SUBSCRIPTION AGREEMENT

1. Agreement

  • 1.1 In this Agreement references to “Tip Sheet” means Tipsheet Enterprises Pty Ltd ABN 74 656 860 721 trading as Tip Sheet, and including its employees, contractors, agents and assigns.
  • 1.2 This Subscription Agreement and any policies which may be posted by Tip Sheet on the Site from time to time, including but not limited to supplemental user terms (collectively the “Agreement”) set out the terms and conditions on which Tip Sheet offers access to and use of the Site, services, applications and tools (collectively the “Services”).
  • 1.3 By accessing or using the Services, the Client accepts and agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual warrants and represents to Tip Sheet that they are over 18 years of age and have the authority to enter into this Agreement on behalf of such company or other legal entity.

2. Definitions

In this Agreement;

  • 2.1 “Account” means the account which will be created for the Client upon signing up to the Site.
  • 2.2 “Client” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual or individuals accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity on behalf of which such individual or individuals accepted this Agreement.
  • 2.3 “Client Content” means all Content that is submitted, uploaded or included by or on behalf of the Client in the Client’s Account.
  • 2.4 “Collective Content” means Tip Sheet Content and Client Content.
  • 2.5 “Content” includes text, financial data, graphics, images, software (excluding any part of the Site), audio, video, information or other materials.
  • 2.6 “Site” means the website operated by Tip Sheet and available at www.tipsheet.com.au and includes any other websites through which Tip Sheet makes the Services available.
  • 2.7 “Tax” or “Taxes” includes any sales taxes, value added taxes and goods and services taxes that may be required by law to collect and remit to governmental agencies, and any other like local, state and federal taxes which may be applicable.
  • 2.8 “Tip Sheet Content” means all Content that Tip Sheet makes available through the Site, including any Content which may be licensed from a third party, but excluding Client Content.
  • 2.9 “User” means an individual authorized by the Client to access and use the Client’s Account and the Services.

3. Nature of Relationship

  • 3.1 It is acknowledged and agreed that Tip Sheet’s responsibility shall be limited to making commercially reasonable efforts to provide the Client with the Services (except during any periods of planned downtime or unavailability caused by circumstances beyond Tip Sheet’s control). Tip Sheet will not be responsible for the Client or Users achieving any particular results or outcome from the Services.
  • 3.2 It is agreed that nothing contained in this Agreement shall constitute a relationship of partnership, joint venture, or employer and employee between any of the parties. Except as expressly permitted under this Agreement, no party has the authority to act as the agent of, or to bind, another party hereto and no party shall hold itself out as being the agent of the other party or as having the authority to bind the other party.

4. Terms of Service

  • 4.1 Tip Sheet reserves the right to amend this Agreement by posting a notice on the Site. If the Client continues to access or use the Services after publication of such notice, the Client will be deemed to have read and understood, and to have agreed to be bound by, the amended Agreement.
  • 4.2 Tip Sheet reserves the right to make changes to the Site and/or the Services at any time in its absolute discretion, without any notice to the Client.
  • 4.3 The Client acknowledges that it shall be responsible for ensuring that Users access and use the Services in accordance with this Agreement, and agrees to indemnify Tip Sheet against any act or omission of a User which, if such act or omission occurred on the part of the Client, would constitute a breach of this Agreement.
  • 4.4 Users will be required to comply with any terms of use of the Site as posted by Tip Sheet on the Site from time to time (“Terms of Use”). The Client warrants that it will take all reasonable steps to ensure that the Users comply with such Terms of Use and agrees to indemnify Tip Sheet against any breach of the Terms of Use by any User.

5. Fees, Payment Arrangements and Termination

  • 5.1 Upon signing up to the Site, an Account will be created for the Client and the Client will be provided with a free trial of the Services for such period as may be advertised to the Client.
  • 5.2 Should the Client wish to continue receiving the Services after the trial period, they will be required to enter their credit card details via the Site. The entering of credit card details shall thereby constitute a written authority from the credit card holder for their credit card to be automatically charged each month for Fees as determined in accordance with this clause, otherwise the Client’s Account will be cancelled.
  • 5.3 Tip Sheet will charge the Client fees as advertised at the time the Client signs up to the Site, which may be offered as part of a subscription plan (“Fees”), and which shall be calculated at the end of each calendar month based on the number of active staff members in that month. For the purpose of this clause an “active” staff member shall be any staff member who has “active” status.
  • 5.4 Tip Sheet reserves the right to make changes to the Fees at any time by providing the Client with notice, with such change to become effective at the beginning of the calendar month following the month in which notice is given.
  • 5.5 Either party may terminate this Agreement by cancelling the Client’s Account via the Site. If termination occurs part way through a calendar month, the Client shall be liable for the Fees which would have otherwise been payable during the remainder of that calendar month.

