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    ZELLIS Connect Terms & Conditions

    ZELLIS is an Authorised Reseller of the Neto multichannel commerce platform by Maropost. ZELLIS Connect is a registered trademark of Emotiogence Pty Ltd trading as ZELLIS (hereafter ZELLIS) which is licenced to Unified Commerce Solutions Pty Ltd (hereafter ‘UCS’) for use in relation to the ZELLIS Connect unified commerce platform and related services. UCS is the billing entity for ZELLIS Connect. Maropost is the owner, provider and maintainer of the Software-As-A-Service (SaaS) solution (‘the Service’), and ZELLIS provides related administration, training, support and account management in addition to other Professional Services. As such, the Terms & Conditions published below are contingent on the Terms & Conditions published by Maropost on their website here and should be read in conjunction with them. UCS is the billing entity for ZELLIS Connect.

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    1. Plan
      1. The Merchant subscribes to the Plan and in so doing agrees upon and accepts these General Terms & Conditions.
      2. These General Terms & Conditions prevail over the Plan to the extent of any inconsistency.
      3. The Merchant warrants the Plan meets the Merchant’s needs at the Commencement Date and for the duration of the Term.
    1. Hosting
      1. Maropost shall Host the Merchant Website on the Network.
      2. Maropost shall maintain the Network and Host the Merchant Website in accordance with Good Industry Practice. Maropost may update the Network at any time and in such manner as it thinks fit.
      3. Maropost shall use reasonable endeavours to ensure the Network and Hosting Service is available at least 99.9% of the time in each calendar month during the term of the Contract, except where:
        • ZELLIS has suspended the Service because the Merchant is in default of the Contract (e.g. for non-payment of an invoice);
        • factors outside ZELLIS’s and Maropost’s reasonable control disrupt the Network (e.g. a DDoS attack or third party system failure);
        • Maropost conducts Scheduled Maintenance or Remedial Maintenance.
      4. If the Network and/or Hosting Service is not available at least 99.9% of the time in each calendar month during the term of the Contract, Maropost may refund or credit to ZELLIS in accordance with their published terms & conditions. Where a refund or credit is received by ZELLIS, ZELLIS shall in turn refund or credit to the Merchant AUD$25 for each period of 30 minutes that the Network and Hosting Service is not available (‘Downtime’), up to a maximum of $500 within any calendar month. Downtime shall be measured from the time it is reported by the Merchant to Maropost until the Network and Hosting Service are restored and the Merchant Website is able to transmit and receive data again. This shall be the Merchant’s sole entitlement in the event of Downtime. The Merchant accepts that occasionally Downtime arises and agrees it shall not be entitled to any other compensation or payment by ZELLIS or Maropost for or in respect of Downtime (howsoever caused). The Merchant indemnifies ZELLIS against any claim for compensation where Maropost has not provided a refund or credit in respect of the Merchant’s Maropost Service.
      5. Neither ZELLIS nor Maropost guarantee or warrant any search engine optimisation or ranking for the Merchant Website.
      6. Maropost provides the Merchant up to 100GB of asset storage. This limit is negotiable and includes product images, miscellaneous files and assets which come bundled with the software.
      7. In cases where a heavy volume of traffic to the Merchant Website, The Merchant’s control panel or the Merchant Website API is causing performance or availability issues for other merchants, Maropost shall work within reason to accommodate, and reserves the right to limit traffic.
    1. Access
      1. The Merchant shall access the SaaS via the internet.
      2. The Merchant shall use the Login Codes to access the SaaS.
      3. The Merchant shall configure the SaaS to its requirements using the features and functionality made available through the Maropost SaaS platform. ZELLIS may assist with but is not responsible for configuration of the SaaS for the Merchant except where additional services have been explicitly commissioned for that purpose.
      4. The Merchant shall keep the Login Codes strictly confidential and secure from third parties.
      5. ZELLIS and/or Maropost may access the SaaS, Merchant Website, Data and any Service at any time for any reason without the prior consent of the Merchant and without giving prior notice to any person for doing so.
    1. Use
      1. The Merchant is licensed to use, and shall use, the SaaS, Hosting Service and the Merchant Website only for the Authorised Use.
      2. The Merchant shall only permit its officers and employees who are Authorised Users to use the SaaS and Hosting Service.
      3. The Merchant shall permit no more than the Number of Users to access and use the SaaS and Hosting Service at any time.
      4. The Merchant acknowledges and accepts both the ZELLIS Privacy Policy and the Maropost Privacy Policy.
      5. The Merchant shall adopt Maropost’s prescribed policies for the Merchant Website.
      6. The Merchant shall not conduct or solicit third-parties to conduct penetration or vulnerability testing on their website.
    1. Data and Content
      1. The Merchant is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Data and Content uploaded, collected or otherwise Hosted and/or processed on the Merchant Website by the SaaS.
