This Supplementary Agreement (“Agreement”) dated _______ 201[ ] is between:

(1) (“the Controller) and

(2) MobileDigital Marketing™ Pty Ltd  ABN: 55 614 170 357 , MobileDigital Marketing Ltd. · CRN: 10014105 (“the Processor”)

Whereas:

A) This Agreement is supplemental to any other separate agreement entered into between the parties and introduces further contractual provisions to ensure the Controller and the Processor comply with their respective obligations under the GDPR in respect of the Data Processing.

B) Recital 81 and Article 28of the GDPR place certain obligations upon a Controller to ensure that the Processor it engages under the terms of this Agreement provides sufficient guarantees in terms of:  i) expert knowledge, ii) reliability and resources, iii) ability to implement technical and organisational measures which will meet the requirements of the GDPR including for the security of processing

C) The Controller must also take into account the specific tasks and responsibilities of the Processor under this Agreement in the context of the processing to be carried out and the risks to the rights and freedoms of the data subject

D) This Agreement exists to ensure that there are sufficient guarantees in place as required by the GDPR and that the processing complies with the obligations imposed on both the Controller and the Processor under the GDPR.

1.    Definitions

“Data” shall mean [List the categories of the data that is being processed and the categories of data subjects this processing relates to]

“Data Subject” shall have the same meaning as set out in Article 4 (1) of the GDPR and means an identified or identifiable natural person

“EEA” means the European Economic Area – the 28 Member states of the European Union plus Iceland, Lichtenstein and Norway

“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and the Council

“Incident” has the same meaning as a personal data breach in Article 4 (12) of the GDPR and means a breach of  security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Data , transmitted, stored or otherwise processed under the terms of this Agreement

“Processing” shall mean any operation or set of operations which is/are performed upon  Data , (whether or not by automatic means) including collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Such processing may be wholly or partly by automatic means or processing otherwise than by automatic means of Data which form part of a filing system or one intended to form part of a filing system. A filing system shall mean any structured set of Data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographic basis.”

2.    Application

(a) This Agreement shall apply to all Data processed from the date of this Agreement by the Processor on behalf of the Controller until the date of termination of this Agreement.

3.      Purpose of Processing

a) The Processor shall process the Data it processes on behalf of the Controller, solely for the provision of personalising communications and identifying mobile users on behalf of the client in outbound communications and identifying and applying rules to inbound communications from mobile users to clients

in accordance with the written instructions of the Controller (including when making a transfer of personal data to countries outside the EEA) unless required to do by law. The Processor must inform the Controller of what processing the Processor is required to do so by law unless the Processor is prohibited under the relevant law from notifying the Controller of such processing. The Processor shall not process the Data for any other purpose except with the express written consent of the Controller.

b)  The Controller confirms and warrants that the Processing of the Data, including the transfer of the Data to the Processor, has been and will continue to be carried out in accordance with the relevant provisions of the GDPR and does not violate the relevant provisions of the EEA country in which the Controller is established

4. Duration of processing

a) The Processor shall process the Data for as long as the separate outsourcing agreement for the provision of SNIPER by MobileDigital services dated [date/month/ year of outsourcing agreement] remains in full force and effect.

5. Type of Personal data

The Processor will process the following types of personal information

•Mobile Numbers , needed in order to create a customer entity

•Personal Details, if loaded by client

•    family details, if loaded by client

•    lifestyle and social circumstances

•    goods and services purchased or offered

•    financial details if pertaining to policy or contract reminders

•    employment and education details if communication is from such entities

•    visual media, if this media is part of the inbound communication

•    responses to surveys, if we are the originator of the form supplied

•    profile data where relevant to the communication

•    tracking data from web activity where necessary for communications received and stored

5.     Categories of data subjects

The Processor will process information about the following categories of data subjects

•    customers

•    prospective customers

•    suppliers

•    individuals contacted when responding to a complaint or enquiry

•    service providers

•    applicants for a licence or registration

•    survey respondents

6.     Security and Confidentiality of Data

a) The Processor and the Controller shall implement appropriate technical and organisational measures to ensure a level appropriate to the risks that are presented by the data processing in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal transmitted, stored or otherwise processed.

b) Both the Controller and Processor shall take into account the following when determining the measures:

i) the state of the art, and

ii) the cost of implementation of the measures, and

iii) the nature, scope context and purposes of processing, and

iiv) the risk of varying likelihood and severity for the rights and freedoms of individual Data Subjects

c) The Controller and Processor agree that the  measures security measures  taken in accordance with Clause 6 (a) of this Agreement  after assessment with the requirements of the GDPR are appropriate to protect Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the Processing involves the transmission of Data over a network, and against all other unlawful forms of Processing, and that these measures ensure a level of security appropriate to the risks presented by the Processing and the nature of the Data to be protected having regard to the state of the art and the cost of their implementation; shall ensure a level of security appropriate to the risk,

d) The measures taken shall include amongst others the following items, where appropriate, from the non- exhaustive list below:

i) the pseudonymisation and encryption of Data

ii) the ability to ensure the ongoing confidentiality, integrity and availability and resilience of processing systems and services

iii) the ability to restore the availability and access to Data in a timely manner in the event of a physical or technical Incident

iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

e) The Controller and the Processor may use adherence to an approved code of conduct as referred to by Article 40 of the GDPR or an approved certification mechanism as referred to in Article 42 as an element by which to demonstrate compliance with the requirements set out above in clause 6 ) (b)  (c) and (d) of this Agreement

f). The Processor shall ensure that each of its employees, agents or subcontractors are made aware of its obligations with regard to the security and protection of the Data and shall require that they enter into binding obligations with the Processor in order to maintain the levels of security, protection and confidentiality provided for in this Agreement.

g). The Processor shall not divulge the Data whether directly or indirectly to any person, firm or company without the express consent of the Controller except to those of its employees, agents and subcontractors who are engaged in the processing of the Data and are subject to the binding obligations referred to in Clause 6 (e) of this Agreement above).

