Last updated January 2021
Please read these Terms of Use before you start to use our Website or Apps and before making a booking for any service.
By using our Website or our Apps you confirm that you accept the Terms of Use and you agree to comply with them (whether you register with us or not). If you do not agree with these Terms of Use you must not use our Website or our Apps in any way.
For the avoidance of doubt, please note that references to our “Website” in these Website Terms include any current or future version of our website www.bookwell.com.au and our “Apps” any BookWell mobile application through which you access our website or services.
We may change these Website & App Terms of Use from time to time, in which case an up to date version will be available via the Website and our Apps. We will not separately notify you of any change to these Website & App Terms of Use. You should check these Website & App Terms of Use regularly to ensure that you are happy with any changes we may make. You will be deemed to have accepted any changes to these Website & App Terms of Use and to have agreed to the updated Website & App Terms of Use that are current at the relevant time each time you access or use the Website or our Apps and/or continue to access or use the Website or our Apps.
Use of your personal information submitted via the Website is governed by our Privacy Policy.
The Website and our Apps are provided by BookASalon Services Pty Ltd ACN 611 705 607 (“BookWell”, “us”, “we” or “our” for short). “You” and “your” means you as the user of our Website or our App. “these Terms” means these Website & App Terms of Use (as amended from time to time).
The Website and our Apps’ main function is to aggregate, and provide a centralised booking point for, selected third party goods and services providers who wish to offer their goods and services for sale via our Website and our Apps (“Vendors”).
The content and third party offers on our Website and our Apps are provided by us on an ‘as is’ basis and use of our Website and our Apps is at your own risk. We (nor any of our respective directors, officers, employees or agents) do not make any representation or warranty as to the accuracy, completeness, currency or reliability of the information contained on our Website or our Apps (including in relation to products or services offered by third parties).
Please note that these Terms do not govern the relationship between BookWell and our Vendors. If you are an existing Vendor, please check the Vendor Terms of Business provided to you upon sign up. If you are not yet a Vendor but would like to apply to BookWell to become one of our Vendors, please contact us.
On the basis that the Vendor is identified in and has duly executed Part 1 of this agreement, BookASalon Pty Ltd ACN 611 705 607 (“Bookwell”), primarily via its website www.bookwell.com.au or its affiliated websites (including Bookwell Links and Vendor Bookwell Websites), applications and platforms (together the “Website”), will enable customers to place Bookings (as defined in clause 4.1) for services from the Vendor (the “Bookwell Service”) on the terms and conditions set out in this agreement. The legal contract for the supply and purchase of services (“Vendor Services”) is between the Vendor and the person that places the Booking through Bookwell. For clarity, Bookwell accepts Bookings as agent for the Vendor.
In consideration of the mutual covenants contained in this agreement (which, for the avoidance of doubt, comprises both Part 1 (Overview of Key Terms) as executed by the Vendor and this Part 2 (General Terms and Conditions)), the parties agree to comply with their respective obligations set out herein, including, where the Vendor is approved by Bookwell (“Afterpay Approved Vendor”) for the purposes of allowing customers to pay for a Booking (“Afterpay Purchase”) using the Afterpay electronic payment gateway system (“Afterpay Gateway”) operated by Afterpay Australia Pty Ltd ACN 169 342 947 (“Afterpay”), those terms set out in clause 8.
Profile set-up: Within 14 days of Bookwell having received all the information that it reasonably requests from the Vendor (including in relation to the Vendor’s name, logo, address, contact information and menu (the “Website Profile”) in complete and correct form, Bookwell undertakes to set up the Vendor’s Website Profile on the Website.
Access to System: Bookwell will, as soon as reasonably practicable following the commencement of this agreement, provide the Vendor with access to its proprietary technology (the “System”), and other related software necessary to use the System.
Use and care: The Vendor must only use the System for the purpose of recording and administering Bookings and as otherwise agreed by Bookwell from time to time and must, in using the System, take reasonable care.
Product upgrades: Bookwell may upgrade or alter the System on notice to the Vendor at any time. Bookwell reserves the right to charge the Vendor for any upgrades at Bookwell’s then prevailing price. Bookwell will notify the Vendor in advance of any such upgrade or alteration of the amount of charges applicable (if any).
Ownership of System: The System remains the property of Bookwell at all times. On termination of this Agreement, access to the System will be revoked.
Execution of Bookings: The Vendor undertakes to receive, process and complete the customers’ bookings placed via the Website or received from Bookwell through its System or by means of fax, phone or email (“Bookings”) using the best care, skill and diligence, and in accordance with best practice in the Vendor’s industry, profession or trade. The Vendor must provide the Vendor Services ordered in the Booking and must take into account any customer comments submitted with the Bookings including without limitation in relation to customer preferences.