      2. The Merchant authorises ZELLIS and Maropost, and warrants that ZELLIS and Maropost are authorised (including by any relevant third parties) to access and manipulate Data if in the opinion of ZELLIS and/or Maropost that is reasonably necessary to provide the Services.
      3. The Merchant warrants and shall ensure that it complies in all respects with the Privacy Act.
      4. Maropost’s responsibilities under the requirements of PCI-DSS 3.2 are as outlined in the PCI Responsibility Matrix. Merchants looking to maintain compliance with PCI-DSS 3.2 should be aware of their own and shared responsibilities as outlined in the matrix.
    1. Website Front-End Templates
      1. The Merchant shall acquire and apply its Website Front-End Template from ZELLIS, Maropost or from any third party.
      2. If the Merchant implements a Website Front-End Template themselves or from a third party, the Merchant shall be solely responsible for its appearance, functionality, performance and operation.
    1. Professional Services
      1. ZELLIS may at the request of the Merchant provide Professional Services in accordance with these General Terms & Conditions and scope agreed in writing with the Merchant.
      2. If the Merchant requests any variations to Professional Services, ZELLIS will prepare and provide the Merchant with a quotation outlining the costs of the variation and any additional conditions for accepting and performing the requested variation. The Merchant shall accept or reject the quotation within the time limits prescribed therein or, if the quotation is not expressed to lapse or expire on a particular date, within 7 days of receipt of the quotation from ZELLIS. Upon acceptance of the quotation by the Merchant, the Professional Services shall be varied as set out therein.
      3. Professional Services shall be completed when they are fully performed and Acceptance Testing is successful. Upon completion of the Professional Services, ZELLIS shall be under no obligation to provide additional Professional Services. In particular ZELLIS shall be under no further obligation to maintain and repair, update, upgrade or add to any Work completed or created hereunder.
      4. Website or API development work carried out by the Merchant or other providers may interfere with the smooth operation and function of the Website or the Maropost system. Whilst the Merchant may engage anybody to undertake custom work on their Website or account, it is recommended that the Merchant check with ZELLIS before commencing to ensure nothing will interfere with the system or services included in the ZELLIS Connect Plan.
    1. +PERKS
      1. For all paid-up subscribers on Enterprise or Enterprise Plus plans, each month a percentage of the Merchant’s subscription fee will be reserved for +PERKS subject to offer and acceptance by ZELLIS and The Merchant. Subcsribers on the Lite plan are not eligible for +PERKS.
      2. The Merchant’s +PERKS allowance may be redeemed in the same month for design tweaks to the Merchant Website, customisation of system emails and documents in the Saas, or ZELLIS Flex hours valued at the ZELLIS Flex casual rate at the time of use. ZELLIS Flex available for +PERKS redemption include product data sourcing, creation, optimisation, categorisation, restructuring, automotive compatibility fitment, image editing, data and images upload to the Saas, reviewing and addressing marketplace errors in the Saas and first-responder customer support on behalf of The Merchant for the Merchant Website and/or Marketplace channels connected to the Saas.
      3. Any unused +PERKS balance expires at the end of the month and cannot be rolled over or otherwise credited.
      4. +PERKS may be forfeited and/or suspended where any invoices issued to the Merchant become overdue, or where the ZELLIS offers a reduced fee service due to Merchant hardship.
    1. Intellectual Property
      1. Maropost owns all Intellectual Property in the SaaS.
      2. ZELLIS Connect is a registered trademark of ZELLIS and is licenced to UCS for use in relation to the Service and related services.
      3. The Merchant licenses and warrants that ZELLIS and/or Maropost are authorised, to use, copy, modify, configure and integrate the Data, Content and Website Front-End Templates supplied by the Merchant for the purposes of these General Terms & Conditions.
      4. ZELLIS grants a licence in perpetuity for the Merchant to use any creative works including but not limited to designs, artwork and content, created by ZELLIS at the request and to the approval of the Merchant. The Merchant grants ZELLIS the right to advertise and otherwise publish all such created works for the purpose of promoting its services.
      5. The ownership of any data created, structured, migrated, optimised or otherwise modified by ZELLIS remains with the Merchant and neither ZELLIS nor Maropost obtain rights thereto except for its use in the Merchant’s Website.
      6. Maropost licenses the Merchant via ZELLIS to use the SaaS for the Merchant Website in accordance with these General Terms & Conditions.
      7. Nothing herein disclaims, abrogates, alienates or affects Maropost’s subsisting and continuing moral rights in the SaaS.
      8. The Merchant shall not copy, hack, alter or disseminate the SaaS, Hosting Service or Network in any way, nor allow any third party to do so.
      9. The Merchant agrees ZELLIS or Maropost may suspend or terminate the Services if any infringement of a third party’s Intellectual Property occurs or is alleged in connection with the Merchant Website.
