PROPERTY TERMS OF SERVICE

1. Introduction

These Terms of Use (Terms) are a contract between the registered accommodation property (You, Your) and reZme Pty Ltd (We, Us or Our) and govern your access to and use of the Cherry browser extension, Cherry mobile application, Cherry Admin and Cherry website, located at www.joincherry.com and all other Cherry-branded websites (Collectively, Cherry) and related Services (Services).

 2. Accepting the Terms

a. By registering your property with Cherry, you agree to comply with and be bound by these terms.

b. The acceptance of these terms is not contingent on the release of functionality not available as of the effective Date. Although you will have access to future functionality according to our development schedule, custom development and future functionality is not guaranteed and is outside the scope of these Terms.

c. New functionality may or may not be included in your monthly fees .

d. You represent that you have the authority to bind your property to these Terms.

e. These Terms are reZme Pty Ltd Confidential Information.

f. We may change these Terms from time to time. We will ask you to confirm acceptance of any changes.

3. Term

a. Your term starts (Start Date) once you successfully register your property and are approved by Cherry.

b. The initial Term is for one month from the Start Date and automatically renews.

c. After the initial Term, you may cancel at any time by contacting our customer support department and providing 60 days notice.

4. Payment of Fees

a. You agree to pay us the applicable monthly fee you agreed to at time of registration.

b. We reserve the right to change the Fees or applicable charges from time to time but will provide at least sixty (60) days prior notice to you, which may be sent via email.

c. If you believe that we have billed you incorrectly, you must contact us no later than 60 days after receiving the incorrect invoice, to receive an adjustment or credit. Inquiries should be directed to our customer support department.

d. Your monthly fee will be automatically debited to your nominated payment method within seven (7) days of an invoice being issued. At time of registration, you must choose to setup either Credit Card payment or a Bank Account Direct Debit. You are responsible for correctly providing your Credit Card or Direct Debit information via the Cherry admin.

e. By providing your payment information you authorise us to charge your nominated payment method each month for payment as per the applicable fee.

f. Automated charges will be processed on or before the seventh (7th) day of the month in advance of use for the month. The first payment will be prorated based on the number of active days Cherry is used in the first month (For the purpose of clarity this is dictated by the Start Date).

g. We only accept Visa, Mastercard. American Express and Bank Account Direct Debit and a transaction processing fee of 1.8% will be added to all payments to cover processing costs.

h. If for any reason we are unable to process any charge or payment, your use of Cherry will be suspended, until you provide an alternative payment method via the Cherry Admin.

5. Liability

a. Your Consumer Rights

Nothing in these Terms excludes, restricts or modifies any rights that you have under Applicable Laws (including the Australian Consumer Law) that cannot be lawfully excluded, restricted or modified together (Your Consumer Rights). You can find out more about Your Consumer Rights from the ACCC and State/Territory fair trading authorities.

b. Our Liability

i. To the extent permitted by Your Consumer Rights, we do not give any warranties or guarantees that the Services will operate in an uninterrupted, fault-free or 100% accurate manner.

ii. Subject to Your Consumer Rights, we are not liable for Consequential Loss or Loss arising from your own conduct.

iii. If we are required to take responsibility for Loss under the Australian Consumer Law (ACL) then,

iv. to the extent permitted, our liability is limited to resupplying, or paying the cost of resupplying, the relevant Services.

v. If you suffer Loss in connection with the Services, you must take reasonable steps to minimise your Loss, including by promptly notifying us so we can take steps to help you minimise your Loss.

c. Your Liability

You indemnify us against any Loss we suffer in connection with your wilful misconduct or breach of our IP Rights or Applicable Law. This indemnity continues for two years after the termination or expiration of these Terms.

 6. Restrictions and Responsibilities

a. Except as otherwise permitted by the Copyright Act 1968 (Cth) or agreed to in writing by us, you must not reverse compile, disassemble, remove, release, disclose, reveal, copy, extract, modify or otherwise reverse engineer all or any part of the Services or any software, documentation or data related to the Services.

b. You hereby agree to indemnify and hold harmless reZme Pty Ltd against any damages, losses, liabilities, settlements and expenses (including without limitation costs and legal fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of our Services. Although we have no obligation to monitor your use of the Services, we may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

c. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, the property account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.

