ActivePlace Marketplace Services Terms and Conditions
IMPORTANT! Please read carefully these terms and conditions in their entirety before using the Platform and the Services. These terms and conditions are a legally binding agreement between you (the Customer) and ActivePlace Pty Ltd (ACN 673 528 851) (ActivePlace). Do not use the Platform or the Services if you do not agree to these terms and conditions.
THESE TERMS AND CONDITIONS ARE EFFECTIVE FROM 1st October 2021
1. Services and engagement
ActivePlace provides the following services to the Customer:
- a Platform to facilitate the listing, advertising and sale of Products to Users including the promotion of Advertisements and Customer Content; and
- the relevant benefits that are applicable under the Subscription Service chosen by the Customer,
1.2 Other terms
1.3 No agency
The parties acknowledge and agree that:
- ActivePlace is not acting as an agent for any Customer and does not directly sell Products that are offered on the Platform; and
- any Products supplied to Users by the Customer utilising the Services shall be in accordance with an agreement directly between the Customer and the User.
2. Advertisements and Customer Content
- The Customer must submit any proposed Advertisement or Customer Content to be uploaded on the Platform to ActivePlace for ActivePlace's prior written approval (Customer Submission).
- ActivePlace shall assess the Customer Submission and will advise the Customer of whether it approves the uploading of the Customer Submission on the Platform as soon as practicable after receiving the proposal.
- The parties acknowledge and agree that ActivePlace:
- will have sole control on uploading all Customer Submissions;
- is not required to provide reasons for rejecting the Customer Submission sought to be uploaded on the Platform; and
- reserves the right to remove an Advertisement or item of Customer Content from the Platform if it believes in its discretion that such material is unsuitable or unlawful, or if the Customer breaches any term of this agreement.
- The Customer may choose to purchase extra Promotional Services for any Advertisement or item of Customer Content on the Platform which has been approved by ActivePlace in accordance with clause 4.3.
3.Customer's rights, obligations and warranties
3.1 Customer warranties
The Customer warrants to ActivePlace that:
- all the information it has provided to ActivePlace (including any information provided to ActivePlace in the Customer Application Form) is true, accurate and up-to-date, and that it will notify ActivePlace of any changes that alter this information as it arises;
- any Advertised Products provided to Users will comply with the description as stated in the Advertisement including as to quality and quantity;
- it is registered as a business or company in each State/Territory in which it operates, and it has all rights, licences, approvals and consents required by Laws to provide each of the Advertised Products to the Users;
- it has all necessary rights, licences and consents to Advertise and supply the Advertised Product and grants the rights to ActivePlace under clause 6.1(d); and
- it holds all the accreditations required to Advertise and supply the Advertised Products.
3.2 ActivePlace audit rights
ActivePlace may audit the Customer if it suspects that the Customer has breached its obligations set out in clause 3.1. If the audit conducted by ActivePlace indicates that the Customer has not complied with its obligations under this agreement, the Customer must pay ActivePlaces' costs of the audit and promptly rectify the non-compliance of its obligations set out in clause 3.1.
3.3 Interactions with Users
The Customer is solely responsible for its interactions with Users of the Platform. ActivePlace has no obligation to intervene in or resolve any disputes or issues between Users of the Platform and Customers, including managing any complaints or requests for refund if the Products do not match the description in the Advertisement or under the Supply Contract.
3.4 ActivePlace right to make changes
ActivePlace may change the Platform, the Subscription Packages and these terms and conditions:
- without notice at any time, provided that such changes do not materially and detrimentally impact the rights of the Customer; or
- with at least 60 days' notice if the changes will materially and detrimentally impact the rights of the Customer, provided that the Customer may terminate a Subscription Service by giving ActivePlace at least 30 days' notice of termination (in which case ActivePlace will refund the Customer the remaining Subscription Fee on a pro-rated basis).
3.5 Customer's responsibilities
- The Customer must:
- provide accurate information to ActivePlace;
- update information when its circumstances change;
- only provide information that it has consent to disclose;
- obtain the Required Insurance; and
- comply with all Laws.
