SaaS License Terms – Merchant/Trade Tools
1.1 By agreeing to these Terms, you, being the person or entity that registers with us and/or purchases goods/services from us (you) are entering into a binding legal agreement with Fine Art Bourse Australia Pty Ltd (ACN 168 030 331) of Level 7, 167 Macquarie Street, Sydney, NSW, 2000, Australia, its successors, assignees and related bodies corporate (defined in the Corporations Act 2001 (Cth)) (FABA, we or us) and agree to comply with any and all applicable laws and regulations, whether domestic or international.
1.2 We offer a software-as-a-service platform that allows access to a several different tools relating to diamonds as set out in clause 4 and 5 (Platform). Our provision of the Platform and any related services are collectively referred to as the Services.
1.4 You warrant and represent to FABA that you have read and understood these Terms and have the authority and legal capacity to enter into and be bound by these Terms. You agree to pay any fees specified by us for the use of and access to the Services.
1.5 Capitalised terms are defined throughout these Terms.
1.6 We reserve the right to audit your use of the Services and your compliance with these Terms.
when accessing or using our Services. In the event of any inconsistency, these Terms will take precedence.
2. Creating an account with us
2.1 To access and use the Services, you may be required to register for a user account and provide us with your information including your name, ABN/ACN email address and billing details and you may be provided a unique access code, token, username and/or password (Security Credentials).
2.2 You must not release, share, distribute, publish or otherwise make public any Security Credentials provided to you in relation to the Services to any person or entity. You agree that you are solely responsible for maintaining the confidentiality of your Security Credentials.
2.4 We retain the right to screen and verify you or your business and identity in our sole discretion. You agree to submit to such screening and to provide to us at your cost, immediately upon request, complete, accurate and current information confirming your identity and eligibility to use the Services, including company records, copies of photo identification (such as drivers licence and passport) or other identifying documentation upon request.
3. User Content
3.1 By providing or sending to us, uploading, publishing, transmitting or making available any data, content or other material to FABA including such information required to provide the Valuation (User Content), you agree to grant FABA, its affiliates, licensees and successors a non-exclusive, royalty-free, perpetual, irrevocable, worldwide and fully sub-licensable right to use, communicate, reproduce, modify, adapt, publish, publicly perform, translate, create derivative works from, distribute and display in any form, any such content, including but not limited to text, images, videos, graphics, audio and photographs without attribution, including for the purpose of completing any requests in relation to the Services and the Valuation.
3.2 By uploading, publishing, transmitting or making available any User Content to FABA, you warrant and represent to FABA that:
(a) you hold all the intellectual property rights to the User Content and have the authority to upload or make available the User Content and licence the User Content to FABA;
(b) as the User Content is not in any way developed or provided by FABA, FABA will not be responsible to check or verify any User Content nor assess it for suitability or accuracy for any purpose including for the Valuation Certificate and any use of or reliance by you upon anything contained in the User Content will be at your own risk;
(c) to the extent that the User Content includes any Personal Information, you have obtained consent and authority from the relevant individuals to use and disclose any such Personal Information as contemplated in these Terms, and that use of the User Content will not put FABA in breach of the Privacy Act 1988 (Cth);
(d) FABA’s use of the User Content will not infringe or violate any third-party rights, including but not limited to defamation, intellectual property rights, moral rights and privacy rights and will not give rise to an obligation to make any payment to a third party;
(e) any User Content you provide to us or within the Services is accurate, complete, not false or misleading;
(f) the disclosure and use of the User Content to FABA will not cause harm to any other user or third party, or violate their rights including any patent, trade mark, trade secret, copyright or other intellectual property or proprietary right (such as User Content that contains copyrighted material without permission) or right to privacy;
(g) the use by FABA of the User Content will not breach the security of FABA or its users by containing viruses, Trojan horses, worms or other harmful or disruptive scripts, code, programs or content;
(h) the disclosure and use of the User Content by FABA does not violate these Terms or other policies, or any applicable law, rule or regulation;
(i) the disclosure and use of the User Content by FABA will not bring FABA into disrepute; and
(j) the User Content does not contain, promote or enable illegal or unlawful activities.