7.     Incident Reporting

 a) The Processor must have effective processes for the identification, management and reporting of Incidents. Any Incident, suspected or actual, involving the Controller’s Data must be reported immediately to the Controller. An Incident may include but not be limited to:

•    Security breach or fraud

•    Misuse of relevant system storing Controller’s Data

•    Misuse, loss or corruption of the Controller’s Data

•    Unauthorised access to, use of, alteration, amendment or deletion of Controller’s Data

•    Physical security incident

•    Any unapproved requirement to disclose Controller’s Data to a third party

b) The Processor will be expected to promptly investigate any such Incident, provide status updates throughout the Incident, where appropriate cooperate with reasonable Controller requests during the management of the Incident or permit the Controller to support the management of the Incident, and send a written report to the Controller, describing the nature of the Incident, stating any control weaknesses discovered, and any actions taken/planned. A plan to agree any reasonable additional controls, either identified by the Processor or the Controller, to prevent or reduce the likelihood of a similar Incident must be agreed and monitored.

c) The Processor will assist the Controller in informing Data Subjects if there has been an Incident involving the Processor.

d) The Processor will assist the Controller in informing any relevant supervisory authority of an Incident.

8.     Processor’s appointment of a sub – processor

a) The Processor will not engage a sub processor to process the Controller’s Data, without the prior specific or general or written authorisation of the Controller.

b) If the Processor employs a sub – processor under the Controller’s prior general written authorisation the Processor will inform the Controller in writing of any intended additions to or replacement of sub- processor(s) the Processor uses to carry out processing of the Controller’s personal data at least 5 days before the date of any intended additions or changes to the sub processors.

c) If the Controller objects to any such additions to or replacement the Controller shall inform the Processor 5 days of receiving the notice in Clause 8 (b) of this Agreement. Upon receipt of such a notice of objection the Processor shall not make the intended addition or replacement of [a] sub – processor(s)

d) The Processor, upon receipt of a notice under Clause 8 (c) of this Agreement above may choose another sub – processor(s) it wishes to add to or act as a replacement to the existing sub- processor(s) it uses to carry out the processing. The Processor will then inform the Controller in accordance with clause 8( b) of this Agreement and the Controller will have the right to object in accordance with clause 8 (c) of this Agreement

e) The Processor shall ensure by written contract that any agent or sub-processor employed by the Processor to process Data to which this Agreement relates:

i) imposes the same contract terms as listed in Clause 6 – Security and Confidentiality of Data and Clause 7 Incident reporting of this Agreement on any agent or sub- processor

ii) makes it clear that the Processor and not any agent or sub-processor will be liable to the Controller for the compliance of the agent or sub- processor with data protection law

f) The Processor will immediately inform the Controller of any Incident involving any of its’ permitted sub-contractors or sub-processors in accordance with Clause 7 Incident reporting of this Agreement.

g) The Processor will assist the Controller in informing Data Subjects if there has been an Incident involving  any of its’ permitted sub-contractors or sub-processors in accordance with Clause 7 Incident reporting of this Agreement.

h) The Processor will assist the Controller in informing any relevant supervisory authority of an Incident.

9.     Data Subjects rights

 a) The Processor  shall have appropriate technical and organisational means taking account of the nature of the Processing  in so far as this is possible for the fulfilment of the Controller‘s obligation to respond to requests for exercising the following Data Subject’s rights :

i) information rights under Articles 13 and 14 of the GDPR

ii) right of access by the Data Subject under Article 15 of the GDPR

iii) right to rectification under Article 16 of the GDOR

iv) right to erasure under Article 17 of the GDPR

v) right to restriction of processing under Article 18 of the GDPR

vi) notification regarding the right of rectification and/or erasure of personal data and/or restriction of processing under Article 19 of the GDPR

vii) right to data portability under Article 20 of the GDPR

10.     Assisting the Controller

a) The Processor will assist the Controller, taking into account the nature of the Processing and the information available to the Processor, to meet the Controller’s obligations

i)  to keep Data secure in accordance with Article 32 of the GDPR

ii) to notify Incidents in accordance with Article 33 of the GDPR

iii)  to advise Data Subjects when there has been an Incident in accordance with Article 34 of the GDPR

iv)  to carry out data protection impact assessments (DPIAs) in accordance with Article 35 GDPR

v)  to consult with the Controller’s supervisory authority where a DPIA indicates there is an unmitigated high risk in accordance with Article 36 of the GDPR

vi)  The Processor will immediately pass on any notices, requests or other communications from a Data Subject. The Processor will not act on any request from a Data Subject, without the full written authority of the Controller.

vii)  If a privacy impact assessment indicates that there is an unmitigated high risk to the rights and freedoms of the Data Subject, the Processor will assist the Controller in consulting with the relevant supervisory authority or authorities

11.     Audit, inspections and legal processing

a) The Processor must provide the Controller with all the information that is needed to show that both the Processor and the Controller have met their obligations under Article 28 of the GDPR

 b) The Processor must submit and contribute to audits and inspections conducted by the Controller or another auditor mandated by the Controller.

a) The Processor shall ,  allow the   Controller and/or its auditors, or their representatives, to have access to and audit relevant processes, procedures, documentation, and/or any premises of the Processor.  Such access may take place on 5 days’ prior written notice to the Data Processor. The Controller agrees to reimburse the Processor any reasonable charge for the audit, at the hourly rates agreed within the Controller’s contract with the Processor.

b) If the Controller reasonably believes that the Processor is in breach of any of its obligations under this Agreement or in which case the Controller shall not be obliged to give such prior notice and the Processor shall ensure that a Processor appointed representative shall provide full co-operation and assistance to the Controller and/or its representatives, auditors at no additional charge to the Controller.

c) The Processor shall inform the Controller if any instruction that the Controller gives, infringes the GDPR or other EU, or EEA member state data protection provisions.

