Perth Airport Marketplace Terms and Conditions
These Terms are between You and Perth Airport Pty Ltd ABN 24 077 153 130 (referred to as We, Our or Us).
These are the Terms on which We permit Users (referred to as You or Your) to:
- access and use Our online marketplace at Website URL (Marketplace) including using the transaction services and functionality made available through the Marketplace;
- purchase services from Vendors, such as use of the airport lounge, made available in the Marketplace (Services);
- purchase products which are offered by Us or Vendors, or otherwise made available for purchase in the Marketplace from time to time (Products);
- view and interact with any content, Information, communications, advice, text or other material provided by Us, Our Related Entities or Vendors through the Marketplace (Service Content); and
- communicate with Us.
You agree to be bound by these Terms when You use, browse or access any part of the Marketplace.
If You purchase Services or Products through a Vendor, You will be entering into a contract with that applicable Vendor, which may be on additional terms to these Terms. We only provide You the service of this Marketplace to enable You to order Products and/or Services from Vendors.
The Marketplace is subject to change at any time without notice and may contain errors. We may from time to time review and update these Terms including to take account of new Laws, products or technology. Your use of the Marketplace will be governed by the most recent Terms posted on the Marketplace website. By continuing to use the Marketplace, You agree to be bound by the most recent Terms.
1. Definitions and Interpretation
ACL means Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Perth, Western Australia.
Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award or Loss, whether based in contract, civil, common law, tort (including negligence) or statute and whether involving a Party, Third Party or otherwise.
Confidential Information means:
- Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
- all other Information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party,
- is disclosed to the Receiving Party by a Third Party entitled to do so, whether before or after the date of these Terms;
- was already lawfully in the Receiving Party's possession when it was given to the Receiving Party and was not otherwise acquired from the Disclosing Party directly or indirectly; or
- is generally available to the public at the date of these Terms or subsequently becomes so available other than by reason of a breach of these Terms.
but does not include Information that:
Confirmation Email has the meaning provided in clause 8.2.
Disclosing Party means the Party to whom Information belongs or relates.
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction.
Information means any information, whether oral, graphic, electronic, written or in any other form, including:
- forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;
- copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and
- samples or specimens disclosed by either party.
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
- patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder's rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
- any application or right to apply for registration of any of these rights;
- any registration of any of those rights or any registration of any application referred to in paragraph (b); and
- all renewals, divisions and extensions of these rights.
- principles of law or equity established by decisions of courts;
- statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a Government Agency; and
- requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or a Government Agency that has the force of law.
Loss means any loss, damage, cost or expense.
Party means You or Us.
Personal Information means Information or an opinion (including Information or an opinion forming part of a database), whether true or not, and whether recorded in a material form, electronic form or otherwise, about an identified individual or an individual who is reasonably identifiable, and includes anything that is defined as personal information or as sensitive information in the relevant Privacy Laws.
Privacy Law means any applicable Law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy or health Information, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles under that Act, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), and any Australian (including State or Territory) legislation from time to time in force which relates to or affects privacy rights or Personal Information.
Receiving Party means the Party to whom Information is disclosed or who possesses or otherwise acquires Information belonging or relating to a Disclosing Party.
Related Entity has the meaning given to that term in the Corporations Act 2001 (Cth).
Terms means these agreed terms and conditions.
Third Party means any party other than Us or You.
User means any person who access and uses the Marketplace or Service Content.
Vendor means a merchant that promotes, markets and sells products and/or services from Perth Airport, Western Australia and all adjacent land and roads, via the Marketplace.
In these Terms, unless the context requires otherwise:
- the singular includes the plural and vice versa;
- words indicating a gender includes all genders;
- the headings are used for convenience only and do not affect the interpretation of these Terms;
- other grammatical forms of defined words or expressions have corresponding meanings;
- a reference to a document includes the document as modified from time to time and any document replacing it;
- a reference to a party is to a party to these Terms and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
- if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
- the word "person" includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;
- the word "month" means calendar month and the word "year" means 12 months;
- the words "in writing" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
- a reference to a thing includes a part of that thing;
- a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time;
- wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";
- money amounts are stated in Australian currency unless otherwise specified;
- a reference to time is to Perth, Australia time;
- a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body;
- any agreement, representation, warranty or indemnity in favour of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and severally; and
- any agreement, representation, warranty or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and severally.
