Terms of Service and Privacy Policy
PART 1 – INTRODUCTION
1.1. Welcome to MyTag Australia. This website at www.mytag.com.au (the Website) along with the web app at mytag.com.au and various mobile apps and web servic(collectively, the App) are operated by Trakwise Pty Ltd (ACN 637 969 432) trading as MyTag Australia (MyTag Australia, MyTag Australia Group us, we, our), located at the Level 7, 31-33 Elkhorn Avenue, Surfers Paradise, QLD 4217
1.2. These Terms of Use (also referred to as this Agreement) comprise:
Part 1 – Introduction
Part 2 – Privacy Policy
Part 3 – Terms of Sale
Part 4 – Terms of Use
Part 5 – General
1.3. These Terms of Use are important and govern your use of the Website and App, our trading relationship and your purchase of MyTag Australia products from us and our authorised retailers. Please read them carefully.
USER: (Person/s using MyTag products)
MYTAG AUSTRALIA: Trakwise Pty Limited (ACN 637 969 432), Registered Office, Level 7, 31-33 Elkhorn Avenue, Surfers Paradise, QLD 4217
The parties hereto agree that
1.4. By using the App or when making purchases on the Website, you agree to be bound by these Terms of Use. When you purchase MyTag Australia products from third parties, you may also be subject to the terms of trade of those third parties.
1.5. If you purchase a MyTag Australia product from our authorised retailers and suppliers these Terms of Use will govern your rights in relation to MyTag Australia products. MyTag Australia will not accept responsibility for any additional rights offered or obligations undertaken by third parties including authorised retailers and suppliers.
1.6. MyTag Australia reserves the right to change these Terms of Use from time to time without notice. It is your responsibility to regularly check these Terms of Use for any changes made prior to your use of the Website and App or purchase of any MyTag Australia product. Your continued use of the Website and App or purchase of any MyTag Australia product whether from this Website or from a third party following the posting by us of any version of these Terms of Use, confirms your acceptance of this Agreement and all changes.
1.7. You warrant and represent that you have the legal right and ability to enter into legally binding agreements with MyTag Australia. You must be at least 18 years of age or have the consent of a parent or guardian to enter this Agreement and to purchase any product from this Website or to use the App.
1.8. If you are using the Website or App on behalf of a company or other legal entity, you warrant and represent that you are authorised to use this Website or App for and on behalf of that company or other legal entity and that you are authorised to bind such company or other legal entity to these Terms of Use.
1.9. To report any problems regarding the Website, please contact MyTag Australia at [email protected]
PART 2 – PRIVACY POLICY
2.1. The MyTag Australia Privacy Policy is incorporated into and forms part of these Terms of Use.
PART 3 – TERMS OF WEBSITE SALES
Placing an order
3.1. MyTag Australia sells Bluetooth and GPS tracking devices and related accessories (the Product) which is accompanied by the App.
3.2. To purchase a Product, please select it by placing it in the Website shopping cart. Your selection of a Product constitutes an offer by you to MyTag Australia to buy the selected product on this Website (Order). All Orders are subject to acceptance by MyTag Australia and are subject to availability.
3.3. MyTag Australia will confirm acceptance of the Order when your payment is received in full as cleared funds by dispatching the products to you and by sending an invoice to you by email confirming that your order has been accepted.
3.4. Orders accepted by MyTag Australia can only be cancelled by MyTag Australia in its sole discretion, including the recovery of its reasonable costs for the acceptance of the Order, delivery of the products and its cancellation. You may contact us in order to make a request for the cancellation of the Order including an explanation of the reason for your cancellation request.
3.5. Orders can be placed for personal use only. Products cannot be purchased for the purpose of reselling to others.
Price
3.6. Prices appearing on this Website are in the Australian Dollars. Prices are inclusive of sales tax (such as GST or VAT) where applicable.
3.7. The cost of your Order will be the price of the products ordered on this Website. Additional costs such as delivery may apply as outlined in the ‘Payment’ section below.
