Terms & ConditionsLast updated: August 16, 2022
TAGR Retail Pty Ltd – Standard Legal Terms &
Part A– Defined terms and interpretation
1. Defined terms
In this Agreement, capitalised terms have the meanings set out below and as set out in Part A
Agreement means, collectively, Part A & Part B of this document.
means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and
equivalent State and Territory fair trading legislation.
Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane,
means in relation to a party to this Agreement, an event where:
(a) a person who Controls the party at the date of this Agreement
stops having Control; or
(b) a person who did not Control the party at the date of this
Agreement obtains control of that party.
Claim means any claim, action, proceeding or demand, however it arises and
whether it is present or future, fixed or unascertained, actual or contingent.
has the meaning given in Item 5 of the relevant Statement of Work.
(a) terms of this Agreement, any Statement of Work and their
(b) all information of or used by a party relating to their transactions,
operations and affairs;
(c) all other information treated by a party as confidential;
(d) all notes, data, reports and other records (whether or not in
tangible form) based on, incorporating or derived from information
referred to in paragraphs (a) or (c) of this definition; and
(e) all copies (whether or not in tangible form) of the information,
notes, reports and records referred to in clauses (a), (c) or (d) of
that is not public knowledge (other than as a result of a breach of a
confidentiality obligation of a party).
Control a person has control if:
(a) in relation to a body corporate:
(i) the person has the capacity to determine the composition
of the board of directors of the body corporate;
(ii) the person has the capacity to determine the financial and
operating policies or management of the body corporate;
(iii) the person holds or owns:
(A) the majority of the issued shares of the body
(B) the majority of the issued shares of the ultimate
holding company of the body corporate;
(a) in relation to a trust:
(i) the person is the sole trustee of the trust;
(ii) the composition of the board of directors of any trustee
company of the trust is determined by the person;
(iii) the board of directors of any trustee company of the trust
is accustomed to act in accordance with the instructions,
directions or wishes of the person;
(iv) the person directly or indirectly has the capacity to
determine the financial and operating policies or
management of the trustee company of the trust; or
(v) the person holds or owns:
(A) the majority of the issued shares of any trustee
company of the trust; or
(B) the majority of the issued shares of the ultimate
holding company of any trustee company of the
(C) the majority of the units, securities or other rights
granted by the trust entitling holders to
distributions from the trust; and
(b) in relation to any other entity, the person directly or indirectly has
the capacity to determine the financial and operating policies or
management of the entity,
and Controlled as a corresponding meaning.
Controlled Goods means:
(a) counterfeit goods or pirated content, or any other goods that
infringe third-party Intellectual Property Rights;
(c) dangerous goods, being goods that cause damage, harm or injury,
including (without limitation) recreational drugs (chemical or
herbal), psychoactive substances, equipment to facilitate drug use,
weapons, ammunition, explosive materials and fireworks,
instructions for making explosives or other harmful products,
(d) adult merchandise, including (without limitation) sex toys, adult
magazines and books, sexual enhancement products and
pornographic materials and items;
(e) alcoholic beverages;
(f) gambling-related content;
(g) medicines and dietary supplements;
(h) products that enable dishonest behaviour, including (without
limitation) hacking software or instructions, fake documents and
academic cheating products;
(i) electronics, including (without limitation) mobile phones,
computers/laptops, tablets, drones and televisions;
(j) without limiting the above, any goods which are required by law to
be sold to Customers over 18 years of age; and
any other goods which we consider, in our reasonable discretion, to be
dangerous, inappropriate or high risk.
Corporations Act means the Corporations Act 2001 (Cth).
Customer means any person who buys Goods from you via Your Website or In-Store
using the TAGR Service.
Customer Data means data received, generated, compiled, arranged or Developed by us
in the course of supplying the TAGR Service that relates to your business
and / or the behaviour and information of Customers.
(a) the Privacy Act 1988 (Cth) and any ancillary rules, guidelines,
orders, directions, directives, codes of conduct or other
instruments made or issued under it, as amended from time to
(b) the Australian Privacy Principles (or APPs) contained in schedule
1 of the Privacy Act 1988 (Cth); and
(c) all other laws, regulations, registered privacy codes, privacy
policies and contractual terms applicable in the jurisdiction where
the TAGR Services are being provided that relate to the
processing of personal information.
Developed means, in connection with a thing, to develop, create, add, enhance,
reduce, adapt or prepare derivative works based on that thing.
Digital Receipt means the digital receipt given to Customers on successful payment of the
Goods, which may then be shown to your Personnel to verify payment.
(a) a PPS Security Interest;
(k) any other mortgage, charge, pledge or lien or a preferential or
adverse interest of any kind;
(l) an easement, restrictive covenant, caveat or similar restriction over
property (except, in the case of land, a covenant noted on the
certificate of title to the land concerned);
(m) an agreement to create any of the items referred to in paragraphs
(a) to (c) above or to allow any of those items to exist;
(n) a notice under section 255 of the Income Tax Assessment Act
1936 (Cth), subdivision 260-A in schedule 1 of the Taxation
Administration Act 1953 (Cth), or any similar legislation; or
(o) any other right (including under a trust or agency arrangement) of
a creditor to have its claims satisfied before other creditors with, or
from the proceeds of, or by recourse to any asset and includes any
agreement, arrangement or deed conferring that right.
means the date that is 120 days after Digital Receipt is provided to you or
a Customer for the relevant TAGR Purchase.
Goods means the goods supplied by you to a Customer via the TAGR Service.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Term has the meaning given in Item 5 of the relevant Statement of Work.
