Terms of Use – Pop Box Operations Pty. Ltd.

1. Acceptance

This website, app, platform and any service offered under the name “Pop Box” (“Platform”) is operated by Pop Box Operations Pty Ltd (ACN 702 558 156) and its related entities or body corporates (“Pop Box”, or “us”, “we” and “our”).
Your use of this Platform is subject to these Terms of Use (“Terms of Use”). The Terms of Use constitute a binding legal agreement between you and us, and your continued use of the Platform constitutes your acceptance and acknowledgement of these Terms of Use, our Privacy Policy, and any other policy displayed on the Platform, all of which constitute a part of the Terms of Use. If you do not agree to the Terms of Use, you must not use the Platform.
Any time you visit the Platform, purchase any goods or services on the Platform, or enter into any transaction on the Platform whatsoever, you are taken to accept these Terms of Use.
We may amend or modify the Platform, the Terms of Use and/or the Privacy Policy at our sole discretion and at any time. Any amendments are effective 14 days after publication on the Platform. Your continued use of the Platform indicates your continued acceptance of the Terms of Use as modified.
These Terms of Use will prevail over any other terms or agreement between you and us.

2. Preconditions to use

To use the Platform, you must be at least 16 years old (and have the legal capacity to enter into binding contracts), or if you are under 16 years old, you must obtain parent or guardian approval before using the Platform.
By visiting, registering, or using the Platform in any way, you warrant to us that you meet the requirements above. If the above requirements are not met, please cease using the Platform immediately.

3. Registration

You may be required to register an account as an Agent, Creative or Supplier to use certain features of the Platform. During the registration process, you will be required to review and accept these Terms of Use and our Privacy Policy via a mandatory checkbox before your account can be created. We may refuse, review or cancel any account registration at our discretion. Once your entity has registered an account then you can set up multiple sub-accounts within the registered entity. Currently, adding sub-accounts does not attract additional Fees, although this may change if subscription plans are introduced in the future. Following registration, you may be required to complete additional profile information relevant to your account type (for example, business details, service offerings, coverage areas, identity verification, and payment information via Stripe Connect).
When you register and activate your account, you may provide us with personal information such as your name and email address and other details. You must ensure that this information is accurate and current. We will handle all personal information we collect in accordance with our Privacy Policy.
You are responsible for keeping your account credentials secure, and you are responsible for all use and activity carried out under your account. You must not share your account credentials with any third party. We do not authorise anyone to use the service on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under your account.
You must not impersonate some other individual, business or company. In case you try to present yourself as another individual or company, your account may be suspended or terminated, and we may take such further action as we deem necessary.

4. Uploaded Content

Where the Platform allows you to upload any Uploaded Content, including posts about services you offer or require, you:
1. represent and warrant to us that you have all rights, title, interest and authority in the Uploaded Content;
2. represent and warrant to us that you have the permission to use the trading name, logo, name and likeness of each entity or person whose name or image appears in any Uploaded Content in the manner contemplated by these Terms of Use;
3. represent and warrant to us that the use or exploitation of Uploaded Content will not infringe the rights of any third party (including, but not limited to, intellectual property rights and privacy rights); and
4. agree and undertake to us to pay all amounts which become owing to any person (whether by way of royalty or otherwise) as a result of or in connection with your submission of the Uploaded Content to or via the Platform.
It is your responsibility to back up any Uploaded Content to your own systems. We do not guarantee that the Platform will always be available at all times.
You agree that we can store Uploaded Content on our servers.
To the maximum extent permitted by law, you release us and indemnify us from any claim or loss in relation to Uploaded Content being stored on our servers.

5. Your Conduct

In using the Platform, you must:
1. always act courteously and politely with us and any other User;
2. strictly comply with any policy displayed on the Platform;
3. obey all laws whatsoever (including international law) which may apply in respect of your use of the Platform;
4. not take any action that is likely to impose upon the Platform (or our servers, or the servers of our or third-party providers) a disproportionately large load;
5. not interfere with the proper working of the Platform or any activities conducted via the Platform, including by using any automated or manual software or process to “crawl”, “spider” or engage in similar conduct in relation to the Platform;
6. not collect content or information from the Platform, or otherwise access the Platform, using automated means, such as through harvesting bots, robots, spiders, or scrapers;
7. except to the extent the Copyright Act allows you to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Platform;
8. not do anything:
  1. that may be considered harassment or bullying;
  2. that may result in you, us or any other User breaching any law, regulation, rule, code or other legal obligation;
  3. that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, profane, in breach of confidence, in breach of privacy or harassing;
  4. that would bring us or the Platform into disrepute;
  5. that infringes the rights of any person;
  6. that you know (or ought reasonably to suspect) is false, misleading, untruthful or inaccurate; or
  7. that contains or constitutes unsolicited or unauthorised advertising (including junk mail or spam).