12.     Processor’s responsibilities and liabilities under the GDPR

a) The Processor is aware that it may be subject to enforcement action by any relevant data protection supervisory authority to which the Controller is subject under Article 58 (Powers of the supervisory authority) of the GDPR.

 b) The Processor is aware that if it fails to meet its obligations as set out in this Agreement and under Article 83 (General conditions for imposing administrative fines) of the GDPR, it may be subject to an administrative fine.

 c) The Processor is aware that if it fails to meet its obligations under GDPR, it may be subject to a penalty under Article 84 (Penalties) of the GDPR.

d) The Processor is aware that if it fails to meet its obligations under GDPR, it may have to pay compensation to individual Data Subjects under Article 82 (right to compensation and liability) of the GDPR.

e) The Processor will appoint a data protection officer, if required in accordance with Article 37 (designation of the data protection officer) of the GDPR.

f) The Processor will appoint (in writing) a representative within the European Union if required because it is not established in the European Union and the provisions of Article 3 (2)  apply  in accordance with Article 27 (representatives of controllers or processors not established in the Union) of the GDPR .

13.     Liability

The Processor’s liability to the Controller for any loss or damage of whatsoever nature suffered or incurred by the Controller or for any liability of the Controller to any other person for any loss or damage of whatsoever nature suffered or incurred by that person shall to the extent permitted by law not exceed [To Be agreed between the parties].

14.     Termination

a) Subject to Clause 14 (b) either Party may terminate this Agreement upon giving 1 months prior written notice to the other. Upon the date of termination of this Agreement, the Processor shall return or delete at the Controller’s choice any Data received from the Controller to the Controller

The Processor shall not be obliged to return or delete any Data received from the Controller which has:

a) already been deleted in the normal course of events or

b) the Processor is required to retain by law.

b) Notwithstanding termination of this contract, the provisions of this Agreement shall survive the termination of this Agreement and shall continue in full force and effect for a period of 2 years from the date of termination of the Agreement.  The obligations contained in Clause 6 of this Agreement – Security and Confidentiality of Data – and Clause 7of this Agreement- Incident Reporting shall continue indefinitely.

15.     Assignment

This Agreement shall not be transferred or assigned by either party except with the prior written consent of the other.

16.     Jurisdiction

This Agreement shall be governed by and construed in accordance with the law of England and Wales and the parties shall submit to the exclusive jurisdiction of the Courts of England and Wales.

IN WITNESS WHEREOF, each of the Parties hereto has caused the Agreement to be executed by its duly authorised representative.

SNIPERMOBILE SERVICE AND SECUREMOBILE MARKETPLACE – MEMBER TERMS AND
CONDITIONS

(Version issue date: 11 September 2020)

1.              
Definitions

In
these Terms and Conditions:

(a)            
Approved Order means an Order approved by
MobileDigital and submitted to the Third Party Supplier under clause 8.4;

(b)            
Approved Payment Method means a credit
card or debit card or other payment method compatible with the payment platform
forming part of the Platform;

(c)            
Member means the person who is the
registered user of a Member Account, or where the context requires, a person
who uses or accesses a Member Account;

(d)            
Member Account means an authorised user
account established on the Platform in
accordance with clause 7 to
enable the purchase of Products through the Platform;

(e)            
MobileDigital means MobileDigital
Operations Pty Ltd ACN
614 173 590;

(f)             
Order means an order submitted by the Member
using the SECUREMobile Service or through the SECUREMobile Marketplace to purchase
a Product listed by a Third Party Supplier;

(g)            
Platform means the e-commerce marketing and sales
platform provided by MobileDigital, including the SECUREMobile Marketplace, the
SECUREMobile Service and the SNIPERMobile Service and associated websites, made
available for use by Third Party Suppliers to offer goods or services for sale
to Members;

(h)            
Price means the purchase price of the
Products, including any applicable taxes (including GST) or delivery fees, paid
or payable by the Member;

(i)              
Product means the goods or services offered
for sale on or by the Platform by a Third Party Supplier;

(j)              
Purchase Transaction means the purchase
of a Product pursuant to an Approved Order;

(k)            
SNIPERMobile Service means the SaaS
platform offered by MobileDigital under the name SNIPERMobile;

(l)              
SECUREMobile Marketplace is the
ecommerce marketplace operated by MobileDigital located at www.securemobile.net where Members can purchase Products, and Third
Party Suppliers can advertise their Products for sale;

(m)           
SECUREMobile Service means the fast
mobile checkout and payment service offered to Third Party Suppliers seeking to
sell Products promoted using SNIPERMobile Service;

(n)            
Terms and
Conditions means these terms and conditions; and

(o)            
Third
Party Supplier means an
authorised vendor who offers goods or services for sale through the SECUREMobile
Service or the SECUREMobile Marketplace.

2.              
Application of these Terms and Conditions

Subject to
clause 3, the Terms and Conditions govern the use of the Platform including the
purchase of Products. The establishment of a Member Account or placing of an
Order by the Member is conclusive evidence of the Member’s acceptance that the
Terms and Conditions apply and are binding on the Member.