3.3 You agree that FABA may, in its absolute discretion, limit your access to, or use of, the Services if, in its opinion, your use of the Services is excessive (being use outside of normal business use) or unreasonable or impacts on the usability or reliability of the Services for FABA or other users, or breaches these Terms.
3.4 FABA may require that you remove or delete any content uploaded onto the Services, suspend your Valuation or your account immediately for any reason in its sole discretion, including if FABA reasonably considers that such content or your account breaches these Terms or infringes any third party rights.
4. Application Services
4.1 The Platform also offers several different tools which use a statistical algorithm/s to generate results based on specific characteristics, data sets, API’s and inputs as described on the relevant tool’s page (Tools).
4.2 You acknowledge and agree that the Tools, and any results generated using the Tools, are based solely on the factors expressly specified for or on that Tool and any input you provide in relation to the Tools, and that we make no representations as to any other factors that may affect the results, including any Valuation or price of diamonds or the amount specified in any valuation, calculation or estimation. You must provide complete and accurate information in relation to the Tools, as any errors in input will result in an incorrect output.
4.3 You agree that, to the maximum extent permitted by law, you are solely liable for, and you release and will indemnify and hold harmless FABA against, any and all liabilities, claims, losses, expenses and actions (whether direct, indirect or consequential) on a full indemnity basis, in relation to:
(a) the accuracy and/or correctness of any inputs or settings that you select;
(b) the interpretation of any Tools or results generated using the Tools, or any other data obtained or generated from the Platform by you or a third party;
(c) any reliance by you on any Tools or results generated using the Tools, or any other data obtained or generated from the Platform by you or a third party; and
(d) any decisions made by you based on any Tools or results generated using the Tools, or any other data obtained or generated from the Platform.
4.4 You may elect to receive automated email notifications providing the current Spot Price. By selecting to receive such emails, you expressly consent to us sending you automated emails to your nominated email address in the frequency selected or specified at the time of selection.
5. Insurance Valuations
5.1 The Platform offers a tool to create and complete a valuation certificate, which provides an automated valuation figure for diamonds and jewellery based solely on the information you provide to FABA (Valuation/Valuation Certificate). You acknowledge and agree that the Valuation is based solely on the information you have inputted to the Platform, and that we make no representations as to any other factors that may affect the Valuation.
5.2 In purchasing a Valuation, you acknowledge and agree that:
(a) any Valuation produced by FABA is current as at the date of Valuation only and any use reliance on the Valuation after such date is at your own risk;
(b) Valuations are based on current market conditions and, that there can be significant fluctuations and the value assessed may change significantly and unexpectedly over a relatively short period of time (including as a result of general market movements and factors specific to your particular diamonds and diamond jewellery);
(c) given clause 4.2(b), you should apply an abundance of caution and monitor and review the situation utilising your own internal and external research and resources on a regular basis, and FABA does not accept responsibility or liability for losses arising from such changes in your diamond or jewellery value; and
(d) you are solely responsible for the full disclosure of relevant information and undertake to provide all accurate and complete information and documents in your possession that may have an effect on Valuation to be provided.
5.3 You agree that you are solely liable for any and all liability, loss, expense or action in relation to:
(a) the accuracy and/or correctness of any inputs that you provide to FABA for the purposes of the Valuation (including any images provided or questionnaire responses);
(b) the interpretation of any Valuation;
(c) any reliance, by you, on the Valuation including for insurance purposes; and
(d) any decisions made by you, based on any Valuation.
Valuation Orders and Fees
6.1 A Valuation request is accepted upon the latter of the following to occur (Valuation Order):
(a) you have submitted all of the requisite information to FABA;
(b) you have paid the purchase price in full, including any taxes and duties; and
(c) we have issued a Valuation Order confirmation.
6.2 By placing a Valuation Order, you are making an offer to purchase the Valuation Certificate for the purchase price (including the delivery and other charges and taxes) specified at the time that you place your Valuation Order (Valuation Fees).