Subscription Terms and Renewals
3.8. The GPS Products and LeakGuard Products sold on this Website must be purchased with an appropriate subscription. A subscription includes an IoT wireless data communication plan to facilitate data transfer between the product and the App, as well as access to the Web Portal and Apps. After the initial subscription period elapses, you will need to renew the subscription plan to keep the product working. The price of the IoT wireless data communication plan may differ from country to country and may be subject to change. The renewal fees are listed on this Website.
3.9 All subscriptions will automatically renew for periods equal to your initial Subscription Term unless you cancel your subscription through your account at www.mytag.com.au. If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
Payment
3.10. To pay for an Order, simply complete the requested details when prompted to do so in the Shopping Cart and Checkout sections of this Website.
3.11. We accept Visa, MasterCard and PayPal methods of payment for an Order. You will be solely liable for all credit card charges, bank charges and any PayPal charges on the transaction for each Order. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable.
3.12. Once your payment has been authorised by your bank, the Order will be processed and MyTag Australia will issue a Tax Invoice if required under the relevant laws.
3.13. You are not entitled to exercise any right of set-off against moneys payable to MyTag Australia in respect of your Order.
Delivery
3.14. MyTag Australia may offer free delivery for some Orders to selected countries. However, most countries attract a delivery fee and MyTag Australia reserves the right, in its sole discretion, to charge a delivery fee if your particular location requires a fee for any reason including for example excessive delivery charges. Any applicable delivery fees will be displayed on the Website before accepting your Order.
3.15. For each Order you make of a Product, you agree that:
(a) the Product will be delivered to the address you nominate in your Order;
(b) MyTag Australia is not responsible for Products sent to an incorrectly supplied address;
(c) MyTag Australia is not responsible for Products you fail to collect from MyTag Australia’s delivery agent or any third party delivery depot such as a postal service.
3.16. Being a new product, we may experience some delays in the manufacturing and delivery of the product into our warehouse and to you. If your Order fails to arrive within 30 business days of the email confirmation of your Order, please email [email protected] and we will confirm that your order is in the system and provide an updated ETA to you.
3.17. Title in each product that you Order remains with MyTag Australia until MyTag Australia receives payment in full for such product.
3.18. Risk in each product that you Order passes to you upon delivery of the product(s) to the address you specified in the Order or to a local delivery depot, such as a postal service.
Warranty and product returns
3.19. MyTag Australia warrants that all Products sold under this agreement will conform in all material respects to the specification for a period of 1 year. (Warranty Period).
3.20. If MyTag Australia delivers you a product that you consider does not conform to the specification or is not in accordance with your Order, please contact us at [email protected] or via our website chat as soon as possible within the Warranty Period. MyTag Australia support staff will attempt to resolve the issue with you via email, chat or over the phone where required and try to determine if there is a technical fault with your Product.
3.21. Please refer to the MyTag Australia Returns Policy.
Product description and availability
3.22. We take all reasonable measures to ensure that details, measurements and descriptions of the products shown on this Website are as accurate and complete as possible but there may be variations between these and the Products supplied for your Order.
3.23. We do not warrant that the product descriptions are complete or error-free.
3.24. All Products are subject to availability. The Products displayed on this Website may not be available in your particular country, state or locality.
PART 4 – TERMS OF USE
Your right to use the Website and App
4.1. The Website and App are only for your personal use.
4.2. As long as you comply with these Terms of Use, MyTag Australia grants you a non-exclusive, non-transferable, limited right to enter, display and use the Website and App. You agree not to interrupt or attempt to interrupt the operation of the Website and App in any way.
Ownership
4.3. All materials on the Website and App, including but not limited to audio, images, software, text, artwork, video clips and other materials (Content) are protected by copyright under Australian copyright law, international conventions, and other copyright laws. You shall not copy, capture, reproduce, perform, transfer, sell, license, modify, manipulate, create derivative works from or based upon, republish, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit, in whole or in part, the Website, the App or the Content. There are a number of proprietary logos, service marks, and trade marks found on the Website and App, all of which are owned by, or licensed to, or otherwise authorized for use by MyTag Australia. By making them available on the Website and App, MyTag Australia is not granting you any licence to utilize those proprietary logos, service marks, or trade marks. Any unauthorized use of the Content may violate copyright laws, trade mark laws, the laws of privacy and civil and criminal statutes.
