The following are the standard terms and conditions (Terms and Conditions) that apply to your use of edenexchange.com (Website). Please read these Terms and Conditions, and any other document provided to you at the time of accepting these Terms and Conditions.
These Terms and Conditions relate to end users who use the Website and/or the Services.
The Website is an online platform for prospective buyers and sellers of businesses to meet and negotiate their own terms of sale. Eden Exchange Pty Ltd (ACN 152 787 212) is not a seller of any businesses or assets and we do not recommend any business for sale. The decision to purchase a business is entirely up to you.
We want to make you aware (and by accepting the Terms and Conditions you confirm you understand and agree that):
AGREED TERMS AND CONDITIONS
1. Definitions and Interpretation
The following definitions apply in these Terms and Conditions.
Agreement: the agreement between you and EDE signified by your acceptance of these Terms and Conditions to use the Services and/or Website provided by EDE and to pay the Charges, or as otherwise agreed in writing.
Charges: EDE's charges for the Services as posted on EDE's website from time to time or as agreed between the parties from time to time.
Data: means the personal data provided to EDE and updated from time to time by you (which may include sensitive personal data).
Data Protection Legislation: all applicable data protection legislation and regulations, including the Australian Privacy Act 1988 (Cth).
EDE: means Eden Exchange Pty Ltd (ACN 152 787 212), a company registered in Australia under the Corporations Act 2001 (Cth).
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, 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.
Material: includes, in addition to a document in writing, databases, computer software (including the Software), designs, drawings, pictures or other images (whether still or moving), the Website, sounds, text, button icons and digital downloads or any other record of any information in any form.
Services: means the provision of the EDE website services and Software, including (i) EDE provides an online platform for buyers to find businesses for sale by sellers. (ii) EDE provides a business introduction platform service. (iii) EDE stores the Data, (iii) EDE provides the facilities for you to send e-mails.
Software: means EDE's data management website software which is made available by EDE for use by you over the internet as part of the Services.
Trademark: means the "Eden Exchange" unregistered trade mark and logo (EDE has made an application to register this trade mark as at the date of these Terms and Conditions) and any future registration of any similar mark or application for registration anywhere in the world.
We and us: EDE.
You and your: the person, firm or company who purchases or uses Services from EDE and/or uses the Website pursuant to these Terms and Conditions.
In these Terms and Conditions:
2. The Agreement between us
2.2 Your acceptance of the Terms and Conditions shall be indicated by you clicking on the "Accept" box when using the Services. If you do not accept all the Terms and Conditions, you must click the "Decline" box when asked when using the Services.
2.3 Any error or omission of any information that we publish about the Services shall be subject to correction, provided that the correction does not materially adversely affect the Services.
2.4 We may change or add to these Terms and Conditions for operational, security, legal or regulatory reasons. We will inform you of any changes that we intend to make by posting a notice on the Website, at least 14 days before we make any changes unless urgent changes are required. You will also be invited to view any amended Terms and Conditions before making a purchase using the Services.
2.5 If you do not wish to accept any amended Terms and Conditions you should close your account as instructed on the Website or by contacting us as set out at clause 20.3 below, and stop using the Services immediately. If you do not close your account, your continued use of the Services will signify your acceptance of any amended Terms and Conditions.
3. Cost of using the Services
3.1 You will be charged for use of the Services and Website if you select a package we have advertised, or as otherwise agreed with us.
4. Intellectual Property
4.1 All information, data and materials used in the Services (including materials accessible on the Website and the software used to access the Services) are protected by rights, including copyright, design rights, database rights and trademarks. All these rights are either owned by us or licensed to us by the rights owner(s) for use with the Services or otherwise used by us as permitted by applicable law.
4.2 As between you and EDE, all Intellectual Property Rights and all other rights in the Website and the pre-existing Materials owned by us (which, for the avoidance of doubt, includes the Trademark) shall be owned by EDE. Subject to clause 4.3, EDE licenses all such rights as are necessary to use the Software and Trademark to you on a non-exclusive, worldwide basis to such extent as is necessary to enable you to make reasonable use of the Services. If this Agreement is terminated, this licence will automatically terminate.