 7. Data collection

a. In connection with providing the Services, we may collect Personal Information about you, including contact details, payment and bank information, necessary or desirable to provide the Services.

b. We may also collect aggregated data about the Services, including debugging and device usage information (Aggregated Data). Such Aggregated Data will not identify you.

c. Use of collected data

i. We may use and disclose the Personal Information and other data that we collect to supply the Services (including diagnostics). We may use and disclose Aggregated Data for any purpose.

ii. We may disclose the Personal Information and other data if requested by a law enforcement agency, court, Authority, legal practitioner or required by an Applicable Law.

d. Data retention

i. We may retain Personal Information collected in connection with the supply of the Services for as long as required by Applicable Law.

ii. We retain the right to the Aggregated Data collected in connection with the supply of the Services during the Contract Term and thereafter.

8. Confidentiality and Intellectual Property

a. Trademarks

We own or license the trademarks used in connection with the Services. You must not reproduce, publish or otherwise use any such trademark without our consent. We may use your brand in our marketing collateral and on our website in connection with the Services.

b. Intellectual property rights

i. We own or license all IP Rights in Cherry and the Services. We own any IP we create in connection with Cherry or the Services.

ii. We license you to use our IP Rights to the extent necessary to use the Services in accordance with these Terms. You have no other interest in or to our IP Rights.

c. Confidential Information

You must not use our Confidential Information except to use the Services in accordance with these Terms. You must not disclose our Confidential Information (other than your employees, officers and advisors on a need-to-know basis) except as required by law.

9. Termination

a. You may terminate your use of Cherry under these terms by providing us with 60 days notice, once the initial term is complete.

b. We may terminate or restrict the Services if:

i. you fail to pay us any Fees that are due;

ii. you breach these Terms;

iii. we suspect that you have misused, or are misusing, the Services;

v. if reasonably required due to events outside of our control or operational reasons (e.g., maintenance).

c. Either party may, by notice to the other party, immediately terminate the Services if the other party

i. breaches any material provision of the Terms and the breach is not remedied within 30 days of the other party notifying it of the breach; or capable of being remedied;

ii. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager,

iii. appoints a mortgagee and becomes subject to any form of insolvency a action or

iv. enters into external administration, or ceases to continue business for any reason; or

v. is unable to perform a material obligation under these Terms for 30 days or more due to Force Majeure.

d. Termination or expiry of these Terms does not enact either party’s rights and obligations accrued before that termination or expiry.

e. Each party must, at the other party’s request following the termination or expiry of the Terms, return to the other party or destroy all Confidential Information of the other party

 10. Warranty and Disclaimer

a. We shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Services in a professional and proper manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control, but we shall use reasonable efforts to provide advance notice by email of any scheduled service disruption. However, we do not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.

b. While all due care has been taken, we do not warrant that the operation of the Services will be uninterrupted or error free or that any third party components of the Services, will be accurate or error free or that the Services will be compatible with any application, program or software not specifically identified as compatible by us.

c. Our obligation and your exclusive remedy during the Subscription Period are limited, in our absolute discretion, to:

i. us, at our own expense, using all reasonable endeavours to rectify any non-conformance of the Services by repair (by way of a patch, workaround, correction or otherwise) within a reasonable period of time; or

ii. a refund of the previous months subscription fees, if, in our reasonable opinion, we are unable to rectify such non-conformance within a reasonable timescale or at an economic cost.

d. You acknowledge and accept that it is your sole responsibility to ensure that:

i. the facilities and functions of the Services meet your requirements;

ii. the Services are appropriate for your specific circumstance and are within the laws and regulations of your jurisdiction.

e. We do not purport to provide any legal, taxation or accountancy advice by providing these Service.

f. We will not be liable for any failure of the Services to provide any function not described in the documentation (provided online as part of the Services) or any failure attributable to:

i. any modification to the Services other than by you;

ii. accident, abuse or misapplication of Services by you;

g. If, upon investigation, a problem with the Services is determined not to be our responsibility, we may invoice you for all reasonable costs and expenses incurred by us in the course of or in consequence of such investigation.