4.4. You may download one (1) copy only of the Content to be used only by you for your personal and non-commercial use at home. If you download any Content from the Website and App, you may not remove any copyright or trade mark notices or other notices that accompany it.
Your Responsibilities
4.5. You may only use this Website, the App and the Products for lawful purposes, in a responsible and co-operative manner, and in accordance with these Terms of Use.
4.6. You may not use this Website, the App or the Products to track anything that you don’t own or don’t have the express permission of the owner to track.
4.7. You may not use this Website, the App or the Products to track any person for whom you are not the legal guardian or don’t have the express permission of the person to track. MyTag Australia limits all liability for your use of the Website, the App or the Products including any potential invasion of anyone’s privacy.
4.8. It is your responsibility to ensure that your use of the Website and App complies with the Terms of Use and to seek prior written permission from MyTag Australia for any uses not expressly permitted.
4.9. MyTag Australia prohibits the use of the Website and App, for any of the following:
(a) tracking people or items without express permission;
(b) transmitting or posting any message, information, data, text, software or images, or other materials (Material) that is unlawful, harmful, threatening, abusive, harassing, sexually explicit, defamatory, vulgar, obscene, libellous, hateful, racially, ethnically or otherwise objectionable or invasive of another’s right of privacy;
(c) impersonating any person or entity or to falsely state or to otherwise misrepresent your affiliation with a person or entity;
(d) posting or transmitting any Material that you do not have a right to reproduce, display or transmit or that infringes the rights of any person, or entity;
(e) posting or transmitting any Material that contains a virus or corrupted data;
(f) using any device, software, or routine that interferes with or attempts to interfere with the proper functionality of the Website and App or that adversely affects the availability of the Content on the Website and App to others;
(g) offering for sale or to distribute, exchange, modify or transmit any Content or any information received from MyTag Australia; and
(h) attempting to decipher, decompile, disassemble or reverse engineer any of the software that makes up this Website, the App or the Content or for the purpose of creating derivative works from the Website and App.
Your Account:
4.10. You may be required to create an account (Your Account) before you can access certain information or functionality on the Website and App. You must provide complete and accurate information when creating Your Account. You cannot use another person’s account and must immediately notify us of unauthorised use of Your Account. We reserve the right to co-operate with any legal order, direction or request to disclose the identity or other information relating to anyone posting Material which violates any law.
Rights to your Material
4.11. You may choose to upload your own Materials to the Website or App. MyTag Australia retains full ownership in all Materials uploaded and some of those Materials such as profile photos may be publicly accessible through the Website and App. Some Materials such as history tracks, alarm history and device settings may be shown to users which you have specifically chosen to share with through the Website or App and accept the sharing of those Materials.
4.12. MyTag Australia welcomes your feedback and is pleased to have you submit your comments regarding its products. However, we request that you be specific in your comments, and that you do not voluntarily submit any ideas, suggestions or Materials related to the business of MyTag Australia. If despite this request, you do voluntarily submit any ideas, suggestions or Materials related to the business of MyTag Australia either directly to the Website and App or indirectly by means of any third party, including without limitation, Facebook, Instagram, Youtube, Pinterest or Twitter (Submissions), these Submissions shall be deemed, and shall remain, the exclusive property of MyTag Australia. No Submissions shall be subject to any obligation of confidence on the part of MyTag Australia, and MyTag Australia shall not be liable for any use or disclosure of any Submissions. Without limitation to the foregoing MyTag Australia shall exclusively own the Intellectual Property rights and all now known or hereafter existing rights to the Submissions of every kind and nature, in perpetuity, throughout the universe, and MyTag Australia shall be entitled to use, reproduce, modify, adapt, publish, translate, license, create derivative works from and distribute such materials or incorporate such Submissions into any form, medium, or technology now known or later developed throughout the universe, for any purpose whatsoever, commercial or otherwise, without compensation to the author(s) or provider(s) of the Submissions.
4.13. You consent to MyTag Australia (and its successors in title, licensees, assignees and persons authorised by MyTag Australia) doing any act or omitting to do any act comprised in any or all of your Moral Rights (including any similar rights that exist or may come to exist anywhere in the world) arising out of or in connection with the use of the Submissions in any manner and in any media now known or devised in the future, regardless of whether such conduct amounts to derogatory treatment. If requested by MyTag Australia and at its expense you will execute such documents so as to give effect to the grant of rights and consent in these Terms of Use.