Rejection of Bookings: The Vendor must use its best efforts to accept all Bookings. Where the Vendor wishes to reject a Booking, it must immediately communicate such rejection by selecting the relevant option on the Website, in the system or by notifying Bookwell in writing.
Payment for Bookings : The Vendor agrees that it will at all times allow customers the option to pay for Bookings:
using either a credit or debit card (“Card Bookings”);
where the Vendor is an Afterpay Approved Vendor, by utilising the Afterpay Gateway; or
subject to clause 4.4, cash (“Cash Bookings”).
Payment for Bookings – Card-only Bookings: If, at any time after the first 120 days of the term of this agreement, the aggregate Gross Booking Value of Card Bookings is not more than the aggregate value of any debts owing by the Vendor to Bookwell (including for the avoidance of doubt any debts relating to Vendor Charges for Cash Bookings), the Vendor agrees that Bookwell may at its discretion: (i) directly debit from the Vendor’s credit or debit card registered with the Vendor’s account the relevant amount required in order to clear such debts due to Bookwell; or (ii) process Card Bookings only on behalf of the Vendor until all such debts are cleared (including Card Bookings processed directly by Bookwell via the Website).
Start of Bookings – Booking Number: Prior to providing the Vendor Services in satisfaction of a Booking, the Vendor must check that the Booking number given by the customer corresponds with the Booking number received by the Vendor from Bookwell.
Completion of Bookings – Customer ID: Where a Booking is a Card Booking, prior to providing the Vendor Services, the Vendor must request proof of identification from the customer in the form of the signed card used to place the Booking and check that the credit or debit card conforms with the receipt data for the Booking.
Start of Bookings – Alcohol etc.: Subject to clause 8 (if applicable), where a Booking contains alcohol, or any other goods which are subject to statutory age restrictions, the Vendor must request proof of age from the customer (in accordance with applicable laws). The Vendor will take every other precaution necessary to ensure the customer is over the legal age for the purchase of alcohol and to ensure that the completion occurs within the legal timeframe allowed for sale of alcohol.
Receipts: The Vendor will provide each customer with an official receipt (and a GST tax invoice, if applicable) in respect of a Booking, if the customer so requests.
Re-service and refunds: The Vendor must use its best efforts to satisfy any request for a re-service or refund or proportionate price reduction of any Booking made by a customer or Bookwell on behalf of a customer. In the event that such a re-service, refund or proportionate price reduction is granted by the Vendor or Bookwell, this will not affect the Vendor Charges that are due to Bookwell in relation to the original Booking. The calculation of all Vendor Charges will therefore be based on the Gross Booking Value of the faultless Booking.
For the avoidance of doubt, Bookwell may at its sole discretion, elect to provide a refund to a customer:
if the Vendor has failed to complete a Booking;
if the Vendor has completed a Booking and the provision of Vendor Services was either not of merchantable quality or did not meet the customer’s reasonable expectations;
as a result of a technical error occurring on the Website, including for example where through technical or usage errors the customer inadvertently places multiple Bookings; or
as otherwise required by Law, including the Australian Consumer Law.
Information supplied to Bookwell: The Vendor undertakes to check that any information contained in its list of Vendor Services (the “Offers”), or otherwise provided to Bookwell for inclusion on the Website, is at all times accurate and complies with all applicable regulations and laws (including but not limited to consumer information about treatments, products and/or ingredients which may cause allergic reactions or may not be suitable for all persons or all physical/medical conditions (“Special Information”)), and is up to date.
Special Information: The Vendor must provide and update Bookwell with details of any Special Information in relation to the Vendor Services. It is the Vendor’s sole responsibility to provide this information to Bookwell without delay, and check that the Website contains the correct Special Information. The safety of the customer is paramount. If Bookwell is not satisfied with the commitment of the Vendor to providing accurate and timely information about the Vendor Services (and in particular Special Information), Bookwell reserves the right to suspend the Vendor from the Website and/or terminate this agreement immediately.
Prices: The Vendor agrees that the prices it provides for display on the Website will be provided inclusive of any applicable sales tax and will be no higher than the prices offered elsewhere (including at its premises). The Vendor further agrees to honour any special offers that are displayed on the Website and to honour any loyalty programs displayed on the Website through to completion of a Booking, regardless of whether such loyalty programs are removed from the Website.
Updates and Errors: The Vendor is solely responsible for ensuring that the information (including prices) displayed on the Website is accurate and up to date and corresponds exactly to the listing of Offers. The Vendor must promptly report to Bookwell any errors in the listing of Offers or Website Profile displayed on the Website or any changes to the Offers or Website Profile. The Vendor agrees and acknowledges that if there is any conflict between the information provided on the Website and the information provided by the Vendor to Bookwell, the information provided on the Website will prevail (including with respect to the price of Vendor Services).