- The Customer must not:
- use data mining or similar data gathering tools or attempt to copy any of the data available on the Platform
- send unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services;
- collect or store data about other users of the Platform, except as required to comply with your obligations under a Supply Contract; or
- reverse engineer, decompile or disassemble or otherwise attempt to derive the source code of the Platform or any part thereof
- The Customer must ensure that its Advertisements or items of Customer Content do not:
- mislead or deceive the Users or anyone;
- infringe the rights (including Intellectual Property Rights) of ActivePlace or any third party;
- amount to discriminatory, obscene, offensive, inflammatory, abusive or is invasive of another person’s privacy;
- impersonate, or otherwise misrepresent your identity or affiliation with any other person or entity;
- interfere with or disrupt the operation of the Platform;
- defame, abuse or harass any individual; and
- violate any Laws
4. Payment and Subscription
4.1 Subscription Packages
- The Customer must subscribe to one of the Subscription Packages offered by ActivePlace, each of which vary in price and functionality (Subscription Package) (see https://activeplace.com/businesses/plans-pricing for further information on the different Subscription Packages and the corresponding benefits):
- Warm Up Plan (Free Plan)
- Starter Plan
- Growth Plan
- Accelerate Plan
- All Subscription Packages (apart from the Free Package) run for 12 months from the date payment. (Annual Subscription Term). At the end of each Annual Subscription Term, the Subscription will rollover for another 12-month period unless the Customer elects not to subscribe for a further Annual Subscription Term. ActivePlace will remind the Customer at least 30 days before the expiry of a current Annual Subscription Term that the Annual Subscription Term is set to renew, at which time the Customer may elect not to renew the Annual Subscription Term by notifying ActivePlace in the manner prescribed by ActivePlace in its reminder notice.
- Subject to sub-clause 4.1(d), the Subscription Fee for the Subscription Package selected by the Customer will be payable on the first day immediately following the end of the Free Trial Period (First Payment Date) and thereafter on each anniversary of the First Payment Date for Subscription Packages that are renewed by the Customer. The Customer must pay the Subscription Fee via a third-party Payment Processor arranged by ActivePlace (Payment Processor). The Payment Processor used by ActivePlace as at the date of these terms and conditions is Swipe.
- The Customer may, within 7 days before any expiry of the Free Trial Period, cancel the Subscription Package they have chosen, without incurring any charges or fees for cancellation.
- The Customer may upgrade their Subscription Package at any time by contacting ActivePlace https://activeplace.com/contact, or automatically within My Subscription business console. The Customer will be charged the new Subscription Fee applicable to that Subscription Package from the date that it becomes active (which date shall be read as if it were the First Payment Date for the purposes of these terms and conditions).
4.2 Subscription Fees and Auto-Renewal
- The Customer acknowledges and agrees that:
- the Subscription Fee will be charged to the Payment Instrument on the Commencement Date, unless the Subscription Package is cancelled under clause 4.1(d) or upgraded under clause 4.1(e); and
- the Customer is responsible for updating the Customer's Payment Instrument if it expires or becomes invalid.
- If for any reason the Subscription Fee cannot be charged on the First Payment Date, ActivePlace reserves the right to collect any payments owing by charging any such amount to the Payment Instrument provided.
4.3 Promotional Advertising Payment
- In addition to the Subscription Package, the Customer may purchase Promotional Services for any Advertisement listed on the Platform. See https://activeplace.com/businesses/plans-pricing for the full list of Promotional Services that are available.
4.4 Goods and Services Tax (GST)
- Words or expressions used in this clause that are defined in A New Tax System (Goods and Services Tax) Act 1999 (GST Act) have the same meaning given to them in that Act.
- Unless otherwise stated, any amount specified in this agreement as the consideration payable for any taxable supply excludes any GST payable in respect of that supply.
- If a party makes a taxable supply under this agreement (Supplier), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.
- Notwithstanding the foregoing, the Recipient is not obliged under this agreement to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply.
