Terms of use

THIS AGREEMENT is made on the commencement date.


BETWEEN: The Merchant Report Pty. Ltd. (“The Merchant Report”) ACN 165 707 844.

AND: the paying user or voucher redeemer of The Merchant Report website and any directly associated products or services ("Customer”).

 

RECITALS

The Customer wishes to pay The Merchant Report to use its website to prepare a report that will include an appraisal of the current market value of its business, and offer some understanding of the strengths and weaknesses affecting the current market value or marketability of the business. 

THE PARTIES AGREE

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement (including the recitals) unless the context otherwise requires:

“Agreement” means this Agreement and any document that varies or supplements it;

"Fee” means the amount determined under section 7.2;

“Commencement Date” means the day the fee is exchanged between The Merchant Report and the Customer;

“General Commentary” means the provision of any information provided by The Merchant Report website or any other communication (whether oral , electronic, in writing or otherwise) to the Customer. For the avoidance of doubt Customers should refer to the Disclaimer attached in each report;

“GST Act” means in a New Tax System (Goods and Services Tax) Act 1999;

“Report” means the output document prepared by The Merchant Report website, for the Customer, based on Customer inputs.

"Terms of use” means the agreement between The Merchant Report and the Customer under which The Merchant Report will provide their services to the Customer;

"Technology” means any electronic systems used by The Merchant Report to collate information about the Customer’s business for preparation of the report.

1.2 References to recitals, clauses, sub clauses, paragraphs, annexures or schedules are references to recitals, clauses, sub clauses, paragraphs, annexures and schedules of or to this Agreement.

1.3 Headings in this Agreement are for convenience only and do not affect its interpretation or construction.

1.4 In this Agreement unless the context otherwise requires:

(a) the singular includes the plural and vice versa;

(b) each gender includes the other two genders;

(c) the word “person” means a natural person and any association, body or entity whether incorporated or not;

(d) the word “month” means calendar month and the word “year” means 12 calendar months;

(e) a reference to writing includes any communication sent by email, facsimile or post transmission;

(f) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, reenactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(h) all monetary amounts are in Australian currency;

(i) a reference to time refers to time in Brisbane, Australia;

(j) “Business Day” means a day other than a Saturday, Sunday or public holiday in Queensland;

(k) mentioning anything after “include”, “includes” or “including” does not limit what else might be included;

(l) no rule of construction applies to the disadvantage of a party because this Agreement is prepared by (or on behalf of) that party;

(m) a reference to any thing is a reference to the whole and each part of it;

(n) a reference to a group of persons is a reference to all of them collectively and to each of them individually;

(0) “company”, “corporation” and “body corporate” have the meanings respectively provided by Chapter 1 of the Corporations Law.

2. APPOINTMENT

2.1 The Customer appoints The Merchant Report to provide General Commentary and The Merchant Report accepts its appointment in accordance with the terms of use contained in this Agreement.

2.2 In the performance of the General Commentary, The Merchant Report will present its appraisal to the Customer by email or securely online (website) and the Customer may provide their instructions via email or website.

2.3 The Customer agrees to provide to The Merchant Report accurate, complete and up to date information for the purposes of The Merchant Report providing General Commentary.

3. ACKNOWLEDGEMENTS AND RELEASE

3.1 The Customer releases and discharges The Merchant Report and its contractors, and agrees that The Merchant Report and its contractors is not liable whatsoever for any loss which may result from:

(a) the general risks of business ownership;

(b) forces or reasons beyond The Merchant Report’'s control, including a limited understanding of the business’ operations; and

(c) unauthorised parties gaining access to the Customer's data, wherever it may be held, or from computer viruses or other destructive matters, or through any other means not specifically directly within the Terms of this Agreement, and in accordance with Clause 8.2. 

3.2 The Customer acknowledges and agrees that The Merchant Report is not responsible for the accuracy or completeness of any information received from the Customer such as inputs received online via the website, analysed by The Merchant Report and returned to the customer in report format.

3.3 The Customer recognises that The Merchant Report in the provision of its services relies on the information provided to it by the Customer and as such the accuracy and completeness of the service provided by The Merchant Report will be diminished in the event that the information provided by the Customer is not accurate, complete or not up to date. The Customer holds The Merchant Report harmless in the event the Customer suffers any financial loss as a result of the information provided to The Merchant Report by the Customer is inaccurate, incomplete, out of date or not appropriately updated.

