TPF Sports (Aust) Pty Ltd (ABN 31 600 417 696) (“TPF”, “us”, “we” or “our”) provides the Mber+® software (“Software”) and all of the related services provided in connection with the Software (“Services”). This user agreement (the “Agreement”) is our legal agreement that governs your use of the Software and the Services. Our Agreement is with you, not the clients/customers that you provide your own services to through the Software/Services, subject to law. If we provide any services to you that are additional to the Services (“Additional Services”) these will be agreed in separate schedules to this Agreement (“Schedule/s”).

When you use the Software you may elect to use some or all of the Services, and this Agreement is structured accordingly, with the General Terms which apply to all of the Services, unless otherwise expressly agreed in writing or in a Schedule. When you request Additional Services, the terms outlined in a Schedule shall by imported into this Agreement by reference.

General Terms

 

Scope of Agreement

1. This Agreement is effective from the date you sign up to your subscription with TPF, or begin using the Software or the Services, unless otherwise agreed in writing. By using the Software or Services, you agree to the terms and conditions set forth in this Agreement, unless agreed otherwise in writing or in a Schedule.

 

2. To sign up to a subscription, use the Software or use the Services and thus enter into this Agreement, you agree that you are over the age of 18.

 

3. If you are entering into this Agreement on behalf of a company or other entity, you represent that you have the authority to, and do hereby, bind such entity by these terms, and references to “you” or “your” will refer to such If you do not have such authority, or if you do not agree with the terms in this Agreement, you must not accept this Agreement and neither you nor such entity may use the Software or Services.
4. These General Terms shall apply in addition to the terms of any applicable Schedule or other terms that are incorporated as agreed between the parties in writing, and as may be confirmed with you by way of order confirmation from TPF. To the extent of any inconsistency between the 1) Schedule, 2) General Terms, or 3) any other associated documents, the precedence of documents shall be in that order.

 

5. No other terms sheet, business terms, contract or terms of engagement provided by you or any other entity shall impact this Agreement, or be imported into this Agreement, unless expressly agreed in writing by TPF.

 

Account

6. When obtaining Services from us you will be required to open an account (“Business Account”). You must provide complete and accurate information when creating a Business Account. Your Business Account will allow you to manage the products on your store, manage orders, and access sales reports, order and customer details.

 

7. TPF may provide Additional Services as agreed by the parties in writing or in a

 

Charges, Fees and Taxes

8. You will be billed by TPF for all applicable fees on a monthly basis during your subscription period. You will pay all fees applicable to your subscription including but not limited to any production, freight or storage fees as provided to you by TPF as part of the Services, and as detailed in a You agree to pay all fees in accordance with TPF’s payment terms in the relevant Schedule.
9. Unless otherwise agreed in writing or in a Schedule, all revenue received from the sale of goods and services on your online store will be directly deposited to your nominated merchant account as provided by you when creating your Business TPF will not have access to or be responsible for any revenue received by you directly on your online store.

 

10. The Mber+® platform enables you to run your own reports of revenues received directly into your merchant account via the Mber+® system. TPF takes no responsibility for the accuracy of any such reports or for your reliance on them, or any outcomes arising therefrom.
11. For the purposes of this Agreement, Taxes include any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, income, goods and services (“GST”), value-added or similar tax, sales, withholding, or any form of tax imposed by any domestic or foreign taxing authority (“Taxes”).

 

12. Unless otherwise stated, all Fees are exclusive of any Taxes. Notwithstanding the foregoing, we may charge Taxes, including any GST, as required by law, which you agree to pay, unless otherwise agreed.

 

13. We take no responsibility for your own tax situation or that of any company you represent when entering into this You are responsible and liable in respect of outcomes arising in relation to Taxes and for determining whatever Taxes may apply or become assessed, payable or withheld in connection with your use of the Services, or your own sale of goods or services using our Services or Software.
14. Licensing Fees. TPF shall remain responsible for, and make full and timely payments in respect of, all required licence fees (including any intellectual property licence fees) payable to any applicable governing body or rightsholder as required in connection with the provision of the Services, as agreed by TPF in writing.

Refunds and Cancellations

 

15. Subject to law, should you wish to cancel your subscription or part of your subscription (for instance if you wish to cancel certain Services but continue to receive others), refunds are not permitted (unless otherwise stated), and you shall be committed to the full term of your subscription in respect of the agreed A cancellation fee may apply to cover any administration costs incurred prior to cancellation of a subscription or Services.