- If an adjustment event arises in relation to a taxable supply made by a Supplier under this agreement, the amount paid or payable by the Recipient pursuant to clause 4.4(c) will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
- If a third party makes a taxable supply and this agreement requires a party to this agreement (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
- This clause does not merge on completion and will continue to apply after expiration or termination of this agreement.
4.5 All taxes and duties in connection with this agreement, and any transactions contemplated by this agreement, are the responsibility of the User. The Customer is responsible for providing a GST compliant tax invoice to the User. ActivePlace will provide the Customer with a GST compliant tax invoice for amounts due and payable to ActivePlace by the Customer under this agreement (and the Customer consents to ActivePlace providing such tax invoices via email to the email address specified in the Customer's account).
4.6 Unless otherwise stated, all fees and taxes are stated in Australian Dollars.
5. Privacy, Confidentiality and Security
5.1 If the Customer is a natural person:
- the Customer acknowledges that ActivePlace collects Personal Information relating to the Customer. ActivePlace collects, uses and discloses this Personal Information for the purposes of providing the Services to the Customer, to facilitate the sale of Products from Customers to Users, and as required for ActivePlace to operate the Platform and otherwise perform its obligations and exercise its rights under this agreement, and for any other purposes that are permitted, authorised or required by law (approved purposes).
- the Customer consents to:
- ActivePlace collecting and using the Personal Information the Customer provides for the approved purposes, and to disclosing such Personal Information to any third party suppliers and/or contractors that assist ActivePlace to provide the Services or operate the Platform, for the approved purposes;
- Personal Information you provide being published on and accessible via the Platform by other Users;
- being contacted by ActivePlace, Users of the Platform, third party suppliers and/or contractors (including by commercial electronic messaging) in connection with the approved purposes.
5.2 If the Customer provides or permits any Personal Information to be used in connection with the Services or otherwise provide Personal Information to ActivePlace or any other person in connection with the use of the Platform, ActivePlace may use that Personal Information on terms equivalent to clause 5.1 and the Customer warrants that:
- it has all necessary rights and consents as required by law (including the Privacy Act and Spam Act 2003 (Cth)) to do so provide or permit use of that Personal Information; and
- the use of that Personal Information as required in order to allow ActivePlace and Users of the Platform to have the benefit of and use the Platform, for ActivePlace to undertake the approved purposes and for communications to be sent in accordance with clause 5.1(b)(ii), will not breach any law (including the Privacy Act and Spam Act 2003 (Cth)).
5.3 Where ActivePlace provides the Customer with access to any Personal Information (including via the Platform), the Customer must:
- only use the Personal Information for the purpose of utilising the Platform in accordance with any directions given by ActivePlace regarding the use of the Personal Information; and
- comply with all Laws (including the Privacy Act and Spam Act 2003 (Cth)) regarding your collection, use and disclosure of such Personal Information.
5.4 Without limiting clause 5.3, the Customer must not use any Personal Information that the Customer obtains through the use of the Platform (including any User contact information) to send marketing materials to that individual unless the Customer has obtained all necessary consents and complied with all requirements of applicable Laws (including the Privacy Act and Spam Act 2003 (Cth)). The Customer is solely responsible for obtaining any such consents and complying with any such requirements. ActivePlace provides no warranty, and disclaims any responsibility for ensuring, that User contact information and any other Personal Information made available to the Customer in connection with the Customer's use of the Platform can be used by the Customer or any other party to send marketing materials.
5.5 ActivePlace may disclose the Customer's information (but not Personal Information) to third party service providers that provide reporting and data analytical capabilities. ActivePlace may also collect diagnostic, technical, usage and related information regarding the use of the Platform by the Customer and the Customer consents to ActivePlace using such information to monitor its compliance with the agreement and (in non-identifiable form) for the business purposes of ActivePlace.
5.6 In certain circumstances, ActivePlace or its service providers may provide Customers with reports, statistics or analysis containing aggregated information on the Users of the Platform and their engagement with the Platform (Data Analytics). Data Analytics will not personally identify any Users. The Customer must keep all Data Analytics strictly confidential, and must not allow the data to be manipulated or combined with any other data in such a way that individual Users can be re-identified. Customers must notify ActivePlace immediately if they become aware of a risk that individual Users can be re-identified.
