Participant terms

1. Participant terms

1. (a)

   Terms defined in the Community Rules and capitalised in these Participant Terms have the same meaning when used here.

2. (b)

   In addition, in these “Participant Terms”:

   1. "we", "us" and "our" means Rundl Pty Ltd ABN 86 147 129 351;

   2. “you” means the legal entity agreeing to be a Participant in the Rundl Open Business Network (“Rundl Network”) by accepting these Participant Terms and “Your Group” means you, your Related Bodies Corporate and other entities that you authorise to trade using your brand or name;

   3. “Approved Purpose” means use of the Rundl Network, management of the Rundl Network (including network testing, analysis and performance optimisation) and activities reasonably related to ensuring compliance provisions of these Participant Terms, the Community Rules and (if applicable) the Host Terms;

   4. “Confidential Information” means, subject to paragraphs (C) to (F):

      (A) information exchanged in any form via the Rundl Network that is made available by or on behalf of a party to the other party; or relates to business, assets, or affairs of a party and is obtained by or on behalf of the other party; and

      (B) is by its nature confidential or the receiving party knows, or ought to know, is confidential.

      For the avoidance of doubt, Confidential Information includes information which is designated by either party as confidential at or before the time the information is made available, but does not include information that:
      (C) is in or enters the public domain through no fault of the receiving party or any of its officers, employees or agents;

      (D) is or was made available to the receiving party by a person (other than the disclosing party) who is not or was not then under an obligation of confidence to the disclosing party in relation to that information;
      (E) is or was developed by the receiving party independently of the disclosing party and any of its officers, employees or agents; or

      (F) was known by the receiving party prior to its disclosure to that party;

   5. “IPRs” means all intellectual property rights, whether registered or unregistered, including without limitation rights in relation to inventions (including patents), know how, trademarks, business names, domain names, designs, circuit layouts, trade secrets and other confidential information and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;

   6. “Order” means an order at any time agreed in writing between us and you for services or other tasks to be provided by us to you, including delivery of any deliverables as stated in that order;

   7. “Our Group” means us and our Related Bodies Corporate;

   8. “Personal Information” means personal information, as that term is defined in the Privacy Act 1988 (Cth), that is collected, used, stored or disclosed by a Host or Participant in connection with the Rundl Network;

   9. "Pricing Guide” means our pricing guide as published on our website from time to time;

   10. “Privacy Laws” mean the Privacy Act 1988 (Cth) and any other laws (including binding codes of practice) affecting privacy, Personal Information or the collection, handling, storage, processing, use or disclosure of personal data;

   11. “Privacy Policy” means our privacy policy as published on our website from time to time;

   12. “Related Bodies Corporate” has the meaning given to that term in the Corporations Act 2001 (Cth);

   13. “Your Participant Data” means data or information in any form that is inputted by you or any of Your Authorised Persons into the Rundl Network, including Personal Information.

3. (c)

   These Participant Terms supplement the Community Rules which apply to use of a Rundl by each individual person, including any individual person that you authorise to use a Rundl (“Your Authorised Person(s)”).

4. (d)

   If there is any inconsistency between provisions in documents forming part of the agreement between you and us, the following order of precedence (highest to lowest) will apply (if the documents are applicable) and to the extent necessary to resolve that inconsistency:

   1. our Host Terms;

   2. our Privacy Policy;

   3. these Participant Terms; and

   4. our Community Rules.

5. (e)

   Each of Your Authorised Persons is directly responsible to us for her or his compliance with the Community Rules. However, and in addition, you are:

   1. responsible for ensuring that each of Your Authorised Persons uses their real identity and is properly authorised to use, and capable of responsibly using, any Rundl that you permit that person to use;

   2. responsible for ensuring compliance by each of Your Authorised Persons with these Participant Terms as well as the Community Rules;

   3. liable to us for any non-compliance by any of Your Authorised Persons with these Participant Terms and the Community Rules.

6. (f)

   If an individual person is accepting these Participant Terms apparently for and on behalf of a legal entity as a Participant, that person by accepting these Participant Terms holds out and states that he or she:

   1. has full legal authority to bind the Participant to these Participant Terms and the Community Rules and by accepting does so;

   2. has read and understands these Participant Terms and the Community Rules.

      If you do not have the legal authority to bind the Participant, please do not accept these Participant Terms.

7. (g)

   A Participant may also become a Host by entering into our Host Terms. A Host remains subject to these Participant Terms in relation to activities as a Participant. Each of our Participant Terms and our Host Terms operate in addition to the Community Rules.