3.              
Consumer Rights

3.1            
As a consumer, the Member has certain rights
under consumer protection legislation including statutory guarantees under the
Australian Consumer Law that goods will be of acceptable quality, match their
description and be fit for any purpose made known by the consumer, and that
services supplied will be provided with due care and skill and be reasonably
fit for any specified purpose (Consumer Rights).

3.2            
Nothing in these Terms and Conditions is
intended to exclude, restrict or modify any of the Member’s Consumer Rights,
including by limiting MobileDigital’s liability or imposing liability on the Member
in a manner which would be considered unfair under the relevant consumer
protection laws.  Limitations and
exclusions are made only to the extent that MobileDigital may legally do
so.  All exclusions and limitations of
MobileDigital’s liability under these Terms and Conditions must be read subject
to this clause 3.2.

4.              
The Platform

4.1            
Subject to meeting the eligibility requirements
set out in clause 6.1, the Member may purchase the Products by placing an Order using the
Platform. 

4.2            
All Orders are subject to approval by
MobileDigital. MobileDigital may refuse to approve an Order if MobileDigital:

(a)            
suspects any person has committed or is
attempting to commit fraud with respect to the Order;

(b)            
considers the Order to be unlawful;

(c)            
suspects the person placing the Order is not the
Member or is not authorised to access the Member Account;

(d)            
is unable to authenticate or verify the Order;

(e)            
payment of the Price is declined for any reason;
or

(f)             
believes the Order has been placed by, or on
behalf a Member whose access to the Platform is suspended or has been
terminated for any reason.

4.3            
The Member acknowledges that:

(a)            
MobileDigital acts as a process and payment
agent to facilitate the purchase of the Products by the Member from the Third
Party Supplier using the Platform;

(b)            
the contract for the purchase of the Products is
solely between the Third Party Supplier and the Member, and MobileDigital is
not a party to that contract;

(c)            
the Third Party Supplier is solely responsible
for the description of the Products, the fulfillment of the Order, including arranging
delivery of the Product and responding to any Member complaint or claim arising
out of or in connection with the Product; and

(d)            
subject to clause 3, the Member is responsible for all Purchase Transactions made
using their Member Account, except in circumstances where, as a direct
consequence of a breach of the Terms and Conditions by MobileDigital and
without any fault on the part of the Member, the Purchase Transaction has been
effected fraudulently.

5.              
Availability of the Platform

5.1            
MobileDigital will use reasonable endeavours to
ensure that where it is reasonably practicable to do so:

(a)            
it gives prior notice on its website of any
planned interruption to the availability of the Platform; and

(b)            
any maintenance, upgrade or other planned
interruption to the Platform is scheduled to minimise disruption to the Platform.

5.2            
Despite clause 5.1, MobileDigital:

(a)            
may suspend or modify operation of the Platform
at any time and for any reason;

(b)            
does not give any guarantee or warranty that the
Platform will operate uninterrupted, fault-free or without delay or without compromise
of its security systems.

5.3            
MobileDigital may suspend or terminate the Member’s
access to the Platform if:

(a)            
the Member breaches or MobileDigital believes
that the Member has breached any of these terms and Conditions;

(b)            
MobileDigital believes it is unlawful to allow
the Member to access the Platform;

(c)            
MobileDigital detects any suspicious activity
with respect to the access to, or use of, the Platform (including the Member
Account) by, or purportedly by, the Member or where MobileDigital is unable to
authenticate or verify any information provided by, or purportedly by, the Member
or where MobileDigital believes any such information to be incorrect; or

(d)            
MobileDigital is unable to provide access to the
Platform due to any circumstance beyond its reasonable control.

5.4            
To the maximum extent permitted by law and
subject to clause 3, MobileDigital excludes any responsibility or liability for
the unavailability of the Platform for any reason whatsoever.

6.              
Member Obligations

6.1            
To be eligible to place an Order using the Platform
, a person must:

(a)            
be capable of entering into a legally binding
contract;

(b)            
have a valid Australian mobile telephone number;

(c)            
provide a valid delivery address in Australia;

(d)            
be able to pay the Price using an Approved
Payment Method; and

(e)            
hold a current Member Account.

6.2            
By submitting an Order or completing an
application for a Member Account, a person warrants that they meet all of the
requirements set out in clause 6.1.

6.3            
The Member agrees that they will not:

(a)            
use the Platform for any unlawful purpose;

(b)            
interfere with, or attempt to interfere with,
the operation of the Platform;

(c)            
provide false or misleading information to
MobileDigital in connection with their Member Account or any Order;

(d)            
use or provide information about any payment
method, including the details of any credit card or debit card, in connection
with the Member Account or any Order, unless the Member is authorised to
provide or use those details; or

(e)            
copy, modify, alter, amend or use any intellectual
property, content, logos, graphics, icons or other content published by
MobileDigital except as expressly permitted by MobileDigital.

6.4            
The Member must:

(a)            
use all reasonable endeavours to prevent the
unauthorised use of or access to their Member Account, including by taking
reasonable steps to prevent the disclosure of any password;

(b)            
notify MobileDigital as soon as possible if they
become aware of any unauthorised use of or access to their Member Account;

(c)            
comply with the terms and conditions of use of
any credit cards or debit cards or other Approved Payment Method used by the Member,
including the payment of any fees or charges imposed by the issuer or payment
service provider; and

(d)            
notify MobileDigital immediately if they cease
to be the authorised user of the mobile telephone number identified in the Member
Account.

7.              
Member Account

7.1            
A person who wishes to place an Order must establish
a Member Account by completing the account details at or before the time of
placing their first Order, using the account registration portal on the
Platform.

7.2            
The Member is responsible for the accuracy and
currency of all registration details in their Member Account and may amend those
details by accessing the account through the Platform.

