ZWECKS CUSTOMER TERMS OF SERVICE
Last updated: 13 Oct, 2021
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Welcome to Zwecks! Your access and use of the Zwecks website located at www.Zwecks.com (the “Site”) and features, products and services provided by Zwecks, Inc. (“Zwecks”, “we”, “us” or “our”) through the Site (individually and collectively, the “Service”) are subject to the terms and conditions in these Terms of Service (these “Terms”). These Terms constitute a legal agreement between you and Zwecks and are sometimes referred to herein as the “Agreement”.
The Service provides individuals or businesses seeking to obtain technical support services (“Customer”) with a platform where they can engage an individual seeking to provide the selected technical support service (“Tech”). A Customer will use the Service in order to select the desired services and set up a time tor the Tech to perform these on-demand technical support services (a “Booking”). Customers and any other users of the Service are collectively referred to herein as “Users”. The Services and the Site are collectively referred to as the “Platform”.
By agreeing to these Terms, including by a click-through or other agreement, or by using any aspect of the Platform, you expressly acknowledge that (a) you have read these Terms and agree to all of their terms and conditions, (b) you are 18 years of age or older, (c) you have the right, authority and capacity to enter into this Agreement, and (d) if you are entering into this Agreement on behalf of an entity, you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You further agree to receive all communications, agreements and notices that we provide in connection with the Platform electronically, including by e-mail, SMS text message, or by posting them on the Site or otherwise making them available through the Platform. You agree that all communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You must agree to these Terms in order to use the Platform, and if you do not accept these Terms then you may not use any aspect of the Platform.
These Terms contain important language governing your use of the Platform. They address, among other things, information about how we provide the Platform, how we or you may terminate the Services and/or access to the Platform, the requirements imposed on you when managing your User account (an “Account”) and how we handle disputes (which includes a class action waiver and binding arbitration in most cases).
Zwecks may update these Terms at any time in its sole discretion, and Zwecks will post the updated version of these Terms on the Site. You understand and agree that you will be deemed to have accepted the updated Terms if you use any aspect of the Platform after the updated Terms are posted. If at any point you do not agree to any portion of these Terms, you must immediately stop using the Platform. Disputes arising under these Terms will be resolved in accordance with the version of these Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
2. Provision of the Platform
You are responsible for any Internet connection, data usage and telecommunications fees and charges that you incur when accessing the Platform. You acknowledge and agree that Zwecks may make changes to any aspect of the Platform at any time without notifying you in advance.
3. Termination of the Platform
Zwecks reserves the right to deny use of the Platform to any person or entity at Zwecks’ sole and absolute discretion. You acknowledge and agree that Zwecks may stop providing any aspect of the Platform or restrict your use of the Platform at any time, without notifying you in advance, for any reason or no reason. If Zwecks disables your access to your Account, you may be prevented from accessing the Platform, your Account details or any materials contained in your Account.
4. User Accounts and Security
4.1. User Account. To access certain aspects of the Platform, you must have an Account. You can create an Account by completing the registration process on the Site.
You may be required to provide information about yourself as part of the registration process or your continued use of the Platform. You agree that any registration information that you submit to Zwecks will be correct, accurate and up-to-date. You shall not select or use as a username a name (a) of another person with the intent to impersonate that person; (b) subject to any rights of a person other than you with appropriate authorization; or (c) that is otherwise offensive, vulgar or obscene.
4.2. User Account Security. Maintaining your Account security is very important. You are solely responsible for maintaining the confidentiality of your Account password and for all activities that are conducted via your Account. You agree to notify Zwecks immediately if you become aware of any unauthorised use of your password or of your Account.
4.3. User Account Sharing or Transfers. Accounts are registered to you personally and may not be transferred at any time under any circumstances. You should not share your Account with, or disclose your password to, anyone else.
4.4. Deactivation by You. You have the right to deactivate your account at any time. You may deactivate your account by emailing us at email@example.com, or by calling us at 02.8379.8072. We may maintain a record of account and order history for deactivated accounts.
