IMPORTANT NOTE: Please read the terms below carefully. These terms govern your relationship with Air Robe Pty Ltd (ACN 628 335 713) (AirRobe, we, us or our) and your use of AirRobe’s Services. By using AirRobe’s Virtual Wardrobe, you understand and agree that you are entering into a legally binding agreement with AirRobe.
You, your or Merchant means the business that you as an individual represent in accepting these terms, having the merchant name provided to AirRobe as part of the merchant onboarding process. If you are not an individual that has the legal authority to bind that business, please do not click “I accept” (or similar button or checkbox) that is presented to you.
• Either party may terminate this agreement at any time by giving at least 14 days’ notice (see clause 9.2)
• You must pay the Subscription Fee to AirRobe each month (see clause 4.1)
• We have no obligation to supply the Services until you have completed and returned to us any documentation reasonably requested by AirRobe (including for us to comply with Relevant Laws)
• You agree not to offer the Services on, or make any functionality of the Virtual Wardrobe Plugin available in connection with any Restricted Goods or Services (see clause 4.2(j))
• You must not promote, link to or offer your customers the use of any product which facilitates selling, renting or re-purposes a customer’s past purchases other than AirRobe.
• You must not charge the Customer any additional fees for using the Virtual Wardrobe Plugin
• You must only use AirRobe Intellectual Property as authorised by AirRobe and otherwise as set out in this agreement
• You grant us the right to, and warrant that we may, collect and use the Product Data, including as part of a Customer’s Virtual Wardrobe and on our Marketplace (see clause 4.5(d))
• AirRobe may suspend your access to the Services immediately if you breach this agreement (see clause 9)
• AirRobe’s Services are provided on an “as is” basis (see clause 10.2(d))
(a) This agreement governs your use of the Services.
(b) By electronically indicating your acceptance of this agreement (that is, by clicking to accept its terms as part of signing up for an AirRobe merchant account ), you agree that your electronic consent will have the same legal effect as a physical signature.
(c) If you have not accepted this agreement prior to using the Services , your use of the Services shall constitute acceptance of this agreement. All schedules to this agreement are expressly included as part of the agreement.
(d) This agreement commences on your acceptance (or deemed acceptance) of it and continues until either party terminates it in accordance with these terms.
(e) If you are using the Services on behalf of a business, you represent to us that you have the power and full legal authority to bind that business to the terms of this agreement and you accept these terms as an authorised representative on behalf of that business.
(f) By signing this agreement or using the Services, you also agree to any additional terms specific to your use of the Services (if applicable, such additional terms will display above these terms), which become part of your agreement with us. Please ensure you read this agreement, the Policies and any other agreements that apply to you carefully.
(g) We may revise this agreement and our Policies at any time. We will use reasonable endeavours to give you at least five (5) Business Days written notice of any material change to the agreement or our Policies. By continuing to use the Services without objecting to any amendments or new versions of this agreement or our Policies, you agree to and accept all terms and conditions of any such amended or new agreement or Policy, including any new or changed terms or conditions. If you do not agree to any amended or new terms, or do not wish to continue receiving the Services as a result of any change to them notified to you by AirRobe, you may terminate this agreement in accordance with clause 9.2.
3. AirRobe Services
(a) Our Services include provision of the Virtual Wardrobe Plugin for you to install and use on your Website .
(b) The Virtual Wardrobe Plugin allows Customers to add Goods they buy from you via your Website to their Virtual Wardrobe.
(c) If a customer elects to add a Good to their Virtual Wardrobe, we will capture the Product Data from your Website at the point of the Customer’s purchase of such Good.
(d) We will store the Product Data in the Customer’s Virtual Wardrobe (if the Customer does not already have a Virtual Wardrobe they will be directed to set one up via our website) and the Customer may at any time log in to their Virtual Wardrobe and view the Good or elect to list the Good for sale or rent on our Marketplace.
(e) We have no obligation to supply our Services, and you may not install or use the Virtual Wardrobe Plugin on your Website (or otherwise represent to customers that they may make AirRobe Purchases) , until you have completed and returned to us all required documentation, including any documents we require to comply with our obligations under Relevant Laws and we have verified these details. You will not provide us with any information in connection with this agreement that is false, inaccurate, or misleading.
(f) You warrant that all information you provide to us in connection with this agreement (including any information contained in documents we request from you), is complete, current and correct.
