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Terms and Conditions
The following terms and conditions govern the Service that we offer on the Site (“User Agreement”)
Please read these terms and conditions carefully. When you use or register with the Service, you are deemed to have accepted, and will be bound by the User Agreement, as amended and varied by us from time to time.
1.1 Terms And Conditions
a. Capitalised terms used throughout the User Agreement have the meaning given to them in clause 12.
b. The terms and conditions contained in the User Agreement set out what you must do and what you must not do when using the Service. It also sets out our obligations to you. If you breach any of these conditions, we may decide not to allow you to use the Service, or claim damages against you. However, we do not intend to act unreasonably. Please take time to read these terms and conditions and make sure you understand them. If you have any questions, please read our FAQ pages. If you still have questions, please contact our customer service team at [email protected].
c. We may amend the User Agreement from time to time by posting new terms and conditions on this Site. These amendments will usually take effect 7 days after the changes have been posted on the Site. You should review this User Agreement from time to time for any amendments. Please ensure you are familiar with them as changes may have been made to previous versions. Continued use by you of the Service following any amendments to this User Agreement will constitute your acceptance of the new terms & conditions applying to the Service.
d. Please note that additional conditions governing the Service and your relationship with us are contained in other pages on the Site and unless those conditions conflict with these terms and conditions, they will be incorporated into and will form part of the User Agreement. In particular, please carefully read all information on the Product Page as well as the Site Information, returns and warranty policy and Item Page which contains important information relevant to each particular sale on the Site.
1.2 Use Of The Service
a. The Service is provided to you personally. When using the Service, you must not re-sell access to the Service to another person or make commercial use of the Service.
b. If a government department, government agency or law enforcement agency informs us that there is any information on a Site which is in contravention of, or may contravene, any law, industry code of practice, policy guideline or regulation, we can remove that information from the Site.
c. Without limiting any other remedies available to us, we may suspend or terminate your account if we reasonably suspect that you may have engaged in fraudulent activity in connection with the Site.
1.3 Obligation To Maintain System Integrity
a. You may not take any action that might interfere with the operation of the Service.
b. You must not use any device, software or instruction to interfere or attempt to interfere with the proper working the Site or sale being conducted on or through the Site.
c. You must not take any action which imposes an unreasonable or disproportionately large burden on our infrastructure.
d. You must promptly notify us if you believe or suspect that the Service has been compromised or is being used in a manner that breaches this User Agreement.
e. You must provide a valid email address to use the Service and are responsible for checking that email address up for messages about the Service (or, if you have arranged for emails to be forwarded to an alternate email address, you must check that alternate email address).
f. You must provide current, accurate identification, contact, and other information that may be required as part of use of the Service.
g. You must ensure your use of the Service complies with the Unacceptable Behaviour Policy.
h. You must not disclose or share your password to or with any third parties or use your password for any unauthorised purpose.
i. You are solely responsible for your transmissions through the Service. You must:
(i) not forge communications or take any other action which would disguise the origin of the communications transmitted by you through the Service;
(ii) not allow another person to transmit communications that falsely identifies your account as the origin of such a communication;
(iii) not interfere with or disrupt networks connected to the Service;
(iv) not use the Service for illegal purposes; and
(v) comply with all regulations, policies and procedures of networks connected to the Service which either apply by operation of law or are referred to in the Site.
j. You must not do, and you must not authorise or encourage any third party to do, any of the following:
(i) prevent other account holders from using the Service;
(ii) use the Service for any illegal, fraudulent or inappropriate purpose;
(iii) use the Service in any other way that violates any of the items as described in the Unacceptable Behaviour Policy;
(iv) alter, remove or otherwise interfere with any permissions applied by another user;
(v) interfere with or construct your own system to access the information on the Service; or
(vi) act in any way that violates this User Agreement.
k. We reserve the right to determine whether or not your conduct is consistent with the User Agreement and what we believe is good practice for the Site. We may, in our sole discretion, immediately terminate your Account and use of the Service if your conduct is deemed by us to be inconsistent with the User Agreement or our standards of practice. However, in exercising our rights, we do not intend to act unreasonably.