7.3            
The Member agrees that MobileDigital may update
the details held in the Member Account using information lawfully provided to
MobileDigital by the Member or its bank or other service providers.

7.4            
The Member agrees that in addition to any other
lawful method, MobileDigital may use the contact details in the Member Account
to contact the Member.

7.5            
The Member is responsible for all use of their
Member Account, including the placement of any Orders, except in circumstances
where:

(a)            
the use is undertaken without the Member’s
actual or implied consent and in the absence of any breach of the Terms and
Conditions by the Member; and

(b)            
a negligent or wrongful act or omission or wilful
misconduct of MobileDigital or any of its directors, officers, employees and
agents has enabled the use.

8.              
Order Processing and Payments

8.1            
The Member must pay the Price in respect of a
Product to MobileDigital at the time of placing an Order on the Platform, using
an Approved Payment Method.

8.2            
The Member authorises MobileDigital to:

(a)            
initiate payment for an Order using the Member’s
selected method of payment;

(b)            
provide the Member’s payment details to a third
party payment services provider; and

(c)            
collect the Price on behalf of the Third Party
Supplier.

8.3           
The Member agrees that MobileDigital may:

(a)           
save payment information, including credit card
or debit card numbers and expiry dates, provided by the Member in the Member
Registration or when placing an Order or making any other transaction on the
Platform where card information is entered;

(b)           
use the stored payment details as the Member’s
default payment method for future Orders.

8.4            
Upon receipt of payment from the Member and
approval of the Order by MobileDigital, MobileDigital will:

(a)            
issue an order confirmation and payment receipt
to the Member; and

(b)            
submit the Order, including transaction details
and a copy of the payment receipt, to the Third Party Supplier to enable the
Third Party Supplier to fulfil the Order.

9.              
Refunds

9.1            
The Member is responsible for notifying the
Third Party Supplier if they intend to return any Product or request a refund. The
Product must be returned to the Third Party Supplier within the period
specified and in the manner required by the Third Party Supplier’s returns
policy or as otherwise agreed by the Third Party Supplier.

9.2            
The Third Party Supplier is responsible for
requesting and approving the payment of a refund to a Member.

10.            
Liability

10.1         
The Member acknowledges and agrees that, subject
to clause 3, MobileDigital:

(a)            
does not give any express warranty or guarantee
as to the quality, suitability or availability of the Products or the Platform or
any description or information provided in respect of the Products; and

(b)            
accepts no responsibility for the Products and
will not be liable to the Member or any third party for any loss, cost or
damage suffered directly or indirectly in connection with the Products.

10.2         
To the extent it is lawfully able to do so,
MobileDigital expressly limits its liability for breach of any non-excludable
statutory guarantee with respect to any supply of services (or failure to
supply services) to the supply of the services again or the payment of the
costs of having the services supplied again.

10.3         
The Member acknowledges and agrees that MobileDigital
will not be liable for, and the Member waives any right it has to claim, any
loss not arising naturally according to the usual course of things, loss of
actual or anticipated profit, loss of reputation goodwill, opportunity or
business, or loss of data or any indirect, special or consequential loss or
damage arising under or in connection with the use or unavailability of Service
or otherwise in connection with these Terms and Conditions.

10.4         
Subject to clause 3, the Member agrees to
indemnify and keep indemnified MobileDigital, its directors, officers,
employees and agents, against any and all liability or claim incurred or
suffered by MobileDigital arising from or in any way connected with:

(a)            
a breach by the Member of any of its obligations
under these Terms and Conditions;

(b)            
the placement of any Order using the Member’s
Member Account; or

(c)            
any act or default or omission or wilful
misconduct or negligence of the Member in connection with these Terms and
Conditions,

provided that the Member
will not be liable under this clause 10.4 to the extent to which the liability or claim is caused or
contributed to by any negligent or wrongful act or omission or wilful
misconduct of MobileDigital or any of its directors, officers, employees and
agents.

11.            
Disputes and complaints

11.1         
The Member must directly contact the Third Party
Supplier to resolve any claim or dispute which arises between the Member and
Third Party Supplier.  MobileDigital is
not responsible for facilitating communication between the Member and the Third
Party Supplier or assisting to resolve such a dispute. The Member must continue
to meet its obligations under these Terms and Conditions despite the existence
of any dispute under this clause 11.1.

11.2         
If the Member wishes to submit a complaint in
writing  to MobileDigital in relation to
the Platform, the Member should contact MobileDigital using the contact details
below:

Email: Memberservice@mobile.digital 

12.            
Privacy

12.1         
MobileDigital will comply with its obligations
under the Privacy Act 1988 (Cth) and will deal with personal information
in accordance with its published privacy policy.  This policy is available on request or on
MobileDigital’s website.

13.            
Amendment of Terms and Conditions

13.1         
MobileDigital may at any time amend the Terms
and Conditions applicable to future Orders and may notify the Member of these
changes or provide any other notice of a variation of the Terms and Conditions,
by giving not less than 30 days’ prior notice to the Member by publishing the
revised Terms and Conditions or notice on its website or otherwise notifying
the Member of the amendment by contacting the Member using the contact details
in the Member Account.

13.2         
If MobileDigital publishes the revised Terms and
Conditions on its website, the revised Terms and Conditions are effective from
the effective date noted in the Terms and Conditions or 30 days after the date
of publication on the website, whichever is later.

14.            
Severance

If any provision or part of any provision of these Terms
and Conditions is invalid, illegal or unenforceable, such provision or part
thereof will be severed from the Terms and Conditions and the remainder will
continue in full force and effect.

15.            
Assignment

MobileDigital may assign its rights or novate its rights
or obligations under these Terms and Conditions (in whole or in part) to any
person without the consent of the Member.