Insolvency Event means any of the following events concerning a party, unless the events
take place as part of a solvent reconstruction, amalgamation, merger or
consolidation on terms approved by the other parties before it takes place
and the implementation of the reconstruction, amalgamation, merger or
consolidation complies with the terms of the approval:
(a) if an application is filed for the winding up of the party or any of its
Subsidiaries and the application is not dismissed or withdrawn
within 15 Business Days of that application being filed;
(p) if a receiver, receiver and manager, controller (as defined in
section 9 of the Corporations Act), or similar person is appointed
to, or the holder of a Security Interest takes (or appoints an agent
to take) possession of, or takes steps to exercise a power of sale
in respect of any property of the party or any of its Subsidiaries;
(q) if a provisional liquidator is appointed to the party or any of its
(r) if the party or any of its Subsidiaries:
(i) is placed into administration (as defined in section 9 of the
Corporations Act) or enters into a deed of company
arrangement (as defined in section 9 of the Corporations
(ii) any other person takes any step towards placing the party
or any of its Subsidiaries into administration or towards
entering into a deed of company arrangement;
(iii) without the written consent of the relevant counterparty,
suspends payments of its debts other than as the result of
a failure to pay a debt or claim which is the subject of a
(iv) ceases or threatens to cease to carry on all or a material
part of its business;
(v) is or states that it is unable to pay its debts as and when
they fall due and payable;
(vi) is taken to fail to comply with a statutory demand under
section 459F of the Corporations Act;
(vii) files a debtor’s petition under section 55 of the Bankruptcy
Act 1996 (Cth) or a declaration to present a debtor’s
petition under section 54A of the Bankruptcy Act 1966
(viii) is the subject of a creditor’s petition presented under
Division 2, Part 4 of the Bankruptcy Act 1966 (Cth).
includes patents, utility models, rights to inventions, copyright and
neighbouring and related rights, trade marks, business names and domain
names, rights in get-up and trade dress, goodwill and the right to sue for
passing off, rights in designs, rights in computer software, database rights,
rights to use, and protect the confidentiality of, confidential information
(including know-how and trade secrets), and all other intellectual property
rights, in each case whether registered or unregistered and including all
applications and rights to apply for and be granted, renewals or extensions
of, and rights to claim priority from, any rights and all similar or equivalent
rights or forms of protection that subsist or will subsist now or in the future
in any part of the world.
Invalid means a TAGR Purchase where:
Transaction (a) the TAGR Purchase is illegal, including, without limitation, because
it is in breach of any Relevant Law;
(b) you or your Personnel know of or have reason to suspect any
suspicious activity relating to the TAGR Purchase;
(c) you or your Personnel have engaged in any fraudulent conduct in
connection with the TAGR Purchase;
(d) the date of the TAGR Purchase is a date after the relevant
Statement of Work was suspended or terminated in accordance
with this Agreement or that Statement of Work;
(e) your Personnel have not seen or received from the Customer a
(f) the Sale Price for a TAGR Purchase is greater or less than that
charged to the Customer under any other circumstances;
(g) you have arranged without our consent for a third party to supply
(h) the Goods purchased do not comply with the Australian Consumer
(i) if you have received a complaint in relation to the Goods delivered
to the Customer, where you are unable to resolve the complaint to
the Customer’s reasonable satisfaction within a reasonable time.
Party Details and
means Part A of this Agreement.
has the meaning given to that term by the PPSA.
Personnel means any of a party’s directors, officers, employees, subcontractors,
agents or representatives involved either directly or indirectly in the
performance of that party’s obligations under this Agreement or any
Statement of Work.
means a security interest as that term is defined in the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth).
means electronic banners and logos, lightboxes, point of sale materials,
and any other marketing, advertising and promotional materials relating to
the TAGR Service provided by us to you from time to time.
Refund means a partial or whole cash refund of the Sale Price for any Goods
purchased through the TAGR Service. To avoid doubt, a Refund does not
include ‘store credits’ or similar non-cash refunds.
Refund Amount means, in respect of any Goods, the lower of:
(a) the Sale Price for those Goods; and
(b) any other amount that is due to the Customer or paid by you in
accordance with your refund policies or as otherwise required by
Refund Fee has the meaning set out in clause 12(c) of the Standard Merchant Terms.
Relevant Laws means any law, regulation, code, ordinance, rule or other legislative
instrument, or any guideline issued by any regulator or statutory authority
or any relevant industry codes including, without limitation, the Competition
and Consumer Act 2010 (Cth), the Anti-Money Laundering and Counter-
Terrorism Financing Act 2006 (Cth) and the Privacy Act 1988 (Cth).
Return means the return of any Goods to you by a Customer in connection with a
TAGR Purchase (other than a return of Goods by the Customer for the
purposes of an exchange, the grant of store credit or for repair) initiated by
the Customer on or before the Final Returns Date.
Sale Price means the purchase price of the Goods supplied by you (including GST),
including any adjustment for any discount to the purchase price for any
Goods purchased through the TAGR Service, excluding a discount issued
in relation to shipping or delivery costs.
Security Interest means:
(a) for Personal Property, a PPS Security Interest; and
(s) for any other property, an Encumbrance that secures the payment
of money or the performance of an obligation of any other interest
or arrangement of any kind.
means the special conditions (if any) set out in Item 7 of the relevant
Statement of Work.
means Part C of this Agreement.
means a statement of work entered into by the parties under this
Agreement, in the form set out in Annexure A.
Store means any physical location in Australia at or from which you supply the
Goods, or conduct transactions for the supply of the Goods including those
set out in a Statement of Work, and In-Store has a corresponding
has the meaning given in Item 3 of the relevant Statement of Work.
Subsidiary has the meaning given to that term by section 9 of the Corporations Act.
Support Services means the support services to be provided by TAGR to you in relation to
the TAGR Service in accordance with the Schedule 1 of this Agreement.
means all Intellectual Property Rights of which we are the owner or
licensee, including the Promotional Material and the Customer Data.
means the online merchant interface provided to you by us which is
accessible via our website at merchant.tagr.io.
TAGR Platform means the online platform developed by us to facilitate cashless and
has the meaning given in Item 6 of the relevant Statement of Work.
TAGR Purchase means a purchase by a Customer of any Goods using the TAGR Service.
has the meaning given in Item 6 of the relevant Statement of Work.
TAGR Service means the services facilitated through the TAGR Platform, including the
provision of the cashless and contactless purchasing system, the Support
Services, and any other associated software or hardware we have
developed. The specific services available to you will be as varied by your
means the TAGR Purchase Fee and TAGR Platform Fee.
means all trade marks owned or licensed by us.
means documentation and any other evidence we require to satisfy or
comply with any “know your customer”, “know your client” or “client vetting”
procedures in connection with the provision of the TAGR Service.