    1. Risk
      1. The Merchant uses the SaaS, Hosting Service, Add-ons and Network solely at its own risk.
      2. The Merchant warrants that it has obtained its own independent professional and technical advice, or has decided not to do so, prior to entering these General Terms & Conditions and that it shall use the Services hereunder freely and voluntarily without duress or pressure to do so from either ZELLIS or Maropost.
      3. Maropost may provide the Merchant access to third-party software (“Add-ons”) via the SaaS for consideration and/or use. Use of these Add-ons is entirely at The Merchant’s own risk and discretion. It is The Merchant’s responsibility to assess the risk involved in the use of any Add-on and read the terms and conditions and/or privacy policies applicable.
    1. Backup and Disaster Management
      1. The Merchant shall regularly back up the Website Front-End Templates and all Data associated with these Website Front-End Templates in accordance with Good Industry Practice.
      2. The Merchant shall implement and maintain a disaster management plan for its business and shall be solely responsible for rectifying any events which interrupt with the Merchant’s ability to access and use the SaaS, Hosting Service or Merchant Website pursuant hereto.
      3. Despite Maropost having backup measures in place, neither ZELLIS nor Maropost shall be liable for loss or damage to data, assets, income or other losses caused by the Merchant’s failure to back up their own data and content. The Merchant indemnifies both ZELLIS and Maropost against all claims in respect of loss, damage or interruption to the Merchant’s business due to the Merchant’s failure to back up their own data and content and have a suitable Disaster or Recovery Plan in place.
    1. DDoS
      1. If the SaaS, Hosting Service or the Merchant Website is the target of a DDoS or any other electronic attack or threat, Maropost may, at any time and without giving prior notice to any person, take such protection and/or mitigation measures as it in its sole discretion considers reasonably necessary, including:
        • suspending the SaaS, the Merchant Website or any other Service;
        • moving the SaaS, Merchant Website and/or Data to a quarantine server;
        • implementing access control lists; and/or
        • applying IP address filtering and/or blocking.
      2. If Maropost takes any such measures, it may continue them until such time as the attack or threat is considered by Maropost (in its absolute discretion) to be eliminated, avoided or otherwise dealt with.
    1. Support
      1. Maropost shall provide the Merchant with:
        • Scheduled Maintenance;
        • Remedial Maintenance.
      2. ZELLIS shall provide the Merchant with Help Desk Support pertaining to the SaaS and Hosting Service, including user training. Help Desk Support will be available 24 hours of every day except where Help Desk Support may be temporarily unavailable as notified on the ZELLIS Connect website and/or via email notification to the Merchant.
      3. The Merchant may access Help Desk Support via any email address or website live chat or phone or other contact method designated by ZELLIS.
      4. Access to support by phone may not be available at all times.
      5. The Merchant’s use of Help Desk Support is subject to the ZELLIS Fair Use Policy as published at www.zellis.com.au/fair.
      6. ZELLIS shall use its best endeavours to respond to any Help Desk Support enquiries or reports in a timely manner but is otherwise not bound to respond or to rectify any defects, errors, threats or other issues arising within any particular time frame. Where a technical or troubleshooting issue requires escalation by ZELLIS to Maropost, the Merchant accepts that the response times, solutions and workarounds are subject to Maropost’s own Terms & Conditions and capacity to attend to the issue.
    1. Service Fees
      1. UCS is the billing entity for ZELLIS Connect and related services. The Merchant shall pay to UCS the Fees set out in the Plan and as otherwise agreed in writing between the parties. The Plan fees include subscription to the Maropost platform (SaaS) with all available features, plus related support and account management services as set out in the Plan.
      2. The merchant agrees to a minimum Term of 2 months following the free trial period specified in the selected Plan, with automatic continuance of the Services in monthly intervals in perpetuity until terminated.
      3. Maropost invests heavily in continuing to build out their platform, cyber security prevention, site performance, developing Merchant user documentation and providing support to ZELLIS so we can in turn assist Merchants to become successful retailers and wholesalers, using the Maropost platform. As a result, from time to time, it is necessary to increase fees and change plan offerings. ZELLIS may do this by serving not less than one (1) month’s prior written notice of the same upon the Merchant and giving the Merchant an opportunity to terminate hereunder prior to the expiry of that notice period if the Merchant does not accept the varied Service Fees. The Merchant shall not be entitled to any compensation or other remedy in the event of termination hereunder. Upon the expiry of the notice period, if the Merchant has not terminated, the Merchant shall be deemed to have accepted the varied Service Fees as notified by ZELLIS.