6. Marketplace

Agents and Creatives may use the Platform in order to enter commercial discussions in relation to the sale of their services. Where a Creative engages Suppliers as subcontractors to assist in delivering services to an Agent, the Creative remains solely responsible for allocating work to, managing, and supervising those Suppliers, and for the delivery of all final content to the Agent. Pop Box has no relationship with, and accepts no liability in connection with, any Supplier engaged by a Creative.
Every time an Agent purchases any services from a Creative using the Platform, the parties enter into a separate Sale Agreement with one another for the Agent to buy, and for the Creative to sell, the relevant services in exchange for the relevant Price.
You agree that all dealings between you and any other User must be conducted exclusively through the Platform. We are not liable in any way whatsoever for any dealings or business transacted outside of the Platform, and transacting outside of the Platform may result in your removal from the Platform.
You agree that the Price will consist of all of the remuneration or payment between the Agent and the Creative and that if any additional amounts are later negotiated, they are taken to be included as an adjustment to the Price which must be recorded on the Platform or notified to us accordingly.
You irrevocably agree that we are entitled to do all actions that we deem necessary (at our sole discretion) in order to facilitate, oversee or supervise the Sale Agreement. You further agree that we may terminate a Sale Agreement if we determine at our reasonable discretion that you or any other relevant User are in breach of these Terms of Use.
Disputes. If there is a dispute between an Agent and a Creative then the parties should inform the Platform of the dispute through the internal chat functionality, and if the dispute cannot be resolved amicably then either party can raise the dispute to be resolved by us through the Platform.

7. Warranties and acknowledgements

You acknowledge, agree and warrant to us that:
1. the only service we provide to you is access to the Platform;
2. a Sale Agreement is a separate agreement directly between the Agent and the Creative. We are not a party to the Sale Agreement in any way, and its formation will not, under any circumstance, create any relationship of employment, agency, partnership or otherwise between us and you, or us and any User;
3. each User is running a separate, independent business from our business. There is no relationship between us and any User beyond that of independent contractors;
4. in relation to each Sale Agreement, it is the Agent, not us, who will be solely liable for payment of the Price. We merely act as a facilitator for such payment on the Platform and we will not be liable for the Price under any circumstance. You agree that you will not pursue any actions, legal or otherwise, against us for any non-payment, and that this provision constitutes a bar to any such actions or proceedings;
5. in relation to each Sale Agreement, it is the Creative, not us, who will be solely liable for the provision of its services. We will not be liable for any issue arising with the Creative’s services under any circumstance. You agree that you will not pursue any actions, legal or otherwise, against us for any issue arising in connection with the Creative’s services, and that this provision constitutes a bar to any such actions or proceedings;
6. in relation to each Sale Agreement, where a Creative has engaged Suppliers as subcontractors, it is the Creative (not us) who is solely liable for the management, conduct, and output of those Suppliers. We will not be liable for any issue arising in connection with a Supplier’s work under any circumstance, and you agree that you will not pursue any actions, legal or otherwise, against us in connection with any Supplier’s conduct or output; and
7. you will not breach any term of the Sale Agreement.

