These terms and conditions (Terms) are entered into between The Trustee for FSREC IV No.1 Trust (we, us or our) and you, together the Parties and each a Party. These Terms include our privacy policy.

We provide the marketplace as a platform where customers (buyers) can purchases goods and services from Vendors (sellers) or where Vendors who wish to provide services (Vendors) and customers looking to engage a Vendor to provide a service (Customers) can connect and transact (Platform). The Platform is available through the Keilor Direct Website or other associated channels such as mobile apps or web apps, which are to be construed as a whole, as the Platform.

In these Terms, you means (as applicable)

  • the person or entity registered with us as either a Customer or Vendor; or
  • the individual accessing or using the Platform, including as a Customer or Vendor or an authorised user of a Customer or Vendor.

If you are using the Platform on behalf of your employer or a business entity, you represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.

Acceptance

You accept these Terms by checking the box on the Platform indicating your acceptance.

You must be over 18 years old to use the Platform. If you are under 18 years old, you represent and warrant that you have permission from your parent or legal guardian to access and use the Platform, and they have accepted these Terms on your behalf.

If you are a parent or legal guardian allowing a minor to access and/or use the Platform, you agree to: (1) supervise the minor’s use of the Platform, (2) assume all risks associated with, and liabilities resulting from, the minor’s use of the Platform, (3) ensure that the content on the Platform is suitable for the minor, (4) ensure all information submitted to us by the minor is accurate and (5) provide the consents, representations and warranties contained in these Terms on the minor’s behalf.

We may amend these Terms at any time, by providing written notice to you. By continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended terms. If you do not agree to the amendment, you may terminate these Terms in accordance with the “Termination” clause.

If you access or download our mobile application from (1) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service; or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service, as they may be updated or amended, from time to time.

Marketplace Platform Overview

The Platform is a marketplace where Customers and Vendors can find each other, and buy and sell goods and/or services online. We provide the Platform to users (including hosting and maintaining the Platform), assist Customers and Vendors to form contracts for the supply of goods and/or services and process payments between Customers and Vendors, and provide promotional opportunities for Vendors (together the Keilor Direct Services). You understand and agree that we only make available the Keilor Direct Services. We are not party to any agreement entered into between a Customer and a Vendor and we have no control over the conduct of the Vendors, or provide any warranties as to the suitability and applicability of the products or services that you purchase from the platform.

A Vendor wanting to provide goods and/or services creates an account on the Platform and posts an accurate and complete description of the goods and/or services they can provide including details such as their qualifications, licences, previous experience, location, opening hours and their availability for bookings where applicable (Vendor Profile). A Vendor Profile may also include a Store page through which the vendor may advertise and sell their goods (Store). A Vendor’s Store Page must be populated by the Vendor with images and descriptions of the goods for sale, including shipping, prices and GST details. By creating Vendor Profile and/or a Store Page, the Vendor confirms that it is legally entitled to and capable of supplying the goods and/or services described in that Vendor Profile and/or a Vendor Ecommerce Page. Vendors must include all additional terms and conditions relating to their goods and/or services in their Vendor Profile and/or Vendor Ecommerce Page (including, without limitation, any warranty information), or must clearly state that there are additional terms and conditions and where these can be accessed.

A Customer wanting to buy goods and/or services may use the Platform to view, search and browse matched Vendor Profiles, Vendor Ecommerce Page, the goods and services they offer and make general enquiries with us.

A Customer may submit a request for good and/or services by:

  • purchasing a good or service through a Vendor Ecommerce Page (Purchase).

Communication

We may contact you via the Platform using in-Account notifications, or via off-Platform communication channels, such as text message or email.

Customers and Vendors can communicate privately using our enquiry form or offline using the contact details displayed on the Vendor Profile or as included in any enquiry form or Booking. Customers and Vendors must not use the contact details to organise the provision of the goods and/or services off the Platform.

Accounts

A Vendor must register on the Platform and create an account (Account) to access the Platform’s Vendor features.

