to every order for products and services, including the PlayMap online system (‘the System’) the Client places with Playgroup Victoria except where Playgroup Victoria agrees in writing signed by an authorised officer of Playgroup Victoria that all or part of these Terms do not apply. These terms prevail over any written terms and conditions of the Client (if any). These Terms do not create an obligation on or a promise by Playgroup Victoria to supply products and services. The Client’s signature of acknowledgement at the end of these Terms constitutes full acceptance of the Client to the Terms.

 

2.Interpretation

 

(a)    Nothing in these Terms creates any relationship of employment, agency or partnership between the Client and Playgroup Victoria.

(b)    In these Terms, ‘products and services’ means all products and services created and supplied by Playgroup Victoria, including but not limited to Playgroup Victoria’s online database for members, the online system PlayMap, workshops, posters, policy, research and support documents, e-newsletters and stationery by Playgroup Victoria or a third party supplier.

 

3. Purchases

 

(a)    Where the Client purchases the System, Playgroup Victoria shall not be deemed to have accepted such a purchase unless it does so in writing or otherwise commences set-up and delivery of the purchase.

(b)    Formal acceptance and confirmation of the purchase will include individual and organisation details and addresses, payment requirements, and any additional conditions to the Terms between the parties.

(c)    The confirmation of the purchase may be received by email but where a purchase is made by telephone Playgroup Victoria will confirm the details of the order in writing.

 

4. Membership fee payment terms

 

(a)    Payment for the System will be in the form of a Playgroup Victoria annual membership fee stipulated by Playgroup Victoria at the time of purchase.

(b)    Payment for the System provided by Playgroup Victoria must be made at the time of purchase.

(c)    Payment can be made via debit or credit card, online via www.playgroup.org.au, cheque or money order.

(d)   The System will not be delivered to the Client until payment or evidence of payment has been received by Playgroup Victoria. 

(e)   Playgroup Victoria reserves the right to restrict access to the System until payment has been cleared.

 

5.  GST 

All amounts quoted by Playgroup Victoria are GST exclusive unless otherwise stated. The Client will be liable to pay GST in addition to the amount quoted where a taxable supply is made by Playgroup Victoria.

 

6. Access conditions 

(a)    Access to the System will only be made available by Playgroup Victoria when and for the time that the Client’s membership fees have been paid and are up to date. 

(b)    Playgroup Victoria reserves the right to restrict access to the System until payment of the membership fee has been cleared.

 

7. Provision of Information

(a)    Where requested by Playgroup Victoria, the Client must provide to Playgroup Victoria all information required in order to complete registration of the Client with Playgroup Victoria.  Any personal information will be kept, stored and used according to the Privacy Act 1988 (Cth) and Playgroup Victoria’s Privacy Policy, which can be accessed at www.playgroup.org.au/Privacy-Policy.aspx.

(b)    The Client warrants that all information and any other materials provided to Playgroup Victoria is accurate and up-to-date, and Playgroup Victoria may rely on this information in carrying out the delivery of the System. 

8. Ownership of intellectual property 

(a)    Subject to any additional terms or special conditions provided by Playgroup Victoria from time to time, during the term of this agreement Playgroup Victoria grants the Client a non-exclusive, non-transferable, limited licence to access and use the System from time to time made available to the Client for the purposes only of the running of and supporting a Playgroup registered with Playgroup Victoria or the Client’s organisation.

(b)    All rights, title and interest (including all copyrights and other Intellectual Property Rights) in the System (in both print and online forms) belongs to Playgroup Victoria, its licensors or its third party suppliers.  The Client does not acquire any ownership or copyright nor other intellectual property rights or proprietary interest in the System, or copies thereof.  The Client acknowledges that it does not have the right or permissions to sub-licence or onsell the System to any other party.

(c)    To the extent expressly permitted by applicable copyright law and not further limited or prohibited by these Terms or any additional terms or special conditions, you may make copies of Authorised Printouts and distribute Authorised Printouts and copies within the Client’s organisation.

(d)   Copyright and ownership of all original and draft literary, dramatic, musical or artistic work, including but not limited to documents, artwork and graphics provided by Playgroup Victoria remains the property of Playgroup Victoria, unless otherwise stated or agreed in writing.


(e)   If the Client wishes to use any original or draft literary, dramatic, musical or artistic work then the Client may only do so if they have received permission in writing from Playgroup Victoria AND they have paid to Playgroup Victoria the required invoiced amount.  These separate literary, dramatic, musical or artistic work will only be delivered to the Client once full payment has been received by Playgroup Victoria.

(f)     Title to and all Intellectual Property Rights in any data provided or uploaded by the Client will remain the Client’s property.  However the Client’s access to that data is contingent upon full payment of Playgroup Victoria’s membership fee when due.  The Client grants Playgroup Victoria a licence to use, copy, transmit, store and back-up the that data for the purposes of enabling the Client access and use the System and for any other purposes related to the provision of the System to the Client. 

 

9.   Liability

 

(a)    Nothing in these Terms limit, exclude or modify or purports to limit, exclude or modify the statutory consumer guarantees as provided under the Competition and Consumer Act 2010 (Cth), as well as any other implied warranties which are precluded from exclusion or modification and this Clause is only intended to limit Playgroup Victoria’s liability where the law allows. 

