Terms and Conditions

1.1 These Terms apply from the Commencement Date until the date that is the earlier of:

1. the date set out in the Quote;
2. the date the Services are completed (as reasonably determined by us); or
3. the date on which these Terms are terminated, (Term).

1.2 You must be at least 18 years old to use the Services.

1.3 We agree to provide our Services to you, which may include but are not limited to:

1. access to our Platform, which may allow you to host online fundraising campaigns, silent auctions, raffles and donation campaigns;
2. access to our Support Services; or
3. services otherwise set out in the Quote or Statement of Work.

2.1 In consideration of your payment of the Price, we will provide the Services in accordance with these Terms, whether ourselves or through our Personnel.

2.2 You acknowledge and agree that any information, advice, material or work provided by us as part of the Services does not constitute legal, financial, due diligence or risk management advice.

2.3 All variations to the Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the scope of the Services or our obligations under these Terms, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.

2.4 Support Services: If you require Support Services, you may request these by getting in touch with us at support@silentauctions.app. Unless we agree otherwise, Support Services cannot be used to support any other products or services, and does not include training, installation of software or hardware, software development, modification, deletion or recovery of data, or other services outside troubleshooting.

2.5 Additional Services: If you require additional services, we may, in our sole discretion, provide such additional services (to be scoped and priced in a statement of work provided by us (Statement of Work). Each Statement of Work will be governed by the terms of these Terms and any other conditions expressly set out in the Statement of Work. In the case of any inconsistency between these Terms and the Statement of Work, the terms of the Statement of Work will prevail.

2.6 Notwithstanding clause 2.3, you agree that we may vary the Services or the Price at any time, by providing 30 days' written notice to you (Variation Notice Period). If you do not agree to any amendment made to the Services or Price, you may, before the end of the Variation Notice Period, terminate these Terms by giving us 30 days' notice in writing, in which case, the proposed variation will not come into effect and clause 15.2 will apply.

3.1 In order to use the Services, you must contact us and follow the registration process as notified by us, which may require you to provide us with such information as your business name, business address, contact details and Stripe account details which you can link to your Account (Merchant Account). Once you have completed the registration process, we will create an Account for you and provide you with login details (including a username and password) to allow you to access your Account and the Platform.

3.2 Where set out in your Quote, we may provide you with an account manager to assist you with liaising with us and managing your Account (Account Manager).

3.3 You may invite Authorised Users to access and use our Services under your Account (or through your Account Manager). Each of your Authorised Users will require a login (which is linked to your Account), in order to access and use our Platform. You are responsible for ensuring that your Authorised Users comply with these Terms. You may change who your Authorised Users are at any time through your Account, and what access rights or permissions they have when using our Platform. Any limitations on the number of Authorised Users you can have will be set out in your Account or on our Platform.

3.4 While you have an Account with us, you agree to (and to ensure your Authorised Users agree to):

1. keep your information up to date (and ensure it remains true, accurate and complete);
2. keep usernames and passwords secure and confidential, and protect them from misuse or being stolen; and
3. notify us if you become aware of, or have reason to suspect, any unauthorised access to your Account or any logins linked to your Account.

3.5 We may suspend your access to our Services where we reasonably believe there has been any unauthorised access to or use of our Services (such as the unauthorised sharing of login details for our Platform). If we suspend your access to our Services, we will let you know within a reasonable time of doing so, and we will work with you to resolve the matter, or if it cannot be resolved, then we may terminate your Account and your access to our Services will end.

4.1 The Platform allows you to create fundraising campaigns, including silent auctions, raffles and donation campaigns (Campaigns), and to solicit and receive bids, payments and monetary donations from bidders, purchasers and donors. You understand that we facilitate the fundraising process between you and users of your Campaign (Fundraising Services), but we are not responsible for the Event, cause, items, descriptions, promises or other information you provide about your Campaign. Online payments made through a Campaign are processed through our integration with Stripe. To process online payments, you will be required to link your Merchant Account, set up a Stripe account, or connect an existing Stripe account to your Campaign.

