CRYSTELLA SUBSCRIPTION AGREEMENT
This document contains your rights and obligations when subscribing to a Crystella subscription. Please read them carefully. You agree that your subscription for and use of the Crystella product(s) constitutes your acceptance of these terms, which may later be amended from time to time.
This Agreement as amended from time to time applies to your use of any Crystella product. All future changes set out in a notice or update from Crystella are incorporated by reference into this Agreement and the changes will take effect on the date specified in the notice or update.
The information in this Agreement is current as at the date this Agreement is Accepted. Crystella may change some of the terms of the Agreement if they are not materially adverse to you from time to time without needing to notify you under the terms of Clause 18 of this Agreement. You may review that changed information and the current version of this Agreement at any time by visiting our website. If you wish to review previous versions of this Agreement, please click here to send us a request for copies.
- “Agreement” means this Agreement and any current or subsequent annexures and amendments.
- “Business day” means any day (other than a Saturday or a Sunday, or a public holiday) we are open for business in the place we sign this Agreement.
- “Commencement Date” means the day on which the Equipment is delivered to you.
- “Equipment” means the water dispensing kit subscribed to by you in this Agreement.
- “GST” means any goods and services tax payable by us on each taxable supply in connection with this Agreement or its subject matter, levied under A New Tax System (Goods and Services Tax) Act 1999 and related legislation.
- “Insolvent” means bankrupt, insolvent, in receivership, in liquidation, in provisional liquidation, under official management or administration, wound up, subject to any arrangement, assignment or composition or protected from any creditors under any statute.
- “Person” includes firm, partnership, committee, and incorporated and unincorporated bodies.
- “Subscription” means the usage of Equipment under the terms of this Agreement.
- “We”, “our” and/or “us” means Crystella Pty Limited, ACN 123 208 908, its parent company and associates, and its successors and assigns.
- “You” means the entity or person or, if more than one, persons named as the Customer; if you are a trustee, you warrant that you enter into this Agreement with all necessary power and for a proper purpose, are liable personally and in your position as trustee and, in respect of your obligations under this Agreement, have a right to be indemnified by the trust ahead of the beneficiaries; and “you” includes your successors and assigns to whom we have consented.
- An obligation on the part of two or more persons binds them jointly and severally.
- This Agreement is governed by the laws of New South Wales (“NSW”). You and we submit to the non-exclusive jurisdiction of the courts of NSW.
- Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. This Agreement constitutes the entire agreement between you and Crystella with respect to your use of the Subscription. This Agreement is not intended and shall not be construed to create any rights or remedies in any parties other than you and us, and no other person shall assert any rights as a third-party beneficiary here under.
3. THE EQUIPMENT
- You affirm that the Equipment has been selected by you for your purposes.
- You agree that the Equipment being supplied by us is wholly or mainly for a business carried on by you.
- You agree that the Equipment supplied under this Agreement is not acquired for personal, domestic or household use or consumption.
- Legal title to the Equipment remains with us and the Equipment always remains our property. Refer to Clause 10 of this Agreement.
- You have the right to use our Equipment as governed by this Agreement.
- You may never assert any other interest in the Equipment other than the right to use it governed by this Agreement. Refer to Clause 10 of this Agreement.
- We will deliver and install the Equipment and collect the Equipment for return when this Agreement is terminated. Collection will be at your cost.
- (Collection costs include, decommission, uninstall, logistics, pickup and freight of equipment).
- You must not attach the Equipment to any property without our consent. Refer to Clause 10 of this Agreement.
- You hereby agree:
- You further hereby agree that for subscriptions with included gas cylinder offer (pre 30 June 2019)
4. USE, LOCATION AND RELOCATION OF THE EQUIPMENT
- You must not move the Equipment from the Equipment location noted in this Agreement without our express consent in writing.
- You must use the Equipment only for the purpose for which it is designed.
- You must ensure that the Equipment is used and maintained in accordance with the manufacturer’s instructions and recommendations. (Refer to website here or the sticker on your unit).