 

Intellectual Property Rights

 

16. “Intellectual Property Rights” means any and all intellectual property rights worldwide, subsisting whether now or in the future, and whether registered or unregistered including designs, copyright, trade marks and service marks including names and logos, patents, inventions, trade secrets, trade, business or company names or other intellectual property rights, or any rights to registration of such rights. “Materials” means all materials used or provided by you to TPF in connection with this Agreement, including without limitation trade marks, images, audio, videos, code, price and product information, performance claims, product claims, all other information and materials, and all material relating to Intellectual Property Rights. “Designs” means specific artwork, copy, illustrations or other similar Materials that are created by TPF for use on products intended to be made available in your store.
17. You (or any applicable licensor) will own all Intellectual Property Rights in the Nothing in this Agreement transfers any ownership rights in your Materials to TPF. You grant (or shall procure the applicable licensor to grant) to TPF a revocable, royalty free, non-transferable, non-exclusive licence for TPF to use your Materials solely for the purpose of providing the Services in accordance with this Agreement.
18. If you have any moral rights (or similar rights) in respect of Materials that you submit to us, you consent to TPF and our related bodies corporate and service providers using the Materials from time to time in any way we wish (even if that use is contrary to those rights), where that use is required to provide the Software or Services. If any other person has moral rights in respect of Material that you submit, you must ensure that they agree to the above before you submit the Material.

 

19. You warrant that the Materials are true, accurate, complete, not misleading, can be substantiated, are not in breach of any third party rights and comply with any applicable laws, regulations and codes, and will not cause TPF to breach any applicable law, regulation and code.

 

20. You agree that you may not use any registered and unregistered trademarks, service marks and logos of TPF without our prior written consent, including any contained within the Software.

 

21. To the extent permitted by law, TPF shall retain all right title and interest in any Intellectual Property Rights in respect of the Software and Designs unless agreed otherwise in a Schedule, including all copyright in any source code. Nothing in this Agreement transfers any ownership of Intellectual Property Rights in the Software or the Designs to you unless expressly agreed to the contrary.

 

22. The Software is provided to you under license. We hereby grant you a limited, non- exclusive, non-transferable and non-sublicensable (subject to the terms of this Agreement) licence to use the Software, subject to the terms and conditions set forth in this You may not assign, transfer or sublicense your rights as a user of, or subscriber to, the Software other than as allowed under this Agreement. This Agreement will also govern any updates to the Software provided by us that replace and/or supplement the original Software, unless such upgrades are accompanied by a separate licence, in which case the terms of that licence will govern.

Privacy and Security

 

23. TPF is committed to protecting your privacy and security and will deal with personal information collected by us in accordance with our Privacy Policy (at https://mberplus.com.au/), which applies in conjunction with this Agreement.

 

24. TPF has in place commercially reasonable data protection policies and procedures to protect, safeguard and maintain the confidentiality, integrity and security of its information technology systems and all information, data and transactions stored or contained therein or transmitted thereby, including personally identifiable information (as such information or terms are defined and/or regulated under applicable laws, policies, agreements, and guidelines of any governmental entity or regulatory agency), against any unauthorised or improper use, access, transmittal, interruption, modification or corruption.

Service Interruption and Force Majeure

25. “Force Majeure” means any act of God, war, pandemic, sabotage, riot, insurrection, civil commotion, national emergencies, strikes, lock-outs or other industrial disturbance, accidents, uncontrollable transportation delays, communications or network failure, or the effect of any applicable laws, orders, rules or regulations, and any other matters beyond the reasonable control of the party claiming force majeure.

 

26. If, due to Force Majeure, TPF fails or is unable to provide any of the Services, TPF shall not be in breach of the Agreement, and TPF shall not be held responsible for any loss or damage which may be incurred by you or any other entity as a result of such failure. For as long as the Force Majeure continues, the obligations of TPF under this Agreement which cannot be performed shall be suspended.
27. We do not warrant that the Software or the Services will be uninterrupted, timely, secure, or error-free.

 

API Terms

28. Any use of our API will be subject to our API Terms, available at https://mberplus.com.au/

 

Your products and services

29. Subject to law, you are entirely responsible for all products and services you make available for sale to third parties, whether these are made available through the Software or in connection with our Services, or otherwise. You are similarly entirely responsible in relation to product claims, performance claims, and all other statements made by you in the provision of products and services on your own behalf or on behalf of third parties. We accept no liability in relation to your products and services whatsoever, unless otherwise required to by law.