Changes and Costs: Bookwell will update and/or change the contents of the information about the Vendor displayed on the Website as soon as reasonably practicable following receipt of a written request from the Vendor to correct errors or make minor changes to such information. Bookwell reserves the right to charge an administrative fee to the Vendor to recover costs of making such changes. In such a case, Bookwell will notify the Vendor in advance of the change of the amount of administrative fees applicable.
Opening Hours: The Vendor must inform Bookwell of its hours of operation (the “Opening Hours”) and of any changes to such Opening Hours. If the hours of operation are stated in the Offers, Bookwell is entitled to treat these as the Opening Hours unless the Vendor informs Bookwell otherwise.
Offline Times During Opening Hours: The Vendor must remain online and able to accept Bookings using the Website at all times during the Opening Hours, save in case of closures for emergencies or planned closures, the duration of which has been communicated to Bookwell in writing in advance. Where closures are planned, the Vendor must provide Bookwell with a date from which Opening Hours will return to normal.
Vendor Charges: Bookwell is entitled to charge the Vendor the Vendor Charges set forth in Part 1 of this agreement, comprising a commission at the rate set forth in Part 1 on the Gross Booking Value (as defined in Part 1) of each Booking placed by a customer using the Bookwell Service and as otherwise detailed in Part 1 of this agreement (including, but not limited to, charges relating to Afterpay Purchases) and this clause 6. For the avoidance of doubt, Bookwell remains entitled to charge the Vendor all relevant Vendor Charges in the event that the Vendor cancels and/or does not honour a Booking and/or otherwise fails to provide the Vendor Services in respect of a Booking.
Customer No Show: Bookwell is entitled to charge the Vendor all Vendor Charges relating to a Booking notwithstanding that a customer may not attend such Booking or the Booking may not otherwise be completed, unless, within two (2) Business Days following the date of the missed or uncompleted Booking, the Vendor reports to, and provides proof satisfactory to Bookwell, that the relevant customer failed to attend the relevant Booking.
Deposit Fee: notwithstanding anything to the contrary in the terms and conditions set out in this agreement, Bookwell is entitled to charge to the Vendor the Deposit Fee in all circumstances where a customer has made a non-refundable deposit as part of a Booking, irrespective of whether the customer attends the Booking or if the Booking is not otherwise completed.
Commission: Bookwell may, on one months’ notice to the Vendor, increase the rate of commission payable by the Vendor on the total Gross Booking Value of each Booking placed by a customer and the Vendor Charges will increase accordingly. In addition, Bookwell may, on one months’ notice to the Vendor, amend merchant fees for credit card transactions and transaction fees. Unless the Vendor responds to such notification within 14 days objecting to the increase in commission or fees, such increases shall thereafter be construed as forming part of this agreement and accepted by the Vendor. If the Vendor delivers notice that it objects to any increase of commission or fees, and Bookwell does not agree to withdraw the increase objected to by the Vendor within a further 14 days of having delivered that notice (or otherwise agrees to a lesser increase that is acceptable to the Vendor), the Vendor may terminate this agreement by one month’s notice in writing.
Gross Booking Value: The Gross Booking Value is the greater of:
the total amount to be charged by the Vendor to the customer for a Booking; and
the total amount actually charged by the Vendor to the customer on completion of the Booking, plus applicable taxes (if any).
Collection of money: The Vendor authorises and consents to Bookwell collecting amounts paid by customers for Vendor Services pursuant to Card Bookings and Afterpay Purchases as agent for the Vendor (“Custodial Money”).
Vendor Credit Cards: The Vendor authorises and consents to Bookwell directly debiting amounts from the Vendor’s credit card or debit card registered with its account in accordance with the terms of this agreement. The credit or debit card (as applicable) first used by the Vendor (or provided to Bookwell) to make a payments under this agreement will be the Vendor’s registered credit or debit card for the purposes of this agreement.
Remittance: Bookwell will only remit any part of the Custodial Money to the Vendor where the Vendor completes a Booking by providing the Vendor Services ordered by a customer. Bookwell will remit Custodial Money relating to completed Bookings weekly or at such other intervals as Bookwell may from time to time notify the Vendor in writing. Any such remittance is subject to any rights of Bookwell to withhold amounts from the Vendor including in respect of re-service or refunds, in respect of Vendor Charges or in respect of the Vendor failing to complete a Booking and/or otherwise failing to provide Vendor Services.
Method of payment: Bookwell may, by notice in writing, elect to collect amounts payable by the Vendor as follows:
by deducting such amounts from the Custodial Money prior to remittance under clause 7.3;
by invoicing in accordance with this clause 7; and/or
by directly debiting the Vendor’s credit card or debit card registered with its account.