5. REPAIRS AND MAINTENANCE OF THE EQUIPMENT
- You are responsible for maintaining the Equipment in a clean and hygienic condition.
- We will attend to essential faults within a reasonable time from your call. Non-essential faults will be attended to during normal working hours which are currently, but subject to change, 8.00am to 4.00pm on
- Business days.
- Any non-essential service provided at your request outside these hours will be subject to after-hours labour charges.
- The classification of faults into essential or non-essential will be at our sole discretion.
- You are responsible for the costs of repairs necessary as a result of vandalism, damage, misuse or neglect which has been caused by you or while the Equipment is in your care.
- Only our service personnel or service contractors engaged by us may service or repair the Equipment.
- We will not accept claims for any unauthorised service performed on the Equipment and you will be liable for any rectification work required as a result of unauthorised service work.
- If anyone other than a Crystella authorised person repairs or services our Equipment this will constitute misuse and a material breach of this Agreement and you may be liable under Clause 5.12.
- We may refuse to service the Equipment if any subscription payments are overdue by more than five business days.
- We will not be liable for any loss that you may suffer as a result of our failure to effect a repair, for any reason, or for loss of product or trade or for any damage caused to property as a result of any malfunction of the Equipment.
- If any Equipment subscribed to by you malfunctions to the extent that it is irreparable, Crystella will replace the Equipment.
- We will charge you for any repair or service required on the Equipment caused by your misuse, neglect or negligence including the cost of the equipment if it is irreparable.
- You will be responsible for the transport costs of technicians and parts for any servicing on any islands or locations outside the mainland of Australia (including Tasmania).
6. INSPECTION OF EQUIPMENT
- You must allow us, or our representative, during normal business hours, after giving 24 hours’ notice, to enter the place where the Equipment is, to inspect its condition or check whether the terms of this Agreement are being complied with or exercise any of our rights under this Agreement.
- You must notify us immediately if any of the Equipment is:
- destroyed; or
- You must pay your subscription for the Equipment if it is stolen, lost, destroyed or damaged beyond repair, up until the date of such occurrence together with the cost of the Equipment.
7. SUBSCRIPTION INCREASES
- Crystella reserves the right to increase the rent we charge you in accordance with this Agreement from time to time. Crystella will give you at least 30 days’ notice of any change to the rent.
- To commence using our services you need to register with “Stripe” payment services by clicking here.
- Your subscription will start from the commencement date. This will be a recurring billing transaction. Unless otherwise stated, your subscription and the relevant billing authorisation will continue indefinitely until cancelled by you. Cancellation will take effect as described below.
- By accepting these terms and conditions you authorise us to bill you on a weekly basis. The weekly subscription amount will continue to be charged to your chosen payment method until you cancel your subscription or unless your subscription is terminated under the terms of this Agreement.
- Your chosen payment method will be billed on the commencement date and thereafter weekly on the same day of the week as the commencement date. i.e. you will be paying your subscription weekly in advance.
- You may cancel your subscription at any time, but the cancellation will not become effective until the end of the weekly billing period during which all product is returned to Crystella. You will not receive a refund for any part of that final billing week.
- We reserve the right to issue refunds or credits and if we issue a refund or credit, we are under no obligation to issue the same or a similar refund or credit in the future.
- All applicable taxes, duties or levies (including GST) on the sale of any goods and the provision of any services under this Agreement will be to your account.
9. SUBSCRIPTION SERVICE FEES
- We do not charge you a fee to use this service. However, your own financial institution may charge a fee in connection with the debiting or charging of this payment. You should consult the terms and conditions governing your arrangement with your payment institution for more information about any such fees.
- Unless otherwise defined in these terms and conditions, the capitalised words and expressions used in this clause have the meanings given to them in the Personal Property Securities Act 2009 (PPSA).
- You acknowledge and agree to grant us a Security Interest in the Equipment and its Proceeds, including any Accounts and Accessions, by virtue of clause 8 above.