4.2 In order to create a Campaign, you must provide us with the relevant information requested through the Platform or through your Account Manager, which may include Campaign details, Event details, fundraising goals, auction item descriptions, campaign descriptions and any promised items, experiences, rewards or fulfilment.

4.3 Once your Campaign has been created, bidders, purchasers and donors may make online payments through the Platform, and amounts payable to you will be deposited to your Merchant Account subject to Stripe processing, applicable fees, disputes, reversals, reserves and payout timing.

4.4 You are the organiser of each Campaign and, where applicable, the seller or provider of any auction item, prize, experience, service or other benefit offered through your Campaign. You are solely responsible for the accuracy and completeness of all information relating to those items or benefits, including any description, stated or estimated value, retail value, reserve price, condition, authenticity, provenance, ownership, availability, restrictions, expiry date, suitability, quality, warranty, delivery, collection and fulfilment information. We do not inspect, independently value, authenticate, verify, approve, endorse or warrant any auction item, prize, experience, service or other benefit offered through a Campaign.

4.5 Any complaint, claim or dispute between you and a bidder, purchaser, donor or other third party concerning a Campaign, auction item, prize, description, valuation, bid, purchase, payment, refund, authenticity, condition, ownership, delivery, collection, fulfilment, warranty or other obligation relating to your Campaign is a matter between you and that third party. Silent Auctions is not a party to that dispute and is not responsible for resolving, determining or accepting liability for it. We may, at our discretion, provide available Platform or payment records to assist the parties, but doing so does not make us responsible for the dispute or its outcome. This clause does not apply to a dispute directly concerning our own obligations to you under these Terms.

5.1 In consideration for us providing the Services, you agree to pay all amounts due under these Terms, including any amounts set out in a Quote or Statement of Work and the fees set out in this clause 5.

5.2 Any fixed fees, subscription fees, setup fees or other service charges will be set out in the Payment Terms in the Quote or Statement of Work. You agree to pay those amounts in accordance with the applicable Payment Terms or as otherwise agreed between the Parties in writing.

5.3 For transactions processed through the Platform:

1. Stripe processing fees will apply at Stripe's then current rates and will be charged as imposed by Stripe, without markup by us;
2. any separate merchant fees, card network fees, acquiring fees, bank fees or other payment processing charges imposed by a financial institution or payment service provider are payable by you; and
3. in addition to those third party fees, we charge a Platform Fee equal to 3.5% of the gross transaction value processed through the Platform, plus GST where applicable.

5.4 Fees passed on to buyers: depending on the payment settings you choose for your Account:

1. you may choose to pass the Platform Fee on to bidders and purchasers, in which case it is added to the amount they pay and shown to them at checkout as a processing fee. Raffle ticket purchases always include a processing fee payable by the purchaser;
2. you may set a Admin Processing Fee, being a percentage of the sale price, a fixed amount per payment, or both, which is added to the amount payable by the bidder or purchaser where fees are passed on and for raffle ticket purchases. Where a Admin Processing Fee applies, the processing fee is calculated on the sale price plus the Admin Processing Fee;
3. the Admin Processing Fee is paid to your Merchant Account together with the sale proceeds, and is intended to help you recover Stripe Fees and Merchant Fees on the transaction. We do not receive any part of the Admin Processing Fee;
4. you are solely responsible for the amount of any Admin Processing Fee you set, and for ensuring that it, and any other fee passed on to bidders, purchasers or donors, complies with applicable Law and card scheme rules, including any requirement that a surcharge not exceed your reasonable cost of accepting the relevant payment method. We show the Admin Processing Fee and processing fee to the buyer as separate lines before payment, but we do not check that the amounts you set are compliant; and
5. passing fees on to buyers does not change your responsibility for Stripe Fees, Merchant Fees and the other amounts set out in this clause 5.

5.5 The Platform Fee and any applicable third party payment fees may be deducted from transaction proceeds before payout to your Merchant Account, charged through Stripe, or invoiced to you, depending on the payment configuration used for your Account.