Statements: Bookwell will provide a statement of outstanding accounts between the Vendor and Bookwell (a “Statement”) in accordance with the statement frequency period defined in the detail sheet completed at the point that the Vendor signed up to the Bookwell Service. The Statement will include:
the aggregate Gross Booking Value of all Bookings for the relevant period, split between Cash Bookings, Card Bookings and Afterpay Purchases;
any sums owed by the Vendor to Bookwell in relation to Vendor Charges and any other services provided by Bookwell to the Vendor (including charges relating to Afterpay Purchases, digitising venue records and advertising material), in each case for the relevant period; and
any balance brought forward from, and any amounts paid or received by Bookwell, since the date of the previous Statement
Invoicing: If any monies are owed by Bookwell to the Vendor according to the Statement, Bookwell will remit that sum to the Vendor within two business days of providing the Statement. If any monies are owed by the Vendor to Bookwell according to the Statement, such sums will be due on the date of the invoice and payable by the Vendor within ten (10) days. Thereafter Bookwell may its discretion: (i) charge interest and set off any unpaid amounts in accordance with clause 9.1; or (ii) charge interest and directly debit any unpaid amounts from the Vendor’s credit card or debit card.
Card Bookings: If a customer pays for a Booking by credit or debit card, and the payment is withheld due to faults in the Vendor’s service of the Booking, or due to misuse of the card, the Vendor is not entitled to any payment from Bookwell in relation to such Booking.
Disputed Statements: If the Vendor disagrees with the Statement, the Vendor must notify Bookwell of its disagreement within 14 days of the delivery of the Statement to the Vendor, setting out in detail the reasons for the disagreement. If the Vendor fails to notify Bookwell of any such disagreement within 14 days of the Statement date, the Statement will be deemed to be accepted by the Vendor.
This clause 8 applies where a Vendor wishes to become, or is an Afterpay Approved Vendor. For the avoidance of doubt, this clause 8 applies in addition to all other terms in this agreement.
Approval for use of Afterpay Gateway: Bookwell has no obligation to supply the Afterpay Gateway to the Vendor for the purposes of paying for Bookings or processing Afterpay Purchases, and the Vendor may not permit customers to make Afterpay Purchases, until and unless the Vendor has been approved in writing by Bookwell as an Afterpay Approved Vendor. In this respect, the Vendor must on request comply (and during the period it is an Afterpay Approved Vendor, to continue to comply) with any reasonable request from Bookwell for:
documentation which Bookwell or Afterpay are required to obtain and verify from the Vendor in accordance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (“AML/CTF”) in order to provide the Afterpay Gateway;
reasonable access to the Vendor’s business for the purposes of Bookwell completing its due diligence in respect of the business, including to confirm that:
the Vendor has a current ABN;
the business owner for each Vendor matches the ABN and ID information collected;
the Vendor will only be supplying “Approved Services” (being, beauty, hair, wellness and fitness services approved in advance by Bookwell); and
proof of the provision of services to a customer in respect of an Afterpay Purchase, within two (2) Business Days of receiving a request from Bookwell.
Termination or Suspension of Afterpay Gateway: Bookwell may (in its sole discretion) terminate or withhold the use of the Afterpay Gateway for Bookings if:
Bookwell reasonably believes the Vendor represents an unacceptable risk to Bookwell (including but not limited for AML/CTF or reputational reasons);
Afterpay directs Bookwell to do so;
Afterpay ceases to provide the Afterpay Gateway to Bookwell;
the Vendor offers for sale any goods or services that are not Approved Services; or
the Vendor breaches any provision of this clause 8, and:
such breach is incapable of remedy; or
the Vendor has failed to remedy such breach within 14 days of the date of a written notice issued to it by Bookwell requiring rectification of the breach.
Prohibitions: The Vendor is prohibited from, and must not:
increase its price for a Booking, or otherwise charge a customer any other fees or increase the overall cost to the customer for a Booking because the customer has elected to use the Afterpay Gateway as his/ her method for payment; or
offer customers the opportunity to purchase gift cards using the Afterpay Gateway.
Warranties: In connection with its use of the Afterpay Gateway, and each relevant Afterpay Purchase by a customer, the Vendor warrants and represents to Bookwell that:
it is aware that Bookwell owes obligations to Afterpay with respect to the use of the Afterpay Gateway by customers of the Vendor and that a breach by the Vendors of its obligations under this clause 8 and this agreement could result in Afterpay and Bookwell suffering loss;
all information the Vendor provides to Bookwell, in connection with the Afterpay Gateway, is complete, current and correct;
it does not know of or have any reason to suspect any fraud or suspicious activity relating to the Afterpay Purchase; and
the Afterpay Purchase represents a bona fide sale of the goods or services by the Vendor in the ordinary course of its business.
