Terms of Use
1. Definitions and interpretation
1.1. Definitions
The following words have these meanings in these Terms unless the contrary intention appears:
Business Day means any day excluding Saturday, Sunday, a public holiday in New South Wales and/or a Commonwealth public holiday;
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought to existence by TIPSi or in the property of TIPSi;
Parties mean the parties to this Agreement, meaning you as the User seeking to utilise TIPSi Services and TIPSi;
Party means a party to these Terms;
Registered Business means businesses that meet the requirements for TIPSi’s Services that allow for Tips to be paid via TIPSi; Services means the Services specified in clause 2.1 to be provided by TIPSi to you;
Territory means Australia;
Terms means these Terms of Use;
Tips means tips collected and paid to a relevant Registered Business on your behalf by TIPSi;
TIPSI means TIPSi Pty Ltd (ACN: 654930284) t/a TIPSi of Gunn Accounting, 174 Yambil Street, Griffith NSW 2680;
You are an individual wishing to use TIPSi as your agent for collecting Tips and paying them to a relevant Registered Business.
2. General Terms
2.1. TIPSi gives you the opportunity to pay Tips to a Registered Business within the Territory via the Website (the ‘Services’). These Terms govern your use of the Services and the relationship between you and TIPSi.
2.2. The Services are offered by TIPSi. By continuing to use the Services after reading these Terms, you are deemed to have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
2.3. TIPSi reserves the right to change the features and content related to the Services without notice to you in order to improve the quality of the Services offered to you or for any other reason, as its sole discretion.
2.4. To access the Services, you will be required to scan a QR Code (QR Code) linked with the Registered Business you wish to pay a Tip to. Once you access the Services, you are a User of the Services (User).
3. Payment
3.1. By agreeing to these Terms, you nominate TIPSi as your non-exclusive agent to collect Tips on your behalf, within the Territory on the terms and conditions within these Terms and pay them to the relevant Registered Business.
3.2. By nominating TIPSi as your agent, you give TIPSi the authority to collect Tips from you and pay them to the relevant Registered Business on your behalf minus a commission. You acknowledge that Tips received by TIPSi on your behalf are deemed to have been given by you and that TIPSI is in no way a party to these transactions.
3.3. TIPSi will not be liable for any Tips returned or denied, for whatever reason, by your financial institution or Tips unpaid by you to the relevant Registered Business for any other reason.
3.4. All payments are facilitated by Stripe (the 'Payment Gateway Providers').
3.5. Each transaction is subject to the Payment Gateway Provider transaction fees (‘Transaction Fees’) which are deducted during the transaction. You agree that these Transaction Fees are to be paid by you, the User providing the Tips.
3.6. In becoming a User, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Providers.
3.7. Unless otherwise stated, all amounts expressed and described on or in connection with these Terms are listed in Australian Dollars (AUD).
4. User Conduct and Obligations
4.1. As a User, you warrant that you intend to offer a voluntary payment to the relevant Registered Business.
4.2. As a User, you expressly agree that you will not, through any means:
(a) harm, harass, hassle or abuse other Users or Registered Businesses; or
(b) send un-welcomed communication such as spam to other Users or Registered Businesses; or
(c) act in an unlawful, abusive, defamatory, discriminatory or otherwise objectionable manner; or
(d) infringe the intellectual property or privacy rights of any User, Registered Business or any third-party.
4.3. TIPSi, at its discretion, reserves the right to remove, edit or alter any content created by you, on the Website or any other related platform.
4.4. TIPSi retains the right to deny you access to the Services at any time.
4.5. As a User, you agree to comply with the following:
(a) you will use the Services only for purposes that are permitted by:
i. the Terms; and
ii. any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(b) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
(c) any use of your registration information by any other person, or third parties, is strictly prohibited. you agree to immediately notify TIPSi of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(d) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of TIPSi providing the Services;
(e) you will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of TIPSi;
(f) you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(g) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by TIPSi for any illegal or unauthorised use of the Website; and
(h) you acknowledge and agree that any automated use of the Website or its Services is prohibited.