6. Intellectual Property Rights
- The Customer acknowledges that ActivePlace is the owner or a licensee of the Intellectual Property Rights in the Platform and all content, information and data contained in or accessible via the Platform and any other materials provided by or on behalf of ActivePlace in connection with this agreement (Content). The Content expressly excludes any Advertisement. The Customer may access and use the Content to the extent required to enable it to use and have the benefit of the Platform and Services and for no other purpose.
- Except as expressly set out in this agreement, no other rights or licences in or to the Platform or Content are granted to the Customer and all such rights are expressly reserved by ActivePlace. Except as expressly permitted in this agreement, the Customer must not reproduce, modify or prepare derivative works, distribute, sell, transfer, publish, transmit, or otherwise use the Platform or Content. The Customer must not copy or modify the HTML or other code used to generate web pages on the Platform.
- ActivePlace acknowledges that all of Advertisements provided to ActivePlace, and all Intellectual Property Rights therein, are owned by or licensed to the Customer and are not assigned or transferred to ActivePlace under this agreement.
- The Customer grants ActivePlace a non-exclusive, non-transferable, royalty free, perpetual licence to use, copy, modify and reproduce the Advertisement provided to ActivePlace, as required in order for ActivePlace to provide the Services and to otherwise perform its obligations and exercise its rights under this agreement.
- ActivePlace may include the name and logo of the Customer in lists of its customers (including on the Platform), subject to any of the Customer's directions regarding the form and layout of any Customer trade marks.
- ActivePlace is able to utilise any information or data collected, created or disclosed to ActivePlace (including Advertisements) in connection with this agreement that is in an aggregated, non-identifiable form for any purpose.
7.1 If the Customer breaches any of the terms and conditions, or the Website Terms and Conditions, and the breach is capable of being remedied, the Customer must rectify any such breach within 5 days after receiving notice from ActivePlace.
7.2 ActivePlace may immediately terminate this agreement on written notice to the Customer if:
- the Customer fails to rectify a breach of these terms and conditions or the Website Terms and Conditions within the prescribed period as set out in clause 7.1;
- the Customer fails to rectify a breach of these terms and conditions or the Website Terms and Conditions, and the breach is not capable of being remedied.
- it has the right to do so under an express term of these terms and conditions;
- the Customer becomes bankrupt, insolvent or enters into liquidation or receivership, makes a composition or arrangement with its creditors generally or takes advantage of any statutory relief for insolvent debtors, or is otherwise unable to pay its debts as and when they fall due and payable; or
- the Customer or any of the Customer's owners, officers or employees are convicted of any offence involving fraud or dishonesty or an offence punishable by imprisonment.
7.3 In addition to the right contained in clause 7.2 , ActivePlace may terminate this agreement without cause at its sole discretion at any time on thirty (30) days' written notice to the Customer.
7.4 The Customer may terminate this agreement on written notice to ActivePlace if ActivePlace is in breach of these terms and conditions and fails to rectify the breach within 10 days after receiving notice of such breach from the Customer.
7.5 Where this agreement is terminated in accordance with clauses 7.3 or 7.4, ActivePlace must refund to the Customer the portion of the Subscription Fee paid by the Customer for the remaining period of the Annual Subscription Term on a pro-rated basis. Subject to any Non-Excludable Rights, ActivePlace shall have no further liability to the Customer in connection with the exercise of its rights under this clause.
7.6 On termination of this agreement, the Customer must return or destroy (at the option of ActivePlace) any ActivePlace confidential information in its possession or control and cease using or accessing the Platform (including any Content).
8. Limited Warranties
8.1 All express terms, conditions, guarantees and warranties which might apply to or arise out of this agreement are excluded other than:
- (a) those expressly specified in this agreement; and
- (b) terms, conditions, guarantees and warranties which cannot lawfully be excluded or modified by agreement including those under the Australian Consumer Law.