8. Fees

You agree to pay us all applicable Fees as advertised on the Platform. The Platform currently operates as a commission-based model and charges a Fee to each of the Agent and Creative. The Service Fee is calculated as a percentage of the Price under each Sale Agreement, deducted automatically via Stripe Connect (or such other third party payment routing and financial infrastructure tool as Pop Box may use from time to time), on completion of each booking.
There are currently no subscription fees payable on the Platform. If subscription-based fees are introduced in the future, they will be set out on the Platform in accordance with the Premium Subscriptions clause below.
Users must not do anything to effectively circumvent payment of a Fee, including but not limited to finalising a Sale Agreement off the Platform or making any changes to the Sale Agreement which are not reflected on the Sale Agreement recorded on the Platform. All future agreements between an Agent and a Creative that initially contracted on the Platform should be conducted on the Platform. For any breach of this clause, the relevant Users must indemnify us for the amount of the would-be Fee plus any administrative and other expenses suffered by us (including, without limitation, legal costs).
All payments and Fees payable in connection with the Platform (including but not limited to the Price) must be paid using the payment processor currently being used on the Platform. You may be required to create an account with the payment processor and accept their terms of use. Fees that are due are processed automatically using our payment provider, and the Platform will provide or make available a valid GST invoice.
Any Fees are strictly non-refundable unless we determine otherwise, which we may do at our sole discretion and on a case-by-case basis. Where there has been a dispute between an Agent and a Creative which has been resolved through the Platform which results in a refund being paid, the refund may be processed less our reasonable payment processing fees.
Notwithstanding the fee structure set out in these Terms of Use, we reserve the right to implement a new Fee, or modify an existing Fee, for certain current or future features of our Platform. If we implement a new or modified Fee, we will give you advanced notice such as by posting changes on our Platform or sending you an email.
If any Fee is outstanding then we reserve the right to do one or more of the following: (i) charge interest at the annual rate of 2% above the RBA rate, calculated daily; (ii) suspend our Services to you; (iii) prevent you from accessing our Services; and (iv) charge you on an indemnity basis (and you agree to pay) for any fee recovery services such as debt collectors, court fees and solicitors’ fees.

9. Premium Subscriptions

We may, from time to time, provide one or more premium subscription plans on the Platform that allow you to use additional inclusions and features during the chosen subscription period (“Premium Subscription”).
You may purchase a Premium Subscription to the Platform by paying a subscription fee as set out on the Platform in advance on a monthly basis or some other recurring interval disclosed to you prior to your purchase. You must pay us the subscription fee, using the payment service provider currently being used on the Platform, in accordance with these Terms of Use and the payment instructions set out on the Platform from time to time.
We may change the subscription fee or the inclusions of any Premium Subscription from time to time and will communicate any price changes to you. Changes will take effect at the start of the next subscription period following the date of the change. Subject to applicable law, you accept the new price and inclusions by continuing to use the Platform after the price change takes effect. If you do not agree with a change, you have the right to reject the change by unsubscribing from the Premium Subscription prior to the change going into effect.
Your Premium Subscription will automatically renew (and you will be automatically charged the subscription fee again) at the end of the applicable subscription period, unless you cancel your paid subscription before the end of the then-current subscription period. The cancellation will take effect the day after the last day of the current subscription period. We do not provide refunds or credits for any partial subscription periods.

10. Support

We provide general helpdesk support for the Platform. Support requests can be submitted via the Platform’s helpdesk, and we will endeavour to respond during business hours (Monday to Friday, excluding public holidays in New South Wales). We do not guarantee any specific response or resolution time, and we reserve the right to prioritise support requests at our sole discretion.
Future releases of the Platform may include additional support options such as live chat. Any such features will be notified to Users on the Platform when available.

11. Data Security and Backups

We implement reasonable technical and organisational security measures designed to protect user data against unauthorised access, disclosure, alteration and destruction. These measures include the use of encrypted cloud infrastructure for data storage and transmission. Where we hold specific security certifications or engage in third-party security testing, details will be published on the Platform.
Notwithstanding clause 11.1, we do not guarantee that the Platform or user data will be completely secure at all times, and we exclude all liability for any security breach or unauthorised access to the maximum extent permitted by law. You remain responsible for keeping your account credentials secure and must notify us immediately if you become aware of any unauthorised use of your account.
We will maintain regular automated backups of Platform data, including user profiles, job records, messages and transaction details. Backups are stored using encrypted cloud infrastructure managed by our hosting provider. While we take reasonable steps to protect Platform data, we do not guarantee complete data recovery in all circumstances and exclude all liability for data loss to the maximum extent permitted by law.
Job-related content (including raw files, final deliverables such as photographs, floor plans, videos and copy) may be archived by us from time to time. The frequency of archiving will be determined by us at our discretion and may change. You are solely responsible for maintaining your own local copies of all deliverables and financial records, and we strongly encourage you to download and retain copies of all content delivered through the Platform.