4.5. Termination by Zwecks. Zwecks may terminate your Account at any time for any reason or no reason, including if: (a) Zwecks determines that you are (i) in breach of or otherwise acting inconsistently with these Terms or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to Zwecks; (b) Zwecks determines it is required by law to terminate your Account; or (c) Zwecks decides to stop providing the Platform or critical portions of the Platform. When terminating your Account, Zwecks may delete the Account and all the information in it. You have no ownership rights to your Account.
4.6. Effect of User Account Deactivation. If you voluntarily deactivate your Account, you may reactivate that Account at any time by contacting us via email at firstname.lastname@example.org, or by telephone at 02.8379.8072. Accounts terminated by Zwecks for any type of abuse including, without limitation, a violation of these Terms, may not be reactivated for any reason without the consent of Zwecks, which may be withheld in Zwecks’ sole and absolute discretion.
5. Cancellation and Rescheduling
Our cancellation and rescheduling policies are posted at https://www.zwecks.org and may be updated from time to time without notice.
6. Pricing and Payments
6.1. Fees and Payments. All prices, fees and other amounts for the Platform are set forth on the Site (the “Fees”). All amounts shall be expressed and paid in Australian Dollars. All Fees are subject to change at any time without notice; no Fee is confirmed until the checkout process is complete. The Fees may include a platform fee, in which case such platform fee will be indicated as a line item at checkout. Except as otherwise expressly set forth herein or as expressly approved by Zwecks in writing in its sole discretion, all payments made are final and non-refundable and a User shall not have the right to cancel its purchase for any reason. If you use PayPal or any other payment or financial mechanism (“Payment Provider”), the applicable Payment Provider agreement governs your use of such Payment Provider, and you should refer to that agreement, and not these Terms, to determine your rights and liabilities with respect thereto. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. All information that you provide to us or our third-party payment processors must be accurate, current and complete. You will also be responsible for paying any applicable taxes relating to payments that you make. Zwecks shall have no liability or responsibility to you or any other third party in connection with the accuracy of the Payment Provider information provided by you or your use of any Payment Provider (including any fees charged by such Payment Provider in connection with such use).
6.2. Payment Processing. When you make a Booking, we will place a hold on the credit card that you provide to us at the time of Booking, such hold in the amount of the anticipated charge for the applicable Booking. Upon your marking the Booking as complete via the mobile app for Techs or other method facilitated by Zwecks such credit card will be charged if payment was not made via other means on the Platform. You may change the payment method at any time prior to job completion by emailing us at at email@example.com, or by calling us at 02.8379.8072. Fees for cancellations and rescheduled Bookings, in accordance with the cancellation and rescheduling policies referred to in Section 5, will be charged to the credit card provided at the time of Booking.
6.3. Failed Transactions. In the event that Zwecks is unable to successfully charge any linked payment instrument, Zwecks will notify you via email and/or within the “My Account” page, and you will be unable to initiate further orders or transactions with your Account. Upon Zwecks’ notification to you of such failure, you agree to link a new, valid payment instrument as soon as possible but in any event within three (3) business days. Your Zwecks Account may be disabled until a valid payment instrument is provided and the outstanding uncharged balance is resolved by Zwecks. Zwecks is not responsible for any charges imposed by the issuer of your payment instrument as a result of any failed charge by Zwecks. To the extent that Zwecks is unable to successfully charge any payment instrument linked to your Account as payment for authorised transactions for more than thirty (30) days, you understand and agree that Zwecks may employ a collection agency or other business in an effort to collect any outstanding debts and fees associated with your User Account, and you will not contest the use of a third party to collect the debt and fees owed to Zwecks. You agree that you will be responsible for any legal, court, arbitration or collection agency fees associated with rectifying your account and all monies owed thereunder. You agree that Zwecks, or any agency or business employed by Zwecks, has the right to contact you and your heirs via telephone, email or in-person using the information you provided upon registration or during any contact with Zwecks, in an effort to collect any monies and fees owed under your account, whether specifically referenced in these Terms or not, and such contact may be made in a manual or automated fashion.
