Special Terms and Conditions for Members with Subscriptions
This website is operated by Upstream Ventures Pty Ltd ABN 71 662 401 890 t/as Australian Business For Sale® ("AB4S") under the domain name www.BusinessForSale.com.au ("the website") and other co-branded versions of the site.
This Subscription Policy applies to your use of the website and all associated services provided to you by AB4S ("the Service").
By accessing, browsing and/or using the website you will be deemed to have agreed to these Special Terms. If you do not wish to be bound by these Special Terms you must discontinue accessing, browsing and/or using the website.
VARIATION OF THESE SPECIAL TERMS
AB4S may vary these Special Terms at any time. In the event that AB4S varies these Special Terms, it will provide notice by publishing the varied Special Terms on the website. Your subsequent or continued use of the website will constitute your acceptance of any changes, and accept that by doing this, AB4S has provided you with sufficient notice of the variation.
If you object to any changes to the Special Terms, your only course of action is to immediately discontinue accessing, browsing and/or using the website.
This Subscription Policy was last updated on 25th October 2023.
1. YOUR AGREEMENT WITH US
Your Agreement with us consists of:
- this Subscription Policy (as may be varied from time to time);
- any physical document or electronic interface we make available to you, that you sign or otherwise indicate your agreement to, which identifies your subscription or product purchase (your Order);
- any further special terms we notify you of in relation to your subscription or products.
All terms and conditions and other documents referred to above (as may be amended from time to time) are referred to as "this Agreement" and comprise the entire agreement between us about its subject matter. This Agreement 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.
Your Subscription provides you with the right to upload listings to the website in accordance with the listing limit specified in the Order, and subject to this Agreement.
The "Term" of this Agreement for your subscription and products is the term indicated in the relevant Order for the subscription or product, subject to early termination in accordance with section 6. TERMINATION OR SUSPENSION BY US.
For subscriptions, the Order specifies your Initial Term (usually 4 months). Prior to the expiry of the Initial Term, you shall be notified and given the option to continue your subscription for a further period.
If you do not wish for your subscription to continue for a further period, you must provide us with clear written notice of your intention to terminate at least ten (10) days prior to the expiration of the Initial Term.
Your obligation to provide us with at least ten (10) days clear written notice of your desire to terminate your subscription exists regardless of whether or not you receive any communication from us regarding a further period.
After the Initial Term, Subscriptions may be continued as either an Annual Subscription, or for a further period (usually 4 months).
Annual Subscriptions require instalments to be paid automatically on the specified date each calendar month. If you do not wish for your Annual Subscription to continue, you must provide us with clear written notice of your intention to terminate at least thirty (30) days prior to the next scheduled payment date.
Subscriptions which are continued for a further period must be paid by the due date indicated in your Order. If you do not wish for your subscription to continue for an additional further period, you must provide us with clear written notice of your intention to terminate at least ten (10) days prior to the expiration of the further period.
3. YOUR WARRANTIES AND REPRESENTATIONS
You represent and warrant to us that at all times during the Term of this Agreement:
- you hold all required licences or accreditations to sell all your listings on the website;
- you have authority to sell all your listings on the website and have the proper authorities in place required by State or Territory regulations; and
- you will comply with all your obligations set out in section 5. YOUR OBLIGATIONS.
4. YOUR ACKNOWLEDGEMENTS
You acknowledge that at all times during the Term of this Agreement:
- in consideration for your right to upload listings to the website and the other services we provide, you grant us an irrevocable, perpetual, world-wide, royalty free licence to commercialise, copy, licence to other persons, use and adapt for any purpose any content or material you provide to us during the Term, and for the avoidance of doubt this licence survives termination of this Agreement by you or us;
- we are not under any obligation to monitor the compliance of your listings with this Agreement, however we may take any action we deem appropriate in relation to your listings if we consider there has been a breach, including removing listings from the website;
- you are solely responsible for the content of your listings and any errors or omissions in your listings – our role is one of publisher and we take no responsibility whatsoever for your listings;
- all features of our subscriptions and products are subject to change, development and discontinuation (we will endeavour to notify you when this happens);
- we cannot guarantee the continuous or fault-free operation of the website or other services we provide you and, without limitation, systems or technological failure, maintenance or delay may impede or prevent access to the website and other services;
- you acknowledge that leads generated by users submitting enquiries through our website include personal information within the meaning of the Privacy Act 1988;
- we offer a number of different subscriptions and products and the availability of these subscriptions and products, and any special terms applying to them, is at our discretion;
- we may contact you from time to time in relation to products and services offered by us or our business partners and you authorise us:
- to contact you via email, text message and other electronic media, unless you explicitly request us not to contact you via these media; and
- to contact you via any of these methods without including an unsubscribe facility, to the extent permitted by law.
5. YOUR OBLIGATIONS
Your obligations to us are as follows:
- you will only upload listings to the website yourself or via an authorised third party who has agreed to our terms and conditions for uploading properties to the website;
- you will comply with any direction we give in relation to your listings, including amending or updating listings;
- you must pay the cost of all telecommunications and internet access charges incurred when using the website, whether or not such access has been arranged by us;
- you will ensure that your listings are not unlawful or uploaded for an improper purpose, including information that is defamatory, misleading or deceptive, in breach of copyright or would otherwise expose us to any liability, legal proceedings or other sanction;
- you will comply with all applicable laws, including without limitation, the Competition and Consumer Act 2010; local fair trading legislation; and any other applicable advertising standards and regulations including the Privacy Act 1988 and regulations thereunder;
- you will comply with any guidelines and codes issued by your local and national body for your type of organisation;
- you will ensure that your login email and password for accessing the Service are kept secure at all times and are only disclosed to persons authorised to incur charges on your behalf. However you are responsible for any use of the Service using your login email and password by any person (whether authorised or otherwise) and, without limitation, you must pay any charges incurred as a result of that use;
- you undertake that you will only collect, use, disclose and store personal information obtained through the website including through leads generated by users submitting enquiries on the website, for the sole purpose of contacting the person enquiring in relation to the specific business or business opportunity they have enquired about;
- you will not allow anyone else (including another Office in your corporate group) to use your subscription to list on the website.