Warranties means the warranties, representations and indemnities given in
accordance with clause 15 of the Standard Merchant Terms.
Your Website means any electronic retail sales facility (including any website and mobile
or tablet sites or applications) operated by you.
In this Agreement:
(a) a reference to a clause, schedule, annexure or party is a reference to a clause of, and a
schedule, annexure or party to, this Agreement and references to this Agreement include
any schedules or annexures;
(b) a reference to a party to this Agreement or any other document or agreement includes the
party's successors, permitted substitutes and permitted assigns;
(c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) a reference to a document or agreement (including a reference to this Agreement) is to that
document or agreement as amended, supplemented, varied or replaced;
(e) a reference to this Agreement includes the agreement recorded by this Agreement;
(f) a reference to legislation or to a provision of legislation (including subordinate legislation) is
to that legislation as amended, re-enacted or replaced, and includes any subordinate
legislation issued under it;
(g) if any day on or by which a person must do something under this Agreement is not a
Business Day, then the person must do it on or by the next Business Day;
(h) a reference to a person includes a corporation, trust, partnership, unincorporated body,
government and local authority or agency, or other entity whether or not it comprises a
separate legal entity;
(a) a reference to '$' or 'dollar' is to Australian currency; and
(i) the meaning of any general language is not restricted by any accompanying example, and
the words 'includes', 'including', 'such as', or 'for example' (or similar phrases) do not limit
what else might be included.
In the event of inconsistency between:
(a) the Special Conditions specified in the relevant Statement of Work (if any);
(b) the relevant Statement of Work;
(c) the Schedules of this Agreement;
(d) the operative provisions of this Agreement (being Part A (Party Details and
Acknowledgement), Part B (Defined terms and interpretation) and Part C (Standard
Merchant Terms)); and
(e) any other document incorporated into this Agreement or the relevant Statement of Work by
Part B– Standard Merchant Terms
4. Agreement and Statements of Work
4.1 Statements of Work
(a) The parties may enter into Statements of Work under this Agreement from time to time.
(b) Each Statement of Work incorporates the terms and conditions of this Agreement.
(a) The parties agree that this Agreement and the relevant Statement of Work supersedes any
and all prior merchant agreements between the parties with respect to the TAGR Service.
(b) If you have not accepted this Agreement prior to using the TAGR Service in accordance
with Item 2 of the Party Details and Acknowledgement, your use of the TAGR Service will
constitute acceptance of this Agreement.
4.3 Variation of Agreement and Statements of Work
(a) We will periodically review the TAGR Service and the terms of this Agreement and
Statements of Work to ensure they continue to meet your requirements and current market
conditions. Accordingly, we may unilaterally alter, vary or amend this Agreement or
Statements of Work. We will give you no less than 60 days’ written notice prior to the
proposed variation becoming effective. If you do not want to continue receiving the TAGR
Service as a result of the proposed variation, you may terminate this Agreement or a
Statement of Work in accordance with clause 14 . You will be deemed to have accepted
any variation proposed by us under this clause 4.3(a) through:
(i) your written acceptance of the proposed variation; or
(ii) your continued use of the TAGR Service after the effective date of the variation.
(b) Clause 4.3(a) does not apply where we cease to waive one or more of your obligations. For
example, if we elect to waive your obligation to pay the TAGR Platform Fee for several
months at the start of the Initial Term, at the expiration of that waiver period, we may begin
charging you the TAGR Platform Fee that would ordinarily have been payable. You will
have no right to terminate this Agreement or the relevant Statement of Work in accordance
with clauses 4.3(a) or 14 as a result.
(c) If you wish to vary this Agreement, a Statement of Work or the TAGR Service, you may
submit a written variation request to us setting out the variation requested. We are not
required to agree to your requested variation and will only do so expressly in writing at our
absolute discretion. For the avoidance of doubt, the continued supply of the TAGR Service
does not constitute acceptance of your requested variation.
(d) Notwithstanding clause 4.3(c) , if your written variation request is a request to vary your
(i) we will take all reasonable steps to affect this variation within a reasonable time of
(ii) your TAGR Platform Fee and the TAGR Purchase Fee will continue to be
calculated in accordance with your existing Subscription Level up to and including
the last day of the calendar month in which the variation is affected pursuant to
clause 4.3(d)(i) , at which point moving forward your TAGR Platform Fee and TAGR
Purchase Fee will be calculated in accordance with your varied Subscription Level;
(iii) you acknowledge that any variation to the terms of this Agreement or the Relevant
Statement of Work (including increasing the amounts payable by you) connected
with your request pursuant to this clause 4.3(d) will not enliven your right to
terminate this Agreement or a Statement of Work in accordance with clauses
4.3(a) or 14 ; and
(iv) any fees or costs incurred by us in removing or granting you access to the
additional services and perks pursuant to the variation of your Subscription Level
will be payable by you.
5.1 Term of Agreement
(a) This Agreement will become effective on the date that you agree to its terms and conditions
and will continue until the expiry or termination of all Statements of Work, unless either
party terminates this Agreement earlier in accordance with clause 14 .
5.2 Term of Statements of Work
(a) A Statement of Work will become effective on the Commencement Date and will continue
for the Initial Term.
(b) A Statement of Work will automatically renew for additional successive terms of 12 months,
unless either party terminates a Statement of Work earlier in accordance with clause 14 .
6. Supply of the TAGR Service
6.1 Supply of the TAGR Service
We agree to provide the TAGR Service in accordance with this Agreement and the relevant
Statement of Work; however, we have no obligation to supply the TAGR Service until you have
completed and returned to us and we have verified the Verification Documentation.
(a) We may offer training to your Personnel in the use, operation and / or maintenance of the
TAGR Service. The training offered (if any) will vary on a case-by-case basis depending
on, among other things, the nature of your business and the experience of your Personnel.
At a minimum, it will reasonably enable technically competent operators to acquire the
skills necessary to efficiently use, operate and / or maintain the TAGR Service.
(b) Notwithstanding clause 6.2(a) , you remain ultimately responsible at your own cost for the
training and education of your Personnel so that they are familiar with the TAGR Service,
your obligations under this Agreement and the relevant Statement of Work, and to ensure
that TAGR Purchases are processed in accordance with this Agreement and the relevant
Statement of Work.