- 2.1 In order to access certain features and functionality of the Marketplace You will have to register for, and obtain, a user account by providing all of the information required at registration.
- 2.2 When creating Your account, You warrant that You are of legal age to form a binding contract with Us, and that all information You have provided is true, accurate and complete. You must provide an email address that You own or control.
- 2.3 As part of the registration process You must create an account user name and authenticate via social media or use the "one time" password You are sent on each login.
- 2.4 You will be fully responsible for all acts and omissions of any person using Your password and account, as if they were Your own acts and omissions. You agree that You will not share, disclose, or permit disclosure of, Your password, let anyone else access Your account or do anything that would risk the security of Your account. We will not in any event be liable for any loss, damage, claims, costs or expenses arising out of the use or misuse of Your password and account, and You will indemnify Us against all loss, damage, claims, costs or demands in this regard.
- 2.5 You must notify Us immediately if You become aware of any unauthorised access or use of Your account or password.
- 2.6 You agree that You will not create more than one personal account and if We disable or terminate Your account for any reason, You will not create another one without Our permission, whether through the use of Your own personal details or those related to You or created by You.
- 2.7 We retain the right to refuse registration of any account, in Our sole discretion.
3. Service Content
- 3.1 The Marketplace is owned and operated by Us or on Our behalf.
- 3.2 The Service Content in the Marketplace is for general information and promotional purposes only. We do not warrant or make any representations as to any Vendor Products or Services described or referred to in the Marketplace. Any use of the Service Content, materials or Information by another person or organisation is at Your own risk.
- 3.3 The Service Content in the Marketplace is obtained and developed from a variety of sources including but not limited to collaborations with Vendors, Third Parties and Information provided by Vendors or Third Parties under licence. Inclusion of Service Content in the Marketplace is not an endorsement of any organisation, product, service or advice.
- 3.4 All Intellectual Property Rights, including copyright, in the Marketplace and Service Content are owned or licensed by Us or Our Related Entities. You must not copy, modify or transmit any part of the Marketplace or Service Content.
- 3.5 The Marketplace and Service Content may also contain Our, Our Related Entities' or a Vendors', trade marks, logos and trade names, which may be registered or otherwise protected by Law. You are not permitted to use any trade marks, logos or trade names appearing in the Marketplace or Service Content.
- 3.6 We grant You a non-exclusive and non-transferable licence to use the Marketplace and Service Content for Your own personal use, subject to the restrictions specified elsewhere in these Terms. It is not to be otherwise used for commercial exploitation.
- 3.7 If You have a complaint regarding any Service Content, Our sole obligation will be to review any written complaint notified to Us and, if We see fit, in Our sole discretion, to modify or remove the particular Service Content.
4. Access and Communication
- 4.1 Subject to the consumer guarantees provided for in the ACL, We do not warrant that You will have continuous access to the Service Content or the Marketplace.
- 4.2 We will not be liable if the Service Content or Marketplace is unavailable to You due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities, interruption in telecommunications supply or otherwise.
- 4.3 We do not guarantee the delivery or security of communications over the internet as such communications rely on Third Party service providers, and electronic communication (including electronic mail) is vulnerable to interception by Third Parties.
- 4.4 We do not provide, and have no control over, communications, networks or services, the internet or other technology required or used across the Marketplace and accept no responsibility for any direct or indirect Loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.
5. User Obligations
As a User of the Marketplace, You must:
- ensure that Your use of the Marketplace will not violate or result in the breach of any agreement between You and any Third Party;
- comply with all Our reasonable directions with respect to Your use of the Marketplace and the Service Content;
- take all reasonable steps to mitigate the risks inherent in the use of the Marketplace; and
- upon Our request, provide reasonable assistance in the investigation of any security issue relevant to Your use of the Marketplace.
6. Payment for Products and/or Services
- 6.1 All currency references and transactions are processed in Australian dollars.
- 6.2 Payment for an order of the Products and/or Services (Order) is made online through the Marketplace (Online Payment) to the relevant Vendor that is providing the Service or Product the subject of the Order.
- 6.3 Your Order will be available for collection at the relevant Vendor's site and at the time specified in Your Confirmation Email.