- You acknowledge that any retention of title supply pursuant to this subscription attaches upon delivery of the Equipment and constitutes a Purchase Money Security Interest as defined in the PPSA.
- You agree that:
- If the provisions of Chapter 4 of the PPSA would otherwise apply, to the maximum extent permitted by law, you agree that you have contracted out of the rights available to you pursuant to sections 129(3), 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA, and that the rights in those sections available to you will
- not apply.
- To the maximum extent permitted by law, you agree that you have contracted out of, and waive any rights you may have pursuant to, sections 95 and 96, and if the provisions of Chapter 4 of the PPSA would otherwise apply, you agree that you have contracted out of, and waive any rights you may have pursuant to sections 117, 118, 121(4), 123, 129(2) and 130 of the PPSA.
- In addition to any other rights under this Agreement, we may exercise any and all remedies set out in the PPSA including, without limitation, entry into any building or premises owned, occupied or used by you, to search for and seize, dispose of or retain the Equipment in respect to which we have a Security Interest. In this regard you acknowledge our rights pursuant to sections 126, 128 and 129(1) of the PPSA.
- You agree with us that neither of us will disclose any confidential information of the kind referred to in section 275(1) of the PPSA and that this clause 10.8 constitutes a ‘confidentiality Agreement’ within the meaning of section 275(6)(a) of the PPSA.
- You waive any rights you may have under section 275(7)(c) of the PPSA to authorise disclosure of any confidential information that is protected from disclosure under clause 10.8.
- You appoint and authorise us as your attorney to sign in your name all documents which we reasonably consider necessary to enforce or protect our rights and powers under this clause and to protect, preserve and enforce our rights under the PPSA.
11. YOUR DUTIES AND OBLIGATIONS
- You have entered this Agreement as a principal unless you have told us otherwise and you do not enter into this Agreement as trustee of any trust or settlement.
- Anything which you must do under this Agreement must be done at your cost.
- You must insure and keep insured the Equipment for its full replacement value at all times.
- You must insure and keep insured the Equipment with public liability insurance in an amount of at least
- $10,000,000 at all times. Crystella may require a copy of your certificate of currency (COC) from time to time.
- It is a fundamental provision of this Agreement that none of the following events occurs:
- You will repudiate this Agreement and we may terminate it by notice to you:
- If we give you notice of termination you must immediately make the Equipment available for pick-up by us in good working order, and in good repair (fair wear and tear excepted); and without prejudice to any remedies or damages available to us upon your default, we may at any time and without notice retake possession of the Equipment and there will forthwith at our option become due and payable by you to us the total (“the Payout Amount”) of:
- For the purposes of recovering possession and without limiting the generality of the foregoing, you irrevocably authorise and license us and our servants and agents to enter any premises where the Equipment may be stored and to take possession of the Equipment.
- You also indemnify us for any costs we incur as a result of the termination of this Agreement if we terminate it pursuant to this clause 12 including legal costs on a full indemnity basis, costs of obtaining or attempting to obtain payment or otherwise enforcing this Agreement and costs of taking or attempting to take possession of the Equipment.
13. TERMINATING THIS AGREEMENT
- This Agreement will continue until either party chooses to terminate it by giving the other party 30 days’ notice or you repudiate this Agreement and we accept your repudiation. Refer to Clause 12.
- If you decide to terminate the Agreement, you must on the last day of the notice period, return the Equipment to us in good working order, and in good repair (fair wear and tear excepted) by allowing us to collect the Equipment at your expense. (Collection costs of $380 include, decommission, uninstall, logistics, pickup and freight of equipment).
- If we decide to terminate the Agreement, you must on the last day of the notice period, return the Equipment to us in good working order, and in good repair (fair wear and tear excepted) by allowing us to collect the Equipment.
14. EXCLUSION OF LIABILITY AND INDEMNITIES
- Representations and agreements not expressly contained herein or not expressly given by us in relation to the Equipment shall not be binding upon us as conditions, warranties and representations.