7. Your obligations
(a) (Integration) comply with any direction we give you in respect of the integration and
implementation of the TAGR Service with your business. You must obtain our written
approval before you allow Customers to make TAGR Purchases where you have
implemented the TAGR Service other than in accordance with the materials that we have
provided to you.
(b) (Availability) make the TAGR Service available for use by Customers as soon as
reasonably practicable after (or as otherwise agreed by us in writing) we have verified the
Verification Documentation, and continue to allow Customers to make TAGR Purchases as
permitted under this Agreement and the relevant Statement of Work, as long as this
Agreement and the relevant Statement of Work remains on foot, except:
(i) where we have suspended your access to the TAGR Service in accordance with
the terms of this Agreement;
(ii) after notice of immediate termination of this Agreement or the relevant Statement
of Work has given by either party; or
(iii) as otherwise directed by us in writing, acting reasonably;
(c) (Promotional Materials):
(i) comply with any reasonable direction we give you to display, distribute, remove or
change the display of, Promotional Materials on Your Website and/or In-Store (as
applicable). These materials may be provided by or on behalf of us, but you will
not be required to purchase any such materials without your agreement. Without
limiting this clause 7.1(c) , you must:
(A) include a description of the TAGR Service in such terms as may be
otherwise provided or approved by us in writing (and at all times in
accordance with clause 19 ), and
(B) comply with any reasonable direction we give you about the description
that is displayed (including to modify, replace or remove);
(ii) comply with any direction we give you to modify, delete or remove content or
material from display as soon as practicable and, at the latest, within seven
Business Days of the request (unless you can otherwise establish to our
reasonable satisfaction within this time frame that the content or materials comply
with the requirements of this Agreement or the relevant Statement of Work). If you
breach this clause 7.1(c) , or if we reasonably suspect that you have breached it, in
accordance with clause 13 we have the right to suspend your access to the TAGR
(iii) display or implement any marketing collateral In-Store as soon as reasonably
practical, in line with any positioning or display directions we issue (unless
unreasonable or impracticable);
(d) (False and misleading information):
(i) not provide Customers with false, misleading or inaccurate information about us or
the TAGR Service. Without limiting this clause 7.1(d)(i) , this includes by providing
any warranty or statement other than those:
(C) contained in this Agreement, the relevant Statement of Work or any other
user agreement entered into by the parties (subject always to the
confidentiality requirements set out in this Agreement);
(D) included on our website; or
(E) included in promotional materials provided to you by us (including
as these may be updated from time to time, or as otherwise expressly permitted by
us in writing; and
(ii) not provide us with any information that is false, inaccurate or misleading;
(e) (Customer disputes) promptly resolve all disputes with Customers, which includes taking
any reasonable action directed by us;
(i) comply with all Relevant Laws in fulfilling your obligations under this Agreement
and a Statement of Work. We may suspend our supply of the TAGR Service to
you if we reasonably believe processing the TAGR Purchase in connection with
this Agreement or a Statement of Work may breach any Relevant Law; and
(ii) assist us to comply with our obligations under any Relevant Laws as reasonably
directed by us;
(g) (Interference) not damage, intercept or interfere with the TAGR Service, including through
the use of software, hardware or any device;
(h) (Proposed sale of Controlled Goods) notify us if you intend to advertise and offer to sell
Controlled Goods via the TAGR Service. We reserve the right to prohibit the use of the
TAGR Service to purchase such goods;
(i) (representative) acknowledge that you are wholly responsible for the actions of any
person to whom access to the TAGR Merchant Portal is granted, including any person who
abuses his / her rights. If you would like us to amend or remove a person’s rights, you must
provide us with written instructions to do so; and
(j) (Continuous obligations) immediately notify us in writing if:
(i) circumstances arise which may have a material adverse effect on your business,
assets or financial condition, or your ability to perform your obligations under this
Agreement or a Statement of Work;
(ii) if you change the premises from which you conduct your business (including where
you obtain a new website);
(iii) if you materially change the nature, scope or type of your business or product
(iv) if you intend to cease carrying on business.
7.2 TAGR Purchases
(a) When a Customer makes a TAGR Purchase In-Store:
(i) we will promptly issue or present a Digital Receipt to that Customer, through the
TAGR Platform, which they can then present to your In-Store Personnel to confirm
payment for the Goods; and
(ii) the Goods must be delivered to the Customer immediately after your Personnel are
presented the Digital Receipt, unless you expressly agree to an alternative delivery
time with the Customer. You must only deliver Goods to a Customer after you
have received the Digital Receipt. To the extent we are liable for Goods delivered
under this Agreement or a Statement of Work (if at all), we will not be liable to you
for Goods delivered without a Digital Receipt.
(b) Notwithstanding clause 7.2(a) , if you receive a Digital Receipt after the Goods have been
delivered to the Customer, then this Agreement and the relevant Statement of Work will
apply in accordance with its terms in respect of that TAGR Purchase.
(c) You must not increase the Sale Price, charge a Customer any other fees or otherwise
increase the overall cost to the Customer for the purchase of the Goods, because the
Customer has elected to use the TAGR Service.
(d) You are responsible for ensuring that appropriate insurance policies are in place for your
Goods and the delivery of the Goods to Customers.
8. Intellectual Property Rights
8.1 Intellectual Property Rights
(a) All Intellectual Property Rights in the TAGR Service, including any improvements made
during the duration of this Agreement or a Statement of Work remain vested in TAGR.
(b) Except as expressly contemplated by this Agreement or a Statement of Work, neither party
will acquire any interest in the Intellectual Property Rights of the other and must not use the
Intellectual Property Rights of the other in any way except:
(i) with the prior written approval of the other, and in accordance with the terms of any
such approval; and
(ii) as specifically authorised in this Agreement or the relevant Statement of Work.
(c) We grant you a non-exclusive, non-transferable, revocable and royalty free licence (without
any right to sublicense) to use and reproduce:
(i) the TAGR Trade Marks; and
(ii) any other TAGR Intellectual Property we choose (in our discretion) to provide you
in connection with this Agreement (which may include the Promotional Materials
and Customer Data),
where used solely in connection with your performance of your obligations under this
Agreement, a Statement of Work or in accordance with any other written directions we may
give you from time to time. We agree to not revoke this licence in a manner inconsistent
with your rights and obligations under this Agreement or a Statement of Work.
