AnyBusiness.com.au Standard Terms

These Standard Terms, together with the Order Form, Special Conditions and Website Terms of Use, form your “Agreement” with us. By signing the Order Form you agree to be bound by this Agreement. The “Parties” to this Agreement are the Client and Anybusiness.com.au Pty Ltd ABN 37 166 806 051 (“we”, “our”, “us” or “Anybusiness.com.au”).

1. Definitions and interpretation

1. Capitalised terms used in this Agreement mean the following:

Applicable Laws means: a) all legislation, including regulations, by laws and other subordinate legislation; and b) common law and equity, which are relevant to either Party’s obligations under this Agreement.

Client, you or your means the person named as the client in the Order Form.

Fees means the fees and charges payable to us by you under this Agreement as described in the Order Form plus any fees and charges for listing upgrades which you may choose to purchase from time to time through the Website.

Insolvency Event means any of the following events: you are insolvent or unable to pay your debts when they fall due; b) you commit an act of bankruptcy or an order is made for you to be wound up (other than for the purpose of solvent restructuring or amalgamation): c) a controller, receiver, receiver/manager or administrator or liquidator or provisional liquidator is appointed to you; d) you take any step such as calling a meeting of shareholders or creditors or both or an application is made to a court with the aim of effecting one of the circumstances in paragraphs a) to c) above; and e) any event analogous to the events listed in paragraphs a) to d) above.

IPR means rights in inventions, patents, trade marks, designs, and trade names and business names, copyrights, moral rights and database rights (whether or not, in each case, the right is registered and including applications for, and any right to apply for, such registrations) and all rights or forms of protection of a similar nature or having similar or equivalent effect to any of these which may subsist anywhere in the world, together with all renewals and extensions to such rights.

Order Form means the form for our Services and completed with the Client’s details.

Related Body Corporate is defined by the Corporations Act 2001 (Cth).

Service means the service we offer which may include any one or more of the following: a) a process that will allow you to upload business listings to our Website to be included in our Business for Sale portal; b) having your business featured on our Website; c) trouble-shooting support; d) provision of our product range to you (including listing upgrade products and banner advertising campaigns); and e) any associated or ancillary services we agree in writing to provide to you.

Special Conditions means the conditions (if any) specified as such in the Order Form.

Start Date means the date specified as such in the Order Form.

Website means anybusiness.com.au and any other website we nominate from time to time.

Website Terms of Use means the terms of use available on our Website as updated from time to time.

2. In this Agreement: a) no provision will be construed adversely to a Party because that Party was responsible for the preparation of this Agreement or that provision; and b) specifying anything after the words 'include' or 'for example' or similar expressions does not limit what else is included.
3. In the event of an inconsistency between the terms of this Agreement, the following will take precedence (in order of priority): a) the Special Conditions (if any); b) these Standard Terms; c) the Order Form; and d) the Website Terms of Use.

2. Term and termination

4. This Agreement commences on the Start Date and, unless specified otherwise in the Order Form, will have an initial term of 12 months. Unless properly terminated, this Agreement will continue beyond the initial term until terminated in accordance with this Agreement.
5. You may terminate this Agreement: a) at the end of the initial term by providing at least one month’s prior written notice to us (if you provide longer notice, eg. 6 months, you will still be bound to pay Fees until the end of the initial term); and b) at any time after the initial term by providing at least 3 months’ prior written notice to us.
6. We may terminate this Agreement: a) at any time for any reason by providing you with at least 7 days’ written notice; and b) immediately if you fail to pay any Fees by the due date, if you breach the terms of this Agreement or if you suffer an Insolvency Event.
7. Termination of this Agreement (by either Party) does not relieve you of your accrued obligations and liabilities under this Agreement and we reserve our right to enforce such after termination. You further acknowledge that you remain liable for all Fees incurred prior to termination and you must pay all outstanding amounts to us within 7 days of termination.

3. Fees

8. You are required to pay the Fees for the term of this Agreement regardless of whether you utilise or fully utilise the Service.
9. If we do not receive payment by the due date (which for invoices we issue is 14 days after the date of invoice), we may: a) terminate this Agreement immediately; b) charge a $5 administration fee per month while your payment is overdue; and/or c) charge interest on the overdue amount at a rate of 2% per calendar month. d) The Client agrees to indemnify Anybusiness.com.au Pty Ltd for any debt collection fees it may incur in the event the Client fails to pay any Tax Invoice by the due date.
10. All Fees are quoted excluding any tax. You will pay all taxes, duties and other government charges payable in connection with this Agreement whether applying as at the date of this Agreement or in the future including, any applicable goods and services tax (GST), other value added tax, sales tax, stamp duty and turnover tax, but excluding taxes, duties and government charges based on our income.

4. Your obligations

11. In relation to each business you list on our Website, you represent and warrant that:

1. you are the registered business broker in each State and Territory to which the Service relates;
2. you have written authority to sell from the owner of the business;
3. you are authorised to enter into this Agreement including uploading business material to our Website;
4. you will keep your username and password for our Website secure at all times and private to you;
5. you will not allow any other person (including another business brokerages or business owners) to access our Website using your username and password. You will be responsible for all activities conducted using your username and password (whether or not such use is authorised by you);
6. to the extent you provide us with personal information, you have informed the relevant individual to whom that information relates and that individual has consented to their personal information being used and disclosed by us in accordance with our Privacy Policy (copy available at anybusiness.com.au); and
7. your obligations under this Agreement are not contrary to any other agreements to which you are a party.