4.1 Subscription Fee
You agree to pay to AirRobe the Subscription Fee in accordance with clause 5.1. We may vary the Subscription Fee (including by introducing a fee where the Subscription Fee was previously $0) at any time by giving you 14 days’ notice. If you do not agree to the varied Subscription Fee you may terminate this agreement in accordance with clause 9.2.
4.2 General obligations
(a) Technical Integration of Virtual Wardrobe Plugin. You agree to comply with any reasonable direction given by us in respect of the integration of the Virtual Wardrobe Plugin on your Website. If you have implemented the Virtual Wardrobe Plugin other than in accordance with the materials, including the Brand Management Materials, that AirRobe has provided to you, you must obtain written approval from an AirRobe representative before you allow customers to make AirRobe Purchases.
(b) Availability. You must make the Virtual Wardrobe Plugin available for use by customers on your Website as soon as reasonably practicable or as otherwise agreed by AirRobe in writing, acting reasonably. You must continue to allow customers to use the functionality of the Virtual Wardrobe Plugin on your Website as permitted under this agreement as long as this agreement remains on foot, except: (i) during any period of suspension imposed by us in accordance with the terms of this agreement; or (ii) as otherwise notified by us.
(c) AirRobe Assistance. If you grant AirRobe, including any employee or agent of AirRobe, access to your system, website, platform, code base or other technology, for any purpose related to the Services including, but not limited to, integration of computer code, other technology, content, images or marketing materials, you acknowledge and expressly agree that AirRobe will have no liability for any damage, interruption, errors or other loss related to your system, website platform, code base or other technology that may be caused by the acts or omissions of AirRobe.
(d) Control of Website. You agree that you control and will continue to control the consent of your Website. You must not provide customers with any information about AirRobe, the Virtual Wardrobe Plugin or our Services that is false, misleading or inaccurate. Without limiting this clause 4.2(d), you must not make any warranty, representation or statement to any customer relating to AirRobe, the Virtual Wardrobe Plugin or our Services, other than those included on our website or included in materials provided by us, as may be updated from time to time, or as otherwise expressly permitted by AirRobe in writing. You must not use any technology (device, software or hardware) to damage, intercept or interfere with our Services, or any software or technology that we use to provide the Services.
(e) Display of AirRobe Materials on your Website . Without limiting clause 4.2(f), you agree to:
(i) include on your Website a description of the Virtual Wardrobe Plugin in such terms as may be provided or otherwise approved by us in writing;
(ii) (where relevant and technically possible) present such description as a ‘lightbox’ on your Website as may be provided or approved by us in writing from time to time;
(iii) comply with any reasonable directions we give about how any description of the Virtual Wardrobe Plugin is to be displayed on your Website;
(iv) as soon as practicable and, in any case, within 5 Business Days, comply with any reasonable direction we give you to modify, replace or remove any description of the Virtual Wardrobe Plugin displayed on your Website; and
(v) not provide any description of the Virtual Wardrobe Plugin which does not comply with this clause 4.2(e), or has not otherwise been approved by us in writing.
(f) Modification or Deletion of AirRobe Materials. If we are concerned that any content or materials displayed on your Website does not comply with clause 4.2(e), we may request that you modify or delete the relevant content or materials, or remove them from display. You must comply with any request made under this clause as soon as practicable and, at the latest, within 5 Business Days of the request, unless you can otherwise establish to our reasonable satisfaction within this time frame that the content or materials comply with the requirements of this agreement. We have the right under clause 8 of this agreement to suspend your access to the Virtual Wardrobe Plugin if you breach these requirements, or if we reasonably suspect that you have breached them.
(g) Customer Disputes. You must co-operate with us to promptly resolve all disputes with Customers (including where necessary, taking any action reasonably directed by us) regarding a Customer’s ability to use the Virtual Wardrobe Plugin or with any Product Data in relation to their AirRobe Purchase. For the avoidance of doubt, the Merchant is solely responsible for resolving disputes with Customers in relation to the Goods in accordance with clause 11.3(b). You agree to respond to any correspondence received from AirRobe in relation to Customer disputes promptly and in any case within 2 Business Days. You must also ensure the contact details you provide to AirRobe are up-to-date, complete and accurate.
(h) Compliance with Law. You must comply with all Relevant Laws in fulfilling your obligations under this agreement including in relation to each AirRobe Purchase, and in relation to the Goods. You must assist us to comply with our obligations under any Relevant Laws as reasonably directed by us.