5.6 You are responsible for all chargebacks, payment disputes, reversals, refunds, failed payments, negative balances, dispute fees, chargeback fees and other third party costs associated with transactions processed for your Campaign. Where Stripe or another provider does not return its processing or merchant fees following a refund, reversal or chargeback, those fees remain your responsibility. Unless otherwise agreed by us in writing or required by Law, the Platform Fee remains payable in respect of a transaction that was successfully processed and is later refunded, reversed or charged back.

5.7 You authorise us and our payment service providers to deduct amounts properly payable under these Terms from amounts processed through the Platform where the relevant payment configuration permits this. You must promptly pay any shortfall, negative balance or other amount that cannot be recovered from transaction proceeds.

5.8 If any payment has not been made in accordance with the Payment Terms, we may, at our absolute discretion, and without prejudice to any of our rights or remedies under these Terms or at law:

1. after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so, including all recovery costs; and or
2. charge interest at a rate equal to the Reserve Bank of Australia's cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms.

5.9 When applicable, GST payable will be clearly shown on our invoices or transaction records. You agree to pay us an amount equivalent to the GST imposed on these charges. "GST" has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

6.1 Where you elect to or are required by law to provide a refund in relation to money collected from a donor, bidder, purchaser or other third party in relation to your fundraising activities through the Platform, you will be solely responsible for providing such a refund to the other party as soon as reasonably practicable after receiving a request for refund (Customer Refunds).

7.1 Obligations: You agree to (and to the extent applicable, ensure that your Personnel agree to):

1. comply with these Terms, all applicable Laws, and our reasonable requests;
2. ensure that any Campaigns and any materials that you provide to us in connection with those Campaigns comply with all applicable Laws;
3. not engage in any fraudulent, misleading or deceptive conduct relating to your fundraising;
4. provide us with all documentation, information, instructions, cooperation and access (including to your computer systems) reasonably necessary to enable us to provide the Services;
5. not (or not attempt to) disclose, or provide access to, the Services to third parties without our prior written consent.

7.2 You agree to pay our additional costs reasonably incurred as a result of you failing to comply with clause 7.1.

7.3 Warranties: You represent and warrant that:

1. in working with us, you will not breach (or cause us or our Personnel to breach) any third party rights, including Intellectual Property rights and privacy rights;
2. you have full legal capacity, right, authority and power to enter into these Terms, to perform its obligations under these Terms, and to carry on its business; and
3. these Terms constitute a legal, valid and binding agreement, enforceable in accordance with its terms; and
4. all information and documentation that you provide to us in connection with these Terms is true, correct and complete.

7.4 Acknowledgements: You acknowledge and agree that:

1. you are solely responsible for determining your tax and reporting obligations related to donations, auction proceeds, raffle proceeds or any other amounts received by you through the Platform;
2. we may, at our sole discretion, remove any Campaign from our Platform at any time where we reasonably believe that it may or will cause harm to our reputation or violate our Terms.

8.1 During the Term, we grant you and your Authorised Users a right to use our Platform (which may be suspended or revoked in accordance with these Terms). This right cannot be passed on or transferred to any other person.

8.2 You must not (and you must ensure that your Authorised Users do not):

1. access or use our Platform in any way that is improper or breaches any laws, infringes any person's rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;
2. interfere with or interrupt the supply of our Platform, or any other person's access to or use of our Platform;
3. introduce any viruses or other malicious software code into our Platform;
4. use any unauthorised or modified version of our Platform, including but not limited to for the purpose of building similar or competitive software or for the purpose of obtaining unauthorised access to our Platform;
5. attempt to access any data or log into any server or account that you are not expressly authorised to access;
6. use our Platform in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time sharing;
7. circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
8. access or use our Platform to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.

9.1 While we strive to always make our Services available to you, we do not make any promises that these will be available 100% of the time. Our Services may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance.

9.2 Our Services (including our Platform) may interact with, or be reliant on, products or services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.

9.3 We will try to provide you with reasonable notice, where possible, of any disruptions to your access to our Services.