- 6.4 The Vendors use Paypal to provide the payment services for the applicable Products and Services (Payment Provider). The Online Payment is inclusive of all taxes (including GST if applicable), duties and charges imposed or levied in Australia in connection with the supply of goods or services that are applicable in the circumstances. You agree that Your Information may be passed onto the Payment Provider for payment of the Order. Your use of the Payment Provider's system is subject to any relevant user agreements and privacy policies of the Payment Provider. For more details on the Provider and its security processes, please visit the Payment Provider’s Terms at www.paypal.com.
- 6.5 The Vendors accept payment via the Payment Provider including using VISA, MasterCard, American Express, or a debit card.
- 6.6 Where You make a payment using a credit card or debit card, You:
- authorise the relevant Vendor to debit the amount that is payable from Your nominated credit card account;
- represent that You are properly authorised to use the credit card for such payment;
- represent that the credit card or debit card Information You submit is true, correct and complete;
- acknowledge and agree that any fees or charges incurred by You will be honoured by Your credit card company or bank; and
- will pay all charges incurred by You at the listed price, including any applicable fees, charges and taxes.
- 6.7 The applicable Vendor will issue You with a tax receipt in respect of the portion of the Order at the time of collection of the Products or performance of the Services which specifies the total fees and charges for the Products and/or Services in Your Order to which the relevant Vendor provided.
- 6.8 If the Vendor is unable to successfully process Your credit card for Your Order that is accepted by the Vendor, then the Order may not be accepted and completed.
- 6.9 The specific terms and conditions of supply for any Product and/or Services purchased via the Marketplace will be notified to You via the Marketplace before You confirm Your purchase and may be subject to a separate legal contract with the relevant Vendor. Your confirmation of any purchase indicates Your acceptance of those terms and conditions of supply, which upon confirmation of the relevant purchase will be incorporated into these Terms in respect of that purchase.
- 6.10 We and/or the applicable Vendor reserve the right at Our discretion to cancel any payment if it appears fraudulent in any way, and We and/or the applicable Vendor may notify the cardholder and the relevant authorities as such.
7. Risk and title
- 7.1 Title to the Products in Your Order passes to You upon collection, and all risk of loss or damage to the Products in Your Order passes to You when it is collected from the relevant Vendor's site as specified in Your Confirmation Email.
8. Orders for Products and/or Services
- 8.1 By placing an Order via the Marketplace You are making an offer and commitment to purchase Products and/or Services in accordance with these Terms. An Order is subject to the acceptance or rejection of the applicable Vendor that is promoting, marketing and selling the Product or Services, in that Vendor's discretion after receipt of the Order, provided that You have not collected the Products or received the Services, where possible. We may in Our discretion permit an Order to be cancelled, but cancellations cannot be guaranteed once any applicable payment is received for the Order. The Order cannot be cancelled by You once You collect the Products or receive the Service.
- 8.2 Once You have placed an Order in accordance with these Terms and the Vendor's Terms (if applicable) You will receive an email confirming the details of Your Order and receipt of payment (where applicable) (Confirmation Email). If You do not receive a Confirmation Email, Your Order may not have been accepted. If You haven't received a Confirmation Email, please contact Us to check the status of Your Order.
- 8.3 Notwithstanding anything to the contrary, the Vendor may at any time following receipt of Your Order accept, decline, or limit Your Order for any reason whatsoever, whether or not Your credit card has been charged or they have otherwise received payment from You. The Vendor will issue You with a refund if Your credit card has been charged or they have received payment from You, and Your Order is cancelled by the Vendor.
- 8.4 If You have a complaint or query regarding any transaction, Product or Service, You must contact the relevant Vendor that will be providing the Product or performing the Service, regarding such complaint or query.
9. Refunds and Returns
9.1 Faulty or damaged Products
In accordance with Your rights under the ACL:
- if a Product has a major or serious problem, You are entitled to choose a refund, or exchange, or ask for compensation for any drop in the value of the Product, provided You present proof of purchase. A Product has a major problem when:
- a reasonable consumer would not have bought the goods if they had known about the problem;
- the goods are significantly different from the description, sample or demonstration model shown;
- the Product is substantially unfit for their normal purpose and cannot easily be made fit within a reasonable time; or
- the Product is unsafe; and
- if a Product has a minor problem, please contact the Vendor where they may refund or replace the item, or repair the item within a reasonable time. If it is not repaired in a reasonable time You can choose a refund or replacement. Please keep Your proof of purchase.