6.4. Subscription Plans.
(a) Annual Subscription Plans. We offer Users the opportunity to enrol in a subscription plan (a “Subscription Plan”). All Subscriptions Plans are annual commitments and are billed on either an annual or monthly basis. For clarity, Subscription Plans that are billed on a monthly basis are annual commitments.
(b) Fees. If you purchase a Subscription Plan, you will be charged the subscription fee, plus any applicable taxes, plus set-up fee (if applicable) and other charges (“Subscription Fee”), at the beginning of your Subscription Plan and monthly or annually, as specified when you purchase such Subscription Plan thereafter. Subscription Plans and Subscription Fees are described in more detail at https://www.zwecks.com/plans, and may be updated from time to time without notice (except that the monthly fee for any “Annual Plan, Pay Monthly” (if such option is selected at checkout) will remain locked in for the first year of such Subscription Plan).
(c) Subscription Initiation. Subscription Plans become active as soon as your initial payment is processed. If you select the “Annual Plan, Pay Annually” option, the entire applicable annual Subscription Fee plus applicable taxes will be charged at the initial payment. If you select the “Annual Plan, Pay Monthly” option, the applicable first month’s Subscription Fee plus set-up fee and applicable taxes will be charged at the initial payment, and thereafter the monthly Subscription Fee plus applicable taxes will be charged each month for the duration of the applicable year for that annual Subscription Plan.
(d) Trial Subscriptions. If you enrol in a free trial subscription, the free trial subscription will automatically convert into a paid subscription at the end of the trial period (which trial period will be indicated at the time of the enrolment in such trial period). Unless otherwise indicated, free trial subscriptions will automatically convert into Zwecks’ Online Support Annual Plan, Pay Monthly. You may cancel the automatic conversion into a paid subscription from “My Account” or by contacting Zwecks support at firstname.lastname@example.org at any time on or prior to the last business day before the auto-conversion is scheduled to take effect.
(e) Renewal. Your Subscription Plan will renew automatically at the end of the applicable subscription period (i.e., at the end of the one-year period) until you turn off auto-renewal. Renewal rates are subject to change, but you will be notified of any change in your rate and be provided with the option to cancel in accordance with these Terms. Plan auto-renewal may be disabled at any time (but must be done on or prior to the last business day before the auto-renewal is scheduled to take effect in order to avoid being charged for such renewed term), however the plan will remain active for the remainder of the annual plan period and you will be responsible for the applicable charges for the remaining months of the annual plan. You may turn off the auto-renewal option from “My Account” or by contacting Zwecks support at email@example.com. If you elect not to renew, your right to use the Platforms under the Subscription Plan will continue until the end of your then current subscription period and will then terminate without further charges.
(f) Cancellation. You may cancel your Subscription Plan only within the first 30 days of the Subscription Plan’s annual term. If you choose to cancel your Subscription, you will receive a refund of the Subscription Fees less any savings or discounts that you have received. You may cancel your Subscription Plan within the first 30 days by contacting Zwecks support at firstname.lastname@example.org or calling 02.8379.8072.
(g) Deactivation. Payment failures will result in immediate deactivation of the applicable Subscription Plan(s). Zwecks Services will not be available to Users with a deactivated plan due to payment failure. Any outstanding payments will need to be made in order to reactivate the applicable Subscription Plan and bring your account current.