(i) Misleading information. you must not provide us with any information that is false or misleading.
(j) Restricted Goods. You acknowledge that AirRobe may not permit its Services to be offered in relation to all Goods. You must not, without prior written permission from AirRobe, allow the Services to be used, or offer or make any functionality of the Virtual Wardrobe Plugin available, in connection with Restricted Goods or Services. If you are allowing the Virtual Wardrobe Plugin to be used in relation to any goods or services which are Restricted Goods or Services or that AirRobe otherwise considers, in its reasonable discretion, to be dangerous, inappropriate or high risk, AirRobe reserves the right to prohibit the use of the Virtual Wardrobe Plugin in relation to such goods or request removal of such goods from your Website. You agree that we may immediately terminate this agreement if you are unable to or refuse to comply with any request by us.
(k) Installing Updates. We may issue updates or new releases of the Virtual Wardrobe Plugin from time to time, including to address security matters or to ensure ongoing website or platform interoperability. You must promptly install any update or new release of the Virtual Wardrobe Plugin after it is made available to you.
You must not increase the Sale Price or Shipping Costs, or otherwise charge a Customer any other fees, increase the overall cost to the Customer or discriminate against the Customer in any way because the Customer has elected to use the Virtual Wardrobe Plugin. Similarly, you are not permitted to charge a fee (e.g. a restocking fee) to the Customer where you accept a Return for a Refund on the basis that the Customer elected to use the Virtual Wardrobe Plugin.
4.4 Exclusive Supply
During the [Supplying Period ], the Merchant shall not, and shall ensure that any of its Affiliates using the Virtual Wardrobe Plugin shall not, promote, link to or offer its customers the use of any product or service which facilitates the customer to sell, rent or re-purpose its purchases from the Merchant (or Affiliate, as applicable), including any type of virtual wardrobe service, supplied, produced or sold by a party other than AirRobe.
5. Intellectual Property and Data
5.1 IP ownership
Except as expressly provided in this agreement, you acknowledge and agree that nothing in this agreement shall confer to either party or any of its Affiliates any right of ownership in any of the Intellectual Property of the other party.
5.2 AirRobe IP.
(a) Licence. We grant you a non-exclusive, non-transferable, non-sublicensable, revocable licence during the term of this agreement to:
(A) install and use the Virtual Wardrobe Plugin on the Website; and
(B) use the AirRobe Trade Marks and Promotional Material solely in connection with your use of the Services and otherwise in carrying out your obligations under this agreement,
provided that any such installation and use must at all time comply with the terms of this agreement and any use or brand guidelines notified to you by us from time to time.
(b) No modification or third party supply. You must not copy, modify, alter or amend, or use for any purpose other than as expressly provided for in clause 4.5(b)(i), any AirRobe Intellectual Property without our express prior written consent, and must not supply AirRobe Intellectual Property to any third party without our prior written consent.
(c) Restrictions on use of Virtual Wardrobe Plugin. You must not, and must not procure or encourage anyone else to:
(i) disclose the Virtual Wardrobe Plugin to any provider of a similar product or service;
(ii) create a derivative work of the Virtual Wardrobe Plugin or any portion of it;
(iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code or underlying structure or algorithms of the Virtual Wardrobe Plugin, except to the limited extent expressly permitted by law ; or
(iv) use the Virtual Wardrobe Plugin, or the “look and feel” of it to build competitive products or services.
(d) Feedback. If you provide Feedback, you grant us a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback to further develop the Service or create new services. We will exclusively own all Intellectual Property in any technology, developments, derivative works or other materials created by us or on our behalf using or incorporating Feedback, without any obligation to you.
(e) Removal of IP. At our reasonable request at any time, you must change the manner in which the AirRobe Intellectual Property is used or displayed. On termination of this agreement, you must immediately discontinue the use or display of any AirRobe Intellectual Property associated with the discontinued right, and must return any associated: (i) Promotional Materials; or (ii) other content or materials incorporating AirRobe Intellectual Property, to us, unless otherwise agreed in writing by AirRobe.
5.3 Merchant IP.
(a) Use. You permit AirRobe to use the Merchant Brand Materials in:
(i) any public announcements or press releases;
(ii) AirRobe’s marketing materials, including via posts on social media (including but not limited to Facebook, Twitter, LinkedIn and Instagram); and
(iii) directory listings of AirRobe’s merchants. Including its online store directory (Directories).