      4. At the commencement of the ZELLIS Connect service, the Merchant will be required to activate a direct debit authority with UCS via Pinch Payments who upon completion of the Plan free trial period, will then direct debit the Plan fee in advance each month from the nominated payment source. Where the merchant commences service partway through a calendar month, the first invoice will be pro-rata for the remainder of that month, and full monthly charges in advance will commence from the 1st of the following calendar month.
      5. Access to all Services (including Support) and the Maropost cPanel are contingent on the Merchant’s account being up to date. Where a direct debit fails and payment is not made within 7 days, the Merchant’s cPanel access may be blocked without notice until the account is brought up to date. Accounts remaining overdue for more than 60 days will be deactivated where no alternative agreement has been made with ZELLIS. When an account is deactivated, it cannot be retrieved and all data and coding will be forever lost. The Merchant agrees to indemnify ZELLIS and UCS against any liability arising from the deactivation of a delinquent account.
      6. ZELLIS or UCS may pass on and charge the Merchant any fees, levies or charges it incurs as a result of any credit card, direct debit or similar payment transaction failing or being declined.
      7. ZELLIS may at its sole discretion recommence or restore the provision of or access to the Services if any overdue invoice for Service Fees is paid.
      8. The Merchant acknowledges and agrees that it may take up to 2 business days for any Service to be recommenced or restored.
      9. Additional charges apply for website setup (less a once-off webstore setup rebate), shipping configuration, marketplace and third-party system integrations, data migration, data feeds, API development, data structuring and optimisation, custom design, web development and other services delivered by ZELLIS. The Merchant is eligible for a discount on ZELLIS services as specified in the Plan.
      10. Unless otherwise stated, Service Fees are exclusive of Australian GST. Where required by law, ZELLIS will add GST to the Plan Fee and the Merchant will be direct debited by Pinch Payments for the full amount including GST each month. The Merchant shall receive a tax invoice for all fees paid.
      11. Service Fees set out in the Plan are billed in advance of their respective terms and automatically renew at the end of their respective terms for an equivalent term.
      12. Service Fees are non-refundable including but not limited to when the Plan is cancelled mid-term.
    1. Errors and omissions
      1. ZELLIS shall use its best endeavours to rectify at its cost any material errors or omissions in the Services provided hereunder promptly whenever such an error or omission is found in the course of execution of the Services. An error or omission is material if ZELLIS determines in its absolute discretion (acting reasonably) that it is not minor and prevents the Services from satisfying the Merchant’s specifications, any Legislative Requirements and/or the standards of Good Industry Practice.
      2. Notwithstanding the foregoing, ZELLIS shall not be liable to rectify any errors or omissions caused or partly caused directly or indirectly by or arising from:
        • any misinformation provided by the Merchant;
        • any direction given by the Merchant;
        • any conduct of the Merchant or any third party;
        • any undue duress, pressure or influence exerted by the Merchant upon ZELLIS or its officers, employees, agents or subcontractors; or
        • any accident, act of God, fire, flood, war, act of violence, terrorism or similar occurrence beyond ZELLIS’s reasonable control.
      3. The Merchant shall submit all claims for rectification to ZELLIS in writing promptly upon discovering them.
    1. Limitation of liability
      1. To the extent permitted by law, and without limiting the foregoing subject always to the Competition and Consumer Act, the Australian Consumer Law, and the Fair Trading Acts of each State and Territory in Australia, ZELLIS does not warrant either the quality or standard of the Services provided hereunder, or the design, performance, use, utility, fitness for purposes or merchantable or acceptable quality of any software, service, product or thing for any particular purpose or at all, other than to the extent expressly represented in these General Terms & Conditions or in any documentation prepared and supplied by ZELLIS to the Merchant hereunder and to the extent implied or required by law.
      2. ZELLIS may, at its option, choose to satisfy any claim for rectification of any defect or omission in the Services by either:
        • resupplying the Services at ZELLIS’s cost; or
        • paying a third party approved by ZELLIS to resupply the Services or to supply replacement Services hereunder, upon which ZELLIS shall be fully and effectually released and discharged from any further obligations in relation to such claim.
      3. In no case shall the value of a claim by the Merchant for rectification of any defect or omission (as assessed and determined by Maropost, acting reasonably) exceed the total value of the Services Fees paid by the Merchant under these General Terms & Conditions up to the date the claim is made, and all damage or expense over and above such amount shall be the responsibility of the Merchant.
      4. ZELLIS shall not be liable to the Merchant for any delay or delays in the provision of the Services.
      5. ZELLIS shall not be liable to compensate the Merchant for any delay in either replacing or remedying an actual or alleged defect or omission or in properly assessing or responding to a claim.
      6. ZELLIS shall be under no liability whatsoever to the Merchant for any indirect, special or consequential loss and/or damage (including loss of profit, loss of revenue or other economic loss) suffered by the Merchant arising out of or in connection with any Services or any defect or omission arising under these General Terms & Conditions.