6.3 FABA reserves the right to:
(a) accept or reject your Valuation Order or a part of your Valuation Order for any reason, including, without limitation, incorrect information provided, information provided that does not suit the requirements set by FABA to procure a Valuation, the unavailability of the Services, inaccuracies, errors or omissions in your data, where fraud is suspected, or where there is an error in your Valuation Order;
(b) request identification from you, including photo ID or any other such documentation for verification purposes before we process your Valuation Order;
(c) cancel a Valuation Order at any time, for any reason; or
(d) restrict the quantity of Valuation Certificates available for purchase to each person or address.
6.4 Where we exercise the rights above, we will notify you by email and provide a refund of the Valuation Fees where applicable and FABA shall not be liable for any loss or damage whatsoever arising from such acts.
6.5 In consideration of the Valuation Certificate provided under these Terms, you agree to pay us all Valuation Fees due according to these Terms and as notified to you by FABA.
6.6 You must provide any information required by us to process payments, including providing any business and taxation information and any relevant payment processing account details.
Subscription, Licence and Fees
6.7 Your subscription to use certain Tools on our Platform (Subscription) will commence on the Commencement Date and continue for the Subscription Period, subject to you paying the fees applicable to your chosen Subscription Tier and the scope of your Subscription (Subscription Fees). If a Minimum Term is specified, the Subscription must continue for at least the Minimum Term.
6.8 If you have purchased a Subscription and you do not cancel your Subscription prior to the end of the Subscription Period, your Subscription will be automatically renewed at the end of each term for a further term of the same duration as the expiring Subscription Period at our then-current Subscription Fees.
6.9 Subject to these Terms and to your payment of the Subscription Fees, FABA grants you, solely for the period covered by the Subscription Fees, a limited, non-exclusive, non-transferrable, non-sublicensable licence to access and use the Services, for sole use by you, in accordance with the conditions of your Subscription and for the purposes of your business in accordance with these Terms (Licence). You acknowledge that we may grant any other number of licences for the Services to any other parties.
6.10 The Subscription will be valid for the time period covered by the Subscription Fees as specified by FABA and will be limited to the scope of the inclusions in the relevant Subscription Tier.
6.11 In consideration of the Licence granted under these Terms, you agree to pay us all Subscription Fees due according to these Terms and as notified to you by FABA on a subscription basis.
6.12 You must provide any information required by us in order to process payments, including providing any business and taxation information and any relevant payment processing account details.
6.14 You consent to, and accept responsibility for, all recurring charges to your credit or debit card (or other payment method, as applicable) based on the automatic renewal feature without further authorisation from you and without further notice except as required by law. You understand and agree that if a payment is processed by a third-party processor, that the payment processor has its own terms and conditions to which you must agree in order for us to process payment. By making payment via such payment processor, you warrant and represent to us that you have read, understood and agreed to such terms.
6.15 You warrant and represent to us that at all times during the Subscription Period, you will ensure that we or the payment processor have valid and up to date payment details. It is your responsibility to ensure that all charges processed are accurate. You agree that you will notify us within 30 days from a billing date if any charge is not accurate, after which date you will be deemed to have accepted all charges and to have waived any claim regarding a disputed charge.
6.16 You also agree to reimburse us for all collection costs and interest of 2% more than the pre-judgment interest rate set by the Local Court of New South Wales, Australia for any overdue amounts, from the due date of such amount until the date of actual payment. We may suspend or terminate your Subscription if any amount remains unpaid for more than 30 days after we have provided written notice to you.
6.17 You may cancel your Subscription at any time within 30 days prior to your next scheduled renewal date, on the Account Settings page.
6.18 If you cancel your Subscription, your Subscription benefits will continue until the end of your then-current Subscription Period, but your Subscription will not be renewed after that term expires. Except in accordance with Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law or ACL) or if we or you cancel your Subscription without cause, you will not be entitled to a prorated refund of any portion of the Subscription Fees paid for the then-current Subscription Period.