 

30. We make no warranties or guarantees whatsoever as to the outcome of your use of our Software or Services.

 

31. We do not pre-screen the content of any website you create with the Software, or monitor or police your activity arising out of our provision of our Services. Notwithstanding the above, in the event that you use the Software or the Services in any manner that, in our reasonable opinion, breaches any applicable law, regulation or code of conduct, we may immediately suspend your access to the Software and/or Services at our discretion, without You will be notified of our reasons as soon as is practicable. By way of example, but without limitation, if we become aware that any claims you are making are misleading, or that products or services you are selling on your website (that you make available through the Software) are illegal, or that you are infringing on third party intellectual property rights, we would exercise our rights under this clause.

 

Warranties and Liability

 

32. Nothing in this Agreement is intended to, nor shall, limit or reduce the operation of the Australian Consumer Law or your rights thereunder, including but not limited to any applicable consumer guarantees that may apply to the Services.

 

33. TPF disclaims all warranties, either express or implied, to the maximum extent permitted by law. To the extent permitted by law, where applicable and we incur liability for a breach of a consumer guarantee under the Australian Consumer Law, our liability is limited to (at our election):
    1. In the case of a supply of goods: (i) replacing the goods or supplying equivalent goods; (ii) repairing the goods; (iii) paying the cost of replacing the goods or acquiring equivalent goods; or (iv) paying the cost of having the goods repaired; and
    2. In the case of a supply of services: (i) resupplying the services or (ii) paying the cost of having the services supplied again.
34. To the maximum extent permitted by law, TPF excludes for itself, its related bodies corporate, and their officers, employees, agents and contractors, all liability for all claims, expenses, losses, damages and costs made against or incurred or suffered by you directly or indirectly (including without limitation lost costs and profits) arising out of:

 

1. your use of the Software;
2. your use of any of the Services; and
3. any act or omission of TPF including TPF’s negligence or the negligence of TPF’s officers, employees, agents or contractors.

35. To the extent permitted by law, TPF and its related bodies corporate shall not be liable in any circumstances for any consequential, incidental, indirect, special, exemplary or punitive damages or costs (including attorney’s fees) resulting from any claim arising out of or relating to this Agreement, or for any loss of revenue, loss of actual or anticipated profits or savings, loss of business, loss of goodwill or reputation, loss of, damage to, breach of, or corruption of data, breach of security, even if TPF was advised of the possibility of such damages, whether foreseeable or unforeseeable.

 

36. Notwithstanding the above, to the extent that TPF has any liability to you, that liability shall be reduced to the extent that you caused or contributed to that loss or damage.

 

37. The Software is provided ‘as is’ and you agree that your use of the Software is at your sole TPF does not warrant that the Software, or the servers on which the Software is hosted, are free of viruses or defects. Accordingly, TPF is not liable for any loss suffered as a result of any such viruses or defects, subject to law.
38. You will be responsible for any breach of this Agreement by your personnel, representatives, related bodies corporate, affiliates, agents or subcontractors and will be liable as if it were your own breach.

 

39. TPF maintains all insurances required to be maintained under Australian law, in addition to product liability and public liability insurance policies of an adequate level to meet its requirements under this Agreement, and consistent with industry A certificate of currency in respect of our product and public liability policies may be provided to you upon request.

 

Indemnity

40. To the extent permitted by law, you agree to defend, indemnify and hold harmless TPF, its related bodies corporate, their officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of any of the Services; (ii) your use of and access to the Software; (iii) your violation of any term of this Agreement; (iv) your violation of any third party right, including without limitation any copyright, intellectual property, or privacy right; (v) the payment or non- payment of any Taxes. This defence and indemnification obligation will survive this Agreement and your use of the Services or Software and your expiry of the use of the Services or Software.

 

Termination

41. We shall have the right to terminate this Agreement (including but not limited to any Services or Software access) immediately by notice: (a) if we are required to do so under law; (b) if you or any of your related bodies corporate have violated this Agreement (including any Schedule), or caused us to breach any applicable law or code of conduct; or (c) if you engage in any misleading, deceptive, fraudulent or otherwise illegal conduct.

 

42. We may terminate this Agreement for any reason upon providing sixty (60) days’ written notice to you.

 

43. We may modify, update, suspend, delete, discontinue or impose new conditions on the use of our Software or the use of our Services at any If these changes impact you in a material way, unless contrary to law we will advise you in advance.

 

44. You may notify us of your desire to terminate your account, any Services, or this Agreement at any time by the provision of written notice. The termination shall take effect at the end of the agreed term or the time your next payment is due (whichever is later), unless otherwise required by law.