4.14. MyTag Australia does not usually actively supervise, edit, control, monitor or censor the Submissions. However, MyTag Australia may from time to time review Submissions and you acknowledge that MyTag Australia retains the right to edit or take down Submissions and may suspend you from participating on the Website and App in MyTag Australia’s sole discretion. You also acknowledge that some views or opinions expressed are those of other users of the Website and App which are not necessarily shared by MyTag Australia and MyTag Australia does not endorse any Submissions or any opinion, recommendation or advice contained in them.
4.15. You irrevocably waive any right which you have or which you may in the future have to make any claim or demand or institute any legal or quasi legal proceedings against MyTag Australia based on the contents of any Submissions included on the Website and App.
4.16. If a breach of these Terms of Use is brought to MyTag Australia’s attention, MyTag Australia may at its option reject, refuse to post or remove Submissions from the Website and App or prohibit a user from accessing the Website and App. In any event, MyTag Australia reserves its absolute right to withdraw permission for a user to access this Website or App at any time.
4.17. If you think that a comment that has been posted is offensive, unsuitable or has in some other way breached these Terms of Use, please contact us with a link to the comment and your reasons for objecting to it. We will consider whether there are grounds for editing or removing the comment and take appropriate action, but you won’t necessarily be contacted as to our decision.
4.18. By posting Submissions on the Website and App you agree to the following:
(a) you are entering into a communication with us and we can contact you via email and other commercial electronic messages in relation to the Submissions or with information that we believe will be directly relevant and of interest to you. You have the option to opt out of this service at any time upon notice and you may contact us to provide the notice.
(b) if you have chosen to receive e-mail updates and newsletters, if any, these can be cancelled at any time and you may contact us to provide the notice of cancellation.
Security of electronic transmissions
4.19. Internet transmissions are never completely private or secure. You understand that any message or information you send to the Website and App may be read or intercepted by others, unless there is a special notice that a particular message is encrypted. Sending an e-mail message to MyTag Australia does not create any reciprocal obligation or responsibility of MyTag Australia to you.
Links to other websites
4.20. This Website and App may contain links to other Internet sites on the World Wide Web. MyTag Australia provides such links for your convenience only, and is not responsible for the content of any website linked to or from the Website and App unless it is owned or published by MyTag Australia. Links from the Website and App to any other website do not indicate that MyTag Australia approves of, endorses, sponsors or recommends that website. MyTag Australia disclaims all warranties, express or implied, as to the accuracy, legality, reliability or validity of any content on any other website.
Use of Website and App by children
4.21. While the Website and App may be viewed by children, we do not ensure that all content on the Website and App is appropriate for children of all ages. All visitors to the Website and App under 16 years of age must obtain the consent of their parents or legal guardians. Children using the Website and App will be subject to and are bound by these Terms of Use and your parent or guardian will be deemed to accept the application of these Terms of Use to your use of this Website. MyTag Australia requests that parents and guardians supervise their children when accessing or using the Website and App. No Submissions should be submitted to, or posted at, the Website and App by visitors under 16 years of age without the consent of their parent or guardian. If you are under 16 years of age and you post a Submission you and your parent or guardian will be deemed to accept the application of these Terms of Use to that Submission.
Termination
4.22. The right to access and use the Website and App granted by way of these Terms of Use is effective until terminated by either party. You may terminate such right under these Terms of Use at any time by destroying all Website and App material obtained by you or held in your possession and all related documentation and all copies and installations thereof, whether made under these Terms of Use or otherwise. Your right to access and use the Website and App will terminate immediately with or without notice from MyTag Australia if in the sole opinion of MyTag Australia you fail to comply with any term or provision of these Terms of Use.
4.23. Upon termination, you must destroy all Website and App materials and third party user materials obtained by you or held in your possession and all copies thereof, whether made under these Terms of Use or otherwise. All other provisions of these Terms of Use which in order to give effect to their meaning need to survive the termination of your right to access and use the Website and App (including without limitation all restrictions imposed on you, licenses granted by you and all releases and indemnities provided by you together with all disclaimers and limitations of liability in favour of MyTag Australia) will survive termination.
