Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation our Stocky platform and services. By using Stocky you agreeing to these terms and conditions.
You should print a copy of these terms and conditions for future reference. We will not file a copy specifically in relation to you, and they may not be accessible on our website in future.
These terms and conditions are available in the English language only.
If you have any questions or complaints about our services, please contact us by email to firstname.lastname@example.org.
1. Definitions and interpretation
1.1 In the Agreement:
“Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
“Agreement” means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions and any amendments to the Agreement from time to time;
“Business Day” means any week day, other than a bank or public holiday in Australia;
“Business Hours” means between 09:00 and 17:00 Sydney time on a Business Day;
“Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement;
“Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly);
“Customer” means the customer specified in the Statement of Services;
“Customer Confidential Information” means
(a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential;
(b) the financial terms and conditions of the Agreement;
(c) the Customer Materials;
"Customer Materials" all works and materials:
(a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer's account; and
(b) otherwise provided by the Customer to the Provider in connection with the Agreement;
“Defect” means a defect, error or bug having an adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents, suppliers or sub-contractors; or
(b) an incompatibility between the Platform and any other system, application, program or software not specified as compatible in the Statement of Services;
"Documentation" means the documentation produced by the Provider and made available on the Platform to the Customer specifying how the Platform should be used;
“Effective Date” means the date that the Agreement comes into force as specified in Clause ;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Permitted Purpose" means managing inventory;
“Personal Data” has the meaning given to it in the The Privacy Act 1988 under Australian law;
“Platform” means the software platform known as Stocky that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under the Agreement;
“Provider” means Vinderbit Pty Ltd, a company incorporated in Australia (ABN: 68 601 152 452) having its registered office at 305/30 Kingsway, Cronulla NSW 2230;
“Services” means all the services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services;
"Support Services" means support and maintenance services provided or to be provided by the Provider to the Customer;
“Term” means the term of the Agreement; and
“Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.
1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The Clause headings do not affect the interpretation of the Agreement.
1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement.
The Agreement will come into force on the Effective Date and will continue in force until Stocky is uninstalled upon which it will terminate automatically.
3.1 The Platform will automatically generate an account for the Customer promptly following the Effective Date, enabling the Customer to access the Platform.
3.2 Subject to the limitations set out in Clause [3.3] and the prohibitions set out in Clause [3.4], the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term.
3.3 The licence granted by the Provider to the Customer under Clause [3.2] is subject to the following limitations:
(a) the Platform may only be used by the employees, agents and sub-contractors of the Customer and:
(i) where the Customer is a company, the Customer's officers;
(ii) where the Customer is a partnership, the Customer's partners; and
(iii) where the Customer is a limited liability partnership, the Customer's members;
3.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause  is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform;
(b) the Customer must not frame or otherwise re-publish or re-distribute the Platform;
(c) the Customer must not alter or adapt or edit the Platform;
3.5 For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.
3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.
3.7 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account.
3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
3.9 The Customer must not use the Platform:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.1 During the Term the Provider will provide the Support Services to the Customer, and may apply Upgrades to the Platform.
4.2 The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.
5.1 The Customer grants to the Provider during the Term a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement.
5.2 Subject to Clause [5.1], all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.
5.3 The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of the Agreement, will not:
(a) breach any laws, statutes, regulations or legally-binding codes;
(b) infringe any person's Intellectual Property Rights or other legal rights; or
(c) give rise to any cause of action against the Provider or the Customer or any third party,
in each case in any jurisdiction and under any applicable law.
6. Trial period
The first 30 days of the Term shall be a trial period, during which all of the provisions of this Agreement shall apply, save as follows:
(a) the Customer shall have no obligation to pay the Charges in respect of the trial period;
(b) the Customer may terminate the Agreement immediately by uninstalling Stocky via Shopify at any time before the end of the trial period;
(b) the Provider may terminate the Agreement immediately by giving written notice to the Customer at any time before the end of the trial period;
7.1 All charges will be managed using Shopify.
8.1 The Customer warrants to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement.
8.2 The Provider warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement;
(b) that it will perform its obligations under the Agreement with reasonable care and skill;
(c) the Platform (excluding for the avoidance of doubt the Customer Materials) will not infringe any person's Intellectual Property Rights in Australia and under Australian law;
8.3 The Customer acknowledges that:
(a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs;
(b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software and;
(c) the Provider will not and does not purport to provide any legal, taxation or accountancy advice under the Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) the Provider does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
8.4 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement.
