CHUR – Terms & Conditions
1.1. “Agreement” means these terms and conditions between the User and CHUR.
1.2. “Application” means CHUR’s smart device applications and any other application program interfaces for the purpose of CHUR’s provision of Services to the User.
1.3. “CHUR” means Chur Holdings Pty Ltd ACN 625 331 240.
1.4. “Intellectual Property Rights” means CHUR’s intangible rights in relation to and in connection with CHUR’s business name, Site and Application, including copy right, patents, trademarks, service mark rights, applications, registrations, trade names, logos, brand names and licences
1.5. “Schedule” means the Schedule referred to and annexed to the end of these Terms.
1.6. “Service/s” means the service provided by CHUR to the User and more specifically defined in paragraph 3 of these Terms.
1.7. “Service Account” means the online account held by the User on the Site or Application for the purposes of requesting the provision of Services by CHUR.
1.8. “Service Provider” means any licenced process server, or field agent instructed by CHUR to perform the Services.
1.9. “Site” means CHUR’s website including any subdomains therefore, and any other websites through which CHUR makes its Services available.
1.10. “Price” means the Price payable by the User for CHUR’s Service inaccordance with Clause 4 of these Terms.
1.11. “Terms” means these Terms and Conditions of Service which constitute the legally binding agreement between the User and CHUR for the provision of CHUR’s Service.
1.12. “User” means the entity or individual who agrees to these Terms by using CHUR’s Service through the Site or Application. If there is more than one User, it is a reference to each User jointly and severally. Any reference to “You” will also be a reference to User.
1.13. “User Service Account Details” means personal and/or company information of the User such as name, director/ shareholder names, registered address, ACN, ABN, mobile telephone number and a valid payment method (either credit card or by way of invoice).
2. Terms of Service and Acceptance
2.1. These Terms constitute a legally binding agreement between the User and CHUR governing the User’s access to, and use of, CHUR’s Site and Application for the purpose of CHUR’s provision of the Services to the User.
2.2. When these Terms refer to “CHUR”, “We” “Us” or “Our”, it refers to CHUR.
2.3. The User is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms by downloading the Application or using the Site.
2.4. These Terms may only be amended by CHUR in writing and shall prevail to the extent of any inconsistency with any other prior document or agreement between CHUR and the User.
2.5. CHUR may amend the Terms from time to time at its sole discretion. Amendments will be effective upon CHUR posting such updated Terms on its Site. The User’s continued use of CHUR’s Service is deemed as acceptance of any amendment to these Terms.
3.1. The Services constitute a technology platform that enables Users of CHUR’s Application or Site provided as part of the Services, to [please complete].
4. Price and Payment
4.1. At CHUR’s sole discretion the Price shall be either:
- (a) as indicated on any invoice provided by CHUR to the User; or
- (b) the Price as at the date of the provision of Services provided according to CHUR’s current price list and/or Schedule; or
- (c) CHUR’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days from quotation.
4.2. CHUR reserves the right to change the Price if a variation to CHUR’s quotation is requested.
4.3. At CHUR’s sole discretion, a non-refundable deposit may be required.
4.4. Time for payment for the Services being of the essence, the Price will be payable by the User on the date/s determined by CHUR which may be:
- (a) thirty (30) days following the end of the month in which a statement is posted to the User’s address or address for notices;
- (b) the date specified on any invoice or other form as being the date for payment; or
- (c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Buyer by the Seller.
4.5. Payment may be made by direct debit or credit card (plus a surcharge of up to 1.5% of the Price), or by any other method as agreed to between CHUR and the User.
4.6. Unless otherwise stated, the Price does not include GST. In addition to the Price the User must pay to CHUR an amount equal to any GST CHUR must pay for any supply by CHUR under this or any other agreement for the sale of the Services. The User must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the User pays the Price. In addition, the User must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. User Accounts
5.1. In order to utilise the Services, the User must register for and maintain an active personal user Services Account. The User must be at least 18 years old to set up a Services Account.
5.2. A Service Account will require the User to submit to CHUR personal and/or company information of the User such as name, director/shareholder names, registered address, ACN, ABN, mobile telephone number and a valid payment method (“User Service Account Details”).
5.3. The User agrees to provide CHUR with valid User Service Account Details and warrant that any failure to keep updated User Service Account Details may result in CHUR cancelling the User’s Service Account and terminating the Agreement with the User.
5.4. The User is responsible for all activity that occurs on the User’s Service Account and the user agrees to maintain the security and secrecy of the User’s Service Account Details, including user names and passwords.
5.5. The User may only possess one Service Account and any attempt to create an additional account will be denied by CHUR.
5.6. The User may not authorise any third parties to use its Service Account and may not assign or transfer any of their rights to another party.
5.7. The User agrees to comply with all relevant statute laws when using the Services and Service Account.
5.8. The User agrees that by creating a Service Account, CHUR may send them a text (sms) message or email as part of the normal business operation of your use of the Services. The User may opt-out of receiving text (sms) messages at any time upon written notice to CHUR, and is not entitled to any refund where application of the Service has been provided.