16.            
Governing Law and Jurisdiction

The Terms and Conditions will be governed by and construed
in accordance with the laws in force in the State of Queensland. Each party
submits to the non-exclusive jurisdiction of the courts of Queensland.

 SNIPERMOBILE SECUREMOBILE MARKETPLACE – VENDOR TERMS AND CONDITIONS

(Version issue date: 11 September 2020)

These terms and conditions apply to existing client users of the SNIPERMobile Service provided by MobileDigital, who wish to become authorised users of the SECUREMobile Marketplace and the SECURE Mobile Service. They apply in addition to the existing SNIPERMobile Terms and Conditions.  It is a condition of use of the SECUREMobile Marketplace and the SECURE Mobile Service that the Vendor accept these terms and conditions.  

1.               Definitions

In these Terms and Conditions:

(a)             Approved Order means an Order approved by MobileDigital and submitted to the Vendor under clause 5.3(b);

(b)             Approved Payment Method means the payment platform forming part of the SECUREMobile Service or the SECUREMobile Marketplace, which allows the Member to make payment for a Product;

(c)             Business Day means a day that is not a Saturday, Sunday, or bank or public holiday in Queensland;

(d)             Commission means, with respect to each Order placed by a Member through the SECUREMobile Marketplace, the amount equivalent to 3.1% of the Price of the Order;

(e)             Member means a registered user of the Platform who is a purchaser, potential purchaser, user or recipient of a Product offered or supplied the Vendor using the Platform, whether through the SECUREMobile Service or through the SECUREMobile Marketplace;

(f)              MobileDigital means MobileDigital Operations Pty Ltd ACN 614 173 590;

(g)             Monthly SECUREMobile Software Licence Fee means the monthly fee charged to the vendor for use and access to the SECUREMobile feature within the SNIPERMobile Service

(h)             Order means an order submitted by a Member using the SECUREMobile Service or through the SECUREMobile Marketplace to purchase a Product offered for sale by the Vendor;

(i)               Platform means e-commerce marketing and sales platform provided by MobileDigital, including the SECUREMobile Marketplace, the SECUREMobile Service and the SNIPERMobile Service and associated websites, made available for use by the Vendor to offer goods or services for sale in accordance with the Terms and Conditions;

(j)               Price means the purchase price of the Product, including any applicable taxes (including GST) or delivery fees, paid or payable by the Member;

(k)             Promote means the promotion of a Product to Members using MMS and/or SMS or other marketing and promotion technology channels that may develop from time to time and be in general acceptance for use in the market;

(l)               Product means the goods or services offered by the Vendor to Members using the Platform, whether through the SNIPERMobile Service or directly through the SECUREMobile Marketplace;

(m)            Reconciliation Period means each period of 7 days ending at 11.59am on Monday;

(n)             [SWS Lawyers Note: We don’t think this definition is required, given the limited use of the term ‘SaaS’. See amendments to definition of ‘SECUREMobile Service’ and ‘SNIPERMobile Service’.]SECUREMobile Marketplace is the ecommerce marketplace operated by MobileDigital located at www.securemobile.net where Members can purchase Products, and Vendors can advertise their Products for sale;

(o)             SECUREMobile Service means the fast-mobile checkout and payment software as a service platform offered to Vendors seeking to sell Products promoted using SNIPERMobile Service;

(p)             Service Fee means, with respect to each Order, the amount equivalent to 2.9% of the total Price of the Order; [SWS Lawyers Note: The concepts of ‘taxes’ and ‘delivery fees’ are included in the definition of ‘Price’, so no need to repeat here.]

(q)             SNIPERMobile Mobile Terms and Conditions means the terms and conditions applicable to the SNIPERMobile Service, available on request or on the SNIPERMobile.com website;

(r)              SNIPERMobile Service means the software as a service platform offered by MobileDigital under the name SNIPERMobile;

(s)             Terms and Conditions means these terms and conditions;

(t)              Transaction Proceeds means the proceeds of Approved Orders received by MobileDigital including the Price, any delivery fees, taxes and other charges payable by the Member; and

(u)             Vendor means an authorised vendor who offers goods or services for sale through the SECUREMobile Service or the SECUREMobile Marketplace.

2.               Application of these Terms and Conditions

2.1             These Terms and Conditions govern the sale of the Products on the Platform. The listing of the Products on the Platform by the Vendor is conclusive evidence of the Vendor’s acceptance that the Terms and Conditions apply and are binding on them.

2.2             These Terms and Conditions must be read in conjunction with the SNIPERMobile Mobile Terms and Conditions. Where there is any direct conflict between these Terms and Conditions and the SNIPERMobile Mobile Terms and Conditions, these Terms and Conditions will prevail.

3.               The Platform

3.1             It is a condition of the Vendor’s use of the Platform that the Vendor is a current subscriber to the SNIPERMobile Service.

3.2             The Vendor may offer goods or services for sale on the Platform in accordance with these Terms and Conditions.

3.3             The Vendor must obtain prior approval from MobileDigital before goods or services are offered for sale on the Platform.  MobileDigital may, at its sole discretion, refuse to approve, withdraw approval of, goods or services proposed by the Vendor for any reason, including if MobileDigital reasonably considers that the goods or services:

(a)             are unlawful or encourage unlawful activity;

(b)             infringe the intellectual property rights of any third party;

(c)             are offensive or inappropriate; or

(d)             do not conform with MobileDigital’s Quality Assurance requirements for product presentation and formatting, volumes, stock and delivery time frames.

3.4             If MobileDigital withdraws approval of any goods or services are offered for sale on the Platform:

(a)             it must notify the Vendor of the withdrawal of approval as soon as reasonably practicable;

(b)             the Vendor must immediately withdraw the goods or services from sale on the Platform; and

(c)             MobileDigital may suspend or withdraw the goods or services from sale on the Platform.