Indemnity: The Vendor indemnifies and holds harmless Bookwell and its related bodies corporate and their respective officers, directors, employees and agents from and against all claims, actions, losses, offsets, liabilities, damages, judgments, amounts paid in settlement, costs and expenses (including reasonable legal fees and disbursements and collection fees) resulting from a breach of this clause 8 and / or arising in connection with the provision by Bookwell of the Afterpay Gateway to the Vendor for use by its customers.
Set-off by Bookwell: Where any payments are overdue to Bookwell from the Vendor, Bookwell may set off the amounts outstanding against:
any amount otherwise payable to the Vendor in the next Statement; and/or
any sums received from Card Bookings or Afterpay Purchases for the Vendor and Bookwell may calculate 1.5% interest per month on any overdue amount as from the relevant payment due date until the earlier of the date that the amount is set-off or the amount is credited to Bookwell’s bank account (as the case may be). The Vendor is liable to Bookwell for any costs reasonably incurred in connection with the settling or recovering of an overdue payment, and may set-off such costs in accordance with this clause.
Set-off by the Vendor: The Vendor is not entitled to withhold any payments by way of set-off against any alleged claim or shortcoming in the Bookwell Service without Bookwell’s prior written consent.
The Vendor must notify Bookwell in writing prior to any change of ownership of the Vendor or any change to its bank account details and in any case as soon as practicable following such change. Failure to notify Bookwell may result in Bookwell paying monies to a bank account controlled by the outgoing owner(s) or an incorrect bank account. The Vendor must fully indemnify Bookwell and hold Bookwell harmless against any losses, damages or claims made against Bookwell by the new owner(s) or otherwise incurred by Bookwell due to any failure by the Vendor to provide timely notification of a change in accordance with this clause.
General: The Vendor acknowledges and agrees that Bookwell may display on the Website ratings and comments (“Reviews”) provided by customers regarding the Vendor, a Booking or the Vendor Services.
Removal: Bookwell will only remove those Reviews that Bookwell determines in its sole discretion contain explicit, offensive or derogatory language or otherwise breach Bookwell’s review guidelines from time to time. The Vendor acknowledges that Bookwell is under no obligation (but, subject to Law, including the Australia Consumer Law, reserves the right and sole discretion at any time and for any reason) to remove or edit any Reviews.
Reviews by Vendor: The Vendor agrees that it will not itself provide any Reviews or cause any other party to provide any Reviews that are fraudulent or otherwise breach Bookwell’s review guidelines.
Liability: To the fullest extent permitted by law, Bookwell assumes no responsibility or liability to the Vendor for any Reviews.
General: The Vendor confirms and undertakes that it has obtained and will obtain and maintain any consents, licences, permits, approvals or authorisations (“Consents”) of any person that may be required in connection with, and it is not party to and will not enter into any agreement which would be breached by, or under which any default would occur as a result of, signing this agreement or performing any of its terms or generally running its business.
Franchises: If the Vendor’s business, name, brand or logo is or becomes subject to any license or franchise arrangements, the Vendor confirms that it has obtained or will obtain any required Consents from its licensors or franchisors for the use and inclusion on the Website of such business, name, brand or logo, and must fully indemnify Bookwell for any losses, damages or claims made against or incurred by Bookwell due to any failure to obtain such Consents. The Vendor further confirms that the Bookwell may provide information on this agreement, Bookings under this agreement and other information reasonably requested by the Vendor’s licensors or franchisors to the Vendor’s licensors or franchisors.
Loss of Consents: The Vendor will notify Bookwell in writing immediately if any of the Consents described in clause 12.1 or 12.2 are revoked or suspended or the Vendor is otherwise unable to rely on or benefit from any such Consents for any reason.
Compliance with laws: The Vendor will comply with all applicable laws and regulations in providing the Vendor Services pursuant to Bookings and otherwise in the course of performing this agreement including, without limitation in relation to health and safety, GST, privacy, Australian Consumer Law, hygiene and information, and will provide reasonable evidence to Bookwell of such compliance upon request.
Provision of alcohol:
If Offers involve the provision of alcohol, or any other goods for which the vendor must hold a licence to supply, the Vendor warrants that it holds and will continue to hold all necessary licences to supply such goods during the Term.
The Vendor must, in providing the Vendor Services, comply with statutory age restrictions relating to the service of alcohol in accordance with applicable laws.
The Vendor must fully indemnify Bookwell and hold Bookwell harmless against any losses, damages or claims made against Bookwell due to any failure by the Vendor to comply with applicable laws in the provision of Vendor Services, including but without limitation, statutory age restrictions on the service of alcohol or the failure of the Vendor to hold the necessary licences and/or permits referred to in clause 12.5.