PART 5 – GENERAL
Intellectual Property
5.1. All Intellectual Property rights in MyTag Australia Products including without limitation the App and those supplied in relation to an Order from this Website or by any authorised retailer or supplier are retained by MyTag Australia and you are not entitled to reverse engineer or re-brand the Products in any way.
Disclaimers
5.2. MyTag Australia acknowledges that MyTag Australia products supplied to you may come with guarantees under the consumer law that cannot be excluded. Subject only to the foregoing, MyTag Australia gives no warranties or guarantees of any kind (whether express or implied) in relation to any MyTag Australia products.
5.3. The MyTag Australia’s claim on this Website that any of its products are waterproof, splashproof, or showerproof is not an express warranty that those products are fully waterproof in all conditions. Some MyTag Australia products have been tested for water resistance under controlled circumstances and have achieved an IPx5 or IPx7 water rating. MyTag Australia disclaims all liability in relation to water damage to its products that arises from any use of its product that exceeds the water rating claimed for that product on its Website.
5.4. Each MyTag Australia GPS product or MyTag Leak Guard product transmits its location and related data to the MyTag Australia Website and App via a mobile IoT communications network called SigFox. A device data transmission is not guaranteed to be received by the SigFox network. A device transmission may not be successful for a number of reasons including the MyTag Australia product is being used outside the reach or footprint of the SigFox mobile IoT communications network, or the Sigfox mobile IoT communications network is not functioning or temporarily shut down for maintenance purposes. By purchasing the MyTag GPS Product or MyTag Leak Guard Product, you warrant that prior to purchase you have accessed the MyTag Australia website SigFox coverage checker to determine the SigFox footprint in your area, and you have deemed the coverage to be adequate for your intended use. MyTag Australia disclaims all liability in relation to any failure of the MyTag Australia GPS product or MyTag Leak Guard product due to the device data transmission not being received, that is beyond the reasonable control of MyTag Australia.
5.5. Each MyTag Australia product has been designed for a specific use, which can be found listed on the product pages on the Website. MyTag Australia disclaims all liability in relation to any use made by you of the MyTag Australia products for any other purpose.
5.6. MyTag Australia is under no obligation to keep and maintain your Material or Submissions. MyTag Australia is not obliged to make any back-up(s) of data submitted by you.
5.7. The inclusion of any advertising or other information or third party material on any page of the Website and App which promotes products or services to be supplied by a party other than MyTag Australia does not imply that MyTag Australia endorses or recommends any such party, product or service.
5.8. While all reasonable care has been taken in publishing and maintaining the Website and App, MyTag Australia and sponsors of any material presented on the Website and App accept no liability or responsibility whatsoever for, or in respect of, any use of the Website and App or any reliance upon material contained on the Website and App or any linked website. You should make your own enquiries and take independent advice tailored to your specific circumstances prior to making any decisions.
5.9. MyTag Australia will not be liable for any Loss resulting from any action or decision by you in reliance on the material or Content on the Website and App, nor any interruption, delay in operation or transmission of the Website and App. You are solely responsible for any damage to your computer systems or loss of data that results from your use of the Website and App.
5.10. You expressly acknowledge and agree that MyTag Australia does not exert control over users of the Website and App and MyTag Australia is not liable either for their opinions or their behaviour, including any information or advice and any defamatory statements or offensive conduct on their part or the breach of any law including those relating to privacy.
5.11. Your use of the Website and App is at your sole risk and you understand that the location data might not be accurate. Location technologies such as GPS are not entirely accurate and are subject to various conditions such as buildings and weather and GPS doesn’t work reliably indoors. MyTag Australia in not liable for inaccuracies in the location technology.