3.5             The Vendor acknowledges that:

(a)             MobileDigital acts as a process and payment agent to facilitate the purchase of Products by the Member from the Vendor using the Platform;

(b)             the contract for the sale and purchase of Products is solely between the Vendor and the Member, and MobileDigital is not a party to that contract; and

(c)             the Vendor is solely responsible for the description of the Products, fulfillment of the Order, including arranging delivery of the Products and responding to any Member complaint or claim arising out of or in connection with the sale of the Product.

4.               Availability of the Platform

4.1             MobileDigital will use reasonable endeavours to ensure that where it is reasonably practicable to do so:

(a)             it gives prior notice on its website of any planned interruption to the availability of the Platform; and

(b)             any maintenance, upgrade or other planned interruption to the Platform is scheduled to minimise disruption.

4.2             Despite clause 4.1, MobileDigital:

(a)             may terminate, suspend or modify operation of the Platform at any time and for any reason;

(b)             does not give any guarantee or warranty that the Platform will operate uninterrupted, fault-free or without delay or without compromise of its security systems.

4.3             MobileDigital may suspend or terminate the Vendor’s use of the Platform if:

(a)             the Vendor breaches or MobileDigital believes that the Vendor has breached any of these Terms and Conditions or the SNIPERMobile Terms and Conditions;

(b)             MobileDigital believes it is unlawful to allow the Vendor to use the Platform;

(c)             MobileDigital detects any suspicious activity with respect to the access to, or use of, the Platform by, or purportedly by, the Vendor; or

(d)             MobileDigital is unable to provide access to the Platform due to any circumstance beyond its reasonable control.

4.4             To the maximum extent permitted by law and subject to clause 11.1, MobileDigital excludes any responsibility or liability for the temporary or permanent unavailability of the Platform for any reason whatsoever.

5.               Order processing

5.1             The Member  will pay the Price in respect of a Product to MobileDigital at the time of placing an Order on the Platform, using an Approved Payment Method, and MobileDigital will transfer such payments to the Vendor in accordance with clause 7.3. 

5.2             The Vendor acknowledges that all Orders are subject to approval by MobileDigital and MobileDigital may, at its sole discretion, refuse to approve an Order.

5.3             Upon receipt of payment from the Member and approval of the Order by MobileDigital , MobileDigital will:

(a)             issue an order confirmation and payment receipt to the Member; and

(b)             submit the Order, including transaction details and a copy of the payment receipt, to the Vendor to enable the Vendor to fulfil the Order.

6.               Refunds

6.1             The Vendor may request the payment of a refund to a Member of all or part of the Price of a Product (Refund Amount) by completing the refund process within the SNIPERMobile portal.

6.2             Subject to completion of the refund request by the Vendor within the SNIPERMobile portal:

(a)             MobileDigital will arrange the refund to the Member of the Refund Amount using the Approved Payment Method; and

(b)             the Vendor must pay the Refund Amount, less the amount of any Commission attributable to that Refund Amount, to MobileDigital.

7.               Payments

7.1             The Vendor appoints MobileDigital as its payments collection agent to:

(a)             receive and process payments from Members;

(b)             process refunds to Members; and

(c)             hold Transaction Proceeds on behalf of the Vendor before remitting them to the Vendor pursuant to clause 7.3,

in accordance with the Terms and Conditions.

7.2             In consideration of MobileDigital providing access to the Platform to the Vendor and acting as the payment and process agent in accordance with the Terms and Conditions, the Vendor must pay to MobileDigital for each Approved Order:

(a)             placed for Products in direct response to being Promoted through the SNIPERMobile Service, the Service Fee; and

(b)             for Orders placed through the SECUREMobile Marketplace, without being Promoted through the SNIPERMobile Service:

(i)               the Commission; and

(ii)              the Service Fee.

7.3             As soon as reasonably practicable, and in any event within 2 Business Days, following the end of each Reconciliation Period, MobileDigital must calculate and remit to the Vendor’s nominated bank account, the aggregate of the Transaction Proceeds received by MobileDigital during the Reconciliation Period, after offsetting to the extent available:

(a)             the aggregate of Service Fees, if any, payable for Approved Orders;

(b)             the aggregate of Commissions, if any, payable for Approved Orders; and

(c)             the aggregate of Refund Amounts, if any, after deduction of any Commissions attributable to those Refund Amounts,

for the relevant Reconciliation Period, and must provide details of the calculation to the Vendor.

7.4             If the aggregate of Refund Amounts, after deduction of any Commissions attributable to those Refund Amounts, owing to MobileDigital for a Reconciliation Period exceeds the aggregate of the Transaction Proceeds available after offsetting any Services Fees and Commissions, the Vendor must remit the outstanding balance to MobileDigital’s nominated bank account within 2 Business Days after receipt of MobileDigital’s calculation provided under clause 7.3.

8.               GST

8.1             Defined terms in this clause 8 have the meanings given to them in A New Tax System (Goods and Services) Act 1999 (Cth)(GST Law).

8.2             Any consideration or payment obligations in the Terms and Conditions are exclusive of GST.

8.3             If a Supply made under or in connection with the Terms and Conditions is a Taxable Supply for which the consideration is money, the consideration for the Supply is to be increased by an additional amount equal to the amount of the consideration multiplied by the relevant GST rate.

8.4             A party that receives consideration, whether the consideration is in money or other than money from another party, must give to the other party a Tax Invoice in a form that complies with the GST Law within 14 days after the end of the month in which the consideration is received, or an invoice issued, in relation to the Supply, whichever occurs first.