6. Account Suspension and Cancellation

  • 6.1 The Client agrees that if it fails to make any payment due in accordance with this Agreement, Tip Sheet is entitled to;
    • a) Suspend access to the Site and the provision of any further Services until all money due is fully paid; and if any money remains outstanding for more than one month, then Tip Sheet may terminate the Agreement and cancel the Client’s Account;
    • b) Charge interest on all payments outstanding at the rate of 10% per annum, calculated on a daily basis; and
    • c) Recover all costs and expenses incurred in trying to obtain payment of amounts outstanding, including legal costs on an indemnity basis.
  • 6.2 In the event that a Client’s Account is suspended or cancelled;
    • a) They will not be able to access the Site;
    • b) They will not be entitled to receive any compensation in relation to the suspension or cancellation of their Account; and
    • c) Tip Sheet shall not have any obligation to delete or return any Client Content.

7. Client Content

  • 7.1 The Client shall be responsible for obtaining all necessary consents, providing all necessary notices, and doing all such other things as may be required by law, in order to disclose the Client Content (including details relating to active staff members) to Tip Sheet, and for Tip Sheet to access and deal with that Client Content as required in order to provide the Services.
  • 7.2 The Client shall be responsible for ensuring that neither the Client Content nor Tip Sheet’s use of the Client Content will infringe, misappropriate or violate any third party’s rights (including but not limited to rights of privacy and intellectual property rights) or result in a breach of any applicable law or regulation.
  • 7.3 The Client shall own and retain all right, title and interest in and to the Client Content. Tip Sheet shall own and retain all right, title and interest in and to;
    • a) the Services, and all improvements, enhancements or modifications thereto;
    • b) any software, applications, inventions or other technology developed in connection with the Services; and
    • c) all intellectual property rights related to any of the foregoing.
  • 7.4 Notwithstanding anything to the contrary, Tip Sheet shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Content and data derived from Client Content), and Tip Sheet will be free both during and after the term of this Agreement to;
    • a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other business offerings; and
    • b) disclose such data (in aggregate or other de-identified form) in connection with its business, including but not limited to marketing and promotion of the Services.

8. Conduct

  • 8.1 The Client acknowledges and agrees that it is solely responsible for compliance with all laws, rules, regulations and Tax obligations which may apply to its use of the Site, the Services and Collective Content. The Client agrees that it will not, and will take all reasonable steps to ensure that the Users do not;
    • a) Use any kind of software, device, script, robot, backdoor or any other means or process to access, scrape, crawl or spider any web pages or other services contained in the Site or the Collective Content;
    • b) Use or expose, or allow to be used or exposed, any Collective Content;
      • i That is not publicly displayed by Tip Sheet on the Site; or
      • ii In any manner which is inconsistent with this Agreement;
    • c) Use or access the Site or Collective Content for any purpose that is not expressly permitted by this Agreement;
    • d) Infringe the rights of any person or entity, including but not limited to privacy rights, intellectual property rights and contractual rights;
    • e) Interfere with or damage the Site, including but not limited to through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
    • f) Use, display, mirror or frame the Site or Collective Content or any part thereof, or Tip Sheet’s name, trademark, logo or other proprietary information, without Tip Sheet’s prior written consent;
    • g) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise interfere with any technological measure implemented by Tip Sheet or any other third party to protect the Site, Services or Collective Content;
    • h) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Collective Content; or
    • i) Advocate, encourage or assist any third party in doing any of the foregoing.
  • 8.2 Tip Sheet reserves the right to investigate and prosecute any violations of this clause to the maximum extent permitted by law.
  • 8.3 Tip Sheet shall have the right, but is not obliged, to monitor access to and use of the Site and Collective Content, and shall be entitled to review or remove any Client Content to ensure compliance with this Agreement.