      7. The Merchant shall give ZELLIS reasonable access to any premises or property (including to devices via screen sharing) required for ZELLIS to fully and properly investigate and assess any and all claims hereunder.
      8. ZELLIS may decline any claim which does not comply with these General Terms & Conditions, or which is not covered by these General Terms & Conditions, or which is made for Services that are found not to be defective by ZELLIS, in which case ZELLIS may give notice to the Merchant that the claim is declined and the Merchant shall be responsible for ZELLIS’s reasonable costs of receiving, processing, assessing and declining the Merchant’s claim. ZELLIS may invoice the Merchant any such costs incurred by it and the Merchant shall promptly pay the invoice within seven (7) days of the date of the invoice.
    1. Default & consequences of default
      1. Without prejudice to ZELLIS’s other remedies at law or in equity, ZELLIS shall be entitled to immediately suspend or terminate the supply of the Services in the event that:
        • any Service Fees are not paid when due; or
        • the Merchant breaches these General Terms & Conditions; or
        • the Merchant 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
        • a receiver, manager, administrator, liquidator (provisional or otherwise) or similar person is appointed in respect of the Merchant or any asset of the Merchant.
      2. ZELLIS will not be liable for any loss or damage the Merchant suffers because ZELLIS has exercised its rights under this clause.
      3. If ZELLIS terminates these General Terms & Conditions under clause 16.1, ZELLIS may pursue the Merchant for damages for breach or specific performance or both.
      4. ZELLIS’s rights and entitlements hereunder are in addition to the rights which ZELLIS may have at law or in equity.
      5. If the Merchant defaults in payment of any Service Fees, the Merchant shall indemnify ZELLIS from and against all costs and disbursements incurred by ZELLIS in pursuing the debt including legal costs on a solicitor and own Merchant basis and ZELLIS’s collection agency costs.
      6. Interest on overdue Service Fees shall accrue daily from the date when payment becomes due, until the date of payment, at the rate or rates prescribed from time to time under Section 2 (as applicable) of the Penalty Interest Rates Act 1983 (Vic) and such interest shall be calculated and invoiced monthly and shall be payable to ZELLIS immediately upon invoicing.
      7. If any account remains overdue after thirty (30) days, then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200) shall be levied for administration fees which sum shall become immediately due and payable.
    1. Termination
      1. Following the initial minimum 2 month commitment, either party may terminate these General Terms & Conditions, with or without giving any reasons for doing so, by giving not less than 30 days’ written notice to the other party, and upon giving such notice these General Terms & Conditions shall terminate at the expiry of the 30 days.
      2. ZELLIS may at ZELLIS’s option suspend the provision of the Services at any time after notice of termination is given by either party.
      3. Neither party shall be liable to the other party for any loss or damage whatsoever arising from termination under clause 17.1.
      4. The termination of these General Terms & Conditions by either party is without prejudice to any other right or remedy which they may have against each other at law or in equity.
    1. General indemnity
      1. To the fullest extent permitted by law, the Merchant shall indemnify and keep indemnified ZELLIS and Maropost from and against any and all losses, loss of profits, claims, damages, actions, suits, demand, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever, which ZELLIS and/or Maropost shall or may suffer or incur or be called upon to suffer or incur by virtue of:
        • any default or breach hereunder by the Merchant;
        • any unlawful, negligent, fraudulent or indictable act or omission of the Merchant or any of its officers, employees or agents;
        • the use or misuse of any Services by the Merchant; or
        • any Content or Data uploaded, processed or posted by the Merchant using the SaaS or otherwise on the Merchant Website or any other website of the Merchant, except to the extent of any contributory negligence by ZELLIS or Maropost.
      2. The Merchant shall pay any and all indemnified amounts to ZELLIS within 7 days of receiving a written demand for the same.
    1. Representations
      1. The Merchant represents and warrants that at the date of acceptance of these General Terms & Conditions by the Merchant and at all times until these General Terms & Conditions are fully performed and completed:
        • the Merchant is not bankrupt and is not insolvent or in receivership or under administration, official management or liquidation and has not entered into an arrangement with its creditors;
        • the Merchant is able to carry on its business and perform its obligations under these General Terms & Conditions;
        • the Merchant is adequately insured with a reputable insurer against all risks which a prudent person carrying on its business would insure against;
        • there are no legal proceedings, actions, prosecutions or investigations threatened, pending or commenced against the Merchant or the directors or shareholders of the Merchant;
        • all corporate authorisations and approvals necessary to enable it to enter into these General Terms & Conditions have been obtained and remain in full force and effect;
        • all governmental requirements, authorisations, approvals and licenses which are necessary for the Merchant to legally carry on its business are in full force and effect; and
        • it has not withheld from ZELLIS any document, information or other fact material to the decision of ZELLIS to enter into these General Terms & Conditions or to supply Products or provide credit to the Merchant.