10.1 As between the Parties:

1. we own all Intellectual Property Rights in Our Materials (including the Platform);
2. you own all Intellectual Property Rights in Your Materials; and

nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

10.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.

10.3 We grant you a non exclusive, revocable, royalty free, worldwide, non sublicensable and non transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Services, as contemplated by these Terms.

10.4 You grant us a non exclusive, irrevocable, royalty free, worldwide, non sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non transferable right and licence to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under these Terms.

10.5 If you (if you are an individual) or any of your Personnel have any moral rights in any material provided, used or prepared in connection with these Terms, you agree to (and will procure that your Personnel) consent to our use or infringement of those moral rights.

10.6 Our Materials includes how our Platform looks and functions, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our Intellectual Property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on our Platform.

10.7 We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features), and no benefit will be owed to you as a result of any use by us of your feedback or suggestions.

Your Data

10.8 We do not own any of Your Data. When you enter, upload or otherwise provide Your Data to the Platform, including user account data and organisation data, you grant us the right to access, backup, copy, store, transmit, process and otherwise use Your Data only as reasonably necessary to:

1. supply the Services to you and your Authorised Users and administer your Account and Campaigns;
2. operate, maintain, troubleshoot, secure and protect the Platform;
3. facilitate payments, maintain transaction records and work with payment service providers;
4. comply with applicable Law, lawful requests and our record keeping obligations;
5. enforce these Terms and protect the rights, security and integrity of the Platform, our users and third parties; and
6. provide Support Services and any other services requested or agreed with you.

We do not sell or rent Your Data and we do not use identifiable user data or identifiable organisation data for advertising or marketing.

10.9 You acknowledge and agree that because of the nature of the internet, the processing and transmission of Your Data by us may occur over various networks and through third party infrastructure used to provide the Services.

10.10 You are responsible for, meaning we are not liable for:

1. the integrity of Your Data on your own systems, networks or any device controlled by you or your Authorised Users; and
2. maintaining any backups of Your Data that you require outside the Platform.

10.11 We may create and use anonymised and aggregated statistical information derived from use of the Platform, such as general statistics about numbers of Campaigns, bids, transactions, users, fundraising totals or overall usage volumes. We may use or publish those general statistics for service operation, performance reporting, product improvement, business planning and public reporting, provided that the information does not reasonably identify an individual user or organisation. This clause does not permit us to sell, market or disclose identifiable user data or identifiable organisation data.

10.12 If you do not provide Your Data to us, it may impact your ability to receive the Services.

11.1 While using our Services, you may share confidential information with us, and you may become aware of confidential information about us. You agree not to use our confidential information, and to take reasonable steps to protect our confidential information from being disclosed without our permission, and we agree to do the same for your confidential information. This also means making sure that any employees, contractors, professional advisors or agents of ours or yours only have access to confidential information on a 'need to know basis' (in other words, the disclosure is absolutely necessary), and that they also agree to not misuse or disclose such confidential information.

11.2 However, either you or we may share confidential information with legal or regulatory authorities if required by law to do so.

11.3 If you are required to provide us with Personal Information so that we can provide the Services, you agree to comply with the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth), and any other applicable Laws relating to privacy (Privacy Laws).

11.4 We collect, hold and disclose and use any Personal Information you provide to us in accordance with our privacy policy, available on our website, and applicable privacy laws.

11.5 You must only disclose Personal Information to us if you have the right to do so (such as having the individual's express consent).

11.6 We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).

11.7 Where we are required by law to report on our activities, you acknowledge that from time to time we may request certain information from you in order to meet our requirements, and you agree to provide us with such information within the timeframes reasonably requested by us.

12.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at law, nothing in these Terms excludes those Consumer Law Rights.

12.2 Subject to your Consumer Law Rights, we provide all material, work and services (including the Services) to you without conditions or warranties of any kind, implied or otherwise, whether in statute, at law or on any other basis, except where expressly set out in these Terms.