3.4 The Customer acknowledges that they have received a User Guide from The Merchant Report.

3.5 The Customer acknowledges that they will receive a business appraisal, not a business valuation prepared by a Certified Practicing Valuer or Accountant.

4. CLIENT INSTRUCTIONS

4.1 The Customer directs and authorises The Merchant Report to prepare a report to appraise the current market appraisal of the subject business, based on The Merchant Report'’s opinion, in accordance with the Customer’s instructions as evidenced by the credit card payment or redemption of a voucher.

4.2 For the purposes of instructing the The Merchant Report, the Customer will provide sufficient information to The Merchant Report including general and historical financial information about the subject business such that The Merchant Report can prepare the report.

5. TECHNOLOGY

5.1 The Customer acknowledges that The Merchant Report uses Technology in providing all or part of the The Merchant Report service, and that in the interest of protecting the integrity of the Technology involved in the customer service, The Merchant Report may suspend the operation of The Merchant Report service or any part of the services. The Customer acknowledges that The Merchant Report will not be liable where The Merchant Report fails to act within a reasonable time of receiving an automatic or conditional instruction due to any suspension of this Technology.

5.2 The Customer acknowledges:

(a) that other third parties, including but not limited to telecommunications carriers, telecommunications service providers and internet service providers are involved in the supply of the Technology and the quality of their products and services may affect the performance of The Merchant Report service and the reliability of data transmission; and

(b) that no information provided on The Merchant Report website operates as a valuation for security or insurance purposes.

6. PRIVACY

6.1 The Customer acknowledges that The Merchant Report collects information on individuals and companies for the purpose of providing General Advice and that in order to provide this General Advice the financial information:

(a) may be stored in hard copy by analysts; and

(b) will be accessible to analysts, network administrators and officers of the company; and

(c) will not be provided to a third party; however this excludes disclosures which may be made by The Merchant Report to third parties as it may be required by law.

6.2 The Customer acknowledges that personal information may be viewed and/or modified by The Merchant Report on an ongoing basis as required for the proper administration of Customer accounts and reports.

6.3 Unless otherwise advised, the Customer authorises The Merchant Report to collect and collate statistical information about the use of it’s products and services and to release that information. The release of statistical information can be to either prospective or current Customers of The Merchant Report. The statistical information will not contain information which identifies the Customer, unless The Merchant Report has the prior written consent of the Customer.

6.4 Unless otherwise advised, the Customer authorises The Merchant Report to monitor on an ongoing basis their account and The Merchant Report may (in its sole and unfettered discretion) determine to contact the Customer when analysts of The Merchant Report determine that intervention or alternative action is required so as to assist the Customer with their management of their account.

6.5 The Customer agrees and acknowledges that The Merchant Report may, from time to time and without further notice to the Customer be required either by law to provide information about the Customer and its dealings with The Merchant Report to the Australian Securities and Investment Commission or other regulatory authority.

7. FEES, TAXES AND CHARGES

7.1 In consideration for The Merchant Report providing any services, the Customer agrees to pay to The Merchant Report the fees that are imposed for these services, by credit card or prepaid redeemable voucher.

7.2 All payments or amounts payable under this Agreement are inclusive of any liability to taxation under the GST Act.

8. ADDITIONAL SERVICES

8.1 The Customer agrees that where they are provided with access to The Merchant Report website:

(a) they are responsible for the selection of their username (email) and password in using the The Merchant Report website and are also responsible for ensuring that the password is kept secure;

(b) they will not rely on the The Merchant Report website and Technology in connection with any transaction or finance;

(c) they will not seek to upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right of The Merchant Report (as well as rights of publicity and privacy), or any part or parts of the General Advice without The Merchant Report’ prior written consent; and

(d) they will not in any way express or imply that any appraisal of the Client’s business are endorsed by The Merchant Report without the prior written consent of The Merchant Report.

8.2 The Merchant Report will not be liable for any damages of any kind sustained or incurred by the Customer arising from the use of the The Merchant Report website or reports generated as a result of Customer inputs, including, but not limited to direct, indirect, incidental, punitive, and consequential damages.