(d) Except to the extent that such use is expressly permitted under this Agreement (including
clause 8.1(c) ), a Statement of Work or expressly agreed to by us in writing, you must seek
our written approval before using any TAGR Intellectual Property.
(e) You must immediately discontinue the use or display of any TAGR Intellectual Property, or
change the manner in which the TAGR Intellectual Property is used or displayed whenever
we reasonably request that you do so. For the avoidance of doubt, this will not be treated
as a proposed variation of this Agreement or a Statement of Work in accordance with
clause 4.3 .
(f) Except as expressly provided in this Agreement or a Statement of Work, you may not do
any of the acts and will not have any of the powers referred to in section 26 of the Trade
Marks Act 1995 (Cth).
(g) As between the parties, title to and all Intellectual Property Rights associated with, the
Customer Data, vests in TAGR upon creation, and you absolutely and unconditionally
assign (if necessary) to TAGR all Intellectual Property Rights associated with the Customer
Data immediately upon creation, free of all Encumbrances and third-party rights.
8.2 Use of marketing materials
(a) You permit us to use your name, logo and details of Your Website in any of our marketing
materials, including on our website and via posts on any social media. If you provide us
notice that you want these details to be updated or removed, we will seek to do so as soon
as possible after receiving this notice.
(b) Where our use of any material or content contemplated by this Agreement or a Statement
of Work requires third-party consent or licence, you must take all reasonable steps we
require to obtain or assist us in obtaining such consent or licence without an attribution right
(c) You agree that we may use, without charge, any content you include on your social medial
accounts or websites, provided that we:
(i) credit you as the source of the content, or include any other statement of attribution
that you require, acting reasonably; and
(ii) promptly remove or alter such content at your written request.
(d) For the avoidance of doubt, nothing in this Agreement or a Statement of Work obliges us to
promote Your Website, Store or business.
The parties must:
(a) not make or permit the making of any disparaging comments, or make, publish or permit
the making of any statement or do any other thing which may tend materially to harm or
prejudice the other party’s reputation or goodwill, including through the use of social media;
(b) agree to immediately remove or assist in procuring the removal of any prejudicial
information published upon written request by the other party.
10. Software licence
(a) We grant you a non-exclusive, non-transferable, royalty-free licence (without any right to
sublicense) for the term of this Agreement to use all software (if any) provided by us under
this Agreement, solely to the extent required for the performance of your obligations and
your use of the TAGR Service under this Agreement and the relevant Statement of Work.
(b) Subject to clause 15 and to the maximum extent permitted by law, all software we provide
to you is provided on an “as is” and “as available” basis and we exclude all representations
and warranties, whether express or implied, regarding the software. No undertaking or
assurance is given in respect of the performance of the software or its reliability, accuracy,
adequacy or completeness (including whether it is error free and will provide continuous,
uninterrupted or secure access to the TAGR Service).
(c) You must not, in respect of any software:
(i) modify, adapt, alter, translate or create derivative works based on our software;
(ii) copy, frame or mirror any part or content of our software other than copying for
your own internal business purposes;
(iii) sublicence, lease, loan, decompile, disassemble, reverse engineer or otherwise
attempt to derive the source code for our software; and
(iv) access our software in order to:
(A) build a competitive product to the TAGR Service with the software; or
(B) copy any features, functions or graphics of the software,
without our prior written consent.
(d) On the termination of this Agreement, you must permanently delete all copies of our
software in your possession or under your control.
11. Fees, billing and payments
(a) The Sale Price will be paid to, or as directed by, you for each TAGR Purchase, minus the
TAGR Purchase Fee we charge in accordance with Item 5 of the relevant Statement of
Work, within five Business Days of the date of the TAGR Purchase.
(b) On the last day of each month, you will pay to us the TAGR Platform Fee for that month (if
any), in the manner as directed by us from time to time.
(c) You are responsible for, and indemnify us for all costs associated with chargebacks
(including associated charge back fees or other costs incurred, and those pursuant to
clause 12 ) payable in connection with a TAGR Purchase, including where the TAGR
Purchase is treated as an Invalid Transaction.
(d) Our right to amend this Agreement or a Statement of Work in accordance with clause 4.3
extends to the right to increase or decrease the TAGR Service Fee charged, as well as
introduce a further class of fees.
12. Payments, Returns and Refunds by Customers
(a) The Return or proposed Return of Goods to you by a Customer and subsequent Refund in
accordance with your refund policy and the Relevant Law is a matter between yourself and
the Customer. We will owe no obligation and will not be liable to either you, the Customer
or a third party in connection with the Return of the Goods and any associated Refund of
the Sale Price.
(b) Notwithstanding clause 12(a) , you must notify us within three Business Days of the Return
of Goods via the TAGR Merchant Portal of the Return and enter the Refund Amount for
(c) If, for whatever reason, we are required to provide a Refund of the Sale Price (or
equivalent) for any TAGR Purchase paid to you in accordance with clause 11(a) , and any
other refund, chargeback, or other administrative fee or similar, either to a Customer or
other third party (including a payment gateway service provider) (Refund Fee), you must
pay to us on demand the amount of the Refund Fee.
13. Suspension of access
(a) We may suspend your access to the TAGR Service immediately (or from such other date
as we may nominate) by giving you written notice if:
(i) you have breached, or we reasonably suspect that you have breached, any
provision of this Agreement or a Statement of Work;
(ii) you undergo a Change of Control without having provided prior notice to us; or
(iii) we reasonably consider your behaviour to have an adverse effect on us, our
business or our stakeholders.
(b) This suspension will remain in place until:
(i) in relation to clause 13(a)(i) , you have rectified the breach to our reasonable
satisfaction or you have demonstrated, to our reasonable satisfaction, that you did
not breach this Agreement or the relevant Statement of Work;
(ii) in relation to clause 13(a)(ii) , we are able to verify your new owner or controller and
we are otherwise satisfied that the existence of the new owner or controller does
not breach any Relevant Law or have an adverse effect on us;
(iii) in relation to clause 13(a)(iii) , you have, to our reasonable satisfaction, rectified any
adverse effect your behaviour has had on us; or
(iv) this Agreement or the relevant Statement of Work is terminated in accordance with
clause 14 .