6.19 FABA provides remedies (such as cancellation of your Subscription, a free renewal or extension of your Subscription or where necessary, a refund of amounts paid) if the Subscription is not provided in accordance with the Australian Consumer Law.
6.20 The Subscription Fees and Valuation Fees are exclusive of all federal, state and other governmental taxes, goods and services tax and other such charges (Taxes). You are required to pay all Taxes at the same time as your payment of the Fees.
6.21 Except as expressly set out under these Terms, or as required by law, the Subscription Fees and Valuation Fees paid or payable under these Terms are non-refundable irrespective of your use or non-use of the Services or Licence.
6.22 Payment may be made by the methods and to the accounts specified or approved by FABA in writing.
6.23 You must not pay, or attempt to pay the Subscription Fees and Valuation Fees through any fraudulent or unlawful means. If your payment is not able to be successfully processed, or if we, in our sole discretion, suspect that it has been paid for using any fraudulent or unlawful means, we may cancel the Valuation Order or you Subscription.
6.24 Please note that you cannot cancel or amend a Valuation Order once it has been placed (except as required by Australian Consumer Law).
6.25 FABA reserves the right, in its sole discretion, to offer free trials and other promotions of its Services.
6.26 You agree that our Fees are subject to change in our sole discretion, provided that if you have signed up to a Subscription, we will notify you of any increase to the subsequent term no later than 10 days before the end of the then-current Subscription Period.
6.27 If we do not notify you more than 10 days before the end of your then-current Subscription Term of any price change, then to the maximum extent permitted by law, your sole remedy will be to continue your current Subscription at the price prior to the price increase for a period of 30 days, following which you may cancel the Subscription via your dashboard or continue the Subscription at the varied price.
7. Intellectual Property
7.1 In these Terms, unless the context otherwise requires:
FABA IP refers to all intellectual property rights in the Platform and Services, including but not limited to:
(a) any information relating to the Services, including the Tools and Valuations and any algorithms or formulae for calculating the results generated from the Tools and Valuations, except to the extent that the data is already owned by its respective owner;
(b) all text, graphics, user interfaces, photographs, trade marks (whether registered or common law trade marks), patents, designs, copyright, any corresponding property rights under the laws of any jurisdiction, logos and artwork, including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such content, contained on or in our Services;
(c) any intellectual property rights in the Services, and Platform and any related software, interface and documentation;
(d) all rights in respect of an invention, improvements, discovery, trade secret, secret process, know-how, concept, idea, information, process, data, formula or work product; and
(e) all software, code, documents, products and services developed wholly or partially by FABA.
7.2 For the avoidance of doubt, FABA IP does not include any data obtained from third party sources such as Google or uploaded to the Services by you.
7.3 FABA retains all title, rights in and ownership of the FABA IP and reserves all rights not expressly granted to you in these Terms. Unless explicitly stated herein, nothing in these Terms may be construed as conferring any licence to, or assignment of, any FABA IP, whether by estoppel, implication or otherwise.
7.4 No licence in any FABA trade marks or patents is granted under these Terms.
8. Updates and feature requests
8.1 You agree that FABA may, but is not obliged to, update the Platform from time to time, such as removing or adding features/functionality, error fixes, new features and compatibility upgrades. In some cases, in our sole discretion, these updates may only be available for particular Subscription Tiers. You acknowledge and agree that such upgrades may affect or change the functionality of the Platform and Services.
8.2 You acknowledge and agree that these Terms will continue to apply to your use of any such updates forming part of the Services unless otherwise stated by a separate agreement accompanying the update.
8.3 You may request feature updates in writing to us via the Platform and we may, in our sole discretion, implement such features to the Platform. You acknowledge and agree that by requesting any features for the Platform, you assign to us any Intellectual Property rights and waive any Moral Rights you may have in such feature, and that we may implement such features to all or some users, in our sole discretion.