2 Use Of The Service And Registration
2.1 Use Of The Service And Registering For An Account
a. You must provide requested details (including personal information) to us to use the Service. You may not use the Service anonymously. You may also create an account with us (your “Account”) to make your ongoing use of the Service easier. Registration is free and does not oblige to you purchase anything.
b. You must not use false or misleading information when registering for or using the Service. Your obligations to us won’t be reduced for any reason including (for example) where you use a false name. If your details have changed since you last used the Service, you must provide us with the updated details. We are not responsible for any loss or damage (including misdirected emails or deliveries) which may occur because you have not provided us with complete and accurate information.
c. If you register for an Account for the Service, you must choose your user name and password. You must have a valid user name (or “login”) and password in order to use an Account to buy items on the Site. You are responsible for the security of your user name and password. We may assume that anyone using your user name and password is authorised by you. Unauthorised access and use of your details will, under no circumstances, reduce your liability in connection with using the Service. This includes your obligation to purchase an item which may result from use of your user name and password. You must notify us immediately if you become aware of any unauthorised use of your user name or password or of any other security breach.
d. We intend to send notifications to you by e-mail of:
(i) sales confirmation for items purchased;
(ii) the status of your delivery, if applicable;
(iii) a copy of your invoice, if applicable;
(iv) newsletters and other promotional events and offers, unless you tell us you do not wish to receive these communications when you complete your registration form; and
(v) requests to participate in customer feedback.
However, we accept no liability for any loss or damage incurred if, for whatever reason, you do not receive such notifications.
e. We will use your personal data in accordance with our Privacy Statement.
f. You may request that your Account be closed by emailing us a closure request, to [email protected]
g. We will only close your Account if:
(i) all sales of goods to you have been completed, and
(ii) you have paid everything you owe us in cleared funds.
2.2 Eligibility To Use The Service
You must be able to form legally binding contracts to use the Service. This means you must not use the Service if you:
a. are under 18 years of age;
b. an undischarged bankrupt; or
c. under any type of insolvency administration, where you are a company.
2.3 Payment Requirements
In order to be eligible to make purchases using the Service, you must provide details of an acceptable credit card or other payment method acceptable to us and sufficient to make online payments.
2.4 Your Information
a. “Your information” includes any information you provide us at any time, including when you use the Service or register an Account to use the Service.
b. You are solely responsible for your Information. However, we may deal with your Information if we deem it necessary or appropriate for example; if we believe your Information may create any liability for us. In dealing with your Information, we will always act reasonably and in accordance with our privacy statement.
c. You must ensure that your information:
(i) is true, accurate and complete;
(ii) is not false or misleading;
(iii) does not infringe any other person’s rights (for example intellectual property rights) or privacy;
(iv) is not contrary to any applicable law or industry code of practice;
(v) is not defamatory, threatening or harassing;
(vi) is not obscene or pornographic; and
(vii) does not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming instructions that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
d. You must not do or allow to be done anything involving the Service which:
(i) may be contrary to any applicable law or industry code of practice, or
(ii) is prohibited by the User Agreement.
3 Your Rights And Obligations
a. You must pay the purchase price (including any GST) in full for the sale of an item or items to you, together with any other applicable fees or charges, for example delivery charges.
b. You authorise us to debit your chosen payment method for the total amount payable to us as a result of the sale of an item or items to you.
c. You are liable for any customs duties or excise levies for the export of the goods you purchase.
4 Our Rights
4.1 Suspension From Use Of Service
a. We may refuse you the right to use the Service if you:
(i) do not pay for the item and/or refuse delivery of the item;
(ii) give information which is untrue, inaccurate or incomplete; or
(iii) have engaged in any form of purchasing manipulation. In those circumstances you will be permanently suspended from the Service, including all associated secondary and re-registered membership accounts.
b. We may suspend, cancel or terminate your access to the Service if you breach or fail to observe the User Agreement or for any other reason at our discretion. However, we will not exercise our discretion unreasonably.
c. If we suspend your access to the Service, you may not register again.