9.2 Returning Products
- Please post the Products You wish to return via trackable post (eg Australia Post Parcel Post or Express Post). The relevant Vendor will not be responsible for lost parcels that have not been sent by trackable post. You will need to pay for any postage fees involved in posting the Products You wish to return where You've changed Your mind.
- The relevant Vendor will refund the postage costs for any Products deemed faulty, provided You authorise Your return with the relevant Vendor.
10. Prohibited Uses
You agree that in accessing and using the Marketplace, You will not engage or attempt to engage in any activities that:
- download (other than page caching), transmit, copy, store, reformat or otherwise modify any element of the Marketplace or Service Content;
- impersonate or falsely claim to represent a person or organisation;
- are commercial, including selling, marketing, advertising or promoting goods or services, except if expressly permitted by these Terms;
- frame the Marketplace or the Service Content without Our express written consent;
- bypass (or attempt to bypass) any security mechanisms imposed by the Marketplace;
- provide access or links to any material (including links to peer to peer network trackers/beacons) which may infringe the Intellectual Property Rights of another person;
- delete or alter or attempt to delete or alter attributions, legal notices, trademarks or copyright marks on any material contained in the Marketplace;
- knowingly post, introduce or transmit, or permit the posting, introduction or transmission of a virus, worm, Trojan horse, malware, spyware, disabling or malicious device or code, time bomb, or any other software or hardware or configuration that may cause harm or change to the Marketplace;
- breach or circumvent any applicable Laws in using or accessing the Marketplace;
- damage or tamper with the operation of the Service Content; and
- use the Marketplace or Service Content in a manner which is unlawful or would infringe the rights of another person, including any Intellectual Property Rights.
11. Links and advertisements
- 11.1 The Marketplace may contain links to other websites. We have not reviewed all of the Third Party websites linked from the Marketplace and are not responsible for and will not be liable in respect of their content or accuracy (including websites linked through advertisements). We provide those links as a ready reference for searching for Third Party goods and services on the internet and not as an endorsement, support or sponsorship of those websites, their operators, the goods, services or content that they describe.
12.1 Obligations of confidentiality
Subject to clause 12.2, the Receiving Party must:
- keep the Confidential Information confidential and not directly or indirectly disclose, divulge or communicate any Confidential Information to, or otherwise place any Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
- take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control;
- only use the Confidential Information for the purposes of performing, and to the extent necessary to perform, its obligations under these Terms;
- not memorise, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under these Terms; and
- take all reasonable steps to ensure that any person to whom the Receiving Party is permitted to disclose Confidential Information under clause 12.2 complies at all times with the terms of this clause 12 as if that person were a Receiving Party.
12.2 Authorised disclosure
- A Receiving Party may disclose Confidential Information:
- that is necessary to comply with any court order or applicable Law if, to the extent practicable and as soon as reasonably possible, the Receiving Party:
- notifies the Disclosing Party of the proposed disclosure;
- consults with the Disclosing Party as to its content; and
- uses reasonable endeavours to comply with any reasonable request by the Disclosing Party concerning the proposed disclosure; or
- to any Related Entity, employee, agent, contractor, officer, professional adviser, banker, auditor or other consultant of the Receiving Party (each a Recipient) only if the disclosure is made to the Recipient strictly on a "need to know basis" and, prior to the disclosure:
- the Receiving Party notifies the Recipient of the confidential nature of the Confidential Information to be disclosed; and
- the Recipient undertakes to the Receiving Party (for the benefit of the Disclosing Party) to be bound by the obligations in this clause 12 as if the Recipient were a Receiving Party in relation to the Confidential Information to be disclosed to the Recipient.
- that is necessary to comply with any court order or applicable Law if, to the extent practicable and as soon as reasonably possible, the Receiving Party:
- The Receiving Party is liable for any breach of this clause 12 by a Recipient as if the Recipient were a Receiving Party in relation to the Confidential Information disclosed to the Recipient.
12.3 Breach of Confidence
Each party must promptly notify the other party if it becomes aware of any unauthorised access, use or disclosure of all or any part of the Confidential Information and must give that other party all reasonable assistance in connection with any claim which it may institute in connection with that unauthorised access, use or disclosure.