Limitation of Liability
5.12. To the fullest extent permitted by law, MyTag Australia, its related bodies corporate and their officers, employees, agents and contractors ( the MyTag Australia Group) will not be liable for any Loss or Consequential Loss that results from your use of MyTag Australia product(s) (including in accordance with these Terms of Use) even if MyTag Australia or any other member of the MyTag Australia Group was made aware of the possibility of such losses. If this provision is unenforceable in whole or in part in any jurisdiction in the world due to the relevant laws in that jurisdiction, then in no event will the liability of the MyTag Australia Group or any member of that Group to you for any Loss or anything else exceed the retail price of the MyTag Australia product at the time you purchased the Product.
5.13. To the fullest extent permitted by law, the MyTag Australia Group will not be liable for any Loss or Consequential Loss that results from any use of or access to, or any inability to use or access the Website and App or the Content even if MyTag Australia or any other member of the MyTag Australia Group was made aware of the possibility of such losses. If this provision is unenforceable in whole or in part in any jurisdiction in the world due to the relevant laws in that jurisdiction, then in no event will the liability of the MyTag Australia Group or any member of that Group to you for any Loss or anything else exceed the lesser sum of AU$1.00 and the amount paid by you, if any, for accessing the Website and App.
5.14. Without limitation to any other provision in these Terms of Use, MyTag Australia acknowledges that the Competition and Consumer Act 2010 (Cth) (Act) and other statutes from time to time enforced in Australia may imply warranties or conditions or impose guarantees or obligations upon MyTag Australia in relation to the products and services available on this Website which cannot be excluded, restricted or modified except to a limited extent. If any such statutory provisions apply in Australia, then to the extent to which MyTag Australia is entitled to limit its liability under that statutory provision (including, pursuant to Schedule 2, Sections 64A and 276A of the Act), MyTag Australia’s liability shall be limited to any one or more of the following in its sole discretion: (i) in the case of any good, the replacement or repair of the good, or the supply of equivalent goods, or the payment of the cost of replacing or repairing the goods or acquiring equivalent goods; (ii) in the case of any service, the supply of the services again, or the payment of the cost of having the services supplied again.
Release and indemnity
5.15. You release the MyTag Australia Group from and against all Loss resulting from:
(a) your use of the Website and App;
(b) any activity by you or a third party relating to Your Account;
(c) your improper use of the MyTag Australia products;
(d) any injury received by you or related persons in connection with your use of the MyTag Australia products; and
(e) your failure to comply with these Terms of Use.
5.16. You agree to indemnify and keep indemnified MyTag Australia from and against any Loss which MyTag Australia incurs or suffers as a result of any default by you in respect of these Terms of Use or of any act or omission by you in connection with your use of the Website and App.
Assignment
5.17. You may not assign your rights or negate your obligations under this Agreement without the written consent of MyTag Australia.
5.18. MyTag Australia may assign its rights or negate its obligations without your prior approval.
Force Majeure
5.19. MyTag Australia will not be responsible for delays or failure of performance resulting from acts beyond its reasonable control. Such acts shall include, but not be limited to, acts of God, strikes, walkouts, riots, acts of war, epidemics, failure of suppliers to perform, governmental regulations, power failures, earthquakes, or other disasters.
Variation
5.20. No variation of these Terms of Use will be of any force or effect unless such variation is posted on the Website by MyTag Australia or issued to you in writing signed by an authorised representative of MyTag Australia.
5.21. If you request any amendments to this Agreement as part of your Order or in any other standard business forms employed by you (except as to the quantities of products requested in an Order in accordance with this Agreement) such amendments will not apply or be binding on MyTag Australia unless a variation is agreed in accordance with clause 5.20.
Entire Agreement
5.22. These Terms of Use constitutes the complete and entire agreement and/or arrangement between you and MyTag Australia and supersedes all previous communications, oral or written, between us and in connection with the subject matter hereof. No representations or statements of any kind made by you or by MyTag Australia that are not expressly stated herein shall be binding on either you or MyTag Australia.
No Waiver
5.23. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute consent to any prior or subsequent breach.
Severability
5.24. In the event any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be amended only to the extent necessary to make it enforceable, and the other provisions of this Agreement will remain in full force and effect.
Notices
5.25. Any notice required or authorisation to be given under or pursuant to these Terms of Use must be in writing and may be forwarded by email and such email will be deemed to have been properly given twelve (12) hours after sending unless the sender is notified of a delivery failure. You may send an email to contact us and you must clearly identify yourself. MyTag Australia may send an email to the email you supply for the purposes of Your Account or any other email address that you use in connection with your access to the Website and App or in connection with any purchase of a MyTag Australia product.
