This Agreement is between Rocket Retail (ABN 62 104 686 053) of 565 Sandy Bay Road, Sandy Bay, TAS 7005 (“Rocket Retail”) and you (“Merchant”).
RESTRICTIONS ON USE OF MATERIALS
This service is owned and operated by Rocket Retail. No material from www.rocketretail.com.au, www.rocketstore.com.au or any Web Site owned, operated, licensed or controlled by Rocket Retail may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way unless permission has been expressly granted by Rocket Retail. By accepting the Terms and Conditions of this agreement, the Merchant: (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about the Merchant as prompted by the Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by the Merchant is untrue, inaccurate, not current or incomplete, Rocket Retail has the right to terminate the Merchant’s account and refuse any and all current or future use of the Service.
DISCLAIMER OF WARRANTIES AND LIABILITIES
The Service and Software are provided on an “as is” and “as available” basis without warranties of any kind, either express or implied, including but not limited to warranties and conditions of merchantability, fitness for a particular purpose and non-infringement. Neither this agreement or any documentation furnished under it is intended to express or imply any warranty, condition or representation that the online store services will be uninterrupted, timely or error-free or that the software will provide uninterrupted, timely or error free service. The security mechanism is the latest and highest incorporated in the software but can have inherent limitations and Merchant must determine that the Software adequately meets its requirements. Merchant acknowledges and agrees that any material and/or data downloaded or otherwise obtained through the use of the service is done at its own discretion and risk and that Merchant will be solely responsible for any damages to its computer system or loss of data that results from the download of such material and/or data. Rocket Retail and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, shall not be liable, under any circumstances or legal theories whatsoever, for any loss of business, profits or goodwill, loss of use or data, interruption of business, or for any indirect, special, incidental or consequential damages of any character, even if Rocket Retail is aware of the risk of such damages, that result in any way from Merchant’s use or inability to use the online store services or the software, or that result from errors, defects, omissions, delays in operation or transmission, or any other failure of performance of the online store services or the software. Rocket Retail’s liability to Merchant shall not, for any reason, exceed the aggregate payments actually made by Merchant to Rocket Retail over the course of the existing Term. Some jurisdictions do not allow the exclusion of certain warranties or liabilities, so some of the exclusions may not apply to you.
Should the merchant or any person accessing this Web Site respond with information, feedback, data, questions, comments, suggestions or the like regarding the content of (a) any document in this or any other Rocket Retail Web Site or (b) any Rocket Retail Software product, any such response shall be deemed not to be confidential and Rocket Retail shall be free to reproduce, use, disclose and distribute the response to others without limitation. The merchant agrees that Rocket Retail shall be free to use any ideas, concepts or techniques contained in the merchants response for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products incorporating such ideas, concepts or techniques.
2. No Compete Agreement
By using this Web Site the merchant is gaining knowledge of Rocket Retail product concepts, and therefore the merchant is agreeing that he/she will not compete with Rocket Retail products in any way, the merchant is agreeing that he/she will not develop, and have not developed a competing product or similar product to Rocket Retail products and services. More specifically, the merchant is agreeing that he/she have not developed, and will not develop an Internet/Intranet commerce software product such as the shopping cart system.
3.1 Payments to Rocket Retail are required on 1) A monthly basis according to the payment option the merchant has chosen. Fixed payments will be due on the same calendar day as the initial purchase date (after 14 day free trial has ended) for each month following and paid in advance at the time of sign up or renewal. Any accrued charges will be due starting from the same calendar day as the initial purchase date of the second calendar month and will be added to the fixed amount due. Monthly and yearly fees are subject to change at any time with notice from Rocket Retail.
3.2 The Merchant is billed under clause 3.1 above to the credit card number given to Rocket Retail at the time of registration or to such other credit card number which Merchant shall so designate, any changes to credit cards must be given to Rocket Retail before the payment date. The Merchant agrees to pay the fee if it uses the services of Rocket Retail. Fees are deducted automatically from the merchants credit card unless a full thirty (30) days written notice is given to cancel.
3.3 Application and Use Fee. Merchant shall pay any applications fees, user fees, including but not limited to monthly fees, any taxes according to the Rocket Retail’s then-applicable fee schedule.Â Merchant shall pay all amounts due to Rocket Retail on the same calendar day of the due date each month. If this payment can not be made within the applicable due date, contact Rocket Retail and we will decide the action to be taken on the merits of each case in accordance with clause 3.4.
br> 3.4 Late Payments. If Merchant fails to pay any fees by the applicable due date, Rocket Retail will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the Rocket Retail services and/or performance of the services provided by Rocket Retail hereunder and/or terminate this agreement. Access to the merchants store will be suspended automatically ten (10) days from the due date if the merchant fails to correct fees due to Rocket Retail. Any such suspension or termination will not relieve Merchant from paying any outstanding fees plus interest and late charges. Merchant will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys fees, court costs and collection agency fees.