- To the extent permitted by law, we shall be under no liability to you for any loss (including but not limited to loss of profits and consequential loss) or for damage to persons or property or for death or injury caused by any act or omission (including negligent acts or omissions) of us or our agents EXCEPT WHERE the Equipment had a safety defect and any injuries are the result of that safety defect in the Equipment.
- Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
- You shall indemnify us against any liability or loss (including environmental damage and personal injury) arising from your possession, operation or use of the Equipment or from any negligent or illegal act or breach of this Agreement by you or your contractors. This indemnity is a continuing obligation, separate and independent from your other obligations. It continues after this Agreement ends or is terminated. It is not necessary for us to incur expense or make a payment before we enforce this right of indemnity.
- If you require that our products be delivered to your premises then we will enter the premises at your risk and will not be responsible for any accidental damage to your property or premises.
- You further agree to indemnify us against all losses and expenses which we may suffer or incur due to your failure to fully observe your obligations under this Agreement.
- Nothing contained in this Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of the Equipment of all or any of the provisions of the Competition and Consumer Act 2010 or any relevant State or Territory Statute which by law cannot be excluded, restricted or modified PROVIDED THAT to the extent that any such statute permits us to limit our liabilities to compensate or indemnify any person for breach of a condition or warranty, then our respective liabilities for such breach shall be limited in the case of Equipment to the replacement of the Equipment with the same or equivalent Equipment or to the repair of the Equipment or payment of the cost of repair and in the case of services to the resupply of the services
15. FORCE MAJEURE
- In addition to and without limiting anything in Clause 14, Crystella shall have no liability for any failure or delay resulting from any condition beyond its reasonable control, including, without limitation, governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labour conditions, power failures and Internet disturbances.
16. NOTICES AND OTHER COMMUNICATIONS
- We may communicate with you regarding the Service by means of electronic communications, including
- You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. Electronic communications shall be deemed received by you when we send the electronic communication to the email address you provided at the time of registration or as revised by you thereafter in accordance with this Agreement, or when we post the electronic communication on our Website.
- For those communications or records that we are otherwise required under applicable law to provide in a written paper form to you, you agree that we may provide such communications or records by means of electronic communications.
- You may communicate with us by email to: firstname.lastname@example.org.
- We may also transfer the Equipment or our interest in this Agreement, or give another person an interest in or form of security over either of them, without getting your consent.
- You may not assign this Agreement or any rights or obligations under this Agreement, by operation of law or otherwise, without our prior written approval and any such attempted assignment shall be void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
- We may exercise a right, remedy or power in any way we consider appropriate.
- If we do not exercise a right, remedy or power at any time, this does not mean that we cannot exercise it later.
- We are not liable for any loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising a right, remedy or power, whether or not caused by our negligence.
- Our rights, remedies and powers under this Agreement are in addition to any other rights, remedies and powers provided by law independently of it.
- If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties.
- Any termination does not affect any other right or remedy we have for amounts due to us which remain unpaid.
18. ENTIRE AGREEMENT
- This Agreement constitutes the entire agreement between the parties with respect to this Subscription.
- A term of this Agreement or a right created under it may not be waived or varied except in writing, signed by the party or parties to be bound.
- Crystella has the right to change, modify, or amend any portion of this Agreement at any time by posting notification on its Website or otherwise communicating the notification to you.
- The changes will become effective and shall be deemed accepted by you, after the initial posting and shall apply on a going-forward basis with respect to your subscription.
- By continuing to use the subscription after any amendments to this Agreement come into force, you agree to abide and be bound by any such changes.
- In the event that you do not agree with any such modification, you must contact us within 7 days of the modification coming into force to advise us that you do not agree to the modification. The parties can then negotiate regarding the modification or terminate this Agreement in accordance with its terms.
19. CREDIT INFORMATION AUTHORISATION
- What is this statement about?
- Your right to privacy is important to us. This statement explains your privacy rights and our rights and obligations in relation to credit-related personal information about you (credit information) when you make an application for finance from us.