8.4 FABA is not obliged to issue any updates to you or implement any feature updates.
9. Use of Services
9.1 To the extent that you upload, publish or transmit any data, content or other material through your use of the Services, you represent and warrant to FABA that you own all rights (including intellectual property rights) in, or have authorisation for, or are otherwise legally entitled to upload, transmit or use such material. You indemnify and hold harmless FABA, its affiliates, agents, principals, contractors or employees for any loss, liability, cost or expense arising from or in connection with any breach of any intellectual property rights or any other claim that results from your publication or use of such material.
9.2 You agree that you will not, either alone or through any other party:
(a) violate a security measure set up by FABA or violate a condition defined by FABA for the use of the Services;
(b) make the Services available to a third party (whether wholly or partially);
(c) alter or remove the copyright notices, trade marks or other proprietary rights or communications of FABA IP;
(d) make any copies of any FABA IP;
(e) distribute, sub-licence, disclose, market, or transfer the Services to any party, or permit any person or entity to have access to the Services by any sharing, remote computing or hosting services or time-sharing arrangement;
(f) circumvent, disable or otherwise interfere with security-related features of the Services or features that determine whether you are acting in accordance with these Terms;
(g) use the Services in a way which impairs the functionality or reliability of the Services;
(h) remove, obscure, deface or alter any of FABA or any third party’s copyright notices, trade marks or other proprietary rights affixed to the Services or any FABA IP;
(i) copy, decompile, modify, reverse engineer, disassemble, attempt to derive the source code of FABA IP or any of their components, except as expressly permitted by these Terms or in writing by FABA; or
(j) in any form or by any means, adapt, reproduce, store, distribute, display, publish or create derivative works from any part of the Services or any FABA IP without FABA's express written permission.
9.3 You agree that FABA may, in its absolute discretion, limit your access to, or use of, the Services if, in its opinion, your use of the Services is excessive (being use outside of normal business use), unreasonable, impacts on the usability or reliability of the Services for FABA or other users, or breaches these Terms.
10. Your obligations
10.1 You agree that you are solely responsible and liable for:
(a) immediately notifying FABA of any changes to your details, connections and requirements or any other details which may affect the provision of the Services;
(b) obtaining and maintaining all computer hardware, software, and communications equipment needed to access the Services; and
(c) implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against malicious content, including but not limited to computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties.
10.2 Without limiting FABA's other rights under these Terms, if you fail to reasonably comply, or delay in complying with, any of your obligations under these Terms, FABA may, at its election:
(a) suspend performance of the Services for the period of the non-compliance; or
(b) continue to provide the Services and charge you for any reasonable additional costs cancel account.
10.3 You acknowledge that Fees continue to accrue during any period of suspension or cancellation under this clause 10.
10.4 FABA shall not be liable for any breach, delay or non-performance of Services due to any breach or delay by you or any third party (including but not limited to internet service providers, website hosts, etc.) in complying with its obligations under these Terms, including but not limited to, unavailability of the whole or part of the Services due to you failing to comply with clause 10.2.
11.1 These Terms commence on the start date of your Subscription and continue for the Minimum Term (if any, as set out when you select your Subscription), after which they continues for the Subscription Period and automatically renew in accordance with clause 6 (subject to your payment of the Fees).
11.2 You may terminate these Terms for any reason after the Minimum Term by cancelling via the Platform and your Subscription will terminate the day prior to the date that your next Subscription payment is due.
11.3 Without prejudice to any other remedies, FABA may immediately suspend or terminate the Services or these Terms, or cease offering the Services, in its absolute discretion, at any time and without notice to you if:
(a) you are in breach of any obligation (including those relating to payment) under these Terms which has not been remedied after seven (7) days written notice;
(b) you have breached these Terms and that breach is not capable of remedy;
(c) if there is a suspected, or actual, breach of security in relation to your account;
(d) any money payable to FABA becomes overdue, or in FABA's opinion, you will be unable to make a payment when it falls due;
(e) you become or are suspected to be insolvent, you convene a meeting with your creditors or propose or enter into an arrangement with creditors, or you make an assignment for the benefit of your creditors;
(f) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any of your assets; or
(g) you are charged with any criminal offence in any jurisdiction.