You warrant that you are the owner of all rights, title and interest in and to your Intellectual Property and you have the right, authority, and legal capacity to grant any rights in your Intellectual Property to us as contemplated by this agreement.
(b) Directories. You agree that we may use one image from your Website in our Directories. You agree to obtain on our behalf any third party consents or licences required to enable us to use such image as contemplated by this agreement, without attribution, and without charge to us. If you notify us that you would like this image removed from our Directories, or would prefer we use a different image, we will do so as soon as reasonably possible.
(c) Social Media. You agree that we may share, re-post and otherwise use any images and other content you include on your social media accounts or pages on our websites, social media accounts, pages, and AirRobe (or AirRobe affiliated) marketing materials, without your consent, and without any payment to you, provided we credit you as the source of such image or content. To the extent that any of your images or content contains third-party content (including third-party logos, brand names and ambassadors) you warrant that you have the relevant licences, consents and approvals from such third parties for us to be able to use such images and content in the manner described in this clause.
5.4 Product Data.
(a) Use. You grant to AirRobe and its Affiliates the perpetual, irrevocable, worldwide, non-exclusive, royalty free right to collect, use, reproduce and display to the public the Product Data relating to an AirRobe Purchase in:
(i) a Customer’s Virtual Wardrobe;
(ii) our Marketplace, including for the purpose of marketing, sale, resale or rental of the AirRobe Purchase;
(iii) any public announcements or press releases;
(iv) AirRobe’s marketing materials, including via posts on social media (including but not limited to Facebook, Twitter, LinkedIn and Instagram); and
The rights to Product Data granted under this clause apply both during and after expiry or termination of this agreement.
(b) Warranty as to use. You warrant that:
(i) you are the owner of all rights, title and interest (including Intellectual Property) in and to the Product Data and you have the right, authority, and legal capacity to grant the rights in the Product Data to us as contemplated by this agreement; or
(ii) to extent that any of the Product Data contains third-party content (including third-party photography, logos, brand names, ambassadors or product information) you warrant that you have the relevant licences, consents and approvals from such third parties to grant the rights in that Product Data to us as contemplated by this agreement.
6. Fees, Billing, Payments and GST
6.1 Fees, Billing and Payments
(a) All payments made under this agreement must be made in Australian dollars.
(b) The Merchant must pay the Subscription Fee to AirRobe each month.
(c) The Subscription Fee for a month must be received by AirRobe on or before the tenth (10th) day of that month.
(d) The Subscription Fee is not refundable unless paid incorrectly, even if this agreement is terminated part way through a month.
(e) AirRobe may set off against any amounts we owe you under this agreement all amounts you owe us under this agreement.
(f) You must not accept payments or ongoing repayments for any Goods on our behalf.
(a) All amounts specified in this agreement are exclusive of GST.
(b) If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other in connection with this agreement, the party receiving the supply must pay to the party making the supply an amount equal to the GST payable in respect of the supply (GST Amount) in addition to the Subscription Fees or other due consideration (if any) required to be paid under any other provision of this agreement.
(c) Notwithstanding any other provision of this agreement, if either party is required to reimburse or indemnify the other party for any costs, expenses or other amounts, the amount to be reimbursed or indemnified must be reduced by any part which is recoverable as an input tax credit by the party which incurred it (or a representative member of that party’s GST group).
(d) Each party must ensure that each invoice it presents to the other party under this agreement in respect of any GST Amount is a valid tax invoice. Notwithstanding any other provision of this agreement, each party’s obligation to pay an invoice presented under this agreement is conditional upon the other party’s compliance with this section.
(e) Terms used in this section (including supply, consideration, representative member, tax invoice and GST group) have the same meaning as defined in the GST Law.
(a) Except as permitted or required by this agreement, each party must not use or disclose any of the other party’s Confidential Information.
(b) Each party may disclose the Confidential Information of the other party:
(i) when required to do so by Relevant Law or any regulatory authority (provided that the first party provides the other party with reasonable prior written notice of such disclosure, if legally permitted, to allow such party adequate opportunity to seek a protective order preventing or limiting the disclosure) or registered stock exchange;
(ii) to a director, officer, employee, agent, contractor, professional adviser, investor or financing source (or potential investor or financing source) of the first party whose duties reasonably require such disclosure, provided such person has agreed to keep the information confidential;
(iii) with respect to your Confidential Information provided in connection with a specific AirRobe Purchase, AirRobe may use such information to service Customer accounts and provide them with their Virtual Wardrobe; and
(iv) when reasonably necessary for the purposes of any legal or arbitral proceedings involving the first party or any of its related bodies corporate.