12. Data Storage and Disclosure

User data is currently stored on servers located in Australia. The period for which we retain your personal data following account closure will be set out in our Privacy Policy. By using the Platform, you consent to your data being stored in Australia in accordance with our Privacy Policy.
We may disclose your personal information to overseas-based third parties, including technical support and development personnel located overseas (currently including personnel based in Bosnia and Herzegovina). By using the Platform, you consent to your personal information being disclosed to such overseas recipients. We take reasonable steps to ensure that any overseas recipients handle your personal information in a manner consistent with the Australian Privacy Principles. Further information about how we handle and disclose personal information, including our overseas disclosure practices, is set out in our Privacy Policy.
We collect personal information from Users for the purpose of providing the Services, as well as for location and sales analytics, service monitoring, reporting and ongoing improvement of the Platform. Where practicable, analytics data will be aggregated and de-identified so that individuals cannot be readily identified. For full details of the personal information we collect and the purposes for which we use it, please refer to our Privacy Policy.

13. Territory

Regardless of where you access the Platform from, it is your sole responsibility to ensure that your use of the Platform complies with all applicable laws, regulations and obligations in your jurisdiction. We make no representation that the Platform or any content on it is appropriate or available for use in any particular location outside Australia.

14. Intellectual property rights

Except where otherwise indicated or implied by context, we are the sole owners or licensees of all intellectual property comprised in the Platform (including all intellectual property comprised in the Platform content) and any improvements, updates, or modifications of the Platform, and nothing in these Terms of Use constitutes a transfer of any intellectual property rights in or related to the Platform or Platform content.
You acknowledge and agree that the Platform and the content contained therein are protected by copyright, trademarks, service marks, patents, design registrations, and other proprietary rights and laws, and you agree to comply with and maintain all copyright notices and other restrictions on content accessed on or via the Platform.
If you provide us with feedback, comments or suggestions relating to the Platform or our business, then all rights, title and interest in that feedback, and anything created as a result of that feedback (including new material, enhancements, modification, or derivative works), are owned solely by us, and we may use the feedback for any purpose.
You must not do anything which breaches or otherwise interferes with our intellectual property rights or the intellectual property rights of any of our third-party licensors. You may not distribute, reproduce, publish, alter, modify or create derivative works from the Platform content without our prior written permission or that of the relevant third-party licensor or exploit such contents for commercial benefit.
You grant to us a worldwide, irrevocable, royalty free and sublicensable licence to use your trading name, branding and logos both: (i) on the Platform to provide the Services; and (ii) in marketing, advertising and promotional materials (including online and in social media) to promote the Platform.
You acknowledge and agree that damages may not be an adequate remedy for a breach of this clause 14 and that equitable or injunctive relief may be necessary.

15. Third-party sites and services

The Platform contains links to websites that are owned and operated by third parties (Agents and Creatives). We have no control over these external websites, which are governed by terms and conditions and privacy policies independent of us.
You acknowledge and agree that when you access a third-party website available via a link contained on the Platform:
1. you do so at your own risk and understand that you should review the privacy policy and terms and conditions of that website;
2. we are not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third-party website; and
3. you acknowledge and agree that to the full extent permitted by applicable law, we will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access or use of any third-party website available via a link on the Platform.
The Platform may utilise, incorporate or depend on other third-party services (including, without limitation, hosting services) and you agree that to the extent permitted by law, we will not be responsible or in any way liable for any interruptions to the availability of the Platform resulting from the failure of such third-party services.

16. Disclaimer and limitation of liability

To the maximum extent permitted by law, we exclude all Warranties whatsoever unless expressly stated, including but not limited to in relation to any other User of the Platform or any goods or services offered in connection with the Platform or a Sale Agreement.
You acknowledge that when you use the Platform or enter into a Sale Agreement, you do so entirely at your own risk and rely on your own enquiries and judgement. The Sale Agreement is between an Agent and a Creative and we are not a party to it. We can accept no liability or responsibility for any defects in any services provided by a Creative or failure by an Agent to pay the Price under a Sale Agreement. We do not offer reconciliation or mediation services between an Agent and a Creative.
We do not vet, endorse or recommend any particular Creative or the services provided by a Creative, and any rating information displayed on the Platform consists of statements of opinion and not statements of fact or recommendations. Any advice provided on the Platform is of a general nature only.
Our liability arising in connection with these Terms of Use or the Platform is limited as follows:
1. we exclude all liability for loss of profit, loss of business and loss of opportunity;
2. we exclude all liability for consequential, special, indirect or remote loss;
3. our total maximum liability arising in connection with these Terms of Use, other than for fraud or a deliberate breach of these Terms of Use by us, is capped at the total amount of any Fee relevant to the particular matter;
4. our liability is excluded to the extent that you contributed to the liability;
5. we exclude all liability for anything you have been aware of for longer than 16 months and you have not commenced a claim; and
6. our liability is subject to your duty to mitigate your loss.
You agree that you do not rely on the Platform to generate business. We provide the Platform on an “as is” and on an “as available” basis without any Warranties as to continuous, uninterrupted or secure access to the Platform, that its servers are free of computer viruses, bugs or other harmful components, that defects will be corrected, or that you will not have a disruption or other difficulties in using the Platform.
In the event that we terminate the Platform or your access to the Platform pursuant to these Terms of Use, you release us from all liability, Loss or Claims suffered by you as a result of or arising out of such termination.
All subclauses of this clause 16 are cumulative to one another.