Website terms and conditions: The Vendor must at all times comply with the Website terms and conditions (available on the Website, and as amended from time to time), and in particular (but not limited to) compliance with applicable security and privacy provisions when handling customer information or receiving and processing Bookings. The Website terms and conditions are hereby incorporated into this agreement. In the event of any conflict between this agreement and any Website terms and conditions, the terms of this agreement will prevail.
Taxes: The Vendor is solely responsible for self-assessing, claiming and remitting all its applicable taxes.
Inspections and audit: The Vendor agrees that Bookwell (and its representatives) has the right to inspect the Vendor’s premises on no less than 24 hours’ notice, in order for Bookwell to satisfy itself of the Vendor’s compliance with clause 8, this clause 12, to audit the aggregate Gross Booking Value for any period as reported by the Vendor or the System (including inspection of, and reasonable access to, all books, records and data of the Vendor relating to the Vendor Services), or for any other reasonable purpose.
Display of Bookwell Branding: Where the Vendor agrees to market Bookwell and/or the Website by means of menus, stickers or other relevant advertising material, the Vendor agrees to do so in accordance with Bookwell’s guidelines and instructions.
Bookwell marketing - The Vendor:
consents to receiving from time to time direct marketing communications relating to Bookwell’s products or services or those of Bookwell’s selected partners via e-mail, SMS, post, fax or other means of communication; and
acknowledges that Bookwell will, during the term of this agreement, undertake marketing activities to promote Bookwell that refer to or utilise the name, brand or Offers of the Vendor (including, (but not limited to), activities that use Internet search engines or Adword services) and irrevocably consents to Bookwell carrying on such activities.
Non-disparagement: The Vendor undertakes to refer positively to Bookwell in relation to any publicity regarding the Bookings and the Bookwell Service in accordance with guidelines provided by Bookwell and must not at any time actively encourage customers who have placed Bookings to place a future Booking directly with the Vendor, nor attempt to direct Bookings placed with the Vendor through any website other than the Website.
Ownership of IPR: All IPR (as defined below) in or arising out of or in connection with the Bookwell Service, the Website and / or the System will be owned by Bookwell and nothing in this agreement will constitute a transfer of those IPR to the Vendor.
Licence of Vendor IPR: The Vendor grants Bookwell a licence to use the Vendor’s name (or variant thereof), Offers, logo and other IPR for the purposes of promoting the Website, Bookwell and providing the Bookwell Service (including use on internet search engines, use of the Vendor’s name (or variant thereof) as an adword and any other advertising of Bookwell or Bookwell’s business) for the duration of this agreement.
Third-party IP Rights: The Vendor confirms irrevocably to Bookwell that the Vendor’s name, Offers, logo and other material that the Vendor may provide to Bookwell for inclusion on the Website do not violate, infringe or conflict with the IPR of any third party or any moral rights of a third party (including without limitation any licensor/franchisor).
Third-party IP claims: If a third party makes a claim against Bookwell for the violation of the third party’s IPR or a third party’s moral rights relating to the Vendor’s name, Offers, logo and/or other material provided by the Vendor, the Vendor must fully indemnify and keep Bookwell indemnified against any losses, damages or claims of any nature and all costs resulting therefrom.
“IPR” means: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world but excluding moral rights and any similar rights that are by law non-assignable.
Bookwell intends to make the Website available and functional for 24 hours of the day but is under no obligation to do so.
Bookwell is entitled to interrupt the access to the Website at any time and without notice in order to maintain and update the Website. In connection therewith, Bookwell will use reasonable endeavours to ensure that such interruption is as brief as possible and if possible takes place at a time when the number of Bookings is at a minimum.
Where applicable, Bookwell will use reasonable endeavours to ensure the Website complies with relevant laws and regulations, including the laws relating to treatment of personal data.
Should Bookwell give the Vendor direct access to making changes on the Website, the Vendor will be solely responsible for any such changes and must fully indemnify Bookwell for any losses, damages or claims made against or incurred by Bookwell due to any act or omission of the Vendor.
Vendor Bookwell Website:
Unless the Vendor requests otherwise in writing, the Vendor agrees that Bookwell may, but is not obliged to, create (at no cost to the Vendor) websites relating to such Vendor with a domain name of Bookwell’s choosing (the “Vendor Bookwell Website”).
The Vendor Bookwell Website may: (i) provide a link to the Website and enable customers to place Bookings for the Vendor’s Services via the Vendor Bookwell Website; and (ii) reproduce any of the material(s) in which the Vendor owns IPR provided by the Vendor to Bookwell under this agreement (including but not limited to the Vendor’s name, Offers and logo).