6. TERMINATION OR SUSPENSION BY US
- We may terminate this Agreement at any time for any reason provided that we give you at least seven (7) days' written notice. If we terminate this Agreement solely under this clause then you will not be required to pay any fees in respect of the period after effective termination.
- Notwithstanding clause 6.a, and without limiting our other rights, we may immediately terminate this Agreement or suspend or temporarily remove any of your listings if:
- you fail to pay any fees or charges due to us by the due date;
- we reasonably consider that any of your warranties or representations in section 3. YOUR WARRANTIES AND REPRESENTATIONS are incorrect;
- you act contrary to your acknowledgements in section 4. YOUR ACKNOWLEDGEMENTS
- you are in breach of your obligations under section 5. YOUR OBLIGATIONS
- you breach any other part of this Agreement and fail to rectify the breach within seven (7) days of us giving you notice of the breach and requiring that it be remedied;
- any statement you make to us or any content or material supplied by you (including material uploaded to our website) is false or misleading;
- you enter into bankruptcy, liquidation, provisional liquidation, administration, receivership, receivership and management, a composition of arrangement with your creditors, or appoint a receiver, manager or controller over all or any part of your assets, or are protected from creditors under any statute, or become or are deemed to become insolvent; or
- you die, or if you are in a partnership, are dissolved or an application to dissolve is filed, or if you are a company, are wound up or an application for winding up is filed.
- In the event that we exercise our right to suspend or temporarily remove your listings pursuant to this clause, you remain liable for all subscription and product fees until the expiration of this Agreement.
7. TERMINATION OR SUSPENSION BY YOU
You may terminate your subscription in accordance with clause 6.c above and this section, 7. TERMINATION OR SUSPENSION BY YOU.
You may not terminate your subscription before the end of the Initial Term, nor may you terminate any product before the end of its Term set out in the order. If you purport to terminate early you acknowledge that you shall remain liable for the fees payable under this Agreement until expiry.
If you give notice of termination of your subscription after the expiry of the Initial Term but before the expiry of a further period, you acknowledge that you shall remain liable for the fees payable under this Agreement for the remainder of the further period.
The sums payable by you on termination of your subscription or any product shall be a debt due to us, payable within fourteen (14) days of notice of termination.
You agree that the sums payable by you under this section are not a penalty, but a reasonable measure of actual damage to us as a result of your early purported termination.
8. EFFECT OF TERMINATION OR SUSPENSION
Termination of this Agreement or suspension or temporary removal of listings pursuant to clause 6.b does not:
- relieve you of your accrued obligations and liabilities pursuant to this Agreement and we reserve our right to enforce such obligations and liabilities before or after termination; or
- waive any breach of this Agreement by you.
In the event of suspension or temporary removal of your listings pursuant to clause 6.b, we may, at our option (in addition to all other terminate rights), terminate this Agreement, in which event the full balance of fees payable under this Agreement for your subscription and products for the remainder of the Term will become immediately payable as a debt due to us within seven (7) days of termination.
9. FEES AND BILLING
The initial fees for your subscription and products will be specified in your Order. Fees are payable from the date specified in your Order.
We reserve the right to change the fees for any subscription or product at any time. You will be notified in advance of any changes to fees.
If we do not receive payment by the due date, then in addition to our rights under clause 6.b we may:
- charge an administration fee on overdue accounts and interest on any overdue amount at a rate equal to 2% per calendar month; and
- demand that you pay for any costs of collecting the overdue amount, including but not limited to collection of agency fees and legal fees.
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.
10. LIMITATION OF LIABILITY AND INDEMNITY
To the extent allowable under the Competition and Consumer Act 2010 or any other applicable law, we:
- exclude all conditions and warranties implied into this Agreement;
- exclude consequential, special or indirect loss or damage (including but not limited to loss of opportunity, loss of revenue, loss of data and loss of profits);
- limit our liability for breach of any condition or warranty that we cannot exclude to (at our option) resupplying the Service or paying the cost of having the Service resupplied; and
- limit our liability in respect of any other claim under or in connection with this Agreement, whether the claim is based in contract, tort (including negligence), statute or otherwise, to the amount paid to us by you under this Agreement and reduce that liability to the extent you cause or contribute to the loss the subject of the claim.
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. We will not be liable under this Agreement to the extent that liability is caused by:
- any breach of your obligations under this Agreement or a negligent act or omission by you; or
- 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.
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 a solicitor and own client 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 content or material uploaded or submitted by you in connection with this Agreement or any other act or omission by you in connection with your use of the website or our other services.
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.
You must not assign this Agreement without our prior written consent.
We may assign this Agreement at any time. If we assign this Agreement, we will notify you of the assignment.
We will send all notices and other communications to you at 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.
All notices from you to us (including termination notices) must be sent by email to Team@BusinessForSale.com.au
Emails will not be accepted from hotmail, Gmail or similar accounts. These contact details may be amended from time to time. It is your responsibility to check these Special Terms for the current contact details.
13. GENERAL PROVISIONS RELATING TO RIGHTS AND REMEDIES
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.
If any term of this Agreement is void, unenforceable or illegal, that term is severed. The remainder of this Agreement has full force and effect.
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.