4.2 False Or Misleading Conduct
a. It is illegal to use a false name to use the Service or to buy items with an invalid or stolen credit card, even if our software initially accepts an order. We intend to refer fraudulent users to the police and to your Internet Service Provider.
b. You may be sued for any losses suffered by any person arising out of illegal action.
c. If your credit card balance is insufficient to meet all money due to us, or a chargeback is made on the credit card then in addition to all other remedies available to us under the User Agreement, we may immediately institute proceedings against you for any amount owing to any person.
4.3 Our Rights Upon Breach By You
We may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate your registration Account (including on any other information you place on the Site) if you breach the User Agreement or if we are unable to verify or authenticate any information you provide to us.
4.4 Rights As Seller
a. We may withdraw and/or re-offer an item for sale at any time:
(i) if the item:
(A) becomes unavailable due to damage;
(B), is no longer in stock or has uncertain ownership;
(C) has been erroneously listed twice;
(D) is incorrectly described; or
(E) is incorrectly priced; or
(ii) if we deem the transaction to constitute false or misleading conduct as described at 4.2 above.
b. We also reserve the right to change the:
(i) quantities of products posted; or
(ii) maximum number of items which you may buy,
5 Liability And Indemnities
5.1 Our Liability To You
a. We provide the Site and the Service without any express or implied warranty or condition concerning the capacity or availability of the Site or the Service.
b. Neither we nor our suppliers will be liable for any lost profits or any special, incidental or consequential damages (however arising, including negligence) arising out of or in connection with the delivery of the Service or the sale of any goods.
c. We do not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Site may be restricted by factors outside of our control or during maintenance.
d. You acknowledge that the internet can be an unstable and, sometimes, insecure environment. At times the Service may not be available and sales may not be processed or accepted.
e. We cannot guarantee that we will notice or be able to prevent any illegal or inappropriate use of the Site.
f. We cannot guarantee the preservation of any record, particularly after the provision of the Service to you has been suspended, cancelled or terminated and may delete information at our sole discretion and without notice to any person.
5.2 Limitation Of Our Liability To You
a. In relation to the items sold, and subject to the Australian Consumer Law, we will endeavour to:
(i) provide accurate descriptions to fairly reflect each item;
(ii) pass clear title of the items to you; and
(iii) ensure that each item listed on the Site is available.
b. To the extent permitted by law, all express or implied conditions or warranties in connection with the Service, the Sites and the sale of any goods are excluded.
c. We do not exclude liability under any guarantee, condition or warranty which cannot be excluded by law. For example, we do not exclude guarantees under the Australian Consumer Law that apply to goods we sell. However, to the fullest extent permissible by law, we expressly limit our liability for breach of a guarantee, condition or warranty implied by virtue of any law at our option:
(i) in the case of goods supplied to:
A the replacement or repair of the goods;
B the supply of equivalent goods; or
C making a full refund to you.
(ii) in the case of services supplied to:
A supply of the services again;
B payment of the costs of having the services supplied again; or
C making a full refund to you.
a. You waive, release, discharge and relinquish any and all claims that you now have or may have against us, our affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives which are connected with, arise out of, relate to or are incidental to the use of the Service.
b. You agree to indemnify and defend us, our affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives (the Indemnified Parties) harmless from and against any and all claims, loss, damage, tax, liability and/or expense that may be incurred by the Indemnified Parties arising out of or in connection with the performance of their obligations as described in the User Agreement including the legal costs, fees and expenses of defending ourselves against any claim by any or all of the parties to any transaction and/or by any other person and/or as a result of your negligent act or omission on a full indemnity basis.
c. You further agree to indemnify and hold us, and the Indemnified Parties harmless from any claim or demand, including legal fees on a full indemnity basis), made by any third party due to or arising out of a breach of the User Agreement by you and the infringement by you, or other user of the Service using your user name and password, of any intellectual property or other right of any person or entity.