(b)    Where permitted by law:

 

(i)        Playgroup Victoria will not be liable for any loss, injury, claim, liability or damage of any kind resulting in any way from:

                                                 i.    Any errors in or omissions from the System, or any materials available or not included therein;

                                                ii.    The unavailability or interruption to the supply of the System or any features thereof or any materials;

                                               iii.    The Client’s or member’s use or misuse of the System or materials;

                                               iv.    The Client’s use of any equipment in connection with the System;

                                                v.    The content of materials;

                                               vi.    Any delay or failure in performance beyond the reasonable control of Playgroup Victoria (or its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of Playgroup Victoria or its affiliates; and each third party supplier of materials and their affiliates and any officer, director, employee, subcontractor, agent, successor, or assign);

                                              vii.    Any negligence of Playgroup Victoria (or its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of Playgroup Victoria or its affiliates; and each third party supplier of materials and their affiliates and any officer, director, employee, subcontractor, agent, successor, or assign) within the performance of its obligations under these Terms.

  

(ii)       Playgroup Victoria (including its related entities, respective officers, employees and agents) excludes all liability (including negligence), for any personal injury or any loss or damage (including loss of opportunity); whether direct, indirect, special or consequential, arising in any way out of the work and without limiting the generality of the foregoing.

(iii)      Playgroup Victoria is not subject to, and the Client releases Playgroup Victoria from, any liability (including but not limited to consequential loss or damage) because of, inter alia: any delay in delivery or fault or defect in the work; negligent act or omission; improper use of work, operation, storage or handling of work by the Client other than accordance with any written instructions supplied with the work.

(iv)      Playgroup Victoria will not be liable for any loss or damage to the Client or any other party including loss of income.
(v)       Playgroup Victoria’s liability to the Client for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the Client caused or contributed to that loss or damage. 

10.Dispute Resolution

 

(a)    The Client must notify Playgroup Victoria of any disputes by email.

(b)    In the event of a dispute arising out of these Terms or any contract, both parties must exercise reasonable endeavours to resolve the dispute including by way of mediation where appropriate.

 

 

11. Breach or Default Event

(a)    If the Client is in breach of any of these Terms, the Client agrees that it will be responsible for all of the expenses incurred by Playgroup Victoria in enforcing its rights including recovering monies owed.

(b)    If a default event occurs Playgroup Victoria may withhold further provision of products and/or services, and all amounts outstanding to Playgroup Victoria by the Client, even if not otherwise due for payment, will become immediately payable.

(c)    A default event will occur if:

 

(i)        If in the sole opinion of Playgroup Victoria, there is a material risk that the Client is, or will be, unable to pay amounts owing to Playgroup Victoria or perform any other obligation under these Terms and Playgroup Victoria gives notice in writing to the Client of its opinion(ii)       the Client defaults in paying any sums due to Playgroup Victoria;
(iii)      the Client is an individual and becomes insolvent, bankrupt, commits any act of bankruptcy, compounds with or enters into any compromise or arrangement with its creditors;
(iv)      the Client is a company and has a provisional liquidator, liquidator, receiver, receiver and manager or official manager, trustee for  creditors or in bankruptcy, voluntary administrator or analogous person appointed to it or its property;
(v)       the Client has judgment entered against it in any court and Playgroup Victoria gives notice in writing to the Client that, in its sole discretion, Playgroup Victoria considers it to be a default event; or
(vi)      a secured creditor seizes or takes possession of any collateral in the possession of the Client and Playgroup Victoria gives notice in writing to the Client that, in its sole discretion, Playgroup Victoria considers it to be a default event.

 

12. Force Majeure 

Playgroup Victoria shall not be in default or be liable for failure to observe or perform in accordance with these Terms for any reason or cause which is outside of the reasonable control of Playgroup Victoria, including without limitation, war, insurrection, riot, civil commotion, strikes, lockouts, industrial disputes, acts of god, act of governments, flood, storm, tempest, power shortages or power failure, or an inability to obtain sufficient labour, raw materials, fuel or utilities.

 

13. Amendment 

These terms may be changed, amended or altered in part, or in full, without warning by Playgroup Victoria. It is the responsibility of the Client, and his/her staff, to read and understand these Terms.

 

14. Miscellaneous

 

(a)    The Client must not assign any rights or benefits under these Terms unless it has obtained the prior written consent of Playgroup Victoria, with such consent at the absolute discretion of Playgroup Victoria.

(b)    All communications from the Client to Playgroup Victoria must be made in writing, including correspondence by email.

(c)    Playgroup Victoria is entitled to rely on orders made by any employee, agent or contractor of the Client. Such orders shall be deemed to have been made with the authority of the Client and will be binding.

(d)   Playgroup Victoria reserves the right to correct any errors or omissions of any kind in its offers, quotations, order confirmations or invoices, and the correction will be binding on Playgroup Victoria and the Client.

(e)   These Terms are governed by the laws of Victoria, Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria.

(f)     If any of these Terms are determined invalid, unlawful or unenforceable in whole or in part, such term shall be severed and the remaining terms shall continue to operate to the fullest extent permitted by law.

(g)    These Terms and the quote and any alterations made in writing by Playgroup Victoria constitute the entire agreement between the parties in relation to the supply of System, and supersedes all previous agreements or understandings between the parties including any inconsistent terms in any order.