9. THIRD PARTIES

9.1 The Customer acknowledges where The Merchant Report’ customer report includes the recommendation of a product or service of a Third Party, The Merchant Report is not liable in any manner whatsoever for the conduct of the Third Party nor the quality of the product or service of that Third Party.

9.2 The Customer acknowledges that they must perform their own due diligence in respect of any Third Party recommendation on behalf of The Merchant Report and it’s advisers.

10. FORCE MAJEURE

10.1  No failure or omission by The Merchant Report to perform or observe the terms of use of this Agreement will:

(a) give rise to any right of action or claim against it; or

(b) be treated for any purpose as a breach of this Agreement; if such failure or omission arises from any cause reasonably beyond the control of The Merchant Report.

11. DURATION AND TERMINATION

11.1 This Agreement commences on the Commencement Date and continues until terminated in accordance with this Agreement.

11.2 This Agreement terminates following 30 Business Days of payment or redemption of voucher.

11.3  Upon termination of this Agreement the Customer releases and discharges The Merchant Report from all liability for damages or loss and from all sums of money, accounts, actions, proceedings, claims, demands, costs and expenses whatsoever which the Customer has or had or at any time in the future may have or have had against The Merchant Report for or by reason or in respect of act, cause, matter or thing arising out of or in connection with or incidental to the General Advice and/or this Agreement.

12. CONFIDENTIALITY

12.1 The Customer acknowledges that information disclosed to it by The Merchant Report (such as the Technology) pursuant to this Agreement or in the performance of this Agreement is confidential and is the property, and a trade secret, of The Merchant Report.

12.2 Except as provided expressly in this Agreement, the Customer agrees it will not and will not permit any of its officers, employees, agents, contractors, associates or anyone else to use or to disclose to any person the confidential information without the prior written consent of The Merchant Report.

12.3 This clause does not apply to any information which:

(a) is generally available to the public (other than as a result of the breach by the Customer of the provisions of this clause); or

(b) is required to be disclosed by law.

13. GENERAL

13.1 An undertaking, warranty, agreement, representation, provision or obligation in this Agreement which is made or given by or which applies to more than one person or which extends to or is for the benefit of more than one person binds and extends to or is for the benefit of, as the case may be, all of them jointly and each of them severally. In the event that the Customer is two or more persons, then the rights under this Agreement by such persons are held as tenants in common.

13.2 This Agreement contains the entire understanding between the parties in relation to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this Agreement other than those expressly stated in it or necessarily implied by law.

13.3 If any provision of this Agreement is invalid, void or unenforceable, all other provisions which are capable of separate enforcement without regard to an invalid, void or unenforceable provision are and will continue to be of full force and effect in accordance with their terms.

13.4 The Merchant Report may at any time by notice advise the Customer of an amendment to this Agreement and following the expiration of 7 days, such notice will amend this Agreement.

13.5 A notice or other communication will be taken, for the purposes of this Agreement, to have been given if:

(a) sent by electronic mail - on the day it is sent (or, if that is not a Business Day, on the next Business Day).

(b) For the purposes of sub clause 13.5, the contact details to which notices are to be sent are the Customer’s email, and in respect of The Merchant Report are as follows:

Address:          Po Box 539, Trinity Beach, Queensland, 4879

Facsimile:        +61 7 4057 4411

Email:              support@merchantreport.com.au

Please mark to the attention of the Compliance Department.

14. ASSIGNMENT

14.1 The Customer cannot assign this Agreement without the prior written consent of The Merchant Report.

14.2 The Merchant Report can assign the whole or any part or parts of this Agreement as and when it may determine in its sole and unfettered discretion.

15. GOVERNING LAW AND JURISDICTION

15.1 The validity, interpretation and performance of this Agreement will be governed by and construed in accordance with the law of the State of Queensland and of the Commonwealth of Australia which the parties acknowledge is the proper law of this Agreement.

15.2 Each of the parties irrevocably agrees that the courts of the State of Queensland and of the Commonwealth of Australia will have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Agreement and for this purpose irrevocably submits to the jurisdiction of such courts.