 

45. In the event of an early termination of this Agreement, your payment obligations, indemnity obligations and liability obligations shall survive, in addition to any other clauses of this Agreement that would, by their nature, survive. For the sake of clarity, in the event of early termination of this Agreement for any reason, you shall be liable in respect of any and all raw material costs, third party costs and cancellation fees that may be incurred by TPF in good faith during the Agreement term, unless we have terminated under clause 42 above.

General

 

46. In the event that a dispute arises between the parties to this Agreement, neither party shall (other than for the purposes of seeking urgent interlocutory relief) commence legal proceedings without complying with this In the event of a dispute arising, the aggrieved party shall notify the other party in writing, and defer the dispute to the senior managers of the parties for resolution within 14 days. If the dispute is not resolved or a plan is not agreed to resolve the dispute within that timeframe, the parties may commence legal action.
47. Other than any material that is self-evidently public in nature, all information relating to our relationship, the Services, the Software, the Fees and our engagement is to be treated as confidential and commercial-in-confidence and shall not be disclosed by

 

you or us without the prior consent of the other party, subject to law. This clause shall not apply to any information that becomes public knowledge other than through a breach of this clause or that is required to be disclosed by law. This clause shall survive termination or expiry of this Agreement.

48. This Agreement shall be governed by and construed in accordance with the laws of the state of Victoria, Australia without giving effect to any principles of conflicts of You agree that any action at law or in equity arising out of or relating to your use of the Software or this Agreement shall be filed only in the state or federal courts located in Victoria, Australia and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

 

49. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions.

 

50. This Agreement, as it may be updated from time to time, together with the Services, Software, Schedules and Privacy Policy and any other documents incorporated by reference, are the entire agreement between you and TPF relating to the subject matter herein. This Agreement may be modified only by our posting changes to this Agreement on https://mberplus.com.au/, or by written agreement (as may be applicable). Each time you use the Services, or access or use the Software, you will be deemed to have accepted any such changes.

 

51. TPF may assign or novate its rights and obligations under this Agreement without restriction. This Agreement will inure to the benefit of TPF successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of this Agreement, or to exercise any right under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.
52. TPF will manufacture any merchandise and products (“Products”) according to the specifications and instructions provided by you, and as agreed by TPF. TPF will provide you with production estimates for approval in advance, which will include any expected costs or third party expenses.

 

53. Any Product supplied by TPF under this Agreement which is found not to be in working order, of merchantable quality, fit for its purpose or as ordered will be replaced by TPF, pursuant to applicable Nothing in this Agreement generally shall dilute or limit any consumer guarantees that cannot be diluted or limited.
54. All prices (including those in relation to Products supplied by TPF) quoted to you are subject to change considering quality, quantity, and lead-time.

 

55. In the event that TPF creates Designs as part of the Services, unless otherwise agreed in a Schedule, TPF shall follow your brief as provided. In the event that your brief changes, or you have a ‘change of mind’ TPF reserves the right to charge additional fees for the provision of additional work on the relevant Design, at TPF’s standard
56. All studio/artwork costs will be charged out at TPF’s standard rates, if required. Such costs include supply of concept artwork, downloading of raw artwork to be set up as final artwork/factory ready artwork, any changes to be made to artwork supplied by

 

57. Title in Products shall remain vested in TPF until TPF receives full payment of any applicable fees from you, at which point title shall pass to you.

 

58. Possession and risk (i.e. of any loss or damage) in any materials being delivered to you shall pass to you at the point of delivery. The point of delivery shall be when the product is loaded on-board with the delivery services provider at TPF’s warehouse, unless otherwise agreed by TPF in writing or in a Schedule.
59. You must provide the following:
    1. Provide all requested data and information within requested timeframes, in addition to any other assistance that may reasonably be required;
    2. an overview and detailed description of any products handled by

 

60. Products manufactured by us on your behalf may, where agreed, be stored at one of our warehouses located in Australia or Vietnam. Alternatively, you may also manufacture your own products and deliver the products to one of our warehouses for storage and fulfilment (“Inbound Shipments”), pursuant to this Agreement. You are solely responsible for all expenses related to manufacturing and delivery of your Inbound Shipments.

 

61. Products will be warehoused by us in either or Vietnam facility (“Vietnam Facility”) or our Melbourne facility (“Melbourne Facility”).
62. Subject to law, TPF will not be responsible for any losses or damages to Inbound Shipments caused during delivery to our warehouses. TPF will not provide insurance coverage in the event that Inbound Shipments contain illegal or prohibited products, or are in breach of this Agreement.