5. Intellectual Property Rights
5.1. You acknowledge and agree that TIPSi’ name, services, and any logos, designs, text, graphics, software, content, files, materials, and any other intellectual property rights contained therein, including without limitation, any copyrights, patents, trademarks, proprietary or other rights arising thereof, are owned by TIPSi or its affiliates, licensors, or suppliers whether displayed on the Website, social media accounts or on any other related platform.
5.2. You hereby indemnify and agrees to keep indemnified TIPSi against all liability, losses or expenses incurred by TIPSi in relation to or in any way directly or indirectly connected with any breach of intellectual property rights of TIPSi or any third party by you or your agents.
5.3. In the event of failure to seek and be granted permission to share or distribute any content in the Services, including that created by other Users, TIPSi has the right to take further action as may be appropriate to protect any and all intellectual property rights TIPSi has in content.
5.4. For any Services which enable you to use any software, content, equipment or other physical or non-physical materials owned or licensed by TIPSi, TIPSi grants you a limited, revocable, non-exclusive, non-sub licensable, non-transferable license to access and use the specific Services, and any related software, content, equipment or other materials for your specific, non-commercial use only.
6. Third Party Services and Affiliate Link Disclosure
6.1. The Services may integrate, be integrated into, or be provided in connection with third-party websites, services, content, and/or materials ("Third-Party Services"). TIPSi does not control any Third-Party Services. TIPSi additionally makes no claim or representation regarding the Third-Party Services and accepts no responsibility for, the quality, content, nature, or reliability of Third-Party Services accessible from the Website, applications, software or any other element of the Services. There is no implied affiliation, endorsement, or adoption by you of these Third-Party Services and TIPSi shall not be responsible for any content provided on or through these Third-Party Services. You should read the terms of use and legal Agreements that apply to these Third-Party Services.
6.2. TIPSi may receive compensation for recommendations made in reference to the products or services on the Website.
6.3. This compensation may be in the form of money, services, products, discounts, or special access and could exist without any action from a website visitor. Should you purchase a product or service that was recommended and/or linked on the Website, it is understood that some form of compensation may be made to TIPSi by the owners of that product or service.
7. General Disclaimer
7.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
7.2. You are solely responsible for any errors in any payments you make using TIPSi. TIPSi accepts no responsibility or liability for errors made when making a payment and is not responsible for correcting any errors including contacting a Registered Business to collect back an incorrect payment.
7.3. TIPSi does not take any responsibility or liability to for any content or communication or representations made by Registered Businesses to you.
7.4. You are solely responsible for entering into a valid, legal relationship between you and any Registered Business you may engage with via the Website or TIPSi’s Services. You acknowledge that TIPSi is a platform only designed to facilitate connecting you with Registered Businesses and TIPSi will not be liable for any Tips returned or denied, for whatever reason, by your financial institution or Tips unpaid by you for any other reason.
7.5. Should you choose to utilise TIPSi’s Services to pay Tips to a Registered Business, you expressly agree that TIPSi is not responsible or liable for the actions of any Registered Business prior to, during or after the transaction is completed.
7.6. Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) TIPSi will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or the Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
7.7. Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of TIPSi make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of TIPSi) referred to on the Website. includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of TIPSi; and
(d) changes to the Website made by TIPSi, at its sole discretion;
(e) the Services or operation in respect to links which are provided for your convenience.
8. Liability
8.1. You agree that TIPSi offers the Services with no guarantee of results of any kind. You agree that any results that occur during the delivery of the Services, whether positive or negative for you, are the effects of your choices.
8.2. TIPSi’ total liability arising out of or in connection with the Usership and the Services, or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
8.3. You expressly understand and agree that TIPSi, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
8.4. You agree and understand that any and all information or guidance provided to you by or on behalf of TIPSi, is provided as general in nature and you should seek the advice of experts should you intend to rely on this information.
