Fitment Finder Terms of Use

1. 1. These terms create a contract between you and MYTRESITE.com Pty Ltd (ACN: 606 950 832) of 4/160 Bungana Way, Cambridge TAS 7170 (us, we or our). Please read the terms carefully.
   2. By using the Fitment Finder tool for tyre stores (Platform) and the registration search functionality, text message functionality or any other software, services or applications made available by us (Services), you agree to be bound by these Terms of Use (Terms). To confirm your understanding and acceptance of these Terms, click the “Agree” check box.
   3. We may, on notice to you, change these Terms. Your continued use of the Services following any changes indicate your acceptance of the changes. These Terms do not modify, restrict or exclude any additional rights you may have under applicable laws that cannot be so modified, restricted or excluded.
2. Term
   1. Your access to the Platform and Services will commence on the date that you accept these Terms in accordance with clause 1.2 and will continue for 30 days (Trial Term).
   2. During the Trial Period you will get access to the Platform and to certain Services as notified to you. On the expiry of the Trial Period, provided you provide us with your payment details as required by clause 4 prior to the date of expiry of the Trial Period, the Trial Period will automatically renew for further monthly-periods unless cancelled in accordance with clause 3 or the agreement is otherwise terminated in accordance with these Terms, (each additional month a Further Term), (together, the Trial Term and Further Term are referred to as the Term).
   3. If you fail to input your payment details as required by clause 4 prior to the date of expiry the Trial Period:

   4. (a) this agreement will automatically terminate at the expiry of the Trial Period; and

      (b) if you wish to access the Platform and Services in future you will not be entitled to a Trial Period.

3. Cancellation and termination
   1. You are agreeing to access the Services on an auto-renewing basis for an indefinite period until cancelled by you or us as set out in this clause 3
   2. 3.2 You may cancel your access by using the “Cancel Subscription” button on the 'payment details' page of your Account at least 7 days prior to your next Payment Cycle (Cancellation Cut-Off).
   3. If your cancellation request is received:

      (a) prior to the Cancellation Cut-Off, it will be effective at the end of your then current Term and the Services will remain accessible by you until the end of your then current Term that you have already paid the Fees for; or

      (b) after the Cancellation-Cut-Off, your payment of the Fees for your next Payment Cycle will be processed and your access renewed for the next Further Term and your cancellation will take effect at the end of that Further Term and the Services will remain accessible by you until the end of that Further Term that you have paid the Fees for.

   4. We reserve the right to cancel your access to the Services at our reasonable discretion at any time and without giving any reasons for our decision. If we cancel your access to the Services in accordance with this clause, your and your Authorised Users' access to the Services will cease effective from the end of your then current Term, after which you will no longer be required to pay us any fees (subject to clause 3.5).
   5. Upon cancellation in accordance with clauses 3.2 and/or 3.4 you must:

      (a) pay all outstanding amounts;

      (b) cease using the Services and ensure all Authorised Users do the same; and

      (c) comply with any additional applicable third party terms.

   6. If you fail to abide by these Terms, or any fees owed by you are not paid on time, we reserve the right to suspend your access to the Services and/or permanently cancel your access. If we cancel and withdraw your access to the Services in accordance with this clause, your access to the Services will be withdrawn immediately, no refund of any prepaid fees will be payable by us, and you must pay to us all outstanding fees owed to us as at the date of cancellation immediately.
   7. Provision of access to any User Content on the Platform following the date of any cancellation or termination will be at our sole discretion.
4. Fees
   1. For access to the Services, you agree to pay a monthly Subscription Fee in advance as follows:

      (a) on the first day of the first Further Term we will invoice you for your use of the Platform and Services up to that date and in advance for the Further; and

      (b) on the first of the month (unless or until cancelled or terminated in accordance with these Terms),

      (Payment Cycle).

   2. From the first day of the first Further Term you must pay the Usage Fee(s) due monthly in arrears.
   3. Any additional Services subscribed to by you will result in an increase in the Subscription Fee payable by you.
   4. All fees due under this agreement must be paid by direct debit. You acknowledge and agree:

      (a) your nominated credit card will be charged in accordance with clause 4.1 and then you will be charged on each relevant Payment Cycle without further authorisation from you, unless you have cancelled or otherwise modified your access in accordance with these Terms;

      (b) it is your responsibility to ensure your that:

      (i) your direct debit details are, at all times, valid and up to date;

      (ii) sufficient funds are available at each Payment Cycle;

      (iii) the billing address and other necessary information you have provided are, at all times, valid and up to date;

      (c) your direct debit transactions will be performed through payment gateways. We currently use Westpac Payway our online payment transactions. For details about the payment gateway please visit https://www.payway.com.au/about;