(c) While any suspension remains, without limiting your other obligations under this
Agreement, you must promptly comply with all reasonable directions that we give on
performance of your obligations, and use of your rights, under this Agreement and the
relevant Statement of Work.
14.1 Termination for convenience
Either party may terminate this Agreement or a Statement of Work for any reason by giving at least
90 days’ prior written notice.
14.2 Termination for cause
(a) Either party may terminate this Agreement or a Statement of Work immediately (or from
such other date as it may nominate) by giving the other party a written notice of termination
if the other party:
(i) breaches any provision of this Agreement or the relevant Statement of Work and it
has failed to remedy such breach within 14 days of the date of a written notice
issued to it by the first party requiring rectification of the breach (unless the breach
is incapable of remedy, in which case this Agreement or the relevant Statement of
Work can be terminated immediately);
(ii) engages in any illegal, negligent or fraudulent activity or conduct; and
(iii) is the subject of an Insolvency Event.
(b) In addition to the termination rights provided under clause 14.2(a) , we may terminate this
Agreement or a Statement of Work immediately (or from such other date as we may
nominate) by giving you a written notice of termination if we reasonably believe that:
(i) a Warranty you have made is incorrect or untrue, or becomes incorrect or untrue;
(ii) you are offering for sale and selling Controlled Goods without having provided us
notice of this fact; and
(iii) you undergo a Change of Control without providing prior notice to us.
14.3 Consequences of termination
(a) Termination of this Agreement or a Statement of Work does not affect any right or
obligation which arose before such termination or which arises in respect of any Goods that
are Returned after such termination, and is without prejudice to the parties' other rights and
(b) Termination of this Agreement will automatically terminate all Statements of Work in effect
as at the date of termination.
(c) Upon termination of this Agreement for any reason:
(i) you must promptly return to us any Promotional Material and other content or
material incorporating TAGR Intellectual Property in your possession or control;
(ii) each party must promptly return to the other any Confidential Information or
property of the other in the first party's possession or control;
(iii) all rights and licences granted under this Agreement will terminate immediately,
except as expressly provided in this Agreement, and you must:
(F) immediately cease using all TAGR Intellectual Property, including by
removing all references to TAGR or the TAGR Service from Your Website
and In-Store; and
(G) comply with your obligation in clause 10(d) .
(d) Upon termination of a Statement of Work for any reason, all rights and licences granted
under this Agreement in respect of that terminated Statement of Work will terminate
immediately, except as expressly provided in this Agreement.
(e) For the avoidance of doubt, termination of a particular Statement of Work will not affect the
continued operation of this Agreement or any other Statements of Work that have not been
14.4 Surviving terms
Without limiting the other provisions of this Agreement or a Statement of Work, clauses 12
(Payments, Returns and Refunds by Customers), 14.3 (Consequences of Termination), 15
(Warranties), 16 (Limitations of Liability), 17 (Indemnities), 19 (Confidentiality), 22 (General) and 23
(Notice), along with all other terms intended to survive termination of this Agreement or a Statement
of Work, will survive termination of this Agreement or the relevant Statement of Work.
15.1 Your representations and warranties
You make the following representations and warranties to us:
(a) (Your Website) that you have the ability to display the Promotional Materials and other
marketing materials we may provide you from time to time on Your Website or In-Store.
(b) (Information) that all information you provide in the Verification Documentation, or
otherwise provided to us in connection with this Agreement or a Statement of Work, is
complete, current and correct.
(c) (Authorised representative) that the person who:
(i) completed the Verification Documentation (if required); and
(ii) entered into this Agreement or a Statement of Work on your behalf,
was duly authorised to do so and to bind you.
(d) (Compliance with law) that you have complied with all Relevant Laws in carrying out your
obligations in relation to the TAGR Purchase and in accordance with this Agreement and
the relevant Statement of Work.
(e) (TAGR Purchases generally) that, in relation to each TAGR Purchase:
(i) you are not aware of any fact which would cause the TAGR Purchase to be treated
as an Invalid Transaction;
(ii) neither you nor your Personnel have concealed or otherwise failed to disclose to us
any information you or your Personnel become aware of which is contrary to any of
the statements made through the TAGR Purchase or in any other information or
documentation provided by you to us;
(iii) the TAGR Purchase represents a bona fide sale of the Goods by you in the
ordinary course of your business and only Goods sold by you are the subject of the
(iv) that you have not sought or obtained, and will not seek or obtain, any special
arrangement or condition from, nor discriminated in any way against, the Customer
with respect to the terms of the TAGR Purchase;
(v) you have delivered or have arranged for delivery of, all the Goods involved in the
(vi) the Goods, at the time they were delivered to the Customer, complied with the
Australian Consumer Law; and
(vii) the Customer has, or will have, title to the Goods listed and clear of all
Encumbrances or Claims.
15.2 Our warranties and representations or otherwise
(a) We do not give any express warranty, including any express warranty as to the suitability of
the TAGR Service, except as may be expressly provided in this Agreement or a Statement
(b) Given the nature of the TAGR Service (including our reliance on systems and services that
we do not own or control), we cannot guarantee continuous, uninterrupted or secure
access to the TAGR Service, and we make no representation or warranty regarding the
amount of time needed to perform the TAGR Service by a third-party service provider
(including payment gateway service provider).
(c) Notwithstanding clauses 15.2(a) and 15.2(b) , certain legislation, including the Australian
Consumer Law, may imply warranties or conditions into this Agreement or a Statement of
Work, or otherwise impose obligations on us, which cannot be excluded, restricted or
modified, except to a limited extent. This Agreement and each Statement of Work must be
read subject to such legislation, and nothing in this Agreement or a Statement of Work is
intended to restrict the effect of any warranties or conditions implied into this Agreement or
a Statement of Work by that legislation, except to the extent that the relevant laws allow.
(d) However, to the extent permitted by law, and subject to clause 15.2(c) , we do not give any
implied warranty, and specifically disclaim implied warranties of merchantability, fitness for
a particular purpose, title, compatibility, security, accuracy or non-infringement.