11.4 Any amounts owing to FABA at the time of the suspension or termination shall become immediately due and payable.
11.5 FABA may terminate these Terms at any time and for any reason without notice, and without the requirement to provide you with reasons. If FABA terminates these Terms under this clause 11, then any pre-paid and unused portion of your Fees will be refunded, except as required by law. In no other instances will any Fees be refundable. FABA will not be liable to you for any further loss or damage arising out of or in connection with FABA exercising its rights under this clause.
11.6 FABA may suspend the Services and suspend your access to the Services or any part of the Services until any relevant Fees have been paid in full or until any breach of these Terms is remedied.
11.7 Upon termination of these Terms, FABA may immediately remove any access to the Services, disable the Services and/or delete your account and data in relation to the Services.
12. Third Party Information and Services
12.1 The Services may access, or contain links to, websites or services controlled by third parties. FABA does not guarantee the availability, accuracy, completeness, reliability, or timeliness of such websites or services, nor its stock information, location data or any other data displayed or located thereon. You agree and acknowledge that FABA is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of third-party materials or websites. You agree that such actions are your responsibility.
12.2 You agree that FABA, its affiliates, agents, principals, contractors, or employees shall have no liability to you for content that may be found to be offensive, indecent, objectionable or illegal either on the Services or any third-party website or software.
13.1 You warrant and represent to FABA that you:
(a) have the legal capacity and authority to enter into these Terms;
(b) have the authority to act on behalf of any person or entity to whom the Services are provided; and
(c) are responsible to determine that the Services meet your needs and are suitable for the purposes for which they are used.
13.2 You agree that you will not and will not permit any third party to:
(a) use the Services for any purpose other than for your own lawful internal business purposes, in accordance with these Terms;
(b) alter, copy, modify or create any derivative works of the Services, the underlying source code, or any documentation in any way, including but not limited to, customisation, translation, or localisation;
(c) rent, lease, license, sublicense, encumber, sell, offer for sale, or otherwise transfer rights to the Services or documentation, including for timesharing;
(d) port, reverse compile, reverse assemble, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code in the Services;
(e) copy, distribute, link, frame, mirror or otherwise make available any portion of the Services to any third party, except where such copies or links are made available through FABA;
(f) remove or alter any logos, trade marks, links, copyright or other notices, legends or markings from the Services;
(g) attempt to access the accounts or data of any other user without authority of that user or us;
(h) upload or distribute any data that contains viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services;
(i) use any programs, scripts, bots, or other automated technology to scrape or access the Services or hijack user accounts or log-in sessions;
(j) use the Services for benchmarking purposes or otherwise to analyse its workings and features for any competitive purposes or in a manner that imposes unusual demands on the service outside of normal functions and operations; or
(k) use the Services other than for their intended purpose.
14. Disclaimer and Limitation of Liability
14.1 The Australian Consumer Law contains warranties, guarantees, and conditions that cannot be excluded. These Terms do not purport to exclude, restrict, or modify the application of the ACL where to do so would contravene the ACL or cause any part of these Terms to be void.
14.2 Subject to the above, and except for warranties that cannot be excluded by law, FABA disclaims all representations and warranties with respect to the services, either express or implied, including but not limited to, warranties of merchantability, fitness for a particular purpose, reliability, accuracy, or achievement of results. You agree that your use of the Services is at your own risk, and that the Services are provided to you on an “as is” basis. FABA's express warranties in these Terms shall not be varied or increased and no obligation or liability shall arise out of FABA rendering technical or other advice or service in connection with the Services. It is your responsibility to ensure that the Services are appropriate for your proposed use.
14.3 As the Services may rely on third party data sources, we do not make any representations or warranties with regards to the content or availability of the Services or the content of such third-party data sources, including their accuracy, reliability, correctness, or genuineness.
14.4 We will use reasonable endeavours to ensure that the Services are updated to function when third party data sources are updated or changed, however we make no representations as to the availability of any data source for the provision of the Services.