(d) Each party must take all reasonable steps to ensure that no Confidential Information of the other party is used, directly or indirectly, in any way that is detrimental or adverse to the other party and that each person to whom any Confidential Information of the other party must be or has been disclosed does not use or disclose such Confidential Information except as is consistent with these confidentiality commitments.
(e) Each party must take steps no less rigorous than those which it takes in respect of its own information to prevent any unauthorised use, disclosure or loss of, or unauthorised access or damage to, the Confidential Information of the other party under its possession or control.
(a) If any dispute arises between the parties under this agreement, both parties agree to make a good faith effort to resolve the dispute within thirty (30) days’ written notice of such dispute. No claim, arbitration, litigation, or other proceeding may be commenced (other than for undisputed amounts) before the parties have attempted to resolve the dispute pursuant to this provision, unless immediate injunctive relief is being sought. If the parties are unable to resolve the dispute (including after conducting good faith negotiations), the parties may pursue their respective rights under Relevant Law with respect to the dispute.
(b) We may request additional documentation from you to assist us in resolving any complaints or disputes (including Customer complaints and disputes), and you must provide all reasonable assistance to us to facilitate us in resolving any complaints or disputes (including Customer complaints and disputes).
(a) In addition to our rights in this agreement, we may suspend your access to the Services including your right to use the Virtual Wardrobe Plugin and make it available to customers, by giving you written notice if:
(i) you have breached (including repeatedly), or we reasonably suspect that you have breached, any provision of this agreement;
(ii) it is necessary to protect our systems or the Services against harm, including but not limited to fraud or malicious activity;
(iii) you are subject to an Insolvency Event;
(iv) we reasonably believe that continuing to provide you the Services is in breach of Applicable Laws; or
(v) we reasonably consider your behaviour to be suspicious.
This suspension will remain in place until the reason for the suspension has been remedied.
(b) Without limiting your other obligations under the agreement, while any suspension is on foot, you must promptly comply with all reasonable directions that we give regarding your advertisement and offer of the Virtual Wardrobe Plugin functionality to customers, including your use of AirRobe Intellectual Property.
10.1 Termination for cause
(a) Either party may terminate this agreement immediately (or from such other date as it may nominate) by giving the other party written notice of termination if:
(i) the other party breaches any provision of this agreement, and either: (A) such breach is incapable of remedy; or (B) the other party has failed to remedy such breach within 14 days of the date of a written notice issued to it by the party requiring remedy of the breach;
(ii) the other party engages in any fraudulent activity or conduct;
(iii) the other party is unable to perform its obligations as a result of a Force Majeure event , and such event continues for a period of 30 days; or
(iv) the other party experiences an Insolvency Event.
(b) In addition, we may terminate this agreement by giving you written notice of termination if:
(i) we reasonably believe that you have breached any of your representations and the warranties in clause 4.5(d)(ii) or 10.1 on a repeated basis;
(ii) you are offering for sale or selling Restricted Goods or Services through your Website; or
(iii) AirRobe ceases providing the Services.
10.2 Termination for convenience
Either you or we may terminate this agreement for any reason by giving at least 14 days’ prior written notice to the other party.
10.3 Consequences of termination
(a) Termination of this agreement does not affect any right or obligation which arose under this agreement before such termination and is without prejudice to the parties’ other rights and remedies.
(b) Upon termination of this agreement for any reason all rights and licences granted under this agreement will terminate immediately, except the rights granted to us in relation to Product Data as noted in clause 4.5(d)(i) and any other rights expressly stated in this agreement to continue beyond expiry or termination. You must immediately cease using all AirRobe Intellectual Property on termination of this agreement for any reason, including by removing all references to AirRobe from your Website.
(c) Without limiting the other provisions of this agreement, clauses 4.5(b)(iv), 4.5(b)(v), 4.5(d), 5, 6, 9.3 and 10, of this agreement, and all other terms which by their nature are required to survive termination of this agreement, will survive termination of the agreement.