4.3 You acknowledges that, where EDE does not own any pre-existing Materials, your use of rights in pre-existing Materials is conditional on EDE obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle EDE to license such rights to you. Use of the Software is on the following terms:
4.4 The Services are intended for personal and business use. Accordingly, you may print and download extracts from this Site for commercial use, provided that any material copied remains intact and you make it clear that copyright is owned by us. Any other copying, distribution, storing, framing or transmission of any kind or any sort of commercial use of the material used in the Services is strictly prohibited without our express consent. In particular, you may not utilize any data mining, robots, or similar data gathering and extraction tools to extract for use any substantial parts of the Software, Materials or Services, without our express written consent. You are also not permitted to create or publish your own database that features substantial parts of the Site or Services.
5. Acceptable Use Policy
5.1 You agree to use the Services as permitted by these Terms and Conditions and for lawful purposes only. In particular, you agree not to:
6. Competition and Prizes
6.1 We may run competitions, prize draws and promotions that will be subject to additional terms and conditions applicable to each individual instance and which will be made available at the time of such competitions.
7. Limits to your rights
7.1 We will do our best to maintain the operation of the Services in accordance with these Terms and Conditions. However, we cannot guarantee that the Website will be technically suitable for viewing on your computer or that the Services will be delivered to you uninterrupted, timely, secure or error-free
7.2 You are responsible for providing all computer equipment, mobile phone equipment and telecommunications service required to use the Services at your cost. We cannot and do not accept any responsibility for these and cannot guarantee the continued availability of any other person or services involved in providing the Services to you.
7.3 The internet is not a secure environment and we cannot guarantee that the Website and the server are free of computer viruses or other harmful applications. We recommend that you regularly update your browser software and use up-to-date anti-virus software to ensure that your access to the Services is as secure as possible.
7.4 Your access to the Services may be occasionally restricted to allow for repairs, maintenance, the introduction of new facilities or services, or due to events beyond our reasonable control. Where this happens, we will attempt to restore the Services as soon as we reasonably can.
7.5 We have no control or proprietary interest in the company or products with which you register your interest. We do not endorse any particular company or product. When you register your interest with a particular company, you will receive information from that company and we are not responsible for the content or the accuracy of such information. You should contact that company directly if you have any queries or complaints
7.6 We have no control over or proprietary interest in any websites that are hypertext linked to this Site. We make no representations or guarantees about those websites or their content, nor that the links work.
7.7 Should you purchase products or services from companies advertising on or linked to our Site, any contracts will be exclusively between you and the relevant company. We are not responsible for and do not endorse any other companies' products or services.
8.1 You acknowledge that:
9. Termination or suspension of Service or Agreement by us
9.1 Either party may terminate this Agreement at any time without cause provided that the terminating party gives the other party one month’s written notice. If you want to terminate this Agreement please contact us as provided in clause 20.3 below.
9.2 Without limiting our other rights, we may immediately suspend or remove details of any business uploaded by you to our website, or terminate this Agreement or terminate or suspend your usership or access to the Services (at our option) if:
9.3 It may be necessary, for reasons beyond our control, to terminate the Services or this Agreement through no fault of your own and if this occurs we will endeavour to provide as much notice as is reasonably possible in the circumstances.
10. Effect of termination or suspension (by you or us)
10.1 Termination or suspension of this Agreement (by you or by us) does not: (a) relieve you of your accrued obligations and liabilities pursuant to this Agreement and we reserve our right to enforce such obligations and liabilities after termination or suspension; and (b) waive any breach of this Agreement by either of us.
10.2 In addition to clause 10.1, you acknowledge that:
11. Packages, fees and billing
12. Limitation of liability and indemnity
12.1 To the extent allowable under the Competition and Consumer Act 2010 (Cth) or any other applicable law, we:
12.2 You must take all reasonable steps to minimise any loss you suffer or are likely to suffer and that is the subject of a claim against us under this Agreement. If you do not take reasonable steps to minimise that loss, then our liability to you for the relevant claim will be reduced accordingly.