      2. The Merchant must immediately notify ZELLIS if any of the aforementioned representations, warranties and covenants cease to be true and correct.
    1. Security for payment
      1. The Merchant grants ZELLIS a security interest and a charge and a general lien over all Website Front-End Templates, Data and Content (including domain keys and codes therefor) (‘Collateral’) it has supplied to ZELLIS to secure payment of the Service Fees in accordance with these General Terms & Conditions and the provisions of the Personal Property Securities Act 2009 (Cth) (‘PPSA’).
      2. ZELLIS agrees to take a security interest and a charge and a general lien over the Collateral and may register its security interest on the Personal Property Securities Register (‘PPSR’).
      3. The Merchant shall do all such things necessary to perfect ZELLIS’s security interest hereunder.
      4. ZELLIS may retain and withhold possession of any Collateral to enforce its right to payment hereunder.
      5. The Merchant authorises under section 275(7)(c) of the PPSA the disclosure of information by a secured party under section 275(4) of the PPSA in response to any request for information from an interested person pursuant to sections 275(1) to (3) of the PPSA.
      6. The Merchant will not without written notice to ZELLIS, change its name or initiate any change to any documentation registered under the PPSA in relation to these General Terms & Conditions.
      7. ZELLIS undertakes to maintain the accuracy of the registered security interest and may remove the registration when the Merchant has paid all amounts owed to ZELLIS in relation to the Services.
    1. Credit checking
      1. ZELLIS may obtain from a credit reporting agency a credit report about the Merchant.
      2. ZELLIS may exchange information about the Merchant with credit reporting agencies, credit providers and trade referees to assess the Merchant’s credit worthiness and to notify third parties of any defaults hereunder.
      3. The Merchant consents to ZELLIS being given a consumer credit report to collect overdue payment on commercial credit under section 21H of the Privacy Act.
      4. The Merchant agrees that personal credit information provided may be used and retained by ZELLIS to provide products, market ZELLIS’s products and services (including the Services), process payments hereunder and maintain the Merchant’s account/s with ZELLIS.
      5. ZELLIS may disclose information about the Merchant and/or its directors, officers and shareholders pursuant to any request by a third party for any reference or report concerning that person or entity. The Merchant shall indemnify ZELLIS for any claim arising from such disclosure hereunder.
      6. ZELLIS may give credit reporting agencies personal information about an application for a Credit Account, but only the kinds of information allowed by the Privacy Act.
    1. Force majeure
      1. ZELLIS will not be liable for any failure or delay in the performance of its obligations under these General Terms & Conditions to the extent such failure or delay is caused by a Force Majeure Event.
      2. If a Force Majeure Event arises, ZELLIS shall use reasonable endeavours to promptly advise the Merchant of the details of the Force Majeure Event and its likely effect on the performance of ZELLIS’s obligations hereunder, and ZELLIS shall take all steps reasonably necessary to recommence performance of the affected Services and minimise any delay caused by the Force Majeure Event.
    1. Dispute resolution
      1. If a dispute arises out of or relates to these General Terms & Conditions, the breach, termination, validity or subject matter of these General Terms & Conditions, or any claim in tort, in equity or pursuant to any domestic or international statute or law, then subject always to clause 23.6 the parties to the Agreement and to the dispute expressly agree to endeavour in good faith to settle the dispute by mediation administered by a mediator appointed under the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia as in existence at the time written notice is received by the parties.
      2. A party claiming that a dispute has arisen must give written notice to the other parties to the dispute specifying the nature of the dispute.
      3. On receipt of the notice specified in clause 23.2, the parties to the dispute must within seven (7) days of receipt of notice seek to resolve the dispute.
      4. If the dispute is not resolved within the said seven (7) days or within such further period as the parties agree, then the parties must mediate the dispute and adopt the provisions of, and the procedures noted in, the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia, being the Rules in existence at the date of the notice specified in clause 23.2.
      5. The terms of the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia, being the Rules in existence at the date of the notice specified in clause 23.2, are hereby deemed incorporated into these General Terms & Conditions.
      6. Notwithstanding the foregoing, ZELLIS shall always have the right to institute legal proceedings in any court of competent jurisdiction in order to collect payments due to ZELLIS by the Merchant whether under these General Terms & Conditions or any other agreement, without first being required to undergo mediation or arbitration.
      7. This clause 23 survives termination or expiration of these General Terms & Conditions.
    1. General
      1. These General Terms & Conditions prevail over any terms of trade or terms and conditions of supply or of acquisition of goods or services provided or submitted by the Merchant or agreed to by ZELLIS to the extent of any inconsistency between them.
      2. The parties contract hereunder independently and at arm’s length. Nothing herein constitutes either party a partner, joint venturer, agent or employee of the other party.