11. Warranties, Liability and Indemnity
11.1 Your representations and warranties
You make the following representations and warranties to us in relation to each AirRobe Purchase:
(a) the AirRobe Purchase represents a bona fide sale of the Goods by you in the ordinary course of your business, and you have provided us with complete and accurate purchase information with respect to each AirRobe Purchase;
(b) you will not, without prior written permission from AirRobe, allow the Services to be used in relation to a purchase of Restricted Goods or Services;
(c) you have not sought or obtained, and will not seek or obtain, any special arrangement or condition from, nor discriminated in any way against, the Customer with respect to the terms of the AirRobe Purchase;
(d) you will not do anything to prevent any amounts owing to us in connection with an AirRobe Purchase (including in connection with the resale or rental of the AirRobe Purchase) from being valid and enforceable against the relevant Customer.
11.2 Limitation of Liability and Warranty Disclaimer
(a) To the extent not prohibited by law, under no circumstances shall we, our subsidiaries, partners, or Affiliates, be liable to you for personal injury or any indirect, incidental, consequential, special or exemplary damages, loss of profits, loss of revenue, loss of sales or business, loss of agreements or contracts, loss or damage to goodwill, loss of use or corruption of software, data or information arising from or relating to this agreement, the use of or inability to use the Services or the Virtual Wardrobe Plugin, or our or your liabilities to third parties arising from any source.
(b) To the full extent permitted by law, and subject to clause 10.2(e), the aggregate liability of us and our Affiliates and suppliers to you for all claims arising out of or related to this agreement or your use or inability to use the Virtual Wardrobe Plugin will not exceed $5,000. These limitations will apply even if the above stated remedy fails of its essential purpose.
(c) ALL SERVICES PROVIDED BY AIRROBE HEREUNDER AND ALL LICENSES TO AIRROBE TRADEMARKS AND SOFTWARE ARE PROVIDED OR LICENSED, AS APPLICABLE, ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN. AIRROBE AND ITS AFFILIATES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE CONTINUED, UNINTERRUPTED AVAILABILITY OR SUITABILITY OF THE SERVICES GENERALLY OR TO CUSTOMERS IN ANY PARTICULAR GEOGRAPHIC AREA OR SECURE ACCESS TO OUR SERVICES, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(d) Certain legislation, including consumer protection legislation, including the Australia Consumer Law (ACL), imply warranties or conditions into this agreement , or otherwise impose obligations on us, which cannot be excluded, restricted or modified, except to a limited extent (referred to in this agreement as Non-Excludable Rights). For example, the ACL implies non-excludable warranties and states that certain services will be provided with due care and skill, and that the Services and any materials supplied in connection with them will be fit for any specified purpose. This agreement must be read subject to such laws, and nothing in this agreement is intended to restrict the effect of any Non-Excludable Rights, except to the extent that the relevant laws allow.
(e) To the extent permitted by Relevant Laws, AirRobe limits its liability in connection with the Non-Excludable Rights (including its liability for breach of any implied condition or warranty) to, at our option:
(i) in the case of services: (A) the re-supply of the relevant services; or (B) the payment of the cost of having the relevant services supplied again; and
(ii) in the case of goods: (A) the replacement of the goods or the supply of equivalent goods; (B) the repair of the goods; (C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (D) the payment of the cost of having the goods repaired.
(f) To the extent permitted by law, a party’s liability to the other party under or in connection with this agreement is reduced to the extent, if any, to which the other party’s acts or omissions (including as a result of negligence, wilful misconduct or a breach of this agreement) cause or contribute to its own loss or damage.
(g) The parties must take all reasonable steps to mitigate any loss incurred by them under this agreement.
(a) You agree to release, indemnify and hold harmless us, AirRobe Affiliates, and our respective officers, directors, employees and agents from and against all claims, actions, losses, offsets, liabilities, damages, judgments, amounts paid in settlement, costs and expenses (including reasonable legal fees and disbursements and collection fees) resulting from or arising in connection with:
(i) any breach of clause 4.5;
(ii) any transaction, contract, understanding, promise, representation, warranty or other relationship, actual, asserted or alleged, between you and any Customer relating to the AirRobe Purchase or the Goods;
(iii) any Goods (including, without limitation, any product liability or warranty claim relating to those Goods, any claim that the supply of the Goods breaches a statutory guarantee, and any claim by the Customer relating to the quality or sufficiency of the Goods); and
(iv) any false or misleading representation or fraudulent conduct by you or your officers, directors, employees or agents in connection with an AirRobe Purchase or any related Goods, the Services, or any related matter.