8.2 The Customer may have statutory rights and warranties under applicable Laws, including consumer guarantees under the Australian Consumer Law, which cannot lawfully be excluded and nothing in this agreement has the effect of excluding, restricting or modifying such statutory rights, warranties or consumer guarantees. To the extent that ActivePlace is able to limit the remedies available to the Customer for breach of any term, condition, guarantee or warranty (including under the Australian Consumer Law) that cannot lawfully be excluded (Non-excludable Right), ActivePlace limits its liability for any breach of a Non-excludable Right (at ActivePlace's option acting reasonably) to:
- in the case of goods, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods;
- the repair of goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- in the case of services:
- supplying of the services again; or
- the payment of the cost of having the services supplied again.
8.3 The Customer acknowledges that it has not relied on any statement, representation, warranty, conduct or undertaking made or given by ActivePlace, other than those set out in clause 8.1.
8.4 Subject to clauses 8.1 and 8.2, ActivePlace provides no warranty or guarantee and makes no representation that the Platform or Services:
- will be uninterrupted, error free or available at all times;
- will contain accurate, up to date or complete information;
- will be compatible with the Customer's hardware, software and other systems;
- will not impact the performance of other services, hardware, software and systems and those of third parties;
- will be secure from unauthorised access; and
- will not contain any viruses or disruptive code.
8.5 The Customer is responsible for all back-up of files and Customer content on the Platform.
9. Liability and Indemnity
9.1 Subject to clauses 8.1 and 8.2:
- ActivePlace is not liable to the Customer for:
- Consequential Loss;
- any loss, damage, liability or expense (including for the avoidance of doubt, Consequential Loss) that is suffered or incurred by the Customer in connection with:
- transactions between Users and Customers;
- the acts or omissions of any other Users of the Platform;
- the Products (including any failure or delay in delivery of the Products or Products which do not conform with their description); or
- any Advertisement,
whether arising under contract, statute, in tort or otherwise; and
- (b) the maximum cumulative liability of ActivePlace for all loss, damage, liability and expense suffered or incurred by the Customer under or in connection with this agreement, whether arising under contract, statute, in tort (including negligence) or otherwise, is limited to the amount of the fees received by ActivePlace.
9.2 The Customer indemnifies ActivePlace, its related bodies corporate, any of their officers, directors, employees and agents (those indemnified) from and against any liability, loss, damage or expense (including legal fees) suffered or incurred by those indemnified arising from:
- the Customer's breach of this agreement (including any warranty), any wilful or negligent act or omission by the Customer or any breach of Laws by the Customer in connection with the agreement or any Supply Contract;
- any allegation or claim against those indemnified in relation any person’s rights (including privacy rights or Intellectual Property Rights) in connection with the Advertisement; or
- any allegation or claim against those indemnified caused by any breach by the Customer of any Supply Contract, including any failure to deliver the Product, any delay in providing the Product, or a defective Product which do not conform with their description,
except to the extent that the Customer has caused the liability, loss, damage or expense.
- Clauses 5, 6, 9 and this clause 10 survive the termination or expiry of this agreement.
- The address for notices to ActivePlace is email@example.com. The address for notices to the Customer is initially the email address and address given at the time of registering for the Platform. Any notice, demand or other communication to be given or required to be made pursuant to this agreement is to be in writing and is to be given by post, email or hand delivery to a party at the party's address for notices, as may be changed by written notice to the other party.
- ActivePlace may assign its rights and obligations under this agreement at any time upon written notice to the Customer. The Customer must not assign or novate its rights or obligations under this agreement without our prior written consent.
- The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because the party was responsible for the preparation of this agreement or part of it.
- Each party agrees to do all things that may be necessary or desirable to give full effect to every part of this agreement if asked in writing by another party to do so.
- In the event that any provision of this agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this agreement will remain in full force and effect.
- The failure of ActivePlace to enforce any right or provision of this agreement will not be deemed a waiver of such right or provision.
