AGREEMENT is made on the commencement date.
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”).
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.
DEFINITIONS AND INTERPRETATION
1.1 In this
Agreement (including the recitals) unless the context otherwise requires:
means this Agreement and any document that varies or supplements it;
the amount determined under section 7.2;
Date” means the day the fee is exchanged between The Merchant Report and the Customer;
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;
means in a New Tax System (Goods and Services Tax) Act 1999;
means the output document prepared by The Merchant Report website, for the
Customer, based on Customer inputs.
under which The Merchant Report will provide their services to the Customer;
means any electronic systems used by The Merchant Report to collate information about
the Customer’s business for preparation of the report.
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.
in this Agreement are for convenience only and do not affect its interpretation
1.4 In this
Agreement unless the context otherwise requires:
singular includes the plural and vice versa;
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;
reference to writing includes any communication sent by email, facsimile or
(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;
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
monetary amounts are in Australian currency;
reference to time refers to time in Brisbane, Australia;
Day” means a day other than a Saturday, Sunday or public holiday in Queensland;
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;
reference to any thing is a reference to the whole and each part of it;
reference to a group of persons is a reference to all of them collectively and
to each of them individually;
“company”, “corporation” and “body corporate” have the meanings respectively
provided by Chapter 1 of the Corporations Law.
2.1 The Customer
appoints The Merchant Report to provide General Commentary and The Merchant
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.
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:
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.
Customer acknowledges that they will receive a business appraisal, not a
business valuation prepared by a Certified Practicing Valuer or Accountant.
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.
5.1 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
5.2 The Customer
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.
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
(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.
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.
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.
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
TAXES AND CHARGES
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.
payments or amounts payable under this Agreement are inclusive of any liability
to taxation under the GST Act.
8.1 The Customer
agrees that where they are provided with access to The Merchant Report
(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
(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 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.
9.1 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.
10.1 No failure or omission by The Merchant Report
(a) give rise
to any right of action or claim against it; or
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
Agreement commences on the Commencement Date and continues until terminated in
accordance with this Agreement.
Agreement terminates following 30 Business Days of payment or redemption of
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.
12.1 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
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.
clause does not apply to any information which:
generally available to the public (other than as a result of the breach by the
Customer of the provisions of this clause); or
required to be disclosed by law.
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.
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
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.
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
Address: Po Box 539, Trinity Beach, Queensland,
Facsimile: +61 7 4057 4411
to the attention of the Compliance Department.
14.1 The Customer
cannot assign this Agreement without the prior written consent of The Merchant
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.
LAW AND JURISDICTION
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
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.