14.5 You agree that from time to time the Services may experience downtime (due to the nature of online services) and FABA makes no representations regarding uptime of the Services. To the maximum extent permitted by law, you agree to accept the risk of such downtime. Subject to Australian Consumer Law, if the Services experiences downtime for more than 48 hours, upon your written request you will receive a credit for the period of such downtime at the time of renewal of your Subscription as your sole remedy for any downtime issues.
14.6 Nothing in these Terms will exclude or limit any liability (by you or another party, whether for breach of these Terms or otherwise) which cannot be excluded or limited by law. Neither party accepts, and each party excludes, any liability for loss of or damage to tangible property other than that caused by its gross negligence and hereby excludes any other liability for negligence arising pursuant to these Terms. Under no circumstances will either party be liable for loss of revenue, loss of actual or anticipated profits, loss of contractors, loss of finance, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss of or damage to or corruption of data, consequential or indirect loss, or special, punitive or incidental damages (whether foreseeable or unforeseeable) based on claims by you, FABA or any third party arising out of any breach or failure of express or implied warranty conditions or other term, breach of contract, misrepresentation, negligence, other liability in tort, failure of any remedy to achieve its essential purpose, or otherwise.
14.7 You agree that, to the maximum extent permitted by law, in no event shall FABA, its affiliates, agents, principals, contractors or employees or any party acting on FABA's behalf, be liable for loss or damages (including, but not limited to direct or indirect, special, incidental or consequential damages), howsoever caused (including, but not limited to loss or corruption of data, loss of profit, failure to transmit or process data, system failures, business or service interruption, reliance on third party data or the Tools, Valuations or results generated by any Tools or Valuations), whether arising in contract, negligence, tort, equity or statute, in connection with, arising out of, or relating to, your reliance on use of, or inability to use the Services.
14.8 You agree that to the maximum extent permitted by law, any liability of FABA that cannot be excluded by law is limited, at FABA's option, to the re-supply of the Services or a refund of the total price actually paid by you to FABA for the Services for the six (6) months preceding the date on which the liability arose.
15. Release and indemnity
15.1 You agree to indemnify, hold harmless, release and discharge FABA, its affiliates, agents, principals, contractors and employees in respect of any claim, action, cost, charge, expense, penalty, fine, payment, loss or damage which FABA suffers, incurs or is liable for, whether directly or indirectly, including but not limited to any special, incidental or consequential damages and legal costs arising from or in connection with your act, omission fraud, wilful misconduct or negligence, your use or misuse of the Services, your breach of these Terms, or your breach of any third party agreement (including in relation to any third party agreements entered into on your behalf by FABA under these Terms).
16. Information Disclaimer
16.1 The Tools, Valuation Certificate and any data, information, advice, and similar information generated from the Tools or contained on the Platform or any other data obtained or generated from the Platform (Information) has been prepared by FABA for general informational purposes only. You acknowledge that the information has not been tailored for the use by any individual based on their particular situation and does not constitute professional advice.
16.2 We use best efforts to gather and share information from reputable and accredited sources. However, the Information is provided as general information only and is not meant to serve as a substitute for professional advice and as a result it may be incomplete or incorrect. FABA do not make any warranties or representations as to the accuracy or completeness of the Information.
16.3 The accuracy of the methodology used to develop the Valuation Certificate generated by the FABA Services and the accuracy of the predicted value are estimates based on available data and are not guaranteed or warranted. Any Valuation Certificate generated does not include a physical inspection of the diamonds or jewellery by a licensed or certified valuer. Any estimated figures in the Valuation Certificate are not intended to replace a professional valuation through an appropriately qualified person (such as a valuer) as the Valuation Certificate is only generated in reliance on the information you have provided to FABA and does not take into account any other information. If you rely on the Valuation for any purpose, you do so entirely at your own risk.
16.4 The content we provide is for general information purposes only, and to the maximum extent permitted by law, FABA will not be liable for any claim, action, loss, damage, injury arising out of or in connection with the Information. The Information is provided as-is and FABA make no representation or warranties, either express or implied, including but not limited to, implied warranties of merchantability or fitness for a particular purpose.