9.               Vendor obligations

9.1             The Vendor must:

(a)             not list a Product on the Platform unless it has available sufficient stock and resources to be able to fulfill all reasonably anticipated Orders in a timely manner;

(b)             immediately notify MobileDigital if any Product becomes unavailable, or it reasonably anticipates the Product to become unavailable for immediate supply, in which case MobileDigital may suspend or terminate the offering of the Product on the Platform;

(c)             supply and deliver the Products to the Member in a timely manner in accordance with the relevant Order;

(d)             ensure that it holds all necessary licences, authorisations and approvals to supply the Products through the Platform;

(e)             not provide any false, misleading or inaccurate information on the Platform about the Products;

(f)              ensure that the Products are supplied to the Member as described on the Platform;

(g)             ensure that the Products are packaged to protect against damage during handling, transportation and delivery;

(h)             not damage or interfere with the Platform or engage in any conduct likely to damage the reputation of the Platform;

(i)               not engage in any unlawful conduct in connection with the Platform;

(j)               respond to and attempt to resolve in good faith and in a timely manner, any claims or demands by a Member concerning a Product, including any actual or alleged defect in the Product or failure to comply with any of the Vendor’s obligations under this clause 9.1;

(k)             comply with the requirements set out in clause 3.3 (d); and

(l)               without limiting any of the foregoing, not engage in any spam marketing or similar practices, and otherwise ensure that it has all necessary approvals or consents, including, where required, from the Member, to promote the Products to all Members to whom any communications are sent using the SNIPERMobile Service.

9.2             The Vendor is responsible for managing the return of any Products by a Member.

10.             Warranties

10.1          The Vendor warrants to MobileDigital and the Member that:

(a)             it has legal title to any Product listed on the Platform clear of any encumbrances, liens and claims;

(b)             the supply of the Product through the Platform is lawful;

(c)             the description of the Product provided on the Platform is current and accurate;

(d)             it will fulfill all Orders in a timely manner; and

(e)             the Products will be supplied to the Member free of any defects and in full compliance with all applicable laws.

10.2          The Vendor acknowledges and agrees that it is solely responsible for:

(a)             the description of Products and fulfillment of all Orders including delivery;

(b)             the quality of Products;

(c)             the performance of Products; and

(d)             the management and resolution of any dispute or claim by the Member or any third party in respect of a Product.

11.             Liability and Indemnities

11.1          Nothing in this clause 11 excludes, restricts or modifies any terms, conditions or warranties, or MobileDigital ’s liability for them, which are imposed or implied by statute, including but not limited to the Competition and Consumer Act 2010 (Cth), and by statute cannot be excluded, restricted or modified. All exclusions and limitations of MobileDigital ’s liability under these Terms and Conditions must be read subject to this clause 11.1.

11.2          To the extent it is lawfully able to do so, MobileDigital expressly limits its liability for breach of any non-excludable statutory guarantee with respect to any supply of services (or failure to supply services) to the supply of the services again or the payment of the costs of having the services supplied again.

11.3          The Vendor acknowledges and agrees that MobileDigital will not be liable for, and the Vendor waives any right it has to claim, any loss not arising naturally according to the usual course of things, any loss of income, loss of actual or anticipated profit, loss of production, loss of contract, loss of Members, goodwill, opportunity or business, or loss of data arising under or in connection with the use of the Platform or these Terms and Conditions, whether in contract, tort (including negligence), under statute, in equity or otherwise.

11.4          Subject to clauses 11.1, 11.2 and 11.3, to the maximum extent permitted by law, the maximum aggregate liability of MobileDigital arising out of or in connection with these Terms and Conditions, whether arising under contract, in tort (including negligence), in equity, under statute or otherwise, will be limited to $1.00.

11.5          The Vendor agrees to indemnify and keep indemnified MobileDigital, its directors, officers, employees and agents, against any and all liability or claim incurred or suffered by MobileDigital arising from or in any way connected with:

(a)             the description or quality of the Products;

(b)             a breach by the Vendor of any of its obligations under these Terms and Conditions or any of the warranties given by the Vendor pursuant to these terms and Conditions; or

(c)             any act or default or omission or wilful misconduct or negligence of the Vendor in connection with these Terms and Conditions,

provided that the Vendor will not be liable under this clause 11.5 to the extent to which the liability or claim is caused or contributed to by any negligent or wrongful act or omission or wilful misconduct of MobileDigital.

12.             Privacy

MobileDigital will comply with its obligations under the Privacy Act 1988 (Cth) and will deal with personal information in accordance with its published privacy policy.  This policy is available on request or on MobileDigital ’s website.

13.             Amendment of Terms and Conditions 

13.1          MobileDigital may at any time amend the Terms and Conditions, including the rate of the Service Fee or the Commission, by giving not less than 30 days’ prior notice to the Vendor, by publishing the amended Terms and Conditions on its website.

13.2          If MobileDigital publishes the revised Terms and Conditions on its website, the amended Terms and Conditions (or Service Fee or Commission) are effective from the effective date stated in the Terms and Conditions or 30 days after the date of publication on the website, whichever is later.

14.             Severance

If any provision or part of any provision of these Terms and Conditions is invalid, illegal or unenforceable, such provision or part thereof will be severed from the Terms and Conditions and the remainder will continue in full force and effect.

15.             Assignment

MobileDigital may assign its rights or novate its rights or obligations under these Terms and Conditions (in whole or in part) to any person without the consent of the Vendor.

16.             Governing Law and Jurisdiction

The Terms and Conditions will be governed by and construed in accordance with the laws in force in the State of Queensland. Each party submits to the non-exclusive jurisdiction of the courts of Queensland.