6.5. Gift Cards. Zwecks may offer gift cards for purchase ("Gift Cards"). Gift Cards are redeemable only as payment for a Booking or a Subscription Plan. Gift Cards have no cash value and are not redeemable for cash unless otherwise required by law. Gift Cards must be presented (or the applicable identification number entered) at the time of payment and any available balance will be applied to your purchase. Gift Cards do not expire and there are no inactivity, dormancy or service fees associated with Gift Cards. You agree that you will comply with all Gift Card terms and conditions. Gift Cards are not replaceable if lost or stolen. Gift Cards cannot be used for previous purchases, credits, or the purchase of Gift Cards, and cannot be used to make a payment towards third party items the balance on a credit card. We reserve the right to limit quantities of Gift Cards purchased by any person or entity and to cancel a Gift Card if we believe that the Gift Card was obtained through fraudulent or unauthorised means. No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Card. Unused Gift Card balances are not transferable, and you may not sell a Gift Card or otherwise barter for its exchange although you may give a Gift Card to someone else as a gift. A Gift Card is void if copied, altered, transferred, purchased or sold. Purchases of Gift Cards are final and not refundable. We reserve the right to correct the balance of a Gift Card if we believe that a billing error has occurred, and we disclaim all liability for any such billing errors. Gift Cards and their use are subject to these Terms and use of a Gift Card constitutes acceptance thereof. Applicable terms and conditions are subject to change without notice. If the laws pertaining to a Gift Card require additional or different terms and conditions, then such terms and conditions shall apply. For questions or additional information, contact us at email@example.com. In the event you do not use your Gift Card for a certain period of time, we may be required to turn over the remaining Gift Card balance to a state under such state's unclaimed or abandoned property law. Although your Gift Card does not expire, if we are obligated to turn over the remaining balance of your Gift Card under a state's unclaimed property law, by operation of law we will be released from any further liability or obligation with respect to your Gift Card and you may be required to contact the state's unclaimed property administrator to attempt to recover your unused Gift Card balance. To protect your right to continue to use your remaining Gift Card balance, we will make reasonable efforts to exempt your Gift Card from state unclaimed property laws.
7. Restrictions and Conditions of Use
7.1. Use Restrictions. Zwecks permits you to view and use the Platform solely for your own personal or limited commercial use, as applicable, in either case not inconsistent with the intended purpose of the Platform. Furthermore, you agree that you will not:
(a) cause, permit or authorise the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Platform;
(b) sell, assign, rent, lease, act as a service bureau, or grant rights in the Platform, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Zwecks;
(c) make any false, misleading or deceptive statement or representation regarding Zwecks or the Platform;
(d) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Platform (or any servers, systems or networks connected to the Platform) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Platform or any other person’s or entity’s use of the Platform (or any servers, systems or networks connected to the Platform);
(e) attempt to gain unauthorised access to the Platform, accounts registered to other Users, or any servers, systems or networks connected to the Platform;
(f) use the Platform for any commercial purpose unless consistent with these Terms and the intended use of the Platform;
(g) use the Platform to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful;
(h) use the Platform to upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorised advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation or commercial electronic message;
(i) breach any agreements you enter into with any third parties;
(j) use the Platform for any unlawful, prohibited, abnormal or unusual activity as determined by Zwecks in its sole discretion;
(k) use the Platform to engage in any activity that (i) constitutes harassment or a violation of privacy or threatens other people or groups of people; (ii) is harmful to children in any manner; (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (iv) violates any applicable law, ordinance, rule, regulation, treaty or self-regulatory guidelines;
(l) improperly obtain or attempt to improperly obtain any information or data from the Platform including, without limitation, email addresses or mobile phone numbers of other Users;
(m) intercept, examine or otherwise observe any proprietary communications protocol used by the Platform, whether through the use of a network analyser, packet sniffer or other device; or
(n) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorised access to, or distort, delete, damage or disassemble, any aspect of the Platform.
8.1. Links from the Platform. The Platform may contain links to websites operated by independent third parties. Zwecks provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of Zwecks and Zwecks is not responsible for the content available on the other websites or services. Such links do not imply Zwecks’ endorsement of information or material on any other website and Zwecks disclaims all liability with regard to your access to and use of such linked websites. You understand and acknowledge that your access and use of linked websites and the services provided through these websites is governed by the terms of service and other agreements posted on such websites.