3.5 Taxes. Merchant will pay or reimburse Rocket Retail for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Rocket Retail under this agreement, excluding, however, income taxes or gross receipts taxes which may be levied against Rocket Retail. Such taxes may be reflected on Merchant invoices.
3.6 Fourteen day free trial period. Rocket Retail offers a no obligation to purchase 14 day free trial account on a basic package. If within the initial 14 calendar days free trial period with Rocket Retail, the merchant reserves the right to cancel his/her store at any time without consequence. Rocket Retail will not ask for or receive credit card or payment information from the merchant to set up a free trial account, however, the merchant can at any time enter credit card payment information to start membership with Rocket Retail, at this time the merchants monthly billing period will begin.
3.7 Rocket Retail is an International company based in Australia. All transactions are therefore charged in Australian dollars.
4.1 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this agreement are exclusive of GST for outside Australia and inclusive of GST within Australia.
4.2 In this clause the expressions “consideration”, “GST”, “input tax credit”, “recipient”, “supply” and “tax invoice” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
4.3 If GST is payable by the supplier on any supply made under this Agreement the recipient will pay to the supplier an amount equal to the GST payable on the supply. That amount will be paid at the same time that the consideration for the supply is payable under the Agreement and will be paid in addition to the consideration. The supplier shall upon receiving that amount from the recipient provide the recipient with a tax invoice in respect of the supply.
4.4 If at any time an adjustment event arises in respect of any supply made by the supplier under this Agreement, a corresponding adjustment will be made between the supplier and the recipient in respect of any amount paid to the supplier by the recipient under this clause and payments to give effect to the adjustment will be made.
4.5 Where the recipient is required is to pay for or reimburse an expense or outgoing of the supplier, the amount to be paid by the recipient is the amount of the expense or outgoing less any input tax credit in respect of such expense or outgoing that the supplier is entitled to.
5. Delivery of Software
Rocket Retail is not required to deliver a hard copy of any software. Rocket Retail provides an access code and password to it’s internet server and does not require any software downloads. Within 48 hours of a successful purchase (successful credit card payment), excluding Saturdays, Sundays andÂ bank observed holidays, the Merchant will have access to create and manage the Rocket Retail online store in accordance with Rocket Retail’s Terms and Conditions
6. Term and Termination
6.1 This agreement will commence on the date you or a representative on your permission ‘checks’ the “I ACCEPT” box to agree to the terms and conditions and shall continue thereafter on either a month to month basis depending on the contract term the merchant signed up to.
6.2 Termination by Rocket Retail. Rocket Retail shall have the right, upon notice to Merchant, to terminate this Agreement specifically if: (a) Merchant fails to timely pay Rocket Retail any amount due to Rocket Retail under this Agreement; (b) Merchant materially breaches any term or condition this Agreement; or (c) Merchant (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
6.3 Termination by Merchant. The merchant can cancel without notice or consequence at any time within the 14 day free trial period. Once the merchant has commenced with Rocket Retail on a paid basis, the merchant will have the right, upon written (delivered via e-mail, post or fax and replied to by Rocket Retail staff) notification to Rocket Retail’s office, to terminate this for any reason at any time giving 30 day’s written notice. The remaining monthly payment in advance will be forfeited by the merchant in full. If a payment falls within the 30 days notice period the entire payment is forfeited by the merchant.
6.4 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason, except for non-payment: (a) Merchant’s access to, and use of, the Rocket Retail Services will terminate; (b) Rocket Retail will make available to Merchant all Merchant documents and other materials stored by Merchant on the Rocket Retail Server; and (c) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.
6.5 Deletion of Information. Upon termination, Rocket Retail reserves the right to delete from its servers, after offering to return information, any and all information contained in Merchant’s account, including but not limited to order processing information, mailing lists, and any Web pages generated by the Software, without liability for any loss, costs, expense or damage suffered by Merchant
7. Merchant Obligations
7.1 The Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at the Merchant’s Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with the Merchant’s account or password. Certain Stores may be subject to additional requirements.