9. Force Majeure
9.1. If circumstances beyond TIPSi’s control prevent or hinder its provision of the Services, TIPSi is free from any obligation to provide the Services while those circumstances continue. TIPSi may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
9.2. Circumstances beyond TIPSi’s control include, but are not limited to, unavailability of materials or components, pandemics, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
10. Limitation of liability
10.1. TIPSi’ total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
10.2. You expressly understand and agree that TIPSi, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
11. Waiver
11.1. A waiver of any right, power or remedy under this Agreement must be in writing signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
11.2. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.
12. No partnership or agency
Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
13. Governing Law & Jurisdiction
13.1. This Agreement is governed by the laws of New South Wales, Australia.
13.2. In the event of any dispute arising out of or in relation to the Services, TIPSi agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in New South Wales, Australia.
14. Indemnity
14.1. You agree to indemnify TIPSi, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your use of the Services;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and
(c) any breach of the terms.
15. Dispute Resolution & Mediation
15.1. If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
15.2. A party to this Agreement claiming a dispute (the 'Dispute') has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the 'Notice').
15.3. On receipt of the Notice by the other party, the parties to this Agreement (the 'Parties') must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
15.4. If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by Independent Third Party as agreed or his or her nominee and attend a mediation.
15.5. It is agreed that mediation will be held in New South Wales, Australia.
15.6. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
15.7. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" negotiations.
15.8. If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
15.9. In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
16. Severance
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
17. Assignment
TIPSi does not agree to you to delegating, assigning, novating and/or subcontracting any obligations pursuant to this Agreement to any person or party without its prior written consent.
18. Entire Agreement and Modifications
Both you and TIPSi confirm and acknowledge that:
i. This Agreement shall constitute the entire Agreement between you and TIPSi and shall supersede and override all previous communications, either oral or written, between the parties;
ii. No Agreement or understanding varying or extending this Agreement shall be binding upon any party unless arising out of the specific provisions of this Agreement; and
iii. If for whatever reason there is inconsistency between this Agreement and any other Agreement, this Agreement shall prevail.
1. Definitions and interpretation
1.1. Definitions
The following words have these meanings in these Terms unless the contrary intention appears:
Business Day means any day excluding Saturday, Sunday, a public holiday in New South Wales and/or a Commonwealth public holiday;
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought to existence by TIPSi or in the property of TIPSi;
Parties mean the parties to this Agreement, meaning you as the User seeking to utilise TIPSi Services and TIPSi;
Party means a party to these Terms;
Registered Business means businesses that meet the requirements for TIPSi’s Services that allow for Tips to be paid via TIPSi; Services means the Services specified in clause 2.1 to be provided by TIPSi to you;
Territory means Australia;
Terms means these Terms of Use;
Tips means tips collected and paid to a relevant Registered Business on your behalf by TIPSi;
TIPSI means TIPSi Pty Ltd (ACN: 654930284) t/a TIPSi of Gunn Accounting, 174 Yambil Street, Griffith NSW 2680;
You are an individual wishing to use TIPSi as your agent for collecting Tips and paying them to a relevant Registered Business.
2. General Terms
2.1. TIPSi gives you the opportunity to pay Tips to a Registered Business within the Territory via the Website (the ‘Services’). These Terms govern your use of the Services and the relationship between you and TIPSi.
2.2. The Services are offered by TIPSi. By continuing to use the Services after reading these Terms, you are deemed to have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
2.3. TIPSi reserves the right to change the features and content related to the Services without notice to you in order to improve the quality of the Services offered to you or for any other reason, as its sole discretion.
2.4. To access the Services, you will be required to scan a QR Code (QR Code) linked with the Registered Business you wish to pay a Tip to. Once you access the Services, you are a User of the Services (User).
3. Payment
3.1. By agreeing to these Terms, you nominate TIPSi as your non-exclusive agent to collect Tips on your behalf, within the Territory on the terms and conditions within these Terms and pay them to the relevant Registered Business.