17. Release and indemnity

To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.
In this clause:
1. Released Parties means us and our officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, related parties, related body corporates, sponsors, and other third-party partners.
2. Relevant Matter means anything in connection with:
  1. any Sale Agreement;
  2. the action or omission of any User;
  3. any damage to person, property, personal injury or death;
  4. your breach of these Terms of Use;
  5. any matter for which we have purported to disclaim liability for under these Terms of Use;
  6. your use, misuse, or abuse of the Platform; or
  7. your breach or failure to observe any applicable law.

18. Termination

You acknowledge and agree that:
1. we may terminate your access to the Platform at any time without giving any explanation;
2. we may terminate these Terms of Use or any Sale Agreement immediately by notice to you in writing if you are deemed to breach these Terms of Use or associated policies in any way, in our sole discretion; and
3. termination of these Terms of Use, a Sale Agreement or your access to the Platform does not release you from any of your obligations and liabilities that may have arisen or been incurred prior to the date of such termination.

19. General

You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms of Use. We may assign, sublicense, novate or transfer our rights and obligations under these Terms of Use at our sole discretion.
If a provision of these Terms of Use is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
These Terms of Use are governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of the courts of New South Wales and all courts of appeal from there.
Any waiver of any term on these Terms of Use by us can only be done in express writing. Any failure on our part to enforce a term does not constitute a waiver and we reserve the right in relation to all breaches unless expressly stated otherwise.
The contents of these Terms of Use constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of these Terms of Use, whether orally or in writing.
A provision of these Terms of Use that can and is intended to operate after its conclusion will remain in full force and effect despite the termination or expiration of these Terms of Use, including without limitation clauses 4 (Uploaded Content), 14 (Intellectual property rights), 16 (Disclaimer and limitation of liability), 17 (Release and indemnity) and all indemnities, releases, exclusions of liabilities and disclaimers.

20. Definitions

In these Terms of Use:

Agent means a User who purchases services from a Creative on the Platform, and will generally be an estate agent.

Claim means a claim, action, proceeding or demand made against a person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Creative means a User who offers photography, videography, floor planning, copywriting or other property marketing services to Agents through the Platform. Creatives may operate as individuals or as creative businesses with their own internal teams and Suppliers. Creatives are responsible for managing any Suppliers they engage and for delivering final content to Agents.

Fees means the fees we charge Users in relation to the use of the Platform, which are set out on the Platform and may be modified from time to time.

Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

Platform means this website, app, platform and any service offered under the name “Pop Box”.

Price means the price for the sale of a Creative’s services to an Agent under a Sale Agreement, as advertised on the Platform.

Privacy Policy means our privacy policy available at popbox.au/privacy-policy.

Sale Agreement means a binding legal agreement for a Creative to sell its services to an Agent in exchange for the Price.

Service Fee means the commission charged by Pop Box on each completed booking, expressed as a percentage of the Price and automatically deducted via Stripe Connect. The applicable Service Fee rate is set out on the Platform.

Services means Pop Box’s services to Users, consisting of the provision of the Platform.

Supplier means a subcontractor engaged by a Creative to assist in the delivery of services to Agents on the Platform.

Terms of Use means these Terms of Use which include the Privacy Policy.

Uploaded Content means any content whatsoever that you upload to the Platform or provide to us, including but not limited to any descriptions, reviews, usage data, feedback, comments, chats or media.

User means any person using or registering on the Platform whatsoever, including all Agents, Creatives and Suppliers.

Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.

We, us, our means PB Development Ventures Pty Ltd (ACN 687 726 745), trading as Pop Box Media, and its related entities or body corporates.

You or you means any person who uses or accesses the Platform, including any User.