 11. Notices – from you to us

a. Our website includes our contact details, including instructions about how to give a notice to us. This may be by email (to a specified address for notices) or any other way we specify. We may change these instructions from time to time. You should check the appropriate way to give us a notice each time you wish to send us one.

b. A notice is taken to have been received at noon on the next Business Day in Melbourne, Victoria, Australia, subject to a ‘delivery failure’ message not being given

 2. General

a. Cooperation

If there are operational or performance issues with the Services, you must reasonably assist us to troubleshoot and rectify them.

b. GST

In this clause, an italicised expression has the meaning in the GST Act.

c. Charges are taken to be GST inclusive unless they are expressed to be GST exclusive, + GST or similar.

d. If an amount is GST inclusive, it is the gross amount, inclusive of any GST payable in respect of any taxable supply for which the amount is paid. Otherwise:

i. the consideration payable by you represents the value of any taxable supply for which payment is to be made; and

ii. if we make a taxable supply for a consideration, which represents its value, you must pay immediately the amount of any GST payable in respect of the taxable supply.

e. If you are required to pay, reimburse or contribute to an amount paid or payable by us in respect of an acquisition of a taxable supply from a third party, the amount you must pay, reimburse or contribute will be the value of the acquisition by us less any input tax credit to which we are entitled plus, if our recovery from you is a taxable supply, any GST payable under this clause.

f. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

g. Your agreement to these Terms is not assignable, transferable or sublicensable by you, except with our prior written consent.

h. We may transfer and assign any of our rights and obligations in these Terms without consent.

i. This Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided in these Terms.

j. No agency, partnership, joint venture, or employment is created as a result of agreement to these Terms and you do not have any authority of any kind to bind us in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and legal fees.

k. A failure or delay by us in exercising any right under these Terms does not operate as a waiver of the right.

l. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognised overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

m. The agreement of these terms takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.

13. Dictionary & interpretations

a. Dictionary

Unless the context indicates otherwise:

ACL – the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2012 (Cth).

Aggregated Data – see clause 6.

Authority – any governmental, semi-governmental, administrative, judicial or quasi-judicial body, authority, agency or entity and includes private authorities that have authority in relation to a party.

Applicable Law – any Law which you or we are required to comply with at any time.

Business Day – a day that is not a Saturday, Sunday or public holiday in Melbourne Victoria.

Charge or Charges – an amount we may charge in accordance with clause 3

Confidential Information – all information in any form relating or belonging to a party of a confidential nature, excluding information that:

i. becomes generally available to the public (except as a result of a breach of confidentiality); or

ii. is independently developed by or already known to the disclosee.

Consequential Loss – economic loss; business interruption; loss of revenue, profits, anticipated savings, data, opportunity; punitive or other forms of non-compensatory damages and consequential loss within the meaning of Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26.

Consumer Guarantee – the consumer guarantees in sections 51 to 63 of the ACL.

Corporations Act – Corporations Act 2001.

Default Rate – two percentage points above the Commonwealth Bank's 90-day bank bill rate or, if there is no such reference rate, Commonwealth Bank's rate for overdraft facilities in excess of $100,000 available to prime commercial customers from time to time.

Direct Debit – a payment that is deducted by us from your nominated account.

Direct Loss – loss or damage arising in connection with these Terms or anything done under it, excluding Consequential Loss.

Dollar or $ – Australian dollars.

Fees – the monthly subscription costs as published on www.JoinCherry.com

GST – goods and services tax under GST Law

GST Act – the A New Tax System (Goods and Service Tax) Act 1999.

GST Law – as in the GST Act.

IP – anything in which IP Rights subsist.

IP Rights – all industrial and intellectual property rights that may subsist in Australia or anywhere, including patents, copyright, rights in circuit layouts, designs, trademarks and domain names.

Law – any law, statute, regulation, binding code or industry standard, as updated or replaced from time to time and includes a direction of an Authority.

Loss – Direct Loss and/or Consequential Loss.

Personal Information – as in the Privacy Law.

Privacy Law – Privacy Act 1988 (including the Australian Privacy Principles) and any Law that applies to a party with respect to privacy.

Privacy Policy – https://www.joincherry.com/privacy

Subscription Term – the period of subscription under clause 2.

Services – see clause 1

Start Date – The date you subscription term commences.

Tax – any tax, rate, levy, impost or duty (other than income tax of any person) and any related interest, penalty, fine or expense.

Terms – this document as amended.

Your Consumer Rights – see clause 4

b. Interpretation

Unless the context indicates otherwise:

a. a reference to the singular includes the plural and vice versa, and one gender includes all genders;

b. a ‘person’ includes any entity that can sue and be sued and any legal successor to or representative of that person;

c. a reference to a document or a Law includes the document or Law as modified or replaced from time to time;

d. ‘in writing’ include any communication capable of being read; and

e. anything that is unenforceable must be read down to the point of severance if necessary; and

f. money amounts are exclusive of GST.