A Customer must create an Account on the Platform to request goods and/or services described in a Vendor Profile or on a Vendor Ecommerce Page.

You may only have 1 Account as a Vendor and 1 Account as a Customer on the Platform.

You agree to provide accurate, current and complete information during the registration process and regularly update such information to keep it accurate, current and complete.

Your Account is personal and you must not transfer it to others, except with our written permission. If a legal entity such as a company has created an account, you, the legal entity, are the Account owner, and regardless of any change in any contact details, you will remain responsible for your Account as set out in these Terms. If you wish to change the Account owner, you must provide us with a written request to transfer the ownership of the Account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the Account.

You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.

If you are a Customer, you must provide basic information when registering for an Account including your name, email address, telephone number and you must choose a password.

If you are a Vendor, we will review your request for an Account before approving the request. We may request additional information, your business entity details, and any relevant qualification details, licence details or evidence of insurances. If you do not provide us with information we reasonably request, we may refuse to create an Account for you. If you provide us with any information which indicates you are not a fit and proper person to be provided with an Account, we may refuse to provide you with an Account, in our sole discretion.

We may make access to and use of certain parts of the Platform subject to conditions or requirements, including cancellation history, quality of the services, or threshold of reviews.

Making Payments

Customers: Customers do not pay fees to receive access to the platform

Marketplace Fees and Charges: In consideration for providing the Platform, we will deduct service fees (including any third party payment processing fees) as set out on the Platform (Service Fee). To the extent permitted by law, our Service Fee is non-refundable, includes the payment processing fee and will be included in the total Booking Fee or any Final Fee processed through the Platform.

Payment to Vendors: Vendors are disbursed the amount of money payable for their goods and services less any applicable Marketplace Fees and Charges on a payment term that is agreed with each Vendor.

Payment methods: We provide a number of payment methods on the Platform, including our third party payment processor, currently Assembly Pay and the third party payment processor Assembly Payments for Purchases made on Vendor Stores. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third party payment processor. By making payment through a third party payment processor, if applicable you accept the applicable terms and conditions.

Promotional discount codes: We may from time to time issue promotional discount codes for the Platform. To claim the discount, you must enter the promotional discount code at the time of submitting your Booking through the Platform. The conditions of use relating to promotional discount codes will be specified on the Platform at the time they are issued.

Payments are final: In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the payment.

Refunds and cancellation policy for goods and services

Replacement, Repair, Resupply or Refund: The replacement, repair, resupply or refund of any goods and/or services ordered, or any disputes relating to any goods and/or services ordered on the Platform, is a matter between the relevant Customer and Vendor. The Customer or Vendor may only contact us for assistance where the dispute relates to the processing of the payment of any fee via the Platform.

Reviews

  • Customers may rate and review their experience with the Vendor on the Platform, including the goods and/or services (each a Review).
  • Reviews of Vendors can be viewed by a Customer on the Vendor’s Profile and/or a Vendor’s Ecommerce Page. All Reviews will remain viewable on the Vendor Profile until the relevant Vendor Profile Account is removed or terminated.
  • You agree to provide true, fair and accurate information in your Review. If we consider that the Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review or ban you from posting the Review. We do not undertake to review each Review. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.
  • You can write a Review about a Vendor if you have had an experience with that Vendor, which means that (1) you have engaged the Vendor through the Platform; or (2) you can otherwise document your interaction with the Partner in relation to the Platform, including via correspondence (collectively referred to as a Customer Experience).
  • You may not write a Review about a Vendor you have previously owned, currently own, or which an immediate family member currently owns, or if you are an executive or employee of that Vendor, or work for the Vendor. Similarly, you may not write a Review about a direct competitor to the Vendor you own, are employed by or work for.
  • Your Customer Experience must have occurred in the 12 months prior to you writing a Review.
  • You may only write about your own Customer Experience. You are not permitted to write a Review about somebody else’s Customer Experience, such as that of a family member or friend.
  • You are encouraged to be specific and factual in your Reviews. If you have been offered an incentive to write a Review, you should include information about this in your Review. Incentives include being offered a gift, reward, discount or advantage for writing a Review about that Vendor or Customer on the Platform.