Save for the Vendor’s name, Offers and logo, all IPR (as defined in clause 14.4) in the Vendor Bookwell Website (including its domain name) will at all times remain the property of Bookwell.
Bookwell will, promptly following receipt of a reasonable request from the Vendor to do so, and may at its sole discretion at any time and for any reason, permanently remove or otherwise disable the Vendor Bookwell Website (provided that nothing in this paragraph will prevent Bookwell from re-using the domain name for such other purposes as it sees fit).
Vendor Own Website:
Bookwell may at its sole discretion, upon the Vendor’s request, permit and/or enable the Vendor to provide a link (the “Bookwell Link”) to the Website on the Vendor’s own website (the “Vendor Own Website”).
The Bookwell Link will: (i) provide a link to the Website and enable customers to place Bookings for the Vendor’s Services via the Vendor Own Website; and (ii) include Bookwell’s logo (as provided by Bookwell).
All IPR in the Bookwell Link (including Bookwell’s logo) will at all times remain the property of Bookwell.
The Vendor agrees with Bookwell that it must, promptly following receipt of a request from Bookwell, and in any event upon termination of this agreement, permanently remove or otherwise disable the Bookwell Link (including Bookwell’s logo) on the Vendor Own Website.
Bookings through Vendor websites: For clarity, any bookings placed by customers to the Vendor via the Vendor Bookwell Website or the Bookwell Link will be considered “Bookings” for the purposes of this agreement and will give rise to Vendor Charges and the other provisions of this agreement. Furthermore, subject to applicable laws and regulations, Bookwell is entitled to send direct marketing communications to any customer who places a booking through a Vendor Bookwell Website or Bookwell Link.
If, in Bookwell’s sole opinion, the Vendor is in default of its obligations under this agreement or otherwise operates in a manner which is harmful to Bookwell’s business, goodwill or reputation, including without limitation by reasons of:
non-payment or late payment of amounts due from the Vendor to Bookwell;
sub-standard customer service (e.g. Vendor employees being impolite to customers; the Vendor erring in the service of Bookings etc.);
the Vendor being unable to receive or process Bookings due to repeatedly refusing Bookings; or
Bookwell receiving allegations or evidence that the Vendor does not have the necessary Consents for the use and inclusion on the Website of its business, name, brand or logo, then without limiting its other rights or remedies, Bookwell may at any time suspend provision of the Bookwell Services under this agreement (including by removing the Vendor’s Website Profile from the Website without notice) or any other services that it provides to the Vendor under a separate agreement without any liability to Bookwell. The suspension of the Bookwell Service will continue until the default or relevant issue has been remedied to the satisfaction of Bookwell (acting reasonably).
Term: This agreement comes into force when signed or assented to by both parties and will continue to have full force and effect until terminated by either party in accordance with its terms.
Termination by Bookwell: Without prejudice to its other rights and remedies, Bookwell may:
at any time and for whatever reason terminate this agreement by giving one months’ written notice to the Vendor without further liability to the Vendor.
immediately terminate this agreement by giving written notice to the Vendor without further liability to the Vendor if it believes that the Vendor:
has breached this agreement; or
has a direct or indirect financial interest in any business that carries out Competing Activities to Bookwell (Competing Activities means the same or similar services that Bookwell is providing to the Vendor under this agreement, or other activities having similar purpose).
Termination by the Vendor: The Vendor may only terminate this agreement by:
giving one months’ written notice to Bookwell; or
otherwise by written notice in accordance with clause 6.4 or 22.
Effect of Termination: Upon termination of this agreement in accordance with its terms, all outstanding amounts payable by the Vendor will become immediately due and payable. Bookwell will send the Vendor a notice confirming the termination of the Bookwell Service and final payment details, and either a payment for any outstanding monies owing by Bookwell to the Vendor or a request to pay any outstanding monies owing to Bookwell (as applicable). Any outstanding monies owing to Bookwell may be charged to the Vendor’s credit or debit card registered with the account and the Vendor authorises such payment.
Cached Websites: Bookwell will use reasonable endeavours to remove or disable the Vendor’s Website Profile and Vendor Bookwell Website reasonably promptly following termination of this agreement. However, the Vendor acknowledges and accepts that cached versions of these sites may continue to exist in the web browsers and web servers of search engines and customers following such termination and agrees that Bookwell has no control over, and will not have any liability to the Vendor (whether based on IPR infringement, infringement of moral rights or otherwise) in connection with, the foregoing.
Survival of Certain Rights and Obligations: The rights and obligations of the parties under this agreement which are intended to continue beyond the termination or expiry of this agreement (including those under this clause 18 and clauses 6, 7, 8, 11, 13.3, 14, 19, 21, 24, 25, 25 and 26) will survive the termination or expiry of this agreement.