6.1 Risk And Title
a. If the item is to be delivered by us to a place nominated by you, the risk in it will pass to you:
(i) when it is delivered; or
(ii) if we are unable to deliver the item to the place nominated by you for any reason, (for example if no one is present to accept delivery), when we or our carrier first attempt to deliver the item.
b. All items to be delivered must be delivered to premises specified by you and receipt must be acknowledged by signature. After you provide delivery location details, you must not:
(i) contact any carrier we use directly and authorise them to deliver the items to another address; or
(ii) arrange for collection from the carrier directly.
If you contravene this clause or if you have given permission to deliver without acknowledgement, you will waive any right you may have had to personal delivery, and you will be deemed to have accepted all responsibility for any loss of or damage caused to the items by delivery, and you release us from any liability for any loss or damage caused as a result.
c. Title in any item will only pass to you when we receive the Invoice Amount in cleared funds.
d. If the item is withheld by us in accordance with the User Agreement, risk in the item will pass to you at such time as you would have been able to collect the item had we not been holding it.
e. You cannot change or request to change your delivery address details after a sale has completed. We have no responsibility if an item is not delivered where you change your delivery address details in those circumstances.
a. Our Privacy Statement (as it appears from time to time) is available on the Site. We will take all reasonable steps to abide by this policy and all Users of the Site agree to abide by the policy when using the Site.
b. If you do not agree to the collection of this information and the other information specified in the Privacy Statement, then you may not use the Site.
c. By using or registering for an Account to use the Service and accepting the User Agreement, you also consent to:
(i) collection of a variety of personal information which is specified in greater detail in the Privacy Statement. This information includes your address, gender, and date of birth and contact details; in some cases, credit card details and buying activities; and your use of our Site generally;
(ii) use of your personal information for certain purposes specified in greater detail in the Privacy Statement. These purposes include internal use for improving the Service; meeting our obligations under State or Federal law; statistical analysis of usage of our Sites to improve the Service; to utilise our content and product offerings and deliver promotional material to you (if you have opted for this service); and administrative purposes connected with the Sites; and
(iii) us disclosing your information in the circumstances specified in the Privacy Statement.
8 Intellectual Property
A. You acknowledge that We own all right, title and interest in and to the Service, including without limitation all intellectual property rights (the CAREMAX, PHYXIT & Love Magic Rights), and are protected by intellectual property laws. Accordingly, You must not copy, reproduce, alter, modify, reverse engineer or create derivative works from the Service. You must not use any robot, spider, other automated device, or manual process to monitor any content from, hosted by or that is otherwise available using the Service. The rights include rights to the Service developed and provided by us, all software associated with the Service and the brand features.
b. We do not claim any ownership in any of the content, including any text, data, information, images, photographs, music, sound, video, or other material, that you upload, transmit or store in your account. You grant to us and to all other users of the Service, a licence to use that content, in connection with the Service. You also agree that, in accessing or using content that another user of the Service uploads, transmits or stores, you must agree to respect any conditions that apply to that content, having regard to that user’s classification of that other content, received by you directly from that user. Further, you grant to us a non-exclusive, royalty-free, irrevocable licence to use, reproduce any content that you introduce to the Service (and warrant that you have the right to do so), for the following purposes:
(i) Promotion or marketing of the Service.
(ii) Technical development or data testing of the Service.
(iii) Monitoring or investigation of activity using the Service.
(iv) Compliance with legal or regulatory obligations.
(v) Provision of indexing, searching or cataloguing facilities or services.
(vi) Any other purposes notified to you in the User Agreement.
C. You must not circumvent, or attempt to circumvent, any Technological Protection Measure that is applied to any other user’s content (whether applied by us or another person). You must not alter, remove or otherwise interfere with any Rights Management Information applied to another user’s content that is made available through the Service. “Rights Management Information” and “Technological Protection Measure” have the same meaning as in the Australian Copyright Act 1968.
d. Where you are not the author of content, you warrant to us and to each user of that content that, to the extent necessary to allow use of the content in accordance with the Service, the author of the content has consented to any acts of omissions that are allowed by the Service that would, but for the consent, amount to an infringement of the author’s moral rights under the Australian Copyright Act 1968.