16. Limitation of liability
16.1 Limitation of liability
(a) To the full extent permitted by law, and subject to clause 15.2(c) :
(i) we will not be liable for any loss or damage which you may incur as a result of the
TAGR Service being unavailable, except where such loss or damage arises as a
result of our gross negligence, wilful misconduct or breach of this Agreement or a
Statement of Work. For the avoidance of doubt, we will have no liability where our
ability to supply the TAGR Service or your ability to use the TAGR Service, or its
operation, is affected due to utilities, systems, and / or services used for accessing
the TAGR Service (including due to failure or delays in relation to public telephone
services, computer networks or the internet, or due to the platform services that
support the delivery of the TAGR Service) which are unavailable from time-to-time;
(ii) we will not be liable for the acts or omission of a third-party service provider;
(iii) we will not be liable for any loss or damage caused by errors or omissions in any
information or instructions provided to us by you in connection with this Agreement,
a Statement of Work and the TAGR Service; and
(iv) a party’s liability to any other entity under or in connection with this Agreement or a
Statement of Work is reduced to the extent, if any, to which the other entity’s acts
or omissions cause or contribute to its own loss or damage, or to which the
unlawful or negligent acts or omissions of a third party cause or contribute to its
loss or damage.
(b) For the avoidance of doubt, nothing in this Agreement or a Statement of Work is intended
to limit our liability or impose liability on you in a manner which would be considered unfair
under the Australian Consumer Law.
16.2 Maximum liability
Our liability for any and all claims brought against us, no matter how arising, will not exceed the
aggregate TAGR Service Fees we have invoiced you under the relevant Statement of Work giving
rise to the liability during the 6 months before the date the liability arose.
The parties and any other entity entitled to recover under this Agreement or a Statement of Work
must take all reasonable steps to mitigate any loss incurred by them in respect of this Agreement or
a Statement of Work.
16.4 Consequential loss
We will not be liable to you for any liability for any consequential or indirect loss, including loss of
data (including the Customer Data), business interruption, loss of profit or revenue, loss of use of
any site, loss in connection with any late performance or delivery, loss of reputation, loss of
business or business interruption, loss of opportunity arising out of or in connection with this
Agreement or a Statement of Work, or loss in connection with breach of third-party contracts or
(a) You indemnify and hold harmless us and our related bodies corporate and our respective
Personnel from and against all Claims resulting from or arising in connection with:
(i) any breach by you of your obligations under this Agreement or a Statement of
(ii) any transaction, contract, understanding, promise, representation, warranty or
other relationship, actual, asserted or alleged, between you and any Customer
relating to the TAGR Service;
(iii) any Goods (including, without limitation, any product liability or warranty claim
relating to those Goods, any claim that the supply of the Goods breaches the
Australian Consumer Law or any other statutory guarantee, and any claim by the
Customer relating to the quality or sufficiency of the Goods); and
(iv) any false or misleading representation or illegal, negligent or fraudulent conduct or
omission by you or your Personnel in connection with a TAGR Purchase or any
related Goods, the TAGR Service or any related matter.
(b) We indemnify and hold harmless you or your related bodies corporate and their respective
Personnel from and against all Claims resulting from or arising in connection with:
(i) any breach by us of our obligations under this Agreement or a Statement of Work;
(ii) any false or misleading representation or illegal, negligent or fraudulent conduct or
omission by us or our Personnel in connection with a TAGR Purchase or any
related Goods, the TAGR Service or any related matter.
(c) The indemnities in this clause 17 are a continuing obligation, independent of any other
obligations under this Agreement or a Statement of Work, and continue after this
Agreement or the relevant Statement of Work ends.
(d) It is not necessary for any party to incur expense or make payment before enforcing a right
of indemnity under this Agreement or a Statement of Work. However, neither party shall be
entitled to exercise a right of indemnity under this clause 17 where it relates to a particular
Customer's TAGR Purchase until after the indemnified party has raised the relevant issue
with the indemnifying party for discussion, and the indemnifying party has had a reasonable
time to respond or to remedy the issue with that Customer to the indemnified party’s
(e) To the extent that the indemnity in clause 17(a) is in favour of a person other than us, we
contract as trustee of the rights under the indemnity for that person.
(a) Both parties must comply with all applicable requirements of the Data Protection
(b) Without prejudice to the generality of clause 18(a) , you will ensure that you have all
necessary and appropriate consents and notices in place to enable lawful collection of any
Customer Data by TAGR for the duration and purposes of this Agreement or a Statement
of Work so that we may lawfully use, process and transfer the Customer Data.
(c) We will notify you within a reasonable time if we become aware of any security incident
affecting our network and information systems that could potentially affect you and will
respond as soon as possible to any query and request for information.
19.1 Information to be kept confidential
(a) Each party (a Recipient) agrees and undertakes that it will keep confidential and will not
use for its own purposes and will not without the prior written consent of the other party (a
Disclosing Party) disclose to any third party, any Confidential Information provided to or
obtained by the Recipient prior to or after entry into this Agreement or a Statement of Work,
or which may become known to the Recipient as a result of complying the terms of this
Agreement or a Statement of Work.
(b) Each party agrees to keep the terms of this Agreement, Statements of Work and nature of
the relationship between the parties confidential.
19.2 Permitted disclosure
(a) The Recipient will not at any time, before, during or after the expiry of this Agreement or a
Statement of Work, use or disclose any Confidential Information, for any purpose other
than as strictly necessary to comply with its obligations under this Agreement or a
Statement of Work, and only after ensuring that any persons to whom the information is
disclosed are aware of its confidential nature and the obligations restricting its use and
(b) The Recipient may disclose Confidential Information to its officers, employees, financiers,
consultants and advisers who have a need to know (and only to the extent that each has a
need to know) and are aware that the Confidential Information must be kept confidential.
19.3 Data protection
(a) Both parties must comply with all applicable requirements of the Data Protection
(b) Both parties must take and implement all such technical and organisational security
procedures and measures necessary or appropriate to preserve the security and
confidentiality of any personal data they control or process under or in connection with this
Agreement or a Statement of Work.