General: Nothing in this agreement will limit or exclude Bookwell’s liability for death or personal injury caused by its gross negligence (or the gross negligence of its employees, agents or subcontractors), fraud or fraudulent misrepresentation; or any other liability that cannot be limited or excluded under applicable law, including the Australian Consumer Law.
Exclusion of Bookwell’s Liability: To the extent permitted by Law, including the Australian Consumer Law, and subject always to clause 19.1, Bookwell will not be liable to the Vendor, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any damages, costs, direct or indirect losses resulting from faults, breakdowns or other interruptions to the Bookwell Service or the Afterpay Gateway (if applicable)for any reason and including, without limitation, loss of profit or any loss not arising naturally or not arising according to the usual course of things from the relevant breach or acts or omissions.
Limitation of Bookwell’s liability: Subject always to clauses 19.1 and 19.2, and the Australian Consumer Law more generally, Bookwell’s total liability to the Vendor in respect of all other losses arising under or in connection with this agreement howsoever caused (and whether in contract, tort (including negligence), breach of statutory duty, or otherwise, and including losses caused by Bookwell’s repudiatory breach or a deliberate breach of the agreement by Bookwell, its employees, agents or subcontractors) must never exceed the aggregate amount of Vendor Charges paid to Bookwell by the Vendor pursuant to this agreement in the 12 months prior to the date that the liability arose.
Indemnity: The Vendor fully indemnifies Bookwell and will keep Bookwell indemnified against any losses, damages or claims (and all related costs) made against Bookwell by a customer or any third party in connection with the provision of Vendor Services, the Vendor’s failure to deliver or imperfect completion of a Booking, or the Vendor’s failure to comply with this agreement and/or any applicable laws (including the Privacy Act 1988 (Cth) and the Australian Consumer Law), and rules and regulations in force at the relevant time.
Joinder: The Vendor must accept and will not object to being included by Bookwell in any manner to any third party notice or otherwise in any proceedings instituted against Bookwell, relating to the Vendor’s acts or omissions in connection with this agreement.
Bookwell will not be liable to the Vendor as a result of any delay or failure to perform its obligations under this agreement because of a Force Majeure Event. A “Force Majeure Event” means an event beyond the reasonable control of Bookwell including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Bookwell or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, import and export restrictions, faults, breakdowns or other operational interruptions.
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and under- standings between them, whether written or oral, relating to its subject matter, and no party will have any claim for innocent or negligent misrepresentation based upon any statement in this agreement.
Upon one month’s prior written notice, Bookwell may amend the terms of this agreement. The Vendor will be notified of such amendments in writing either by fax, email, or post. Unless the Vendor responds to such notification within 14 days objecting to the amendments by notice in writing to Bookwell, such amendments shall thereafter be construed as forming part of this agreement and accepted by the Vendor. If the Vendor delivers notice that it objects to any amendments in accordance with this clause 22, and Bookwell does not agree to withdraw the amendments objected to by the Vendor within a further 14 days of having delivered that notice (or otherwise modifying the amendments in a manner acceptable to the Vendor), the Vendor may terminate this agreement by one month’s notice in writing.
Bookwell is entitled to assign all or any of its rights and obligations under this agreement to any third party without consent.
The Vendor may only assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the agreement to a third party with Bookwell’s express prior written consent (which may be withheld in Bookwell’s sole discretion or granted subject to any conditions Bookwell notifies in its sole discretion).
The content of this agreement and any information concerning the other party is to be treated as confidential and must not be disclosed during the term of this agreement or at any time thereafter save as required by law, provided that Bookwell is entitled to use the Vendor’s name as a reference and provide any relevant information supplied by the Vendor to Bookwell to Afterpay if required for the purposes of clause 8 and to have the Vendor approved as an Afterpay Approved Vendor.
If any of the terms or conditions of this agreement are declared wholly or partly invalid, illegal or unenforceable, the remainder of this agreement will remain in full force and effect and any wholly or partly invalid terms or conditions will be modified to the minimum extent possible to make it valid, legal and enforceable.
Governing law: This agreement and any dispute or claim arising out or in connection with this agreement or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) will be governed by and construed in accordance with the laws of Victoria.
Jurisdiction: The parties agree to submit any dispute arising in connection with this agreement to the exclusive jurisdiction of the courts of Victoria (including any dispute or claim relating to non-contractual obligations).
Notice: A notice under this agreement will be sent to the party concerned at the address described in this agreement, personally, by email or by fax.
The parties consent to use an electronic signature service for the purposes of electronically executing this agreement. The person executing this document warrants that they have sufficient authority to enter into this agreement, and that authority is current and accurate as at the date of entering into this agreement on behalf of the Vendor.