8.2. Links to the Platform. Unless otherwise set forth in a written agreement between you and Zwecks, you must adhere to Zwecks’ linking policy as follows: (a) the appearance, position and other aspects of any link to the App or the Site may not be such as to damage or dilute the goodwill associated with Zwecks’ or its licensors’ names and trademarks; (b) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Zwecks; and (c) when selected by a User, the link to the Site must display the Site on full-screen and not within a “frame” on the linking website. Zwecks reserves the right to revoke its consent to the link at any time and in its sole discretion (including any link on any social media networking platform). Furthermore, Zwecks reserves the right to revoke or modify any link (including any vanity link) to the Platform or otherwise related to your Account (including any link on any social media networking platform).
9. Zwecks Intellectual Property
9.1. Trademarks. The Zwecks name and logo are trademarks and service marks of Zwecks. Unless permitted in a separate written agreement with Zwecks, you do not have the right to use any of Zwecks’ trademarks, service marks or logos and your unauthorised use of any of these may be a violation of federal and state trademark laws.
9.2. Ownership. You acknowledge and agree that Zwecks, or its licensors, owns all right, title and interest in and to the Platform, including all intellectual property, industrial property and proprietary rights recognised anywhere in the world at any time and that the Platform is protected by Australian and international copyright laws. Further, you acknowledge that the Platform may contain information that Zwecks has designated as confidential and you agree not to disclose such information without Zwecks’ prior written consent.
9.3. Feedback. You may choose to, or Zwecks may invite you to, submit comments, bug reports, ideas or other feedback about the Platform or any modifications, features or improvements thereto (“Feedback”). You agree that Zwecks shall own any and all Feedback and Zwecks shall have the right to use, in any manner and for any purpose whatsoever, any and all Feedback. You hereby assign to Zwecks all right, title and interest that you may acquire in and to any Feedback.
9.4. Repeat Infringer Policy; Copyright Complaints. In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of Users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Platform infringes any copyright that you own or control, you may notify Zwecks as follows:
Zwecks Copyright Agent
11 Hanlan Street South, Narara, NSW 2250
Such notice must contain the following information:
your address, telephone number, and email address;
a description of the copyrighted work that you claim has been infringed;
a description of where the alleged infringing material is located;
a statement by you that you have a good faith belief that the disputed use is not authorised by you, the copyright owner, its agent, or the law;
an electronic or physical signature of the person authorised to act on behalf of the owner of the copyright interest; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorised to act on the copyright owner’s behalf.
The Platform is operated by Zwecks in Australia. In order for us to provide our Platform, you agree that we may transfer, use and store information about you in Australia and other countries, where you may not have the same rights and protections as you do under local law. If you choose to access the Platform from a location outside of Australia, you do so on your own initiative and you are responsible for compliance with applicable local laws; provided.
12. Submitted Content
12.1. Zwecks is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Platform or any materials submitted or made available through the Platform via any function which allows a User to post or share content (which shall include, without, limitation, any photograph, image or other visual likeness of you) (“Submitted Content”). By using the Platform, you agree that your Submitted Content may be viewable by other Users. Submitted Content is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Platform. In particular, you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libellous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. Zwecks may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Platform or its Users, or otherwise enforce the terms of these Terms. Further, Zwecks may in its sole discretion remove such content and terminate your Account if you submit any content that is in breach of these Terms. You acknowledge that Zwecks has the right to pre- screen your Submitted Content but has no obligation to do so. At Zwecks’ sole discretion, any Submitted Content may be included in the Platform in whole or in part in modified form.
12.2. Zwecks does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant Zwecks a perpetual, irrevocable, non-terminable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Platform and Zwecks’ (and its successors’ and affiliates’) business, including, without limitation, for promoting, marketing and redistributing part or all of the Platform (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each User a non-exclusive license to access your Submitted Content through the Platform while the Submitted Content is made available through the Platform. You may take down any of your Submitted Content at any time; however, you acknowledge and agree, that Zwecks may still have access to such Submitted Content and that the above license granted by you to Zwecks will remain in effect despite your removal of the Submitted Content from the Platform. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section.