20. Relationship of the parties
(a) This Agreement or a Statement of Work does not create a relationship of employment,
trust, agency, or partnership between the parties nor constitutes or may be construed to
constitute a party as a representative of another party.
(b) We do not:
(i) guarantee the identity of any Customer who may place an order to buy goods from
you or assume any other responsibility for that Customer other than as set out in
this Agreement or a Statement of Work; or
(ii) determine if you are liable for any taxes, or collect or pay any taxes that may arise
from your use of our Services.
Any terms capitalised in this clause 21 and not already defined in this Agreement or a Statement of
Work have the same meaning given to those terms in the GST Act and:
(a) Progressive or Periodic Supply means a Taxable Supply that satisfies the requirements
of section 156-5 of the GST Act; and
(b) Supplier means the entity making the Supply.
1.2 GST inclusive
The consideration for a Supply made under or in connection with this Agreement or a Statement of
Work includes GST.
1.3 Taxable Supply
If a Supply made under or in connection with this Agreement or a Statement of Work is a Taxable
Supply, then at or before the time any part of the consideration for the Supply is payable:
(a) the Recipient must pay the Supplier an amount equal to the total GST for the Supply, in
addition to and in the same manner as the consideration otherwise payable under this
Agreement or a Statement of Work for that Supply; and
(b) the Supplier must give the Recipient a Tax Invoice for the Supply.
1.4 Later GST change
For the avoidance of doubt, the GST payable under clause 21.3 is correspondingly increased or
decreased by any subsequent adjustment to the amount of GST for the Supply for which the
Supplier is liable, however caused.
1.5 Reimbursement or indemnity
If either party has the right under this Agreement or a Statement of Work to be reimbursed or
indemnified by another party for a cost incurred in connection with this document, that
reimbursement or indemnity includes any GST component of that cost for which an Input Tax Credit
may be claimed by the party being reimbursed or indemnified, or by its Representative Member,
Joint Venture Operator or other similar person entitled to the Input Tax Credit (if any).
1.6 Warranty that Tax Invoice is issued regarding a Taxable Supply
Where a Tax Invoice is given by the Supplier, the Supplier warrants that the Supply to which the
Tax Invoice relates is a Taxable Supply and that it will remit the GST (as stated on the Tax Invoice)
to the Australian Taxation Office.
1.7 Progressive or Periodic Supplies
Where a Supply made under or in connection with this Agreement or a Statement of Work is a
Progressive or Periodic Supply, clause 21.3 applies to each component of the Progressive or
Periodic Supply as if it were a separate Supply.
A party may only assign this Agreement, a Statement of Work or a right under this Agreement or a
Statement of Work with the written consent of the other party whose consent may not be
This Agreement or a Statement of Work may be signed in any number of counterparts. All
counterparts together make one instrument.
3.3 No merger
The rights and obligations of the parties under this Agreement or a Statement of Work do not
merge on completion of any transaction contemplated by this Agreement or the relevant Statement
3.4 Entire agreement
(a) This Agreement and the relevant Statement of Work supersedes all previous agreements
about its subject matter. This Agreement and the relevant Statement of Work embodies
the entire agreement between the parties.
(b) To the extent permitted by law, any statement, representation or promise made in any
negotiation or discussion, is withdrawn and has no effect except to the extent expressly set
out or incorporated by reference in this Agreement or the relevant Statement of Work.
(c) Each party acknowledges and agrees that it does not rely on any prior conduct or
representation by the other party in entering into this Agreement or the relevant Statement
3.5 Further assurances
Each party must do all things reasonably necessary to give effect to this Agreement, a Statement of
Work and the transactions contemplated by them.
3.6 No waiver
(a) The failure of a party to require full or partial performance of a provision of this Agreement
or a Statement of Work does not affect the right of that party to require performance
(b) A single or partial exercise of or waiver of the exercise of any right, power or remedy does
not preclude any other or further exercise of that or any other right, power or remedy.
(c) A right under this Agreement or a Statement of Work may only be waived in writing signed
by the party granting the waiver, and is effective only to the extent specifically set out in
3.7 Governing law and jurisdiction
(a) Queensland law governs this Agreement and each Statement of Work.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts
and courts competent to hear appeals from those courts.
(a) A clause or part of a clause of this Agreement or a Statement of Work that is illegal or
unenforceable may be severed from this Agreement or the relevant Statement of Work,
and the remaining clauses or parts of the clause of this Agreement or the relevant
Statement of Work continue in force.
(b) If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction, it is to be
treated as being severed from this Agreement or the relevant Statement of Work in the
relevant jurisdiction, but the rest of this Agreement or the relevant Statement of Work will
not be affected.
Each party bears its own costs in relation to the preparation and signing of this Agreement and
each Statement of Work.
4.1 Method of giving notice
A notice, consent or communication under this Agreement or the relevant Statement of Work is only
effective if it is:
(a) in writing in English, signed by or on behalf of the person giving it;
(b) addressed to the person to whom it is to be given; and
(c) given as follows:
(i) delivered by hand to that person's address;
(ii) sent to that person's address by prepaid mail or by prepaid airmail, if the address is
(iii) sent by fax to that person's fax number where the sender receives a transmission
confirmation report from the despatching machine indicating the transmission has
been made without error and showing the relevant number of pages and the
correct destination fax number or name of recipient; or
(iv) sent by email to that person’s email address.
4.2 When is notice given
A notice, consent or communication given under clause 23.1 is given and received on the
corresponding day set out in the table below. The time expressed in the table is the local time in
the place of receipt.
If a notice is It is given and received on
Delivered by hand or sent by
(a) That day, if delivered by 5.00pm on a Business Day; or
(t) The next Business Day, in any other case.
Sent by email At the time of departure from the sender’s mail server unless the
sender receives an automated message generated by the
recipient’s mail server (Failure Message) that the email has not
been delivered within two hours.
For the avoidance of doubt any response generated by or at the
instigation of the recipient (including an ‘out of office’ message)
will not be a Failure Message.
Sent by post (b) Three Business Days after posting, if sent within
(u) Seven Business Days after posting, if sent to or from a
place outside Australia.
4.3 Address for notices
A person's address, fax number and email address are those set out in this Agreement or the
relevant Statement of Work, or as the person otherwise notifies the sender.