      3. Each party warrants, states and represents that the party has entered these General Terms & Conditions with full knowledge of the responsibilities of the party under it, with full knowledge of the effect of these General Terms & Conditions on the party’s financial position, after either obtaining or electing not to obtain independent legal and accounting and taxation advice on the terms and subject matter of these General Terms & Conditions, and without any reliance on any other party in respect thereof.
      4. If any provision of these General Terms & Conditions shall be invalid, illegal or unenforceable, that provision shall be severed from these General Terms & Conditions and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired in any way.
      5. All notices required to be given by the Merchant under these General Terms & Conditions must be given in writing, addressed to ZELLIS, PO Box 7015, Upper Ferntree Gully VIC 3156, Australia, in the English language, signed by the Merchant (or its duly authorised attorney or representative), and dated the date on which it was signed. ZELLIS may give notices to the Merchant via email or posted letter.
      6. ZELLIS may license or sub-contract all or any part of its rights and obligations without the Merchant’s consent. ZELLIS may also at its sole discretion transfer or assign all or any part of its rights and obligations hereunder to any third party without the Merchant’s consent.
      7. The Merchant shall not transfer or assign all or any part of its rights and obligations hereunder without first obtaining the prior written consent of ZELLIS.
      8. The Merchant shall give ZELLIS not less than fourteen (14) days prior written notice of any proposed change of ownership or control of the Merchant, or any change in the Merchant’s name, or any other change in the Merchant’s details (including but not limited to, changes in the Merchant’s address, facsimile number, or business practice). The Merchant shall be liable for any loss incurred by ZELLIS as a result of the Merchant’s failure to comply with this requirement. In addition, any such change in ownership or control of the Merchant shall be deemed hereunder to constitute a transfer or assignment of the Merchant’s rights and obligations hereunder to the person or entity take on or taking over such ownership or control, which change shall not be undertaken without first obtaining the prior written consent of ZELLIS.
      9. ZELLIS shall not be required to notify the Merchant of, or obtain the Merchant’s consent to, any change or proposed change of ownership or control in ZELLIS.
      10. ZELLIS reserves the right to review these General Terms & Conditions at any time. If, following any such review, there is to be any change to these General Terms & Conditions, then that change will take effect from one (1) month after the date on which ZELLIS notifies the Merchant of such change. The Merchant may not change or amend these General Terms & Conditions without ZELLIS’s prior written agreement.
      11. Personal information about the Merchant may be used and retained by ZELLIS for the provision of products or services, the marketing of products or services, credit checking, maintenance of the Merchant’s account/s, processing any payment instructions or direct debit or credit facility, and debt collection, as well as for any other purposes as may be agreed between the parties or required by law from time to time.
      12. The failure by ZELLIS to enforce any provision of these General Terms & Conditions shall not be treated as a waiver of that provision, nor shall it affect ZELLIS’s right to subsequently enforce that provision.
      13. Any party signing or executing or otherwise accepting these General Terms & Conditions on behalf of the Merchant as the Merchant’s director, officer, attorney or representative hereby warrants, states and represents in his or her personal capacity that he or she is duly authorised and permitted to do so by the Merchant and by law.
      14. Subject to any written agreement to amend the terms hereof, these General Terms & Conditions constitute the sole and entire agreement between the parties with respect to its subject matter. No warranties, representations, guarantees or other terms or conditions of any kind not contained and recorded in these General Terms & Conditions are of any force or effect.
      15. These General Terms & Conditions and any contract to which they apply shall be governed by the laws applicable in Victoria and are subject to the jurisdiction of the courts of Victoria. All legal proceedings in relation to these General Terms & Conditions shall be instituted and held in Melbourne in the State of Victoria, Australia.
    1. Definitions and interpretation
      1. In these General Terms & Conditions:
        1. Fair Use Policy means ZELLIS’s Fair Use Policy published on the ZELLIS Connect Website from time to time.
        2. Acceptance Testing means testing of the performance and functionality of Work using criteria agreed in writing between the parties or, in the absence of such agreement, as determined by ZELLIS (acting reasonably) from time to time.
        3. Authorised Use means the use for which a Service is provided as stated in the Plan or as otherwise notified by ZELLIS to the Merchant from time to time.
        4. Authorised Users means the persons or entities who may use the Service as stated in the Plan or as otherwise notified by ZELLIS to the Merchant from time to time.
        5. B@SEmeans Maropost’s templating language for Website Front-End Templates.
        6. Merchant Website means the Merchant’s website Hosted by Maropost using the SaaS and incorporating the Website Front-End Template, Data and Content.
        7. Commencement Date means the first day of the Term.
        8. Content means any text, data, images, graphics, animations or other information or material or content to be published on the Merchant Website from time to time.