Consents and approval
5.26. Where these Terms of Use gives you or MyTag Australia a right or power to consent or approve a matter under this Agreement, the relevant party may withhold any consent or approval in its sole discretion or give consent or approval conditionally or unconditionally, subject to any clause that states otherwise. The party seeking consent or approval must comply with any conditions the other party imposes on its consent or approval.
Governing Law and Forum
5.27. These Terms of Use and any dispute arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of Queensland, Australia, excluding its conflict of laws’ provisions and excluding the United Nations Convention on Contracts for the International Sales of Goods. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Queensland, Australia and the courts of appeal from them for determining any dispute concerning this Agreement or the transactions contemplated by it. You waive any right you have to object to an action being brought in those courts including that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction. MyTag Australia reserves the right to commence proceedings and seek relief in any court of competent jurisdiction and under the law of that jurisdiction in order to enforce its rights under these Terms of Use.
Interpretation
5.28. In these Terms of Use, unless otherwise indicated by the context:
‘Consequential Loss’ means any form of indirect or consequential Loss including any third party Loss, loss or corruption of data, loss of profits, loss of revenue, business disruption, loss of opportunity, loss of anticipated savings, pure economic Loss and any increased operating costs suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute;
‘GST’ means the goods and services tax implemented under the GST Laws;
‘GST Laws’ means A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth of Australia) and all related Commonwealth legislation, and includes all regulations, determinations and rulings associated with or made under any such legislation;
‘Intellectual Property’ means all present and future rights, title and interest conferred by statute, common law or equity in or in relation to copyright, trade marks, service marks, designs, inventions (including patents), circuit layouts, business and domain names, whether or not now existing and whether or not registered or registrable and includes:
(a) any right to apply for the registration of these rights;
(b) all renewals and extensions of these rights; and
(c) all ancillary rights or related rights;
‘Loss’ means all liabilities, losses, damages, expenses and costs (including legal costs and disbursements on a full indemnity basis and whether incurred or awarded), of any kind and nature whether arising in contract or tort (including negligence) or under any statute;
‘Moral Rights’ means all present and future rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by statute anywhere in the world;
‘Taxable Supply’ has the same meaning as in the GST Laws;
‘Tax Invoice’ has the same meaning as in the GST Laws;
5.29. In these Terms of Use, unless the context requires otherwise:
(a) headings are for convenience only and do not affect interpretation;
(b) words importing the singular include the plural (and vice versa), and words indicating a gender include every other gender;
(c) an obligation on two or more parties, binds all of them jointly and each of them severally;
(d) a reference to a ‘person’ includes a body corporate, an unincorporated body or other entity and conversely;
(e) a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
(f) an agreement, representation or warranty on the part of two or more persons binds each and all of them and in favour of two or more persons is for the benefit of each and all of them;
(g) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented, varied or replaced from time to time, except to the extent prohibited by this agreement or that other agreement or document;
(h) a reference to any legislation or to any provision of any legislation includes any statutory modification or re-enactment of it or any legislative provision substituted for it, and all ordinances, by-laws, regulations, rules and statutory instruments (however described) issued under it;
(i) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing;
(j) this document or any part of it is not to be construed against a party because that party drafted or proposed it;
(k) where a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(l) the word ‘includes’ in any form is not a word of limitation;
(m) a reference to ‘$’ or ‘dollar’ is to Australian currency (unless otherwise stated);
(n) if any day appointed or specified by this Agreement for the payment of any money or doing of anything falls on a day which is not a business day, the day so appointed or specified shall be deemed to be the next business day;
(o) expressions used in this Agreement that are defined in the Copyright Act 1968 (Commonwealth of Australia) that are not separately defined in this Agreement have the meanings attributed to them in that Act.
(p) all warranties will have the force and effect of conditions.
(q) all warranties, representations, undertakings, releases and indemnities, and all limitation of liabilities will survive termination or expiration of this Agreement for any reason and are for the benefit of each party’s successors and permitted assigns.