      (d) we do not collect or store your payment information, it is collected and stored by the owner of the payment gateway referred to in clause 4.4(c);

      (e) payments will appear on your accounts as MyTyreSite;

      (f) we are not liable for any charges you incur as a result of out of date payment information. If we incur an expense due to incorrect payment information provided by you, we reserve the right to seek reimbursement from you for such expense; and

      (g) if we are unable to debit your direct debit payment method:

      (i) you authorise us to reattempt the payment method a maximum of four times in a four-week period;

      (ii) if such reattempts are unsuccessful, we reserve the right to seek payment off you via an alternative payment method and/or seek to recover the debt through alternative means (either directly, or through a third party);

      (iii) you may be required to reimburse us for any costs we incur when reattempting payment; and

      (iv) we may suspend your account and access to the Services until all overdue amounts are paid.

   5. You acknowledge that we have the right to increase the Fee:

      (a) each year, by a percentage equal to the percentage increase in CPI for the same period;

      (b) without cause not more than once in any consecutive 12 month period; and/or

      (c) on notice if there is an increase in fees charged by third party suppliers,

      any increase will take effect on your next applicable Payment Cycle.

   6. Unless otherwise expressly stated, all fees, prices or other sums payable or consideration to be provided under these Terms are exclusive of GST. If GST applies to a supply by any party under these Terms, the consideration will be increased by an amount equal to the GST liability incurred by the party making the supply.
5. Services
   1. You will access the Services in accordance with:

      (a) these Terms; and

      (b) our reasonable directions and all applicable laws.

   2. You:

      (a) agree that your use of the Services is at your own risk. You are solely responsible for determining whether the Services are suitable for your needs; and

      (b) acknowledge, and must ensure that your Authorised Users and customers acknowledge, that:

      (i) the Platform and Services contain factual information only about vehicle parts;

      (ii) the Platform and Services are not a statement of opinion, advice or recommendation and that independent professional advice must be obtained to verify the selection of the vehicle parts by you and/or your customers; and

      (iii) each State and Territory has separate legislation and regulations governing various vehicle parts. It is you and your customer's responsibility to ensure that the purchase of any vehicle parts comply with the relevant laws or regulations.

   3. To use the Services, you may need compatible hardware, software and Internet access (fees may apply). Performance of the Services may be affected by these factors.
6. Accounts
   1. We will provide you with access to the Services and the Authorised Users Login(s) for each Licenced Site.
   2. To access and use the Services, your Authorised Users must set up an account for the Licenced Site using their allocated Authorised User Login.
   3. You are solely responsible for:

      (a) ensuring each Authorised User Login is accessed only at the Licenced Site;

      (b) ensuring Authorised Users do not share, publish or otherwise make available to any third party their Authorised User Logins;

      (c) all activity at the Licenced Site by you or any of your Authorised Users including any unauthorised access by third parties;

      (d) maintaining the confidentiality and security of your account and the Authorised User Logins and notifying us immediately of any unauthorised use; and

      (e) protecting User Content, including ensuring the security of, User Content, taking appropriate measures to protect User Content from accidental, unlawful or unauthorised access, use or disclosure.

7. External Services
   1. We enable access to third-party applications and services through our Services (External Services).
   2. If you acquire External Services via the Platform (a Transaction), each Transaction is a contract between you and the third party providing the External Services.
   3. If you use External Services, you agree:

      (a) you must comply with any third party terms applicable to the External Services. Mention of External Services in any materials, documentation or advertising provided to you is for informational purposes only and constitutes neither an endorsement nor a recommendation. All External Services are supplied by the respective vendor and we have no responsibility with regard to the selection, performance, or use of these vendors or their products;

      (b) we are not responsible for examining or evaluating the content of any third party External Services;

      (c) we do not guarantee the accuracy, integrity or quality of third party External Services, and will not be liable for any third party External Services;

      (d) charges may apply to your use of the External Services and we assume no responsibility for the transaction of funds or the actions or identity of any transfer recipient or sender nor do we have an obligation to provide a refund or repayment for whatever reason of any amounts paid by you to any other third party for External Services; and

      (e) we may suspend, remove, disable or impose access restrictions or limits on any External Services, at any time without notice or liability to you.

8. Content
   1. You are responsible for all your content, data and information that you or your Authorised Users create, generate, submit, post, gather, store, host, or display on through the Services, including:

      (a) data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other materials; and

      (b) personal information (being information or an opinion about an identified or reasonably identifiable individual, whether or not the information or opinion is true and whether or not the information is recorded in a material form) or financial information (being financial reports, financial advice, CRM information, performance reports, audit results and other confidential information regarding a user's business operations) about you, us or another user,

      (collectively, User Content).