        9. Data means information or data of any kind and includes Content.
        10. DDoS means a distributed denial of service attack.
        11. Devices means the plant, equipment and devices used by the Merchant or its authorised users to access and use the SaaS, including any and all software and source code installed thereon.
        12. Force Majeure Event means any circumstance not within the reasonable control of ZELLIS and/or Maropost, to the extent that the circumstance, or its effect upon ZELLIS and/or Maropost, could not have been avoided, prevented or circumvented despite the exercise of reasonable diligence by ZELLIS and/or Maropost. Without limiting the foregoing, such circumstance shall include fire, sea accident, failure of machinery, or other accident, ice hindrance, flood, water shortage, or other natural disaster, vehicle or tonnage shortage or other traffic disturbance, strike, lockout, blockade, riot, revolution, mobilization or state of war, currency problems, import restrictions, or other government action.
        13. Good Industry Practice means, in relation to any work or task required to be performed by a party, the practices, methods, specifications and standards of safety, design and performance which are generally expected of competent and experienced professionals who perform the same or similar work or tasks in the same or similar industry or profession.
        14. Help Desk Support means help desk support provided at the time and in the manner published by ZELLIS from time to time.
        15. Hosting means storing the Website on the Network and making it available on the internet, and Host and Hosted have corresponding meanings.
        16. Intellectual Property means circuit layout rights, copyrights, patent rights, trademark rights, design rights, get up, know-how, trade secrets, source code, software and any and all other forms of Intellectual Property, wheresoever and howsoever arising, whether registered or unregistered, anywhere in the world.
        17. Legislative Requirement includes a requirement imposed by law, including to obtain any governmental or judicial approval or consent, to give a notice, to pay a fee charge or penalty, and to perform and act or omissions.
        18. Login Codes means login codes and authentication criteria provided by ZELLIS or Maropost to access the SaaS.
        19. Maropost Website means Maropost’s website at www.netohq.com or such other address notified by Maropost to the Merchant from time to time.
        20. Network means hardware, software and network infrastructure owned by or licensed to Maropost for the provision of the Services.
        21. Plan means the SaaS and Hosting Service plan agreed between ZELLIS and the Merchant.
        22. Privacy Policy means ZELLIS’s Privacy Policy published on the ZELLIS Website from time to time.
        23. Professional Services means professional services to be provided by ZELLIS to the Merchant pursuant to the Plan or as otherwise agreed in writing between the parties. Without limiting the foregoing, they may include:
          • migrating Data to or from the Merchant Website;
          • creating and implementing design, feature and functional changes on the Merchant’s website;
          • programming and/or incorporating custom or bespoke features or functionality in the Merchant Website;
          • setting up or configuring Maropost features and functions, data feeds or Add-ons;
          • creating, optimising, structuring or otherwise modifying data pertaining to the Merchant’s business or website, including import and export of such data;
          • creation, preparation, implementation and scheduling of artwork or content for marketing activities requested by the Merchant;
          • consultancy and advisory services.
        24. Remedial Maintenance means unscheduled maintenance or rectification of the SaaS and/or the Network by Maropost at Maropost’s absolute discretion.
        25. SaaS means Maropost’s software platform for Hosting the Merchant Website under the Plan.
        26. Scheduled Maintenance means scheduled maintenance and service of the SaaS and/or the Network by Maropost at Maropost’s absolute discretion.
        27. Service Fees means the fees described in the Plan.
        28. Services means SaaS, Hosting and Professional Services.
        29. Term means the period during which the Merchant is bound by these General Terms & Conditions.
        30. Website Front-End Template means each HTML file that determines the layout and/or functionality of the Merchant Website.
        31. Work means the website features or functionality, software, data, compilation, integration, improvement, development or advance, creation or any other outcome or result achieved by ZELLIS or Maropost or arising from the provision of Professional Services.
        32. ZELLIS Connect Website means the website at Zellis Connect ZELLIS Connect or such other address notified by ZELLIS to the Merchant from time to time.
        33. ZELLIS Flex means the specific services offered by ZELLIS for data creation, optimisation or restructuring tasks, image editing, automotive fitment services, marketplace error troubleshooting in the Saas platform.
        34. Add-on means an extension installed through the Maropost Add-on Store provided by either Maropost or a third-party.
      1. In these General Terms & Conditions, except where the context otherwise requires:
        1. the singular includes the plural and vice versa;
        2. a gender includes other genders;
        3. another grammatical form of a defined term has a corresponding meaning;
        4. a reference to ‘writing’ or ‘in writing’ includes electronically via email, website or other digital communication.
        5. a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, these General Terms & Conditions, and a reference to these General Terms & Conditions includes any schedule or annexure;
        6. a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
        7. a reference to a party is to a party to these General Terms & Conditions, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
        8. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
        9. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
        10. headings are for ease of reference only and do not affect interpretation.