2. Rundls

1. (a)

   These Participant Terms apply to access to, and use of, Rundls and the Rundl Network by you as a Participant and Your Authorised Persons.

2. (b)

   An entity registered as a Host may initiate, host, and moderate a Rundl in which you are a Participant and which Your Authorised Persons use as individual users. The terms as between a Host and us pursuant to which a Host may initiate, host and moderate a Rundl are set out in our Host Terms with that Host, which will vary Host by Host. We are not a party to any agreement between the Host and you as to your participation in a Rundl or any other matter. Any contractual or other legal obligations between you as Participant and any Host are governed by any terms as you and that Host elect to agree.

3. (c)

   A Host may remove or alter authorisations relating to any Rundl, or otherwise exercise its control as to the conduct of or content of any Rundl, at any time and for any reason. You agree that we are not responsible for verifying any action taken by a Host or any failure by a Host to take any action in relation to a particular Rundl.

3. Access to and use of Rundl network

We grant you and Your Authorised Persons a non-transferable and non-exclusive right to access and use the Rundl Network subject to the following conditions:

1. (a)

   You and each of Your Authorised Persons must comply with the Community Rules and these Participant Terms. Any contravention of the Community Rules by you or by any of Your Authorised Persons will also be a contravention by you of these Participant Terms.

2. (b)

   You must maintain your registration as a Participant in good order. Each individual person that is one of Your Authorised Persons must maintain their individual registration in good order.

3. (c)

   You must comply with any applicable laws and regulatory requirements that apply to the particular transaction/s conducted in the Rundl and to your role as a Participant in such transaction/s.

4. Participant registration and your participant data

1. (a)

   Your registration as a Participant is non-transferable.

2. (b)

   Upon successful registration as a Participant, you and Your Authorised Persons may access each Rundl that you are authorised by a Host to access as a Participant, by using relevant user names and passwords.

3. (c)

   A Host may cancel rights of participation of you and/or Your Authorised Persons in a particular Rundl at any time and for any reason. This is a matter between you and the Host.

4. (d)

   You may cancel your registration as a Participant by notifying us at our nominated support electronic address and providing your user name.

5. (e)

   We may refuse your registration or suspend, disable or cancel your Participant account and access by any or all Your Authorised Persons without notice, for any reason, including those reasons set out at clause 2(k) of the Community Rules.

6. (f)

   By providing us with any of Your Participant Data, you:

   1. grant us a non-exclusive, worldwide, royalty-free, perpetual right (including a right to sublicense) to use, copy, and modify Your Participant Data in any form or on any medium for the Approved Purpose and for those purposes set out in the Privacy Policy; and

   2. warrant that you are authorised to grant such licence, including in relation to Your Participant Data and any Personal Information contributed by each of Your Authorised Persons.

7. (g)

   You agree to indemnify and hold us (including any of our directors, officers, employees and contractors) harmless from any Loss or Claim made by any third party arising out of Your Participant Data.

8. (h)

   We may, without notice to you, review, modify or remove any of Your Participant Data in our absolute discretion including where we believe it violates the Participant Terms.

5. Intellectual property rights

1. 5.1 Our IPRs

2. (a)

   You agree that IPRs in:

   1. services, reports, interim communications and other advices and deliverables;

   2. software products, whether available through the Rundl Network or otherwise, including (but not limited to) any upgrades, configurations, modifications, customisations, programming, documentation, specifications, or any content contained in the software products or reports available from the use of the software products;

   3. our Confidential Information,
      remain at all times the property of Rundl or our Related Bodies Corporate or our data suppliers (as appropriate). We do not assign or licence (other than permitting use in accordance with this clause 5) our IPRs or their IPRs. Your right of use of our IPRs or their IPRs is limited as stated in these Participant Terms.

3. 5.2 Your IPRs

4. (a)

   We acknowledge and agree that:

   1. anything provided by you (or your employees, officers, contractors, representatives or agents and any members of Your Group); and

   2. your Confidential Information,
      remain at all times your property or the property of Your Group. You do not assign your IPRs. Our (and members of Our Group’s) right of use of your IPRs is limited to performance of these Participant Terms, reasonable record keeping and archival purposes and fulfilment of any other project that you or members of Your Group may request us to undertake.

5. 5.3 Branding

6. (a)

   You will not, and we will not, alter, obscure, remove, interfere with or add to any logos, trademarks, trade names, markings or notices used on or contained in any deliverables and software products at the time they are delivered to you. You will ensure that all of our logos, trademarks, trade names, markings and notices are reproduced on all copies of the deliverables and software products.