12.3 We will not be liable under this Agreement to the extent that liability is caused by: (a) any breach of your obligations under this Agreement or a negligent act or omission by you; or (b) any delay in performance or breach of this Agreement which arises as a result of any matter beyond our control including but not limited to viruses, other defects or failure of the server hosting our website.
12.4 You indemnify us and our officers, employees and agents ("those indemnified") against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on an indemnity basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any material uploaded or submitted by you in connection with the Service or any other act or omission by you in connection with your use of the Service.
12.5 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this Agreement for whatever reason.
13. Exclusivity- listing
If you have agreed with us that you will promote and/or sell the relevant asset exclusively using the Services, then the following will apply. For the period in which your listing is live on the Website and for 180 days from the date you remove your listing, you warrant that you will not use any other platform, marketplace or service, including a broker service, to promote or sell your asset, without our express written consent. For these types of assets, you must conduct all inquiries into and discussions about the asset through the Website unless expressly authorized by us. If you breach any of these requirements and sell the asset regardless, you will be liable to pay us any agreed commission on sale
By using the Services, any buyer or seller of a business or assets agree that in the event of a dispute between them, EDE is not a party to any transaction between them and will not be required to participate in any such dispute. The buyer and seller will not cause EDE to be joined in any way to court or other proceedings relating to such dispute and the buyer and seller will indemnify and keep indemnified EDE against all costs, loss and damage caused to EDE as a result of it in any way being required to be involved in such dispute.
15. Supply of Services
15.1 Subject to earlier termination in accordance with these Terms and Conditions, EDE shall provide the Services to you for the duration of this Agreement and will use its reasonable endeavors to provide the Services in a professional manner.
15.3 You agree that you will register in your own name only and all information provided by you will be accurate and up-to-date. You cannot transfer any of your rights or usership under this Agreement. You agree to promptly update any of your details on the Site as necessary.
15.4 You are responsible for maintaining the confidentiality of your password and for all use of the Services made through your password. You agree to keep your password secret at all times and must inform us, and promptly change your password, if you believe that another person has become aware of your password or is using it or is likely to use it in an unauthorised way.
15.5 EDE shall store your Data securely and you should note that: EDE does not buy, sell or rent any of your Data nor will EDE disclose any Data to any business, organization or individual without your prior express consent.
15.6 It may be necessary to temporarily suspend the Services from time to time to carry out maintenance of equipment; such suspensions will be limited. However, the Services may also be suspended (in whole or part) where EDE or the third party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation.
15.7 EDE may at any time without notifying you make any changes to the Services which are necessary to comply with any relevant statutory, regulatory or similar requirements which do not materially affect the nature or quality of the Services.
15.8 EDE will provide e-mail support for the Services during its usual business hours free of charge. EDE speed of response and other modes of support will depend upon the package and Charges agreed with you.
15.9 EDE reserves the right to gather, process and publish anonymous statistics on aggregate delivery and open rates and other campaign statistics. These statistics are produced on an aggregate basis across all clients, for the purposes of quality control and allowing you to compare your performance across their particular industry. You agree to this.
16. Your obligations
16.1 You shall ensure that you have suitable computer and communications equipment to utilise the Services from time to time, utilising up to date software.
16.2 You shall obtain and maintain all necessary licenses and consents and comply with all relevant legislation, including data related legislation and applicable Australian codes, in relation to the Services, before the date on which the Services are to start.
16.3 You shall take account of and promptly comply with all reasonable directions of EDE in relation to its use of the Services. When considering the reasonableness of EDE's directions, the account shall be taken of the rights of other clients of EDE, potential damage to the reputation of EDE or its services and any complaints received by EDE from third parties.
16.4 You acknowledge that EDE will monitor and record each account's usage of the Services, to include any campaigns sent or data processed, for the purposes of ensuring legal compliance and anti-spam measures.
16.5 If EDE performance of its obligations under this Agreement is prevented or delayed by any of your acts or omissions, EDE shall not be liable for any costs, charges or losses sustained or incurred by you arising directly or indirectly from such prevention or delay.