12.3 This clause 12 will survive the termination or expiry of these Terms.

13.1 To the maximum extent permitted by law, you indemnify us from and against any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:

1. any property loss or damage, or personal injury or death relating to any Campaign or Event, including any damage to any equipment that we may lend to you for an Event;
2. any breach by you (or any of your Personnel) of any Law;
3. any breach by you (or any of your Personnel) of clauses 10 (Intellectual Property and Data), 11 (Confidential Information and Personal Information);
4. your provision of (or failure to provide) any Customer Refunds.

13.2 This clause 13 will survive the termination or expiry of this Agreement.

14.1 To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:

1. any Campaign or Event;
2. your fundraising activities outside of the Platform;
3. any third party products or services on which the Services may be reliant;
4. any aspect of your interaction between you and any donor, bidder, purchaser or third party;
5. your computing environment (for example, your hardware, software, information technology and telecommunications services and systems);
6. any inaccurate, false or misleading information provided by you, including in relation to any Campaign;
7. any incorrect, inaccurate, incomplete or disputed description, valuation, estimated value, retail value, reserve price, condition, authenticity, provenance, ownership, availability, suitability, quality, warranty, delivery, collection or fulfilment information relating to any auction item, prize, experience, service or other benefit offered through a Campaign;
8. any complaint, claim or dispute between you and a bidder, purchaser, donor or other third party concerning a Campaign or anything offered through it, except to the extent that the Liability is directly caused by our breach of these Terms or cannot lawfully be excluded; or
9. any use of our Services by a person or entity other than you or your Authorised Users.

14.2 Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by Law:

1. neither Party will be liable for Consequential Loss;
2. a Party's liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
3. (where our Services are not ordinarily acquired for personal, domestic or household use or consumption) in respect of any failure by us to comply with relevant Consumer Law Rights, our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again; and
4. our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.

14.3 This clause 14 will survive the termination or expiry of these Terms.

15.1 These Terms will terminate immediately upon written notice by a Party (Non Defaulting Party) if:

1. the other Party (including its Authorised User) (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non Defaulting Party; or
2. the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.

15.2 Upon expiry or termination of these Terms:

1. we will immediately cease providing the Services;
2. without limiting and subject to your Consumer Law Rights, any payments made by you to us for Services already performed are not refundable to you;
3. you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
4. by us pursuant to clause 11.1, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
5. we may retain Your Data, including your documents and information (including copies) to the extent required by Law or pursuant to any information technology back up procedure, provided that we handle your information in accordance with clause 11.

15.3 Unless otherwise agreed between the Parties, if these Terms are terminated:

1. by us, then any current Statement of Work will also terminate on the date of termination and we will immediately cease providing the Services; or
2. by you, then any outstanding Statement of Work will continue in accordance with the terms of the Statement of Work (and these Terms) until such time as the Statement of Work is complete or the Statement of Work is otherwise terminated in accordance with its terms.

15.4 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

15.5 This clause 15 will survive the termination or expiry of these Terms.

16.1 Amendment: Subject to clauses 2.3 and 2.6, these Terms may only be amended by written instrument executed by the Parties.

16.2 Assignment: Subject to clauses 16.3 and 16.10, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

16.3 Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

16.4 Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, these Terms (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the Australian Disputes Centre.

16.5 Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:

1. as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
2. uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.

Where the Force Majeure Event prevents a Party from performing a material obligation under these Terms for a period in excess of 60 days, then the other Party may by notice terminate these Terms, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party's obligation to pay any amount that is due and payable to the other Party under these Terms.

16.6 Governing Law: These Terms are governed by the laws of the Australian Capital Territory. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in the Australian Capital Territory and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

16.7 Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

16.8 Publicity: Despite clause 11, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of the Services to you, including on our website or in our promotional material.

16.9 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

16.10 Subcontracting: We may subcontract the provision of any part of the Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.

16.11 Third Party Sites: Our Platform may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations in relation to the suitability of those websites. If you purchase goods or services from a third party website linked from our Platform, those goods or services are being provided by that third party, not us. We may receive a benefit (which may include a referral fee or a commission) should you visit certain third party websites through a link on our Platform. We will make it clear by notice to you which (if any) goods or services, or website links, we receive a benefit from by featuring them on our Platform.