9. Ownership

  • 9.1 The Client acknowledges and agrees that the Site and Tip Sheet Content, including all associated intellectual property rights, are the exclusive property of Tip Sheet.
  • 9.2 The Client agrees that they will not, and will take all reasonable steps to ensure that Users do not, remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notice appearing on the Site or Tip Sheet Content.

10. License

  • 10.1 Subject to compliance with this Agreement and all applicable laws and regulations, Tip Sheet grants to the Client a limited, non-exclusive, non-transferable license to access and use the Site (limited with regard to the number of active staff members for which the Client pays Fees), solely for their own business purposes and in accordance with this Agreement.
  • 10.2 It is an essential term of this license that the Client will not, and will take all reasonable steps to ensure that Users do not: use, copy, adapt, modify, distribute, sub-license, sell, transfer, publicly display or perform, transmit, broadcast or otherwise exploit the Site or Collective Content, except as expressly permitted in this Agreement.

11. Client Responsibilities

  • 11.1 The Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including but not limited to modems, hardware, servers and operating systems (collectively the “Equipment”).
  • 11.2 The Client shall be responsible for maintaining the security of the Equipment, their Account, passwords (including but not limited to User passwords) and files, and for all uses of the Client Account and/or the Equipment with or without the Client’s knowledge or consent.

12. Client Acknowledgements

  • 12.1 The Client acknowledges that the Site and the Services are provided by Tip Sheet to help facilitate the sharing of tips between active staff members of the Client, should the Client choose to implement such an approach. Tip Sheet does not make any representations about the legality of such an approach, nor does Tip Sheet purport to provide any legal, financial or other advice by providing the Services to the Client.
  • 12.2 The Client acknowledges and agrees it is the Client’s sole responsibility to ensure that;
    • a) the facilities and functions of the Services meet the Client’s requirements; and
    • b) the Services are appropriate for the Client’s specific circumstances and will comply with the laws and regulations of the Client’s jurisdiction.
  • 12.3 The Client acknowledges and agrees that the Client and all Users of the Site and/or the Services, do so at their own risk.

13. Warranties

All warranties and conditions which may by law be excluded are expressly excluded. Without limiting the foregoing, the Client acknowledges and agrees that Tip Sheet makes no representation or warranty about;

  • 13.1 The Site, the Services and the Collective Content; or
  • 13.2 Whether the Site, the Services and the Collective Content will be available on a secure, interrupted and error-free basis;
  • 13.3 Whether the Site, the Services and the Collective Content will be compatible or integrate with any application, program or software not specifically identified as compatible or capable of integration by Tip Sheet

14. Liability

To the maximum extent permitted by law, Tip Sheet shall not be liable to the Client, any User, or any third party under any circumstances for any loss of profit, interruption to business, injury or death to any person, or for any indirect, incidental or consequential loss and damage sustained or incurred by them, whether such liability arises directly or indirectly as a result of;

  • 14.1 Their use of the Site, Services and/or Collective Content;
  • 14.2 Any fault or delay arising out of or in connection with electronic delays, the Internet, the Site or the Services;
  • 14.3 Any incompatibility or failure of integration between the Site, the Services and Collective Content and any third party platform or software.
 

15. Limitation of Liability

Where Tip Sheet’s liability cannot be otherwise excluded, modified or restricted in accordance with this Agreement, then Tip Sheet’s liability shall be limited, at its option, to;

  • 15.1 supply of the subject Services again, or payment of the reasonable cost of having the Services supplied again; or
  • 15.2 a refund of Fees paid by the Client to Tip Sheet in the 12 months prior to the act or omission that gave rise to the liability.