7. 5.4 Permission to use Rundl material

   We permit you to use and adapt processes, templates, procedures, documents and forms that we make and deliver to you pursuant to an Order or that we otherwise make available to you for use in Rundls, but only and solely:

8. (a)

   for use on the Rundl Network in Rundls hosted on the Rundl Network;

9. (b)

   in reasonable user documentation related to use on the Rundl Network in Rundls hosted on the Rundl Network;

10. (c)

    in the course of normal business, subsequent offline or downstream use of individual items that have been initially generated in Rundls hosted on the Rundl Network;

11. (d)

    with such Rundl branding or other identifiers or markings as such material is supplied with;

12. (e)

    in each case, subject to any particular or special limitations or conditions of access and use of particular material that we may post in respect of that material, which apply in addition to the restrictions stated in this clause; and

13. (f)

    not for resale or other commercialisation of the item itself as generated using that material or any adaptation of that material,
    and not any other purpose or use.

6. Fees and payments

1. (a)

   Participation in a Rundl by you and Your Authorised Persons is without charge by us except where for-payment Third Party Material and Third Party Services or for-payment value added features or enhancements (collectively, “For-Payment Material”) are accessed by you as Participant or any of Your Authorised Persons.

2. (b)

   Relevant fees are as set out in the Pricing Guide at the time of use of For-Payment Material. The Pricing Guide is as made available on our website at that time.

3. (c)

   Unless otherwise expressly agreed in writing between us and you, any fees will increase on 1 January in each year in accordance with the Australian Consumer Price Index for the twelve (12) month period preceding the anniversary.

4. (d)

   You agree to pay to us the fees:

   1. where periodic payments are expressed as payable in advance, when billed and debited by us in advance;

   2. where a billing and debit authorisation is in operation, when billed and debited by us;

   3. otherwise, within fourteen (14) days after the date of our invoice issued for those fees.

5. (e)

   You must provide us with a billing and debit authorisation before you and Your Authorised Persons are permitted to access and use For-Payment Material and maintain that billing and debit authorisation as current whenever you and Your Authorised Persons access and use For-Payment Material. You authorise us to debit fees in full as and when you or your Authorised Persons use For-Payment Material without us being required to make any further enquiry of you as to their capacity and authorisation by you to access and use such For-Payment Material.

6. (f)

   Fees are stated exclusive of taxes (including GST), duties and charges imposed or levied in Australia or overseas in connection with the supply and use of our services. Without limiting the foregoing, you will be liable for any new taxes, duties or charges imposed at any time of access and use For-Payment Material.

7. (g)

   You may access your invoice through your account with us.

8. (h)

   We may:

   1. change fees as stated in the Pricing Guide as made available on our website at any time, subject to reasonable prior notice;

   2. alter the amount we deduct from your credit card or debit card if fees as stated in the Pricing Guide change at any time; and

   3. set-off and deduct any payment owed to us under these Participant Terms.

7. Confidentiality

1. 7.1 Use and disclosure of Confidential Information

   A party (“Recipient”, which includes Your Authorised Persons) which acquires Confidential Information of another party (“Discloser”) must not:

2. (a)

   use any of the Confidential Information except to the extent necessary to exercise its rights and perform its obligations under these Participant Terms (which, for the avoidance of doubt, may include disclosure to third parties subject to equivalent confidentiality obligations as is necessarily incidental to the Approved Purpose); or

3. (b)

   disclose any of the Confidential Information except in accordance with clauses 7.2 or 7.3 of these Participant Terms.

4. 7.2 Disclosures to personnel and advisers

   A Recipient may disclose Confidential Information to an officer, employee, agent, contractor or legal, financial or other professional adviser if:

5. (a)

   the disclosure is necessary to enable the Recipient to perform its obligations or to exercise its rights under these Participant Terms; and

6. (b)

   prior to disclosure, the Recipient informs the person of the Recipient’s obligations in relation to the Confidential Information under these Participant Terms and obtains an undertaking from the person to comply with those obligations.

7. 7.3 Disclosures required by law

8. (a)

   Subject to paragraph (b), a Recipient may disclose Confidential Information that the Recipient is required to disclose:

   1. to the extent required by law or by order of any court or tribunal of competent jurisdiction; or

   2. by any government agency, stock exchange, or other regulatory body or appropriate authority.