6. Provision of supply of Services
6.1. The Services are deemed to have been provided to the User at the time that:
- (a) the User submits a request for Services to CHUR through the Site or Application; or
- (b) CHUR (or CHUR’s nominated carrier) provides confirmation of the request for Services to the User.
6.2. In the event that CHUR’s Service Provider is unable to effect provision of the Services as arranged, then the User acknowledges that they must pay the Price for the attempted provision of Services (“Attempted Service”).
6.3. In the event that Attempted Service has been effected, and the User requests any additional Services, the User acknowledges that an additional Price will be payable to CHUR.
6.4. Upon completion of the provision of Services, you may provide a rating for the Services provided.
7.1. CHUR may cancel this Agreement at any time without notice to the User. CHUR shall not be liable for any loss or damage whatsoever arising from such cancellation.
7.2. CHUR will not refund any amounts that have already been paid, for Services that have already been provided to the User, irrespective of the circumstances.
7.3. If the User cancels the Request for Services prior to CHUR’s Service Provider completing the Service, then the User shall pay a $10.00 cancellation fee to CHUR.
7.4. If the User cancels this Agreement, then the User shall be liable to CHUR for any losses or costs incurred by CHUR (including but not limited to any loss of profits) up to the time of, or as a result of the cancellation. Enforcement of any losses and costs, including legal costs, of CHUR is at the sole discretion of CHUR.
8. Intellectual Property
8.1. Any Intellectual Property Rights contained in the design or manufacture in relation to the provision of CHUR’s Services, Site or Application remain with CHUR and its licensors. The User acknowledges that rights in the Application are licenced to CHUR and no transfer or assignment of such rights can be effected.
8.2. CHUR grants the User a non-transferable, non-exclusive licence to use the Application and Site for the purposes of the provision of Services subject to these Terms. The User may download or stream a copy of the Application onto a device and to view, use and display the Application on a Device for the User’s personal use.
8.3. The User agrees as expressly set out in this Agreement and as permitted by law, that the User will:
- (a) not copy, reproduce, modify, prepare derivative, distribute, licence, lease, sell, re-sell, transfer, publicly perform, transmit, stream, broadcast or otherwise exploit the Application or Site, the Application or Site’s trademarks, logos or other proprietary notices from any portion of the Services.
- (b) not disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Application or Site, or attempt to do any such thing except to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Application or Site with another software program, and provided that the information obtained by you during such activities:
- i. is used only for the purpose of achieving inter-operability of the Application or Site with another software program;
- ii. is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
- iii. is not used to create any software that is substantially similar to the Application or Site;
- (c) comply with all technology control or export laws and regulations that apply to the technology used or supported by the Application or Site or Service.
8.5. The User acknowledges that they will not:
- (a) use the Application or Site or the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Application, Site, any Service or any operating system;
- (b) infringe CHUR’s intellectual property rights in accordance with clause 8 of this Agreement or those of any third party in relation to the User’s use of the Application, Site or any Service;
- (c) transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Application or Site or any Service;
- (d) use the Application or Site or any Service in a way that could damage, disable, overburden, impair or compromise CHUR’s systems or security or interfere with other users;
- (e) collect or harvest any information or data from any Service or CHUR’s systems or attempt to decipher any transmissions to or from the servers running any Service.
8.6. The User warrants to CHUR:
- (a) that by submitting a request for Services, they hold the authority to instruct CHUR on behalf its clients, agents and representatives;
- (b) that by submitting a request for Service, they indemnify CHUR and its Service Providers, Agents or Representatives during the course of, and for the purpose of CHUR, its Service Providers and Agents carrying out the Services;
- (c) that by submitting a request for Services, the User indemnifies CHUR with respect to any penalty or liability incurred by CHUR during the course of, and for the purpose of CHUR, its Service Providers and Agents carrying out the Services.
9.1. The Services are provided by CHUR to the User “as is” and “as available”. CHUR disclaims all representations and warranties, express, implied or statutory, not expressly set out in these Terms, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. In addition, CHUR makes no representation, warranty or guarantee regarding the reliability, timeliness, quality, suitability or availability of the Services or any Services requested through the Site or Application or that the Services will be uninterrupted or error-free. CHUR does not guarantee the quality, suitability, safety or ability of third-party providers including but not limited to CHUR’s Service Providers.
9.2. The User agrees that the entire risk arising out of the User’s use of the Services and any Service requested in connection therewith remains solely with the User, to the maximum extent permitted under any applicable law.
10. Limited Liability
10.1. CHUR shall not be liable for indirect, incidental, special, exemplary, punitive or consequential damages, including lost profits, lost data, personal injury or property damage related to, in connection with, or otherwise resulting from any use of the Services, even if CHUR has been advised of the possibility of such damages.
10.2. CHUR shall not be liable for any damages,liability or cost arising out of:
- (a) the User’s use and reliance on the Services or the User’s inability to access or use the Services; or
- (b) any transaction or relationship between the User and any third-party provider, even if CHUR has been advised of potential responsibility of such damages; or
- (c) delay or failure in performance resulting from causes beyond CHUR’s reasonable control, including but not limited to any delay caused on part of CHUR’s Service Providers; or
10.3. the User acknowledges that third-party Service Providers providing [please complete indicating services provided by service providers] requested through a request submitted through the Site and/or the Application, limits CHUR’s liability in relation to non-completion of the provision of Services.