 

Content

  • We may allow you to (1) post, upload, publish, send or receive relevant content and information, including in Vendor Profiles, Vendor Ecommerce Pages, within enquiry forms and Reviews (User Content) on or through our Platform; and/or (2) access, view and download User Content and the content and information we make available on the Platform (Keilor Direct Content and together with User Content, Content).
  • Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in our Platform and all of the Keilor Direct Content. Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.
  • You must not, without the prior written consent of ourselves or the owner of the Content (as applicable) or except as expressly permitted by these Terms, (1) copy in whole or in part, any Content; (2) sell any Content to any third party; (3) reproduce, reverse engineer, retransmit, distribute, disseminate, publish, broadcast or circulate any Content designated as paid, exclusive or non-shareable content; or (4) breach any Intellectual Property Rights connected with our Platform, including by altering or modifying any of the Content, cause any of the Content to be framed or embedded in another website, or create derivative works from the Content.
  • Subject to your compliance with these Terms, we grant you a non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to download and use our Platform on your device(s) and access and view any Content, in accordance with these Terms.  All other uses are prohibited without our prior written consent.
  • You grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty free, sublicensable and transferable right and licence to use, view, distribute, communicate, copy, store, modify and exploit in any manner the User Content to provide the Platform and promote the Platform in any media or promotional material.
  • You agree that you are solely responsible for all User Content that you make available on or through our Platform.  You represent and warrant that (1) you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and (2) neither the User Content nor the posting, uploading, publication, sending or receiving  of the User Content or our use of the User Content on, through or by means of our Platform will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
  • Despite anything to the contrary, to the maximum extent permitted by law, you agree to indemnify us and hold us harmless from and against all Liabilities, howsoever arising, suffered or incurred by us and arising from or in connection with any claim that any Liability we incur as a result of the User Content you make available on or through the Platform, including as a result of an Intellectual Property Breach.
  • The Content is not comprehensive and is for general information purposes only.  It does not take into account your specific needs, objectives or circumstances, and is not advice.  While we use reasonable attempts to ensure the accuracy and completeness of the Keilor Direct Content, to the extent permitted by law, we make no representation or warranty regarding the Content. The Content is subject to change without notice. We do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.

Warranties

You represent, warrant and agree that:

  • you will not use our Platform, including the Keilor Direct Content, in any way that competes with our business;
  • there are no legal restrictions preventing you from entering into these Terms; 
  • all information and documentation that you provide to us in connection with these Terms is true, correct and complete; 
  • you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;
  • you will be responsible for the use of any part of the Platform, and you must ensure that no person uses any part of the Platform: (1) to break any law or infringe any person’s rights (including Intellectual Property Rights) (2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or (3) in any way that damages, interferes with or interrupts the supply of the Platform;
  • where you are a Vendor, you are responsible for complying with all laws, rules and regulations which apply to providing the goods and/or services in your Vendor Profile or Vendor Ecommerce Page;
  • where you are a Vendor, you are appropriately qualified, and have any required skills, knowledge or training, to provide the goods and/or services; and
  • where you are a Vendor, you are solely responsible for determining the type, timing, manner and means, methods or processes of providing your goods and/or services, the price you charge for goods. You are not our employee and are not entitled to any employment benefits. We do not supervise, direct or control any of the goods and/or services you offer. We do not set your fees, work hours, your schedule or your location. We do not provide you with training, equipment or tools or any materials to provide your goods and/or services. You are responsible for any taxes payable on any fee you receive for your goods and/or services.
  • Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Statutory Rights).
  • If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. 
  • Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.
  • As a Customer, the goods and services provided by a Vendor may also confer on you certain rights under the ACL.
  • This clause will survive the termination or expiry of these Terms.
  • Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with: 
  • your or your authorised user’s acts or omissions; 
  • any use or application of the Keilor Direct Services by a person or entity other than you, or other than as reasonably contemplated by these Terms; 
  • any aspect of the Customer and Vendor interaction, including the goods and/or services offered by the Vendor, the description of the goods and/or services requested or offered, any advice provided, the performance of services, or supply and delivery of goods by the Vendor;
  • any works, services, goods, materials or items which do not form part of the Keilor Direct Services (as expressed in these Terms), or which have not been provided by us; 
  • any third parties or any goods and services provided by third parties, including the HI-CAPS rebate, Customers, end users, suppliers or other subcontractors which the provision of the Platform may be contingent on, or impacted by;
  • the Keilor Direct Services being unavailable, or any delay in us providing the Keilor Direct Services to you, for whatever reason; and/or
  • any event outside of our reasonable control.
  • This clause will survive the termination or expiry of these Terms.
  • Despite anything to the contrary, to the maximum extent permitted by law: 
  • we will not be liable for Consequential Loss;
  • each 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 that Party’s personnel or authorised users); and
  • our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Keilor Direct Services to you or, in our sole discretion, to us repaying you the amount of the Subscription Fee, paid by you to us in respect of the supply of the Keilor Direct Services to which the Liability relates, or where there is no Subscription Fee paid, $100. 
  • This clause will survive the termination or expiry of these Terms.