- This agreement and any action related thereto will be governed by the laws of the State of Victoria. The exclusive jurisdiction and venue of any action with respect to the subject matter of this agreement will be the courts of the State of Victoria.
- This agreement is the entire agreement (as amended from time to time) between ActivePlace and the Customer regarding the subject matter of it, and this agreement supersedes and replaces any prior agreements between ActivePlace and the Customer in relation to that subject matter.
- Neither party is liable for any delay or failure to perform its obligations (other than an obligation to pay fees due and payable under this agreement) if caused by a force majeure. In this clause, force majeure means any event beyond the reasonable control of a party, including whether or not similar to the following events, telecommunications failure, equipment failure or any failure by subcontractors to provide services.
- A reference in this agreement to the word 'include' or 'including' is to be interpreted without limitation.
11. Definitions and Interpretation Clauses
In these terms and conditions, unless the subject or the context otherwise requires:
means the difference in price between the Customer's current Subscription Package and the upgraded Subscription Package that the Customer has requested.
means any information that is submitted by the Customer to ActivePlace which is accepted by ActivePlace to be uploaded on the Platform for the supply of Products and "Advertised" has a corresponding meaning.
Annual Subscription Term
has the meaning set out in clause 4.1(b)
Australian Consumer Law
means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of state and territory fair trading legislation.
means the date that ActivePlace begins providing Services to the Customer (either on the first day of a Subscription Package or the first day of the Free Trial Period), including any Annual Subscription Term which has been automatically renewed in accordance with clause 4.2.
means a loss of opportunity, profit, use, anticipated profit, business opportunity, revenue or any failure to realise anticipated savings but expressly excludes:
- any liability that results from a breach of the Law; and
- any cost in connection with the rectification of any defects or loss caused by the Product.
is defined in clause 6(a).
means the person or entity bound by these terms and conditions.
Customer Application Form
means any business account created on ActivePlace.
means any article, blog, update or any other content created by the Customer and approved by ActivePlace for use on the Platform.
has the meaning set out in clause 2(a).
First Payment Date
has the meaning set out in clause 4.1(c).
Free Trial Period
has the meaning set out in clause 4.1(b).
means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or any stock exchange.
Intellectual Property Rights
means all present and future intellectual and industrial property rights conferred by statute, at civil, common law or in equity and wherever existing, including patents, designs, copyright, rights and circuit layouts, database rights, trade marks, know-how, domain names, brand names, inventions, product names, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration and including any application or right to apply for registration and any renewal or extension of rights.
- legislation, ordinances, regulations, by-laws, orders, awards, proclamations, directions and practice notes of the Commonwealth, a State or Territory or any Government Agency;
- certificates, licences, consents, permits, approvals, qualifications, registrations, standards and requirements of organisations having jurisdiction in connection with the Advertisement; and
- all other laws from which legal rights and obligations may arise, not limited to the legislation of the United Kingdom.
has the meaning set out in clause 8.2.
means the total fees for the Product that is Advertised which the User is required to pay (including all transaction fees).
means details of an approved credit or debit instrument provided to ActivePlace by the Customer for payment of the Subscription Package.
has the meaning set out in clause 4.1(c).
means the supply of goods and / or services by the Customer that are set out in the Customer's Advertisement.
has the meaning set out in section 6(1) of the Privacy Act.
means the ActivePlace online marketplace available at www.activeplace.com and through the ActivePlace App.
means the Privacy Act 1988 (Cth), as amended or replaced from time to time and including all regulations and statutory instruments made under that Act.
means requirements by law and duty as a business owner
has the meaning given in clause 1.1.
means the cost of the Subscription Package chosen by the Customer that is payable to ActivePlace for the provision of Services.
has the meaning set out in clause 4.1(a).
means a separate and binding contract between the User and the Customer when a User agrees to purchase a Product that is Advertised on the Platform.
means the end users of the ActivePlace Platform not limited to subscribers and members of ActivePlace.
Website Terms and Conditions
means the terms and conditions that govern the use of the ActivePlace website as set out in clause 1.2.