16.6 You shall be liable to pay to EDE on demand, all reasonable costs, charges or losses sustained or incurred by EDE (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from your fraud, negligence, failure to perform or delay in the performance of any of your obligations under this Agreement, subject to EDE confirming such costs, charges and losses to you in writing. You shall indemnify EDE against any reasonable losses, claims, fines, damages and expenses (including legal expenses) arising from any breach of this clause 16.6
17. Data, Data Protection
17.1 You shall indemnify EDE against any loss, damage or expenses which may be incurred as a result of your breach of the Data Protection Legislation or from your use of any Data by you (including in relation to any e-mails or SMS text message sent by you or at your instruction).
17.2 EDE shall, and any third parties it contracts with shall, comply with all relevant Data Protection Legislation in relation to its storage of your Data.
17.3 EDE contracts with a third party to store the Data and back it up. Whilst that third party is obliged to carry out back-ups at regular intervals (at least daily), you are advised to make your own interim back-ups of all Data, particularly if it adds a significant amount of Data over a short time period. EDE shall have no liability for any loss or damage, however caused, arising from any loss of Data.
18. Confidentiality and EDE's Property
18.1 You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, trade secrets, processes or initiatives which are of a confidential nature and have been disclosed to you by EDE, its employees, affiliates or sub-contractors and any other confidential information concerning EDE' business or its products which you may obtain unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of such party from a third party. You shall restrict disclosure of such confidential material to such of your employees, agents or sub-contractors as need to know the same for the purpose of discharging your obligations to EDE, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind you.
18.2 The restrictions at clause 18.1 shall not apply in respect of any disclosure:
18.3 This condition 18 shall survive termination of this Agreement, however arising.
19. Force Majeure
EDE shall have no liability to you if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of EDE 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 sub-contractors.
20.1 No delay or failure by us to enforce any provision of this Agreement will be deemed a waiver or create a precedent or will prejudice our rights. No waiver by us will be effective unless it is in writing and signed by us.
20.2 We will send all notices and other communications to you to the email address you have provided to us. It is your sole responsibility to ensure that you provide us with your current contact email address.
20.3 All notices from you to us (including termination notices) must be sent by email to email@example.com and these contact details may be amended from time to time. It is your responsibility to check these Terms and Conditions for the current contact details.
20.4 You must not assign this Agreement or appoint an agent without our prior written consent.
20.5 We may assign this Agreement at any time. If we assign this Agreement, we will notify you of the assignment beforehand.
20.6 This Agreement (together with any documents referred to in the Agreement or provided by us at the same time as the Agreement) comprises the entire agreement between us about its subject matter. It supersedes all prior understandings, agreements or representations and you may not rely on any representations or warranties about the subject matter of this Agreement except as expressly provided in this Agreement.
20.7 The laws of Victoria, Australia govern this Agreement.
20.8 You submit to the exclusive jurisdiction of the Courts of Victoria, Australia and you waive any right you have to object to an action being brought in the Courts of Victoria, Australia (including that the action has been brought in an inconvenient forum, or that those Courts do not have jurisdiction).
20.9 If any term of this Agreement is void, unenforceable or illegal, that term is severed. The remainder of the Agreement has full force and effect.
20.10 Our rights and remedies provided in this Agreement are in addition to other rights and remedies given to us by law and equity independently of this Agreement.
Unless this Agreement otherwise expressly provides, no variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
22. No partnership or agency
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
EDE may refer you to other service providers. It is your obligation to check that those service providers are appropriately licensed to carry on the activities they carry on. Those service providers may pay commissions to EDE in connection with the referrals. The service providers should provide you with written details regarding the commissions paid or payable to EDE. If they do not, you should not proceed with those service providers and you should immediately contact EDE.
24. Acting as an agent or broker
Your obligations and acknowledgements when listing on behalf of another business- includes business brokers- additional obligations
You represent and warrant in respect of each business you list on our Website that:
A. unless expressly permitted in our Acceptable Use Policy (see clause 5 above), material submitted through the Service by you refers only to listing details of a particular business;
B. the listing details for a particular business through the Service are only listed by you (or any associated offices or other agents in your business broker group) once; and