12.3. You acknowledge that your Submitted Content is your sole responsibility. You agree that, under no circumstances, will Zwecks be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Platform.
13. Utilising Your Computer or Other Device.
Some of the benefits of the Platform require the Platform to access information on your computer or other applicable device. You hereby grant permission for the Platform to monitor your computer or other applicable device (including, but not limited to, your device"s memory) and to communicate information, including, without limitation, your Account information, to Zwecks’ servers for the purposes of analysing your device"s performance during use of the Platform. Additionally, the Platform will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Platform.
14. NO ENDORSEMENT; LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
14.1. Although Zwecks displays information about Techs and Users and may collect payments of Fees for Techs, such actions do not in any way constitute Zwecks’ sponsorship or approval of any Tech. Zwecks does not endorse or recommend any Tech, and you agree that Zwecks is not responsible for the accuracy or completeness of information displayed through the Platform with respect to the Techs.
14.2. Zwecks represents and warrants that the Services (a) will be performed in a good and workmanlike manner, using the degree of skill, care, and judgment consistent with customarily accepted good business practices, and (b) will be free from defects. This limited warranty is valid for a period of ninety (90) days following the date the Services were performed. To make a claim under this limited warranty for any Services performed, contact us at firstname.lastname@example.org and we will arrange for a Tech to re-perform the Services. Such re-performance shall be the sole remedy for any claims made under this limited warranty.
14.3. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT, EXCEPT AS SET FORTH IN SECTION 14.2, (A) THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZWECKS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, (C) ZWECKS MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE PLATFORM, AND (D) ZWECKS DOES NOT REPRESENT OR WARRANT THAT (I) YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (II) THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) YOUR USE OF THE PLATFORM WILL MEET YOUR REQUIREMENTS; (IV) DEFECTS IN THE OPERATION OF THE PLATFORM WILL BE CORRECTED; OR (V) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14.4. TECHS ARE NOT REPRESENTATIVES OR AGENTS OF ZWECKS. EXCEPT FOR CERTAIN REMOTE TECHNICAL SUPPORT, ZWECKS DOES NOT PROVIDE TECHNICAL SUPPORT SERVICES, AND DOES NOT EMPLOY OR ENGAGE INDIVIDUALS TO PROVIDE TECHNICAL SUPPORT SERVICES. USERS HEREBY ACKNOWLEDGE THAT ZWECKS DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR A TECH’S WORK AND, EXCEPT AS SET FORTH IN SECTION 14.2, EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
14.5. CUSTOMER IS RESPONSIBLE FOR (A) OBTAINING ALL PERMITS, LICENSES AND OTHER PERMISSIONS, IF ANY, THAT MAY BE REQUIRED TO BE OBTAINED FOR THE REPESECTIVE SERVICES TO BE PERFORMED, AND (B) CONFIRMING THAT ANY TECH PERFORMING SERVICES FOR SUCH CUSTOMER POSSESSES ALL REQUISITE PERMITS AND TRADE LICENSES THAT MAY BE REQUIRED FOR THE PERFORMANCE OF SUCH SERVICES. ZWECKS ASSUMES NO RESPONSIBILITY FOR A CUSTOMER’S FAILURE TO OBTAIN OR CONFIRM SUCH PERMITS, LICENSES OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS. WE ENCOURAGE YOU TO CONFIRM ANY SUCH REQUIREMENTS AND TO ASK TO SEE A COPY OF ANY LICENSES IF APPLICABLE.
14.6. NEITHER ZWECKS NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, STOCKHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “ZWECKS PARTIES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM AND YOU HEREBY RELEASE ZWECKS PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ZWECKS OR THE PLATFORM.