12.4 Return or destruction of Confidential Information
Immediately on the written request of the Disclosing Party, a Receiving Party must:
- cease the use of all Confidential Information of or relating to the Disclosing Party (or any Related Entity of the Disclosing Party);
- deliver to the Disclosing Party all documents and other materials in its possession or control containing, recording or constituting that Confidential Information or, at the option of the Disclosing Party, destroy, and certify to the Disclosing Party that it has destroyed, those documents and materials; and
- upon delivery of the Confidential Information under clause 12.4(b), permanently delete that Confidential Information from all electronic media on which it is stored, so that it cannot be restored.
14. Warranties, Consumer Guarantees and Limitation of Liability
- 14.1 We have used Our best endeavours to ensure all Information, graphics, audio and video and other items appearing on the Marketplace are correct and up-to-date at the time of publication. We do not represent or warrant the accuracy or completeness of the Service Content or that the Marketplace is free from any errors, omissions or defects.
- 14.2 Subject to clause 14.3, any representation, warranty, condition, guarantee or undertaking that would be implied in these Terms by Law, trade, custom or usage is excluded to the maximum extent permitted by Law.
- 14.3 Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on by the ACL or any other applicable Law that cannot be excluded, restricted or modified by agreement.
- 14.4 To the fullest extent permitted by Law, Our liability for a breach of a non-excludable guarantee referred to in the clause 14.3 is limited to:
- in the case of goods supplied or offered by Us or a Vendor, any one or more of the following:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; or
- in the case of services supplied or offered by Us or a Vendor:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
- in the case of goods supplied or offered by Us or a Vendor, any one or more of the following:
- 14.5 Subject to clause 14.3, We are not liable to You for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation or loss of revenue (irrespective of whether the loss or damage is caused by or relates to breach of contract, tort (including negligence), statute or otherwise) arising out of or in connection with the Marketplace, the Service Content or all links to or from the Marketplace and including the Services and Products.
- 14.6 Subject to this clause 14, Our maximum aggregate liability for all proven Losses and Claims arising out of or in connection with these Terms or the use of the Marketplace, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of $100.
You agree and acknowledge that You will fully indemnify Us in respect of all Loss, (including legal fees on a full indemnity basis), fines, penalties, Claims, demands and proceedings however arising, whether at common law (including negligence) or under statute, in connection with:
- any breach of these Terms by You;
- Your use of the Marketplace or Service Content, including any wrongful, wilful or negligent act or omission;
- Your communications with Us; or
- Your use of Third Party websites linked to the Marketplace.
16. Termination of Your access to the Marketplace
- 16.1 We may at any time immediately terminate Your access (including restricting access) to the Marketplace or any feature of the Marketplace for any reason (including due to Your breach or alleged breach of these Terms) in Our sole discretion and without prior notice.
- 16.2 This clause 16.2 and clauses 12, 13, 14, 15 and 18 will survive termination of Your access to the Marketplace in accordance with clause 16.1 and will continue to Our benefit and be enforceable by Us.
17. International Use
We make no representation or warranty that any competition, offering or content accessible through the Marketplace is appropriate or available for use in locations outside Australia. If You choose to access the Marketplace from other locations, You do so at Your own risk and are responsible for compliance with all applicable laws. You are not authorised to access the Marketplace from any location where doing so would be illegal.
18.1 Entire understanding
These Terms contain the entire understanding between the Parties concerning the subject matter of these Terms and supersede, terminate and replace all prior agreements and communications between the Parties.
18.2 No adverse construction
These Terms, and any provision of these Terms, are not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
18.3 No waiver
- A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by these Terms does not operate as a waiver of that power or right.
- A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these Terms.
- A waiver of a breach does not operate as a waiver of any other breach.
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
18.5 Successors and assigns
These Terms bind and benefit the Parties and their respective successors and permitted assigns under clause 18.6.
18.6 No assignment
You cannot assign or otherwise transfer the benefit of these Terms without Our prior written consent. We are permitted to assign or otherwise transfer the benefit of these Terms without Your prior consent.
18.7 Communication and Notice
You consent to Us contacting You by electronic means including through email.
18.8 Governing Law and jurisdiction
These Terms are governed by and must be construed in accordance with the Laws in force in the State of Western Australia, Australia. The Parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, its performance or subject matter.