   2. You must not submit, post or display any User Content that:

      (a) you do not have legally valid permission, right or license to use;

      (b) is objectionable, offensive, unlawful, deceptive or harmful;

      (c) is personal, private or confidential information belonging to others unless you have obtained legally valid consent;

      (d) requests personal information from a minor;

      (e) impersonates or misrepresents your affiliation with another person or entity;

      (f) transmits spam, including unauthorised advertising or promotional materials; or

      (g) is illegal, fraudulent, or manipulative.

9. Acceptable Use
   1. You must not, and must ensure your Authorised Users do not:

      (a) use the Services for any purpose that is illegal, fraudulent, or is otherwise objectionable, offensive, unlawful, deceptive or harmful;

      (b) copy, modify, or create derivative works based on the content available on or through the Services;

      (c) infringe the intellectual property rights, privacy or confidentiality of any third party;

      (d) engage in any activity that may result in injury, death, property damage, and/or liability of any kind; or

      (e) interfere or disrupt the Services, servers or networks connected to the Services or another person's use of the Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature.

10. Intellectual Property
    1. We own, or are the licensee of, the intellectual property rights in the content available through the Services, including text, photos, graphic designs, images and video content. These Terms do not transfer any intellectual property rights from us to you or any third parties. If you infringe our intellectual property rights or any other third party, we have the right to deny access to or terminate your use of the Services immediately.
    2. Subject to your compliance with these Terms, we grant you a limited non-exclusive, non-transferable, non-sub-licensable licence to use the Services.
    3. You agree you may not

       (a) copy, modify, or create derivative works based on the Services;

       (b) distribute, transfer, sublicense, lease, lend, or rent the Services to any third party; or

       (c) modify, decompile, or disassemble the Services.

    4. You grant us a non-exclusive, perpetual, irrevocable, transferable, sub-licensable, worldwide, royalty-free licence to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and content to you and to other users.
    5. The Fitment Finder name, logo and other Fitment Finder, MyTyreSite, Wheel Web or Vehicle Logic trade marks, service marks, graphics, and logos used in connection with the Services are our trade marks or registered trademarks in Australia and internationally. You are granted no right or licence with respect to these trade marks.
11. Data
    1. You acknowledge and agree we may:

       (a) collect aggregated information about your activities, and details of how you use the Services, the types of content you engage with or the frequency and duration of your activities, the prices you set and the success rate of quotes;

       (b) collect metadata, which is technical data that can describe the details of how User Content was collected and how that content is formatted; and

       (c) automatically store in log files, including IP addresses, browser type and language, Internet service provider (ISP), referring and exit websites and applications, operating system, date/time stamp, and clickstream data to analyse trends, to administer the Services, to generally improve the Services and for marketing.

12. Privacy
    1. You must comply and ensure each of your Authorised User's comply with any obligations you may have under relevant Privacy Laws.
    2. You warrant that:

       (a) you are authorised to provide any Personal Information that you provide to us for the purposes of us providing the Services (including by notifying a customer of this arrangement) and such consent has been given in accordance with Privacy Laws; and

       (b) the Personal Information is accurate, complete and has been updated in the preceding 12 months.

    3. Each party warrants to the other that:

       (a) it will take such steps as are reasonable in the circumstances to implement practices, procedures and systems relating to its functions or activities that comply with Privacy Laws;

       (b) it will deal with inquiries or complaints from individuals in respect of Personal Information in a manner which complies with Privacy Laws;

       (c) all Personal Information obtained from the other party will not be collected, used or disclosed in a manner which is inconsistent with Privacy Laws;

       (d) it will comply with applicable Privacy Laws; and

       (e) in holding Personal Information, it will take such steps as are reasonable in the circumstances to protect the Personal Information from: misuse, interference and loss; and unauthorised access, modification or disclosure.

    4. Each party must:

       (a) provide to the other party all assistance as is reasonably required to assist the other party in complying with its obligations under any Privacy Laws; and

       (b) not do any act, engage in any practice or omit to do any act or engage in any practice that would cause the other party to breach any Privacy Laws or that would otherwise result in a breach of any Privacy Laws.