7.2 The Merchant agrees to display in the Store the Merchant’s contact information, including but not limited to Merchant’s company name, address, telephone number, fax number and e-mail address. The Merchant also agrees to update such information to keep it true, accurate, current and complete. Rocket Retail will not be held responsible for incorrect billing information issued due to the Merchants inaccurate information supplied to Rocket Retail.
7.3 The Merchant represents and warrants that it has full power and authority under all relevant laws and regulations:
(a) to offer and sell the goods and services offered at the Store, including but not limited to holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at the Store;
(b) The Merchant represents and warrants that it will accurately describe all goods and services it is proposing to sell in it’s Store.
(c) To provide for credit card payment or any other offered payment method and delivery of goods or services as specified at the Store
7.4 The Merchant represents and warrants that it will not engage in any activities:
(a) that constitute or encourage a violation of any applicable law or regulation, including but not limited to the sale of illegal goods or the violation of export controls or obscenity laws;
(b) that defame, impersonate or invade the privacy of any third party or entity;
(c) that infringe the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others; and,
(d) that are in any way connected with the transmission of “junk mail”, “spam” or the unsolicited mass distribution of e-mail, or with any unethical marketing practices. If the merchant is found to be connected in the transmission of “spam” and/or “junk mail” using Rocket Retail’s email accounts and mail server, Rocket Retail will take legal action against the merchant and heavy fines will be applied.
(e) Due to Rocket Retail’s restrictions on the content of material displayed, the merchant agrees not to display any form of adult material (pornography)
7.5 Rocket Retail reserves the right to refuse to host or continue to host any Store which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its goods or services or other material aspects of the Store from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to Customer or timely fulfil customer orders or adequately deal with customers’ warranty or service requirements; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the provisions or intent of Rocket Retail.
7.6 Non-solicitation. Customer acknowledges and agrees that the employees and consultants of Rocket Retail are a valuable asset to Rocket Retail and difficult to replace. Accordingly, Customer agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and non-renewal or termination of this Agreement, Customer will not solicit or attempt to solicit any employee or consultant of Rocket Retail.
8. Proprietary Rights
8.1 Software License. Rocket Retail hereby grants Merchant a non-exclusive, non-transferable licence to use the Software in object code form only on a server controlled by Rocket Retail for the sole purpose of creating and maintaining Stores on such server. Merchant is not being granted any right to copy the Software or to use it on computers other than a server controlled by Rocket Retail. Merchant may not use Web pages or parts of Web pages generated by means of the Software, other than content that originates from and is proprietary to the Merchant, on any server other than the servers controlled by Rocket Retail without Rocket Retail’s express written agreement. The Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that Rocket Retail does not commit to support any particular browsing platform. Rocket Retail reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to the Merchant. If any revision or modification to the Software materially changes Merchant’s ability to conduct business, Merchant’s sole remedy is to elect to not renew the Rocket Retail account.
8.2 Rocket Retail Intellectual Property. The Merchant acknowledges and agrees that content available from Rocket Retail or the Service, including but not limited to text, software, music, sound, logos, trade marks, service marks, photographs, graphics, or video, is protected by copyright, trade mark, patent, or other proprietary rights and laws, and may not be used in any manner other than on the same restricted basis as specified for the Software in Section 7.1 above and for the purposes of this Agreement.
9. Maintenance and Support
9.1 Merchant can obtain assistance with any technical difficulty that may arise in connection with Merchant’s utilisation of the Software or Online Store Services by requesting assistance by email or calling Rocket Retail’s technical team. Rocket Retail reserves the right to establish limitations on the extent of such support, and the hours at which it is available.
9.2 Merchant is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the Software and online Store Services and Merchant shall be responsible for all charges related thereto.
9.3 Rocket Retail makes all attempt to keep software up to date with all integrations, however, as external companies can make changes at any time, Rocket Retail will not be held responsible for updating integrations in a timely manner although all attempts will be made to shedule upgrades at earliest convenience.
10. Changes to this Agreement
Rocket Retail will occasionally update this agreement. When we do, we will also revise the “last updated” date at the bottom of the Agreement statement. This agreement constitutes the entire agreement between the parties as to its subject matter to the exclusion of any prior agreement whether written or oral express or in any way implied.
The construction, validity and performance of this agreement shall be governed in all respects by the law of Queensland Australia and the parties agree to submit to the exclusive jurisdiction of the Courts of Queensland Australia. If any provision of this agreement is held to be invalid or unenforceable for any reason it shall be severable and shall not affect the remaining provisions of this agreement.
References to any party to this agreement shall be deemed to be references to or include as appropriate there respective successors and permitted assigns.
Last updated: Monday, November 7, 2011