9. (b)

   If a Recipient is required to make a disclosure under paragraph (a), that Recipient must:

   1. if permitted by law, notify the Discloser immediately after it anticipates that it may be required to disclose any of the Confidential Information;

   2. consult with and follow any reasonable directions from the Discloser to minimise disclosure; and

   3. if disclosure cannot be avoided:

      (A) only disclose Confidential Information to the extent necessary to comply; and

      (B) use reasonable efforts to ensure that any Confidential Information disclosed is kept confidential.

8. Privacy

1. (a)

   You and Your Authorised Persons must comply with all applicable Privacy Laws when handling Personal Information in connection with the Rundl Network irrespective as to whether you are bound by those laws or not.

2. (b)

   By using the Rundl Network, you and Your Authorised Persons grant us consent to collect, store, use and disclose such personal information in accordance with our Privacy Policy.

3. (c)

   We also collect other de-identified and aggregated statistical data related to use of the Rundl Network under these Participant Terms. This is for our own business improvement purposes (such as benchmarking and market research) as well as to administer and monitor your use of the Rundl Network. We agree not to take any deliberate steps (whether through data analytics or otherwise) which will cause this de-identified information to become Personal Information.

9. Limitations and exclusions of liability

1. (a)

   To the maximum extent permitted by law, we are not liable for any Loss or Claim that you or Your Authorised Persons may incur in relation to use of the Rundl Network, except to the extent that the Loss or Claim is suffered by you and directly arise from our breach of these Participant Terms.

2. (b)

   We exclude any warranty as to accuracy or completeness of any data provided to us by any third party, including, but not limited to, State, Territory or Federal government agencies. By using the Rundl Network, to the maximum extent permitted by law you and Your Authorised Persons agree that we are not responsible or liable in any way for any Third Party Material or Third Party Services, Unacceptable Material, inappropriate conduct or apparent contraventions of these Participant Terms by any individual or Participant or Host, including any loss or damage that you or Your Authorised Persons may suffer or incur as a result of any of these things.

3. (c)

   You agree to indemnify us and hold us harmless from and against any Loss or Claim arising out of or in connection with access by you or Your Authorised Persons to and use of Third Party Material and Third Party Services, including any error or omission in or failure to provide any Third Party Material or Third Party Services. Your use of or access to Third Party Material and Third Party Services also is subject to any additional or other terms and conditions upon which the provider of Third Party Material or Third Party Services makes available that material or those services. To the extent permitted by law, you agree with us for and on behalf of that third party (as a third party beneficiary of your promise) to indemnify and hold harmless that third party from and against any Loss or Claim arising out of or in connection with access by you or Your Authorised Persons to and use of Third Party Material and Third Party Services, including any error or omission in or failure to provide that material or those services, except to the extent that any such Loss or Claim is expressly permitted by any additional or other terms and conditions upon which that the provider of that Third Party Material or Third Party Services makes available that material or those services or as otherwise agreed between you and that third party or otherwise as required by law which cannot be excluded by agreement.

4. (d)

   All express or implied guarantees, warranties, representations, statements, terms and conditions relating to these Participant Terms, the Rundl Network and the associated documentation that are not contained in these Participant Terms, are excluded to the maximum extent permitted by law.

5. (e)

   In particular, and without limiting paragraphs (a), (b), (c) and (d):

   1. while we endeavour to provide a convenient and functional Rundl Network, we do not guarantee that requirements of you and Your Authorised Persons will be met or that use of the Rundl Network will be uninterrupted, error free or that the Rundl Network is free of viruses or other harmful components; and

   2. we are not responsible for any loss, corruption or interception of data sent to or from the Rundl Network which occurs outside of our computer systems (such as those which occur while being sent over the internet);

   3. You and Your Authorised Persons must install and use up-to-date anti-virus, anti-spyware and firewall software on access devices.

6. (f)

   Nothing in these Participant Terms excludes, restricts or modifies any guarantee, term, condition, warranty, or any right or remedy, implied or imposed by any legislation which cannot lawfully be excluded or limited, including the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances.

7. (g)

   If any guarantee, term, condition or warranty is implied into these Participant Terms under the Australian Consumer Law or any other applicable legislation (a “Non-Excludable Provision”) and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:

   1. in the case of goods, replacement of the goods or the supply of equivalent goods, the repair of the goods, payment of the cost of replacing the goods or of acquiring equivalent goods, or payment of the cost of having the goods repaired; or

   2. in the case of services, supplying of the services again, or payment of the cost of having the services supplied again.