17.1 If you have any support enquiries, you may send through a support ticket via the Platform. We will use reasonable endeavours to provide acknowledgement of the support enquiry within five (5) business days.
18. Feedback and Dispute Resolution
18.1 If there is a dispute between the parties, the parties agree to adhere to the dispute resolution procedure set out in this clause.
18.2 The complainant must advise the respondent in writing regarding the nature of the dispute, the desired outcome of the dispute, and the action the complainant believes will settle the dispute. The parties agree to meet in good faith to seek to resolve the dispute by agreement between them (Initial Meeting) within 14 days of the respondent receiving the complainant's notice.
18.3 If the parties cannot agree on how to resolve the dispute at the Initial Meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The parties must attend the mediation in good faith and seek to resolve the dispute.
18.4 Any attempts made by the parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the parties under these Terms, by law or in equity.
18.5 Except in relation to urgent, injunctive, or interlocutory proceedings, the parties agree that neither party may issue proceedings until they have acted in accordance with this clause.
19.1 Amendment: FABA may, in its sole discretion, modify these Terms or include new or additional terms regarding the use of the Services and FABA's associated software and services. Such modifications or additions are incorporated into these Terms and will be effective immediately upon notice to you. Your continued use of the Services will constitute your agreement to be bound by the Terms, as amended. If you do not agree to the amended Terms, you may terminate these Terms by providing written notice to FABA within 30 days of the date of notification of the change and any pre-paid unused portion of your Fees will be refunded.
19.2 Assignment: You may not assign, sell, lend, sub-licence or otherwise deal with or transfer your rights to access and use the Services to another party without prior written permission from FABA. For clarity, if you are a company or trust, a Change of Control as defined in the Corporations Act 2001 (Cth) constitutes an assignment under these Terms.
19.3 Benefit of Terms: These Terms are made for the benefit of the parties only and are not intended for the benefit of any third party or to be enforceable by a third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to these Terms are exclusive to each party and not subject to the consent of any third party.
19.4 Entire Agreement: These Terms (and all other terms and conditions and policies that are incorporated by these Terms) make up the entire agreement between the parties, and supersede all prior written and oral agreements, representations, undertakings and understandings. Where there is an inconsistency between these Terms and any additional terms, these Terms will prevail.
19.5 Force Majeure: You agree that FABA will not be liable for any delay or failure to perform its obligations under these Terms if such delay is due to any circumstance beyond its reasonable control. If FABA is delayed in performing its obligations due to such a circumstance for a period of at least one (1) month, FABA may terminate these Terms by providing five (5) business days' notice in writing.
19.6 Relationship of parties: The parties are independent contractors and nothing in these Terms gives rise to any other relationship in partnership, joint venture, agency, employment or representative. Neither party shall have the right or power to create or assume any obligation or liability on behalf of the other party as a result of these Terms or any term, activity, right or obligation contemplated by these Terms.
19.7 Set-off: You shall not be entitled to set off against or deduct from any amounts owed to FABA, any sums owed or claimed to be owed to you by FABA, nor to withhold payment of any invoice because part of that invoice is in dispute.
19.8 Severability: If, for any reason, a court of competent jurisdiction finds any portion of these Terms to be unenforceable or ineffective, then that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties. If any portion of these Terms are severed on the basis of unenforceability or ineffectiveness as set out in this clause 19.8, the remainder of the Terms shall continue in full force and effect.
19.9 Waiver: A waiver by a party of a provision or a right under these terms is binding on the party granting the waiver only if it is given in writing and is effective only in the specific instance and for the specific purpose for which it is given.
19.10 Governing law and jurisdiction: These Terms shall be governed by and will be construed in accordance with law of the State of New South Wales in Australia and without regard to conflict of law principles. The parties agree to submit without objection to the jurisdiction of the courts of New South Wales. The operation of the United Nations Convention on Contracts for the International Sale of Goods in respect of these Terms is expressly excluded in these Terms.