(b) This indemnity is a continuing obligation, independent of your other obligations under this agreement and continues after this agreement ends. It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this agreement. However, we will not exercise the right of indemnity under this clause where it relates to a particular Customer’s AirRobe Purchase until after we have raised the relevant issue with you for discussion, and you have had a reasonable time to respond or to remedy the issue with that Customer to our reasonable satisfaction.
(c) To the extent that the indemnity in clause 10.3(a) is in favour of a person other than AirRobe, we contract as trustee of the rights under the indemnity.
(a) Unless otherwise specified in this agreement, any notices to be given hereunder to any other party, including any notice of a change of address, shall be in writing and shall be deemed validly given if sent by electronic mail, as follows:
(i) if to AirRobe: firstname.lastname@example.org (or an email address otherwise notified to you by AirRobe)
(ii) if to you, to the address you provide in the onboarding process.
12.2 Relationship of the parties
AirRobe does not:
(a) enter into a partnership, joint venture, agency or employment relationship with you; or
(b) determine if you are liable for any taxes, or collect or pay any taxes that may arise from your use of our Services.
12.3 Governing Law and Jurisdiction
(a) This agreement is governed by the law in force in Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia.
(b) The arrangements for the sale and purchase of any Goods is a separate consumer contract between you and the relevant Customer and the Customer’s rights and remedies as a consumer in respect of that sale and purchase (including any Return of those Goods) are as between you and the Customer, to the exclusion of AirRobe.
12.4 Entire agreement.
This agreement constitutes and contains the entire agreement between you and us with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. you and we acknowledge and agree that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
12.5 No Waiver.
A failure to exercise or a delay in exercising any right, power or remedy under this agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that wavier unless made in writing.
12.6 Headings Not Controlling.
The headings contained in this agreement are inserted for convenience only and are not intended to affect the meaning or interpretation of this agreement.
If any provision of this agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this agreement.
12.8 Transfers or assignments
(a) You may not transfer or assign any rights you may have under this agreement without our prior written consent, not to be unreasonably withheld.
(b) We may transfer or assign this agreement, and any right under this agreement, to a third party, and we will notify you in advance of such a transfer or assignment.
The following rules apply to the interpretation of this agreement unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(b) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(c) A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
(d) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(e) A reference to a party to this agreement includes that party’s successor and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(f) A reference to “person” includes a natural person, a firm, a body corporate, an unincorporated association, trust, partnership or an authority.
(g) If something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day.
Terms which are capitalised in this agreement have the following meanings:
Affiliate means a related body corporate of a party.
AirRobe Affiliate means an Affiliate or related entity of AirRobe, including one in another jurisdiction.
AirRobe Intellectual Property means all Intellectual Property owned or licensed by AirRobe, including the Virtual Wardrobe Plugin, Brand Management Materials and AirRobe Trade Marks, but excluding any Intellectual Property AirRobe licenses from you.
AirRobe Purchase means a purchase made by a customer of any Goods via your Website for which the customer elects to add the purchase to their Virtual Wardrobe.
AirRobe Trade Marks means all Trade Marks owned or licensed by AirRobe, excluding any Trade Marks you licence to us.
Australian dollars, $ and cents refers to the lawful currency of the Commonwealth of Australia.
Brand Management Materials mean the AirRobe brand, logo, website integration, marketing guidance and Promotional Materials that AirRobe provides to Merchants from time to time.
Business Day means a day other than a Saturday, Sunday or national public holiday in Melbourne, Australia.
Confidential Information means the terms of this agreement, trade secrets or proprietary business information, and any information (of whatever form and nature) disclosed by a party to the other party , but Confidential Information does not include information which: (i) at the time of the first disclosure to a party, was already in the lawful possession of the party; (ii) is in or comes into the public domain otherwise than by disclosure in breach of this agreement; (iii) becomes available to a party legitimately from any other third party source that is legally entitled to that information; or (iv) was independently developed by employees or agents of the receiving party who had no access to any Confidential Information.
Customer means a person who buys Goods from you via your Website and elects to use the Virtual Wardrobe Plugin.
Directories has the meaning given in clause 4.5(c)(i)(C).
Feedback means recommendations, suggestions, comments, enhancement requests or other feedback or any ideas related to the Service.
Force Majeure Event means an event or circumstance which is beyond the control and without the fault or negligence of the party affected, and which by the exercise of reasonable diligence the party affected was unable to prevent.
Goods means the item(s) or service(s) supplied by you to a customer via your Website .