Australian Consumer Law

Exclusions to liability

Limitations on liability

 

Termination

  • We may terminate these Terms at any time by giving 30 days’ written notice to you (Termination for Convenience).
  • We may suspend your Account or terminate these Terms immediately upon written notice to you, if:
  • you or any of your authorised users breach any provision of these Terms and that breach has not been remedied within 10 business days of being notified by us;
  • as a Vendor you repeatedly receive reviews below 3 stars;
  • there is any reason outside our control which has the effect of compromising our ability to provide the Keilor Direct Services; or
  • you are unable to pay your debts as they fall due.
  • Your Account and these Terms may be terminated by you at any time, using the ‘cancel Account’ functionality (or similar) in your in the Account page section of your Account settings. If:
  • you are a Customer these Terms and your Account will immediately terminate; and
  • you are a Vendor, your Account and these Terms will terminate in accordance with the “Cancelling Vendor Subscriptions” clause within the “Payment” section above.
  • Upon expiry or termination of these Terms:
  • we will remove your access to the Platform;
  • we will immediately cease providing the Keilor Direct Services to you;
  • you agree that other than where termination is due to our Termination for Convenience any payments made by you to us are not refundable to you ;
  • where you are a Customer we will cancel any existing Bookings and you will lose any Booking Fees and other amounts paid other than where termination is due to our Termination for Convenience. Where you are a Vendor, we will cancel any existing Bookings and refund the relevant Customers if applicable; and
  • where we terminate the Terms for any reason other than a Termination for Convenience, you also agree to pay us our additional costs arising from, or in connection with, such termination.
  • Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it. 
  • This clause will survive the termination or expiry of these Terms.

Vendor insurance

  • As a Vendor, we may request that you provide evidence of your insurance. Where we do so, we are not confirming that the insurance you have is sufficient or suitable for the goods and/or services you choose to provide to Customers. If we do not ask you to provide evidence of insurance this does not indicate that we believe you do not require insurance. You acknowledge and agree it is your responsibility to make your own investigations and receive professional advice on the insurance you require.

General

Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.

Disputes:  In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a Customer and us, or a Vendor and us, a Party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.

Governing law: These Terms governed by the laws of {state}.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. 

Notices: Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to you at the address in your Account. 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.

Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship except to the extent set out in the Payment clause as limited payment collection agent) between the Parties.

Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Definitions

Consequential Loss includes any consequential loss, 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.

Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or 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.

Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.

Intellectual Property Breach means any breach by you of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties).

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.

 

For any questions or notices, please contact us at:

Address: Fort Street Advisers Pty Ltd
Level 27
1 O’Connell Street
Sydney NSW 2000

80 Taylors Rd, Keilor Downs VIC 3038
P: (03) 9364 0444
F: (03) 9364 0270
E: infokeilor@retprogroup.com.au