- The Privacy Act 1988 (Cth) (the Act), the Privacy Regulations 2013 (Cth), the Australian Privacy Principles (APPs) and the Privacy (Credit Reporting) Code 2014 (CR Code) regulate the way we collect, store, use and disclose credit information provided about you. Please read the following carefully as it sets out how we may use information about you.
20. PROVISION OF INFORMATION TO YOU
- In compliance with Section 21C(1)(a) of the Act and the CR Code, before we collect credit information from you for the purpose of a finance application, we have an obligation to ensure you are made aware of the following information
- Name and contact details of Credit Provider: Crystella Pty Ltd A.C.N. 123 208 908
- 10 Phiney Place, Ingleburn, NSW 2565
- Phone: 1300 222 552
- Name and contact details of Credit Reporting Body (CRB): Creditor Watch Pty Ltd A.C.N. 144 644 244
- GPO Box 276, Sydney NSW 2001 Website: https://creditorwatch.com.au Phone: 1300 501 312
- You hereby acknowledge that:
- The CRB may include your information in reports provided to us to assist us to assess your credit worthiness;
- If you fail to meet your payment obligations in relation to consumer credit or commit a serious credit infringement, we may be entitled to disclose this to the CRB;
- You have a right to request that a CRB not use your credit reporting information for the purposes of pre-screening of direct marketing by us or another credit provider; and
- You have a right to request that a CRB not use or disclose credit reporting information about the individual, if the individual believes on reasonable grounds that the individual has been, or is likely to be, a victim of fraud.
21. CREDIT INFORMATION WE COLLECT
You acknowledge that we will collect credit-related personal information about you when you apply for finance from us. This credit information may include:
- Particulars about you which allows you to be identified;
- The fact that you have applied for credit, that it is commercial credit, and the amount;
- Details of current and past agreements with us and other credit providers (including credit limits), the kinds of credit products you have had or sought and how you managed your obligations in relation to them;
- Your credit worthiness, credit standing, credit history and/or credit capacity;
- The fact that we are, or will be, a current credit provider to you;
- Details of payments which become overdue more than 60 days, and for which collection action has commenced;
- Advice that payments are no longer overdue;
- Cheques drawn by you for $100 or more which have been dishonoured more than once;
- Our opinion that you have committed a serious credit infringement;
- Advice that credit provided to you by us has been paid or otherwise discharged;
- Court proceedings information, personal insolvency information and credit-related publicly available information;
- Scores, ratings, summaries, evaluations and other information relating to your credit worthiness which is derived by us or our agents or by Credit Reporting Bodies (as that term is defined in the Act) wholly or partly based on the above information.
22. ACKNOWLEDGEMENT OF DISCLOSURE OF CREDIT INFORMATION TO A CREDIT REPORTING BODY
- You acknowledge that section 21C of the Privacy Act allows for the nominated Credit Provider to give the nominated CRB certain credit information about your application for finance.
- We may provide your credit information to a CRB.
- By virtue of this acknowledgement, you understand that we have informed you of our disclosure policy set out here to a CRB about you and you so authorise this disclosure.
23. AGREEMENT/AUTHORITY FOR CREDIT PROVIDER TO PERFORM CERTAIN PERMITTED ACTIONS CONCERNING A FINANCE APPLICATION OR TRANSACTION
- You agree that, if it is considered relevant in assessing your application for personal credit, we may obtain a report about your commercial activities or commercial credit worthiness from a business which provides information about the commercial credit worthiness of persons.
- You agree that if it is considered relevant in assessing your application for commercial credit, we may obtain credit eligibility information from a CRB, including a credit report containing personal credit information about you.
- You agree that, if it is considered relevant to collecting overdue payments in respect of commercial credit provided to you, we may receive from a CRB a credit report containing credit information about you.
- You agree that we may give to, and seek from, any credit providers named in the accompanying Agreement and any other credit providers that may be named in a personal or commercial credit report issued by a CRB, information about your personal and commercial credit arrangements, including your credit information, provided that the credit provider has an Australian link (as defined in the Act).