GST means the goods and services tax as defined in the GST Law, or any other like tax imposed in Australia.
GST Amount has the meaning given in clause 5.2.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999, A New Tax System (Goods and Services Administration) Act 1999, A New Tax System (Goods and Services Tax Transition) Act 1999, Taxation Administration Act 1953 and any regulations made pursuant to any of these Acts, or if any one of these Acts does not exist for any reason, any act imposing or relating to a GST and any regulation made pursuant to any such Act.
Insolvency Event means an event where a receiver, administrator, liquidator, other controller or similar official is appointed over any of the assets or undertaking of a party, or where a party suspends payment of its debts generally or becomes insolvent, or where a party enters into any arrangement, composition or compromise with, or assignment for the benefit of its creditors or any class of them; or where a party ceases to carry on business.
Intellectual Property means rights in relation to Trade Marks, domain names, business names, goodwill and reputation, designs, patents, copyright, processes, methods, inventions, product formulations and all other rights or forms of protection having an equivalent or similar nature or effect whether within or outside Australia, whether registered or unregistered and including all rights of action, powers and benefits of the foregoing.
Marketplace means AirRobe’s online marketplace for buying, selling and renting goods, accessible at: https://shop.airrobe.com/ (or such other location as advised by AirRobe from time to time).
Merchant Brand Materials means the Merchant’s brand, logo, details of the Merchant’s website and any promotional materials that the Merchant provides to AirRobe from time to time
Privacy Laws means the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), any registered APP Code and any other laws relating to the handling of personal information.
Product Data means in relation to a Good, all data and meta-data associated with that Good, including photography, and written information including sizing, material, washing instructions and any other information relating to the Good.
Promotional Materials means electronic banners and logos, lightboxes, point of sale materials, and any other marketing, advertising and promotional materials relating to AirRobe and provided by us to you from time to time.
Relevant Law means any law, regulation, code, ordinance, rule or other legislative instrument, or any guideline issued by any regulator or statutory authority or any relevant industry codes including, without limitation, the Competition and Consumer Act 2010 (Cth) and the Privacy Laws.
Restricted Goods or Services means:
(a) gift cards, cash, or cash equivalents;
(b) goods or services that infringe third party Intellectual Property, including (without limitation) counterfeit goods and pirated content;
(c) dangerous goods, being goods that cause damage, harm or injury, including (without limitation), recreational drugs (chemical or herbal), psychoactive substances, equipment to facilitate drug use, weapons, ammunition, explosive materials and fireworks, instructions for making explosives or other harmful products, tobacco products;
(d) adult merchandise, including (without limitation) sex toys, adult magazines and books, sexual enhancement products and pornographic materials and items;
(e) alcoholic beverages;
(f) gambling-related content;
(g) medicines and dietary supplements;
(h) products that enable dishonest behaviour, including hacking software or instructions, fake documents and academic cheating products;
(i) consumer electronics, including mobile phones, computers/laptops, tablets, drones and televisions;
(j) services (including without limitation beauty treatment, tattoo art, “experiences”, ticketing, education, software, health services and other personal services);
(k) without limiting the above, any goods or services which are required by law to be sold to Customers over 18 years of age; and
(l) any other goods or services which AirRobe advises of in writing from time to time.
Sale Price means the purchase price of the Goods supplied by you (including GST).
Services means our provision of services relating to the Virtual Wardrobe Plugin to you for the use of your customers as contemplated by this agreement, including but not limited to access to the Virtual Wardrobe Plugin.
Shipping Costs means any fees, costs or expenses charged by you to a Customer for the delivery of Goods.
Subscription Fee means the fee that has been advised by AirRobe to you during the onboarding process, as varied from time to time in accordance with clause 4.1.
Supplying Period means the period from the commencement of this agreement until expiry or termination of this agreement.
Trade Marks means signs, trade marks, service marks, brand names, rights in get up or trade dress, logos, slogans, stylizations, devices and similar rights, whether registered or unregistered and whether within or outside Australia.
Virtual Wardrobe means a customer account on AirRobe’s online service which stores Product Data from which a Customer can list items to the Marketplace.
Virtual Wardrobe Plugin means the software plugin provided by AirRobe for use by merchant’s on their online store that allows their customers to add purchases made on the online store (and data associated with the purchase) to a Virtual Wardrobe.
Website means any electronic retail sales facility (including any website and mobile or tablet sites or applications) owned and operated by you.