13. Security
    1. We do not represent or warrant that the Platform is entirely secure, uninterrupted or error-free. You acknowledge that the public internet is an inherently insecure environment and that we have no control over the privacy of any communications or the security of any data outside of our internal systems.
14. Maintenance
    1. We may at any time and without notice, modify, suspend or terminate the operation of, or access to the Services, or any part of, for any reason, to interrupt the operation of the Services, or any part of, as necessary to perform maintenance, error correction or other changes.
    2. We reserve the right to undertake back-ups of the Platform, however we are not obligated to do so and you are solely responsible for backing up User Content.
15. Warranties and Liabilities
    1. To the extent permitted by law:

       (a) the services and all content delivered to you through the Services are (except as expressly stated by us) provided "as is" and "as available" for your use without warranties of any kind, either express or implied, including all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; and

       (b) we, our directors, officers, employees, affiliates, agents, contractors, or licensors will not be liable for any direct, indirect, incidental, punitive, special, or consequential damages arising from your use of any of the Services or for any other claim related in any way to your use of the Services and/or content, including any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the Services.

    2. You acknowledge that the use of the Services is at your sole risk. You are responsible for backing up your own system, including any content acquired or rented through the services.
    3. We do not guarantee, represent, or warrant that your use of the Services will be uninterrupted or error-free, free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion.
    4. If we are liable to you under the Australian Competition and Consumer Act 2010 (Cth) or similar legislation, we limit our liability in respect of any claim under those provisions to:

       (a) in the case of goods, at our option:

       (i) the replacement of the goods or the supply of equivalent goods;

       (ii) the repair of the goods;

       (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or

       (iv) the payment of the cost of having the goods repaired; and

       (b) in the case of services, at our option:

       (i) the supplying of the services again; or

       (ii) the payment of the cost of having the services supplied again.

    5. Our total liability in connection with these Terms and whether based upon warranty, contract, statute, tort (including negligence) will not exceed the Fee paid to us by you in the most recent Payment Cycle.
16. Indemnity

    You indemnify and hold us, our directors, officers, employees, affiliates, agents, contractors, and licensors harmless with respect to any claims caused or contributed to by you and arising out of your breach of these Terms and your use or misuse of the Services except to the extent that the claim is caused or contributed to by our negligence or wrongful act or omission.

17. Additional Terms
    1. If any term or provision of these Terms are held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from these Terms and the remaining terms and conditions will be unaffected.
    2. We may, in our sole discretion, sub-contract the performance of any part of the Services to any third party.
    3. A failure to enforce any right or provisions in these Terms will not constitute a waiver of such or any other provision.
    4. We will not be responsible for failures to fulfil any obligations due to causes beyond our control.
    5. These Terms will not be interpreted or construed to confer any rights or remedies on any third parties.
    6. These Terms constitute the entire agreement between the parties, with all other agreements or understandings previously existing between you and us hereby replaced.
    7. The Services or content made available on or through the Services, are not intended for distribution to, or use by, any person or entity, in any jurisdiction or country, where such distribution or use would be contrary to law or regulation. We may limit the availability of the Services or content, or any part of, to any person, geographic area, or jurisdiction at any time. Nothing in these Terms should be read to override or circumvent any laws of a foreign jurisdiction. All Services or content made available through the Services are void where prohibited.
    8. These Terms are governed by the laws of New South Wales, Australia. You agree to submit to the non-exclusive jurisdiction of the courts of the State of New South Wales to resolve any dispute or claim arising from these Terms.
    9. The United Nations Convention on the International Sale of Goods is not applicable to these Terms.
18. Definitions
    1. In these Terms unless the context otherwise requires:

    Authorised User means the employees, agents and independent contractors of you who are authorised by you to be supplied Authorised User Logins and access and use Platform.

    2. Authorised User Logins means the unique username and password issued or otherwise assigned by us to you or your Authorised Users for access to and use of the Platform.

    GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999.

    Licenced Site means the single premises and internet connected licenced to access the Platform and Services.

    Personal Information means:

    (a) “Personal Information” as defined in the Privacy Act (Cth) 1988; and

    (b) “Personal Data” as defined in the General Data Protection Regulation 2016/679.

    Privacy Law means the Privacy Act (Cth) 1988 as amended or replaced from time to time, General Data Protection Regulation 2016/679 or any other laws relating to the collection of Personal Information as may be applicable in the jurisdiction where the Personal Information is collected.

    Subscription Fee means the fee charged per month payable each Payment Cycle as set out on the Platform or our website and updated from time to time.

    Usage Fee means the fees per registration search, per text message, and/or per other usage service we may offer as set out on the Platform or our website and updated from time to time.

    3. In this document unless the context otherwise requires:

       (a) clause and subclause headings are for reference purposes only;

       (b) the singular includes the plural and vice versa;

       (c) where a word or phrase is defined its other grammatical forms have a corresponding meaning;

       (d) references to statutes include all statutes amending, consolidating or replacing such statutes;

       (e) $ means the lawful currency of Australia;

       (f) any reference to a party to this document includes its successors and permitted assigns; and

       (g) the use of the word "includes" or "including" is not to be taken as limiting the meaning of the words preceding it.