3.2. By nominating TIPSi as your agent, you give TIPSi the authority to collect Tips from you and pay them to the relevant Registered Business on your behalf minus a commission. You acknowledge that Tips received by TIPSi on your behalf are deemed to have been given by you and that TIPSI is in no way a party to these transactions.
3.3. TIPSi will not be liable for any Tips returned or denied, for whatever reason, by your financial institution or Tips unpaid by you to the relevant Registered Business for any other reason.
3.4. All payments are facilitated by Stripe (the 'Payment Gateway Providers').
3.5. Each transaction is subject to the Payment Gateway Provider transaction fees (‘Transaction Fees’) which are deducted during the transaction. You agree that these Transaction Fees are to be paid by you, the User providing the Tips.
3.6. In becoming a User, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Providers.
3.7. Unless otherwise stated, all amounts expressed and described on or in connection with these Terms are listed in Australian Dollars (AUD).
4. User Conduct and Obligations
4.1. As a User, you warrant that you intend to offer a voluntary payment to the relevant Registered Business.
4.2. As a User, you expressly agree that you will not, through any means:
(a) harm, harass, hassle or abuse other Users or Registered Businesses; or
(b) send un-welcomed communication such as spam to other Users or Registered Businesses; or
(c) act in an unlawful, abusive, defamatory, discriminatory or otherwise objectionable manner; or
(d) infringe the intellectual property or privacy rights of any User, Registered Business or any third-party.
4.3. TIPSi, at its discretion, reserves the right to remove, edit or alter any content created by you, on the Website or any other related platform.
4.4. TIPSi retains the right to deny you access to the Services at any time.
4.5. As a User, you agree to comply with the following:
(a) you will use the Services only for purposes that are permitted by:
i. the Terms; and
ii. any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(b) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Services;
(c) any use of your registration information by any other person, or third parties, is strictly prohibited. you agree to immediately notify TIPSi of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(d) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of TIPSi providing the Services;
(e) you will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of TIPSi;
(f) you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(g) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by TIPSi for any illegal or unauthorised use of the Website; and
(h) you acknowledge and agree that any automated use of the Website or its Services is prohibited.
5. Intellectual Property Rights
5.1. You acknowledge and agree that TIPSi’ name, services, and any logos, designs, text, graphics, software, content, files, materials, and any other intellectual property rights contained therein, including without limitation, any copyrights, patents, trademarks, proprietary or other rights arising thereof, are owned by TIPSi or its affiliates, licensors, or suppliers whether displayed on the Website, social media accounts or on any other related platform.
5.2. You hereby indemnify and agrees to keep indemnified TIPSi against all liability, losses or expenses incurred by TIPSi in relation to or in any way directly or indirectly connected with any breach of intellectual property rights of TIPSi or any third party by you or your agents.
5.3. In the event of failure to seek and be granted permission to share or distribute any content in the Services, including that created by other Users, TIPSi has the right to take further action as may be appropriate to protect any and all intellectual property rights TIPSi has in content.
5.4. For any Services which enable you to use any software, content, equipment or other physical or non-physical materials owned or licensed by TIPSi, TIPSi grants you a limited, revocable, non-exclusive, non-sub licensable, non-transferable license to access and use the specific Services, and any related software, content, equipment or other materials for your specific, non-commercial use only.
6. Third Party Services and Affiliate Link Disclosure
6.1. The Services may integrate, be integrated into, or be provided in connection with third-party websites, services, content, and/or materials ("Third-Party Services"). TIPSi does not control any Third-Party Services. TIPSi additionally makes no claim or representation regarding the Third-Party Services and accepts no responsibility for, the quality, content, nature, or reliability of Third-Party Services accessible from the Website, applications, software or any other element of the Services. There is no implied affiliation, endorsement, or adoption by you of these Third-Party Services and TIPSi shall not be responsible for any content provided on or through these Third-Party Services. You should read the terms of use and legal Agreements that apply to these Third-Party Services.