16. Indemnity

  • 16.1 The Client agrees to fully and completely indemnify Tip Sheet in respect of all claims, actions, demands, suits, loss and/or damage sustained by any person or party whatsoever caused by or in connection with or arising out of the Client and/or any User using the Site, Services and/or Collective Content, whether caused by any negligent act or omission or wilful misconduct on their part or otherwise, and in respect of all costs and charges in connection therewith whether arising under statute or common law on an indemnity basis.
  • 16.2 The Client agrees to fully and completely indemnify Tip Sheet against any loss or damage which Tip Sheet may incur, directly or indirectly, as a result of any breach by the Client of this Agreement, and in respect of all costs and charges in connection therewith whether arising under statute or common law on an indemnity basis.
17. Dispute Resolution

In the event that any dispute arises between the Client and Tip Sheet, then the parties agree to take all reasonable steps to try and reach a resolution of the dispute directly. In the absence of any resolution then the parties agree to seek a mediation in accordance with the Mediation Rules of the Law Society of New South Wales, and the President of the Law Society of New South Wales, or the President’s nominee, will select the mediator and determine the mediator’s hourly remuneration (with the costs of the mediation to be shared equally between the parties). Either party shall be entitled to approach the President for this purpose.

18. Confidential Information

    • 18.1 For the purpose of this Agreement “Confidential Information” means any information in respect of the business or affairs of Tip Sheet that is not in the public domain including, without limitation, processes and procedures of Tip Sheet, prospective client or User lists, pricing information, strategy or planning materials, documents, records, computer files, client information, product or service information, sales or financial information, discovery, invention, drawing, design, strategy, plan, data, report, process, proposal, budget, idea, concept or know how.
    • 18.2 The Client agrees that if they are provided with any Confidential Information in the course of their dealings with Tip Sheet or any such Confidential Information is made available to the Client then they must, on an ongoing basis;
      • a) Keep all such Confidential Information secret and confidential;
      • b) Take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any such Confidential Information;
      • c) Not disclose any such Confidential Information to any third party; and
      • d) Not use any part of or make any note of or make copies of any such Confidential Information;

except as reasonably required in the ordinary and proper course of complying with this Agreement, to the extent required by law, or with the prior written consent of Tip Sheet.

19. Entire Agreement

  • 19.1 This Agreement constitutes the entire agreement between the Client and Tip Sheet with respect to the Site, Services and Collective Content, and supersedes all prior agreements, understandings, arrangements and negotiations in relation thereto.
  • 19.2 The Client warrants that it has not relied on any representation made by Tip Sheet which has not been expressly set out in this Agreement.

20. Assignment

  • 20.1 Tip Sheet may transfer, assign and/or subcontract any of the rights and obligations conferred by this Agreement.
  • 20.2 The Client may transfer, assign and/or subcontract any of their rights and obligations conferred by this Agreement only with the prior written consent of Tip Sheet.

21. Notices

  • 21.1 Any notice required to be served by one party on another pursuant to this Agreement shall be given by way of email, which will be deemed to have been received at the time and on the day shown in an electronic confirmation of delivery obtained by the sender.
  • 21.2 In the case of Tip Sheet, a notice may be served on the Client (additionally to or instead of an email as referred to in clause 21.1) by way of Tip Sheet posting a notice on the Site. If the Client continues to access and/or use the Services after publication of such notice, then the Client will be deemed to have been duly served with such notice.

22. Governing Law

This Agreement shall be deemed to have been made in New South Wales, Australia and shall be interpreted in accordance with the laws thereof. The parties submit to the jurisdiction of the courts of New South Wales and Australia.

23. Severability

If any provision of this Agreement is contrary to, prohibited by, or held invalid under any applicable law or regulation of any jurisdiction in which it is sought to be enforced, that provision shall be considered inapplicable and omitted but shall not invalidate the remaining provisions.

24. Waiver

Any failure by Tip Sheet to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provision or any other provision hereof unless expressly in writing and signed by an authorized representative of Tip Sheet.

25. Links

  • 25.1 The Site may contain links to third party websites or resources.
  • 25.2 The Client acknowledges and agrees that Tip Sheet is not responsible or liable for the availability or accuracy of the same, or for the content, products or services available from such websites or resources, which are provided only as a convenience.
  • 25.3 The Client acknowledges that links to third party websites or resources do not constitute or imply any endorsement by Tip Sheet and the Client and the Users are solely responsible for choosing whether or not to engage with any third party.

26. Disclaimer

While Tip Sheet uses reasonable efforts to include accurate and up-to-date information on the Site, Tip Sheet makes no warranties or representations as to its accuracy, and Tip Sheet assumes no liability or responsibility for any typographical or other errors or omissions in the content on the Site.