9.1 The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause [5.3].
9.2 The Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause [8.2(c)].
10.1 Nothing in the Agreement will:
(a) limit or exclude the liability of a party for death or personal injury resulting from negligence;
(b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party;
(c) limit any liability of a party in any way that is not permitted under applicable law; or
(d) exclude any liability of a party that may not be excluded under applicable law.
10.2 The limitations and exclusions of liability set out in this Clause  and elsewhere in the Agreement:
(a) are subject to Clause [10.1];
(b) govern all liabilities arising under the Agreement or any collateral contract or in relation to the subject matter of the Agreement or any collateral contract, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and
(c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement.
10.3 Neither party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.
10.4 Neither party will be liable for any loss of business, contracts or commercial opportunities.
10.5 Neither party will be liable for any loss of or damage to goodwill or reputation.
10.6 Neither party will be liable in respect of any loss or corruption of any data, database or software.
10.7 Neither party will be liable in respect of any special, indirect or consequential loss or damage.
10.8 Neither party will be liable for any losses arising out of a Force Majeure Event.
10.9 Neither party's liability in relation to any event or series of related events will exceed the total amount paid and payable by the Customer to the Provider under the Agreement during the 6 month period immediately preceding the event or events giving rise to the claim.
10.10 Neither party's aggregate liability under the Agreement and any collateral contracts will exceed the total amount paid and payable by the Customer to the Provider under the Agreement.
11.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement.
11.2 The Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer.
12.1 The Provider will:
(a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause ;
(b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and
12.2 Customer Confidential Information may be disclosed by the Provider to its officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Customer Confidential Information disclosed.
12.3 The obligations set out in this Clause  shall not apply to:
(a) Customer Confidential Information that is publicly known (other than through a breach of an obligation of confidence);
(b) Customer Confidential Information that is in possession of the Provider prior to disclosure by the Customer;
(c) Customer Confidential Information that is received by the Provider from an independent third party who has a right to disclose the relevant Confidential Information; or
(d) Customer Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body[, provided that the Provider must where permitted by law give to the Customer prompt written notice of the disclosure requirement].
13.1 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any breach of any term of the Agreement, and:
(i) the breach is not remediable;
13.2 Either party may terminate the Agreement immediately by giving written notice to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); or
(d) (where that other party is an individual) that other party dies, or as a result of illness or incapacity becomes incapable of managing his or her own affairs, or is the subject of a bankruptcy petition or order.
13.3 The Customer may terminate the Agreement by uninstalling Stocky via Shopify.
13.4 If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate the Agreement by giving at least 60 days' written notice of termination to the Customer.
14.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses [1, 7.5, 9, 10, 12, 14 and 17].
14.2 Termination of the Agreement will not affect either party's accrued liabilities and rights as at the date of termination.
14.3 Subject to Clause [14.4], within 30 days following the termination of the Agreement, the Provider will:
(a) irrevocably delete from the Platform all Customer Confidential Information;
14.4 The Provider may retain any document (including any electronic document) containing the Customer Confidential Information after the termination of the Agreement if:
(a) the Provider is obliged to retain such document by any law or regulation or other rule enforceable against the Provider; or
(b) the document in question is a letter, email, order confirmation, invoice, receipt or similar document addressed to the Provider.
15.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address or email address (email@example.com) (or as notified by one party to the other in accordance with this Clause).
15.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):
(a) where the notice is delivered personally, at the time of delivery;
(b) where the notice is sent by recorded signed-for post, 48 hours after posting; and
(c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission).
16. Force Majeure Event
16.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement, those obligations will be suspended for the duration of the Force Majeure Event.
16.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will:
(a) forthwith notify the other; and
(b) will inform the other of the period for which it is estimated that such failure or delay will continue.
16.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.
17.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
17.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
17.3 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
17.4 Each party hereby agrees that the other party may freely assign any or all of its contractual rights and/or obligations under the Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement.
17.5 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
17.6 Subject to Clause [10.1]:
(a) the Agreement constitutes the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and
(b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
17.7 The Agreement will be governed by and construed in accordance with the laws of Australia; and the courts of New South Wales will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.