6.2. TIPSi may receive compensation for recommendations made in reference to the products or services on the Website.
6.3. This compensation may be in the form of money, services, products, discounts, or special access and could exist without any action from a website visitor. Should you purchase a product or service that was recommended and/or linked on the Website, it is understood that some form of compensation may be made to TIPSi by the owners of that product or service.
7. General Disclaimer
7.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
7.2. You are solely responsible for any errors in any payments you make using TIPSi. TIPSi accepts no responsibility or liability for errors made when making a payment and is not responsible for correcting any errors including contacting a Registered Business to collect back an incorrect payment.
7.3. TIPSi does not take any responsibility or liability to for any content or communication or representations made by Registered Businesses to you.
7.4. You are solely responsible for entering into a valid, legal relationship between you and any Registered Business you may engage with via the Website or TIPSi’s Services. You acknowledge that TIPSi is a platform only designed to facilitate connecting you with Registered Businesses and TIPSi will not be liable for any Tips returned or denied, for whatever reason, by your financial institution or Tips unpaid by you for any other reason.
7.5. Should you choose to utilise TIPSi’s Services to pay Tips to a Registered Business, you expressly agree that TIPSi is not responsible or liable for the actions of any Registered Business prior to, during or after the transaction is completed.
7.6. Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) TIPSi will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or the Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
7.7. Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of TIPSi make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of TIPSi) referred to on the Website. includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of TIPSi; and
(d) changes to the Website made by TIPSi, at its sole discretion;
(e) the Services or operation in respect to links which are provided for your convenience.
8. Liability
8.1. You agree that TIPSi offers the Services with no guarantee of results of any kind. You agree that any results that occur during the delivery of the Services, whether positive or negative for you, are the effects of your choices.
8.2. TIPSi’ total liability arising out of or in connection with the Usership and the Services, or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
8.3. You expressly understand and agree that TIPSi, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
8.4. You agree and understand that any and all information or guidance provided to you by or on behalf of TIPSi, is provided as general in nature and you should seek the advice of experts should you intend to rely on this information.
9. Force Majeure
9.1. If circumstances beyond TIPSi’s control prevent or hinder its provision of the Services, TIPSi is free from any obligation to provide the Services while those circumstances continue. TIPSi may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
9.2. Circumstances beyond TIPSi’s control include, but are not limited to, unavailability of materials or components, pandemics, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
10. Limitation of liability
10.1. TIPSi’ total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
10.2. You expressly understand and agree that TIPSi, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
11. Waiver
11.1. A waiver of any right, power or remedy under this Agreement must be in writing signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
11.2. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.
12. No partnership or agency
Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation.
13. Governing Law & Jurisdiction
13.1. This Agreement is governed by the laws of New South Wales, Australia.
13.2. In the event of any dispute arising out of or in relation to the Services, TIPSi agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in New South Wales, Australia.
14. Indemnity
14.1. You agree to indemnify TIPSi, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your use of the Services;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and
(c) any breach of the terms.
15. Dispute Resolution & Mediation
15.1. If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
15.2. A party to this Agreement claiming a dispute (the 'Dispute') has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the 'Notice').
15.3. On receipt of the Notice by the other party, the parties to this Agreement (the 'Parties') must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
15.4. If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by Independent Third Party as agreed or his or her nominee and attend a mediation.
15.5. It is agreed that mediation will be held in New South Wales, Australia.
15.6. The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
15.7. All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" negotiations.
15.8. If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
15.9. In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
16. Severance
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
17. Assignment
TIPSi does not agree to you to delegating, assigning, novating and/or subcontracting any obligations pursuant to this Agreement to any person or party without its prior written consent.
18. Entire Agreement and Modifications
Both you and TIPSi confirm and acknowledge that:
i. This Agreement shall constitute the entire Agreement between you and TIPSi and shall supersede and override all previous communications, either oral or written, between the parties;
ii. No Agreement or understanding varying or extending this Agreement shall be binding upon any party unless arising out of the specific provisions of this Agreement; and
iii. If for whatever reason there is inconsistency between this Agreement and any other Agreement, this Agreement shall prevail.