By engaging the services of No Photos Pty Ltd (ABN 25 683 797 579) trading as Silent Auctions, the client acknowledges and accepts these Terms and Conditions in full. No Photos Pty Ltd trading as Silent Auctions does not accept any alternative, additional, or varying terms proposed by the client unless expressly agreed to in writing.

No Photos Pty Ltd trading as Silent Auctions reserves the right to decline any onboarding, legal, compliance, procurement, or security requirements that are not disclosed prior to acceptance of these Terms and Conditions and which, in our reasonable opinion, are onerous or outside the ordinary scope of engagement.

Where we agree to undertake any such additional onboarding, legal, compliance, procurement, or security requirements, No Photos Pty Ltd trading as Silent Auctions reserves the right to charge the client for all reasonable time and costs incurred in completing such work.

Acceptance of these Terms and Conditions occurs prior to the commencement of any services provided by us.

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in the Quote, and:

ACL or Australian Consumer Law

means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Account

means an account accessible to the individual or entity who signed up to our Services, under which Authorised Users may be granted with access.

Auction

means an auction that you set up to be run through our Platform.

Business Day

means a day on which banks are open for general banking business in Canberra, Australian Capital Territory, excluding Saturdays, Sundays and public holidays.

Campaign

has the meaning as set out in clause 4.1.

Admin Processing Fee

means the fee you may set under clause 5.4(b), added to the amount payable by a bidder or purchaser to help you recover Stripe Fees and Merchant Fees.

Commencement Date

means the date that is the earlier of: (a) the date that you accept the Quote; (b) the date that you ask us to begin supplying the Services; or (c) the date that you make part or full payment of the Price.

Consequential Loss

includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Price and any Expenses will not constitute "Consequential Loss".

Consumer Law Rights

has the meaning given in clause 12.1.

Event

means any in person or online event that you run as part of your Campaign.

Expenses

means any third party costs or disbursements, reasonably and directly incurred by us and approved in advance by you for the purpose of the supply of the Services.

Force Majeure Event

means any event or circumstance which is beyond a Party's reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID 19 and any variations or mutations to this disease or illness) or epidemic.

Intellectual Property Rights or Intellectual Property

means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.

Law

means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of the Services.

Merchant Fees

means any merchant, card network, acquiring bank, financial institution or other payment processing fees imposed in connection with a transaction, excluding Stripe Fees and the Platform Fee.

Platform Fee

means the fee charged by us under clause 5.3(c), being 3.5% of the gross transaction value processed through the Platform, plus GST where applicable.

Stripe Fees

means the processing and related fees charged by Stripe in connection with transactions processed through Stripe.

Liability

means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.

New Materials

means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with these Terms or the supply of the Services, whether before or after the Commencement Date and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.

Our Materials

means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property, but excludes New Materials and Your Materials.

Payment Terms

means the timings for payment of the Price and any Expenses, as set out in the Quote or Statement of Work.

Personal Information

means information or an opinion, whether true or not and whether recorded in a material form or not, about an individual who is identified or reasonably identifiable.

Personnel

means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Platform

means our cloud based platform, available at https://silentauctions.app.

Price

means the price set out in the Quote or Statement of Work together with any Platform Fee and other amounts payable under clause 5, as adjusted in accordance with these Terms.

Quote

means the document to which these Terms are attached or incorporated.

Services

means the services set out in the Quote or Statement of Work, as adjusted in accordance with these Terms.

Support Services

means our troubleshooting services.

Terms

means these terms and conditions and any documents attached to, or referred to in, each of them.

Your Materials

means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to these Terms) and or developed by or on behalf of you or your Personnel independently of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and New Materials.

Your Data

means information, materials, logos, documents, organisation details, user account information, Campaign information, auction item information, bidder or donor information, transaction records and other intellectual property or data supplied by you or your Authorised Users, or stored through your use of the Services, including any Personal Information handled in connection with the Services. Your Data does not include data or information that is generated solely as a back end or internal output and is not generally made available to users of the Services.