- 23.5 You agree that we may disclose your credit information to another person if that person is considering to act as a guarantor or to offer property as security and that person has an Australian link (as defined in the Act).
24. ACKNOWLEDGEMENT OF DISCLOSURE OF THE CREDIT PROVIDER’S COLLECTION AND HANDLING OF CREDIT INFORMATION AND CREDIT ELIGIBILITY INFORMATION (INFORMATION SUPPLIED BY A CREDIT REPORTING BODY)
- Except where otherwise set out here (including section 23.2), we will collect credit information from you and from our related bodies corporate in accordance with the Act and the CR Code.
- Should we obtain credit information from someone other than you, and you may not be aware that we have collected that credit information, we will use our reasonable endeavours to advise you of the collection, the information collected and the circumstances of the collection.
- The primary purpose of collection and disclosure of this information is to assess your suitability, as an individual or guarantor for the provision of credit and future identification. This credit information you supply may be utilised at a later date for Crystella Pty Ltd, or any of its associated divisions or organisations to market products or services, direct to you. You may decline at any time to receive promotional material.
- If you do not supply us with the information requested, we may be unable to process your application for credit or assist you if you wish to obtain information by telephone, email or fax at a later date.
- In certain circumstances we may disclose the credit information you supply to:
- A debt collection agency or agent;
- Another credit provider who is bound by the same or equivalent privacy principles we follow;
- Any contractor or organisation that provides administration services or activities on our behalf. In these circumstances we ensure that the third party is bound by the same or equivalent privacy principles we follow;
- Any organisation we are required or authorised by law to disclose credit information to;
- Where otherwise permitted under the Act or the CR Code.
- We do not usually disclose credit information to entities that do not have an Australian link (as defined in the Act).
- We will take such steps as are reasonable to ensure that your credit information that we collect, use and/or disclose is accurate, up-to-date, complete and (in the case of use and disclosure) relevant.
- We will take such steps as are reasonable to protect your credit information from misuse, interference and loss and from unauthorised access, modification or disclosure. If we no longer need your credit information for any permitted purpose, and we are not obliged to retain that information, we will take such steps as are reasonable to destroy or de-identify your credit information.
- On request, we will provide you with access to your credit information except in limited circumstances. We will respond to such requests within a reasonable period. If we refuse to give you access, we will provide you with a written notice setting out the reasons and how you may make a complaint or access an external dispute resolution scheme to resolve the matter.
- We may charge a reasonable amount for making such a request or for giving you access.
- If we are satisfied that credit information that we hold about you is inaccurate, out-of-date, incomplete, irrelevant or misleading we will take such steps as are reasonable to correct the information. In such circumstances, and if we have previously disclosed that information to another entity, we will give each such recipient written notice of that correction within a reasonable period unless it is impracticable or we are otherwise required not to.
- If you have requested the correction, we will give you a written notice within a reasonable period (unless it
- is impractical or we are required not to provide you with that notice) confirming the correction, or stating that the correction has not been made, including the reasons for not correcting the information.
- If you would like more information about the way we manage credit information which we hold about you, or are concerned that we may have breached your privacy, please contact us by email at email@example.com Our privacy officer will review any complaint we receive, make internal enquires and respond to you in writing within 5 business days. Our response will say whether we believe your complaint to be justified and will set out our reasons. Should your complaint be justified, we will take action to rectify the problem.
- If you are not satisfied with our response, you may make a complaint to the Commissioner at GPO Box 5218, Sydney NSW 2001 or firstname.lastname@example.org Alternatively, you can access a recognised external dispute resolution scheme (The Credit Investments Ombudsman) by calling 1800 138 422 or online at www.cio.org.au
- Whether Crystella Pty Ltd is likely to disclose personal information to overseas recipients;
- If Crystella Pty Ltd does disclose personal information to overseas recipients – specify where those countries are located.
You further acknowledge that this consent will continue unless we have accepted in writing your revocation of it.
You acknowledge that such acceptance would be subject to you having met all outstanding obligations in this Agreement.