14.7. ZWECKS ONLY ENABLES CONNECTIONS BETWEEN USERS AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OR COMMUNICATIONS OF USERS, NOR DOES IT HA VE CONTROL OVER THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER OF AGREEMENTS BETWEEN USERS, TECHS, CUSTOMERS, NOR OF THE INTEGRITY, RESPONSIBILITY, COMPETENCE, QUALIFICATIONS, OR ANY OF THE ACTIONS OR OMISSIONS WHATSOEVER OF ANY USERS, OR OF ANY RATINGS PROVIDED BY USERS WITH RESPECT TO EACH OTHER. ZWECKS DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY TECH(S), CUSTOMER(S) OR OTHER USER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY TECH(S) ARE MADE SOLELY AT THE DISCRETION OF THE TECH AND ZWECKS HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE TECH(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT ZWECKS SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE TECH TO YOU AS A RESULT OF YOUR USE OF THE PLATFORM.
15. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ZWECKS AND THE OTHER ZWECKS PARTIES SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE PLATFORM, EVEN IF ZWECKS OR THE OTHER ZWECKS PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL THE LIABILITY OF ZWECKS OR ANY OF THE OTHER ZWECKS PARTIES EXCEED, IN THE AGGREGATE, THE GREATER OF FIVE HUNDRED DOLLARS ($500) OR THE FEES ACTUALLY PAID BY CUSTOMER YOU FOR THE SERVICES.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
You agree to defend, indemnify and hold Zwecks and the other Zwecks Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Platform; or (b) your breach of these Terms or any other policies that Zwecks may issue for the Platform from time to time. You further agree to cooperate as required by Zwecks in the defence of any claim. Zwecks reserves the right to assume the exclusive defence and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Zwecks.
17. Governing Law; Jurisdiction
These Terms are governed by Australian law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Zwecks agree that, except as otherwise provided in Section 18 below, the state and federal courts located in New South Wales will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of the Platform and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, Zwecks shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
18. Binding Arbitration
18.1. Arbitration Procedures. You and Zwecks agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to these Terms or the Platform (each a “Claim”) shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other.
Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Zwecks will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (a) you and Zwecks may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
18.2. Location. The arbitration will take place in Sydney, New South Wales unless the parties agree to video, phone or internet connection appearances.
18.3. LIMITATIONS. YOU AND ZWECKS AGREE THAT ANY ARBITRATION SHALL BE LIMITED TO THE CLAIM BETWEEN ZWECKS AND YOU INDIVIDUALLY. YOU AND ZWECKS AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
18.4. Exceptions to Arbitration. You and Zwecks agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of Zwecks’ intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorised use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
18.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the arbitration initiation fee.All other fees and costs of the arbitration will be charged pursuant to the Fair Trading or local court Rules.
18.6. Severability. You and Zwecks agree that if any portion of this Section 18 is found illegal or unenforceable (except any portion of Section 18.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 18.4 is found to be illegal or unenforceable then neither you nor Zwecks will elect to arbitrate any Claim falling within that portion of Section 18.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within New South Wales, Australia, and you and Zwecks agree to submit to the personal jurisdiction of that court.
19.1. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Zwecks as a result of these Terms or your use of the Platform.
19.2. Assignment. Zwecks may assign its rights under these Terms to any person or entity without your consent. The rights granted to you under these Terms may not be assigned without Zwecks’ prior written consent, and any attempted unauthorised assignment by you shall be null and void.
19.3. Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms shall be given full force and effect.
19.4. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 18.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
19.5. No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Zwecks of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
19.6. Notices All notices given by you or required under these Terms shall be in writing and sent to email@example.com
19.7. Export Administration. You must comply with all export laws and regulations of Australia or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Platform, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
19.8. Equitable Remedies. You acknowledge and agree that Zwecks would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
19.9. Entire Agreement. These Terms, including the documents referenced in these Terms, constitute the entire agreement between you and Zwecks with respect to the Platform and supersede any and all prior agreements between you and Zwecks relating to the Platform.