11. Indemnity, Default and Consequences of Default
11. Indemnity, Default and Consequences of Default 11.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at CHUR’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2. If the User owes CHUR any money, the User shall indemnify CHUR from and against all costs and disbursements incurred by CHUR in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CHUR’s collection agency costs, and bank dishonour fees).
11.3. Without prejudice to any other remedies CHUR may have, if at any time the User is in breach of any obligation (including those relating to payment) under these Terms, CHUR may suspend or terminate the Agreement with the User and the User’s Service Account. CHUR, its Service Providers or Agents will not be liable to the User for any loss or damage the User suffers because CHUR has exercised its rights under this clause.
11.4. Without prejudice to any other remedy that may be available to CHUR at law, CHUR shall be entitled to cancel all or any part of any order of the User which remains unfulfilled and all amounts owing to CHUR shall, whether or not due for payment, become immediately payable if:
- (a) any money payable to CHUR becomes overdue, or in CHUR’s opinion the User will be unable to make a payment when it falls due; or
- (b) the User becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the User or any asset of the User.
12. Privacy Act 1988 (“the Act”)
12.1. The User agrees for CHUR to obtain, from a credit reporting agency, a credit report containing personal credit information about the User in relation to credit provided by CHUR.
12.2. The User agrees that CHUR may exchange information about the User with those credit providers either named as trade referees by the User or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- (a) to assess an application by the User; and/or
- (b) to notify other credit providers of a default by the User; and/or
- (c) to exchange information with other credit providers as to the status of this credit account, where the User is in default with other credit providers; and/or
- (d) to assess the creditworthiness of the User.
12.3. The User understands that the information exchanged can include anything about the User’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Act.
12.4. The User consents to CHUR being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) of the Act).
12.5. The User agrees that personal credit information provided may be used and retained by CHUR for the following purposes (and for other purposes as shall be agreed between the User and CHUR or required by law from time to time) (“Personal Information”):
- (a) the provision of Services; and/or
- (b) used by CHUR’s Service Provider’s in carrying out the provision of Services; and/or
- (c) the marketing of Services by CHUR, its agents or distributors; and/or
- (d) analysing, verifying and/or checking the User ’s credit, payment and/or status in relation to the provision of Services; and/or
- (e) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the User; and/ or
- (f) enabling the daily operation of User’s account and/or the collection of amounts outstanding in the User’s account in relation to the Services.
12.6. In accordance with the Notifiable Data Breaches (NDB) scheme under part IIIC of the Act, CHUR will notify the User in the event that any Personal Information referred to in clause 12.5 (a) –(f) of these Terms are at risk of being disclosed, causing a data breach, and that data breach will cause serious harm to the User.
12.7. CHUR may give information about the User to a credit reporting agency for the following purposes:
- (a) to obtain a consumer credit report about the User;
- (b) allow the credit reporting agency to create or maintain a credit information file containing information about the User.
12.8. The information given to the credit reporting agency may include:
- (a) personal particulars (the User’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
- (b) details concerning the User’s application for credit or commercial credit and the amount requested;
- (c) advice that CHUR is a current credit provider to the User;
- (d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
- (e) that the User’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
- (f) information that, in the opinion of CHUR, the User has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the User’s credit obligations);
- (g) advice that cheques drawn by the User for one hundred dollars ($100) or more, have been dishonoured more than once;
- (h) that credit provided to the User by CHUR has been paid or otherwise discharged.
12.10. The User may control CHUR’s privacy controls via the Site or Application.
12.11. The User acknowledges that its person particulars such as the User’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number) may be provided to CHUR’s Service Providers for the purpose of CHUR carrying out its Services.
12.12.The User acknowledges that if it instructs CHUR to provide CHUR’s Service on behalf of a third party, then the User acknowledges that it has authority to disclose that third party’s personal and/or company particulars and information including but not limited to, name, sex, address, phone number, date of birth, driver’s licence.
13.1. The failure by CHUR to enforce any provision of these terms and conditions shall not be treated as awaiver of that provision, nor shall it affect CHUR’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
13.2. These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which CHUR has its principal place of business, and are subject to the jurisdiction of the courts in that state.
13.3. Subject to clause 11, CHUR shall be under no liability whatsoever to the User for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the User arising out of a breach by CHUR of these terms and conditions (alternatively CHUR’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
13.4. The User shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the User by CHUR nor to withhold payment of any invoice because part of that invoice is in dispute.
13.5. CHUR may licenseor sub-contractor engage all or any part of its rights and obligations without the User’s consent.
13.6. The User agrees that CHUR may amend these terms and conditions at any time. If CHUR makes a change to these terms and conditions, then that change will take effect within 7 days of publishing the change on CHUR’s Site and Application. The User will be taken to have accepted such changes if the User makes a further request for CHUR to provide Services to the User after 14 days of publication.
13.7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
13.8. The User warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.