12. You undertake to ensure that the representations and warranties in clause 4.1 remain true and accurate throughout the term of this Agreement.
13. In using the Service, you agree that:

1. Within 72 hours of a contract of sale being entered into for a business, you must update the status of the business on our Website to either “under contract” or “sold” or remove the business from our Website.
2. You must ensure that the listing of each of your business listings on our Website is accurate and up to date.
3. You must only upload information to our Website that you are authorised to use and you must not upload any unlawful material including material that is defamatory or offensive, misleading or deceptive or a breach of IPR.
4. You must comply with all Applicable Laws and all relevant codes of practice including those issued by your local Internet Industry Association or the Australian Institute of Business Brokers.
5. You may only list each business for sale once and, unless we have provided prior written consent, each business listing may only refer to one single business.
6. You grant us an irrevocable, world-wide, royalty-free licence to use, commercialise and leverage (including the right to sublicense others to do the same) any and all material you upload to our Website or otherwise produce using the Service.

14. You acknowledge that we reserve the right at any time to change our products, add new products or discontinue products. We will endeavour to notify our clients of any such changes.

5. Acceptable Use

15. You must only use the Service and access the Website for a bona fide purpose of listing a business for sale and only where you have the authority of the business owner to do so.
16. You must not (and must not allow anyone else to):

1. use the Service or the Website for any purpose other than listing a business for sale (eg. you must not list anything other than a business for sale and you must not use the listing Service to advertise your business broking services or any other services apart from within the Broker Directory);
2. list a business for sale more than once, apart from relistings (eg. at different prices);
3. remove and then re-list the same business in order for the listing to appear as a new listing;
4. resell the Service (or any part thereof) or its contents to another person; or
5. exceed the file size limits specified by us from time to time including for images, logos, pictures, etc.

17. We reserve the right to specify any other policies of acceptable use from time to time which you agree to comply with when notified.

6. Liability

18. Notwithstanding anything else in this Agreement, and to the extent permitted by Applicable Laws, we

1. exclude all conditions and warranties not expressly set out in this Agreement;
2. limit our liability for breach of any condition or warranty that we cannot exclude to (at our option):

1. resupplying the Service; or
2. paying the cost of having the Service resupplied;

3. are not liable for any consequential, special or indirect loss or for any loss of opportunity, loss of revenue, loss of profit, loss or data or loss of business;
4. limit any remaining liability under this Agreement, whether the liability arises from contract, tort (including negligence), statute or otherwise, to the amount received by us under this Agreement; and
5. reduce our liability to the extent caused or contributed to by your acts or omissions.

19. Subject to clause 6.1(b):

1. we are not responsible for the content of the Service or Website or for any errors or omissions in any data relating to any business provided to us whether through our Website or otherwise; and
2. we do not promise that our Website or the Service will be continuously available or operate without fault. We do not promise that our Website or any data available through it will be secure, but we take all reasonable precautions

20. You indemnify us and our Related Bodies Corporate (and their respective employees, officers and agents) (“Indemnified Persons”) in respect of any loss, damage, liability or expense incurred by the Indemnified Person in connection with a claim brought or threatened by a third party:

1. in relation to any material uploaded or submitted by you in connection with the Service or otherwise produced using the Service or our Website;
2. alleging that the receipt, enjoyment or use of any material uploaded or submitted by you in connection with the Service or otherwise produced using the Service infringes the IPR of that third party; or
3. any other act or omission of you in connection with your use of the Service or our Website.

21. This clause 6 survives termination of this Agreement.

7. General provisions

1. A notice or other communication under this Agreement must be in writing and delivered by hand or sent by registered post or by email to the Client at the address in the Order Form and to us at the address set out below, or as otherwise notified.

AnyBusiness.com.ay Pty Ltd

Address: Level 1, 530 Little Collins Street, Melbourne, Vic, 3000

Attention: Company Secretary

Email: admin@anybusiness.com.au

2. You may not sell, transfer, delegate, assign, licence, mortgage, charge or otherwise encumber any rights under this Agreement to any person or permit such person to assume any obligation under this Agreement without our prior written consent. We may assign or novate this Agreement to any third party at any time (and we will notify you of any such transfer).
3. This Agreement is governed by the law in force in the State of Victoria, Australia. Each Party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the State of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.
4. If any provision of this Agreement is invalid under the law of any jurisdiction, then the provision is enforceable in that jurisdiction to the extent that it is not invalid, whether it is in severable terms or not. This clause 7(d) does not apply where the enforcement of the provision of this Agreement in accordance with clause 7(d) would materially affect the nature or effect of the Parties' obligations under this Agreement
5. No Party to this Agreement may rely on the words or conduct of the other Party as a waiver of any right unless the waiver is in writing and signed by the Party granting the waiver.
6. Save for our right to vary the Website Terms of Use from time to time, and subject to clause 4.4, no variation to this Agreement will be effective unless it is agreed in writing and signed by duly authorised representatives of both Parties.
7. This Agreement states all the express terms of the agreement between the Parties in respect of its subject matter. It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
8. Neither Party has relied on any statement by the other Party not expressly included in this Agreement.
9. This Agreement may be executed in any number of counterparts.
10. Nothing in this Agreement gives a Party authority to bind the other Party in any way or creates any relationship of employment or joint venture.
11. Any termination or expiry of this Agreement will not prejudice any right of action or remedy which may have accrued to either Party.