8. (h)

   Subject to paragraphs (i) and (j) and our obligations under the Non-Excludable Provisions, and to the maximum extent permitted by law, our maximum aggregate liability for all Loss or Claim under or relating to these Participant Terms or the Rundl Network whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to the lesser of:

   1. the fees paid by you in the preceding twelve (12) months; or

   2. AUD $1,000.

9. (i)

   Subject to our obligations under the Non-Excludable Provisions, and to the maximum extent permitted by law, we are not liable for, and no measure of damages will, under any circumstances, include:

   1. special, indirect, consequential, incidental or punitive damages; or

   2. damages for loss of profits, revenue, goodwill, anticipated savings or loss, damage or corruption of data (including any data or information that is inputted by you and Your Authorised Persons into the Rundl Network to be stored or processed or made available in the Rundl Network in any form), whether in contract, tort (including negligence), in equity, under statute or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of such loss or damage.

10. (j)

    Our liability to you and Your Authorised Persons is diminished to the extent that acts or omissions of you or Your Authorised Persons or third parties contribute to or cause the loss or liability.

11. (k)

    You must ensure that you have all necessary rights and consents for us to host and process Your Participant Data in accordance with these Participant Terms. You must ensure that Your Participant Data and our hosting and processing of Your Participant Data in accordance with these Participant Terms do not give rise to any civil or criminal liability for us. You indemnify us against any Loss or Claim arising out of or in connection with:

    1. any content submitted, created, processed, exchanged and/or hosted by you or Your Authorised Persons being Unacceptable Material;

    2. any non-compliance with applicable laws or regulatory requirements that apply to the particular transactions conducted in the Rundl and to your role as a Host in such transactions by you and/or Your Authorised Persons;

    3. you not having necessary rights and consents for us to host and process Your Participant Data in accordance with these Participant Terms;

    4. Your Participant Data and our hosting and processing of Your Participant Data in accordance with these Participant Terms giving rise to civil or criminal liability for us; and

    5. any breach of these Participant Terms (including without limitation the Community Rules) by you and/or Your Authorised Persons.

10. Suspension and termination

1. 10.1 Suspension of access to Rundl

   Without limiting the generality of any other provision in the Participant Terms (including our termination rights below), we may suspend use of the Rundl Network by you and/or Your Authorised Persons with immediate effect if we reasonably believe that you and/or Your Authorised Persons are in breach of these Participant Terms or the Community Rules or laws or regulations relevant to the use of the Rundl Network, in which case we will provide you notice of such suspension as soon as reasonably practicable (which may be after the suspension has taken effect).

2. 10.2 Termination of access to Rundl

3. (a)

   We may terminate these Participant Terms with immediate effect for any reason (including for convenience) by giving you written notice of such termination.

4. (b)

   You may terminate these Participant Terms with immediate effect for any reason (including for convenience) by giving us thirty (30) days written notice of such termination.

5. 10.3 Effect of termination

6. (a)

   Upon termination or expiry of these Participant Terms you must immediately cease accessing and using the Rundl Network.

7. (b)

   Termination of these Participant Terms does not affect any accrued rights or remedies of either party.

8. (c)

   Clauses 7 (Confidentiality), 8 (Privacy), 9 (Limitations and exclusions of liability) and 11(b) (Governing law), together with any other provision which by its nature is intended to survive termination or expiry of these Participant Terms, survives termination or expiry of these Participant Terms for any reason.

11. General

1. (a)

   If any part of these Participant Terms is held to be unenforceable, the remainder will remain in full force and effect and any unenforceable part is to be given effect to the greatest extent reasonably possible.

2. (b)

   These Participant Terms are governed by the laws of New South Wales, Australia. You irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

3. (c)

   The provisions of these Participant Terms, the Community Rules and (if applicable) the Host Terms constitute the entire agreement between us and you and/or Your Authorised Persons in relation to the Rundl Network and supersede all other communications whether electronic, oral, or written, between us and you in relation to the Rundl Network.

4. (d)

   Your use of the Rundl Network is conducted electronically. You agree that we may communicate with you electronically for all aspects of your use of the Rundl Network, including sending you electronic notices.

5. (e)

   No waiver, delay or failure by us to take any action shall constitute or be construed as a waiver of that or any other term, condition, option, privilege or right we may have.

6. (f)

   The word “including” when used in these Participant Terms is not a term of limitation.

7. (g)

   You acknowledge that Rundl may access or use YouTube API Services (including without limitation to make YouTube videos available in a Rundl) and you agree to be bound by YouTube's terms of service (https://www.youtube.com/t/terms).

12. Updates to these participant terms

We may update these Participant Terms from time to time by posting on our website notice of such updates and the date that such updates take effect. If you do not agree to be bound by the updated Participant Terms, you should cease accessing and using the Rundl Network on that date.