MARKETPLACE TERMS AND CONDITIONS
Welcome to Boutiques Australia! We are an online marketplace that works with a carefully curated group of Australian business retailers to give you access to hundreds of boutique products in one place. We want to make it easy for you to discover, and make sure you don’t miss out on, the amazing products that Australian small businesses have to offer. We hope you enjoy your time on our site.
1 Acceptance and Site Summary
1.1 This marketplace (Site) is operated by Kohne and Co Pty Ltd ABN 32 640 937 168 (we, our or us). It is available at: www.boutiquesaustralia.com.au and may be available through other addresses or channels.
1.2 We provide a platform via the Site where Australian small business retailers (Vendors) and individuals looking to purchase boutique products (Consumers) can connect and transact.
1.3 In these Terms, you means (as applicable) (1) the person buying boutique products on the Site as a Consumer; (2) the person or entity listed on the Site as a Vendor; or (3) the individual accessing or using the Site.
1.4 If you are using the Site on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms.
1.5 By accessing or using the Site you:
(a) warrant to us that you have reviewed these terms and conditions (Terms);
(b) warrant to us that you have the legal capacity to enter into a legally binding agreement with us and are over 18 years old; and
(c) agree to use the Site in accordance with the Terms.
1.6 You must not place an order for products or sell products through the Site unless you are at least 18 years old.
1.7 You understand and agree that we only make available the Site to you and we provide the following services:
(a) providing the Site to users;
(b) assisting Vendors to market and advertise their products;
(c) helping Consumers and Vendors to form contracts for the sale of products by Vendors to Consumers;
(d) processing payments between Consumers and Vendors for the sale of products; and
(e) holding sale proceeds on behalf of Vendors.
1.8 We are not party to any agreement entered into between a Consumer and a Vendor and we have no control over the conduct of Consumers, Vendors or any other users of the Site or over the availability, pricing, quality or any aspect of the products a Vendor offers. We are not the seller of any product offered by a Vendor and we are not acting for or on behalf of a Consumer in relation to payment for a product. We do not accept any Liability for the services provided by Vendors or any third party delivery company.
1.9 These Terms will apply from the date that you accept these Terms in accordance with their terms, until the date on which these Terms are terminated in accordance with their Terms (Term).
2 Consumer Registration (applicable to Consumers only)
2.1 You may purchase products from Vendors without an account or you may choose to create an account with us which allows you to review your order history, save your wish list and store your details such as your shipping address and payment details (Account). You must ensure that any personal information you give to us when creating an Account is accurate and up-to-date.
2.2 When you make a purchase, you will be asked to input basic contact information such as your name, email, shipping address, billing address and payment details and if you choose to create an account, you will need to choose a password.
2.3 It is your responsibility to keep your Account details confidential. You are liable for all activity on your Account, including any purchases made using your Account details. You agree to immediately notify us of any unauthorised use of your Account.
2.4 You acknowledge that you order products on the Site, but that you enter into a contract for the sale of products with the chosen Vendor. It will be the relevant Vendor who provides the products and arranges for delivery of the products in your order.
2.5 In order for the Vendor to enter into the contract for sale with you and to deliver the products to you, you consent to us providing the Vendor with your name, delivery address, contact details and any other relevant order details.
3 Vendor Accounts (applicable to Vendors only)
3.1 If you want to be listed as a Vendor on our Site and sell your products to Consumers, you must register your interest through the Site (Expression of Interest). You must also provide us with any information we request about your business, including where you are based, confirmation that you are a small business, the types of products you will sell, and your contact details.
3.2 We will review your Expression of Interest and determine whether your business will be suitable for our Site.
3.3 We may, at our absolute discretion, accept or reject your Expression of Interest.
3.4 If we reject your Expression of Interest, we will provide you with a written notice of such rejection and you will not be able to become a Vendor.
3.5 If we accept your Expression of Interest and we approve you as a Vendor on the Site, we will create a login for you for your profile on our vendor portal based on the sign-up information you provide us with and you will receive an email requesting you to choose a password which will allow you to access and use the Site as a Vendor (Vendor Portal).
3.6 Once you access the Vendor Portal, you may use your account to tailor your publicly facing profile. You will also be required to register for an account with our third party payment provider, currently Stripe.
3.7 You agree to provide accurate, current and complete information in the Vendor Portal and regularly update such information, to keep it accurate, current and complete.
3.8 You are responsible for keeping your login details and your username and password confidential and you will be liable for all activity on your profile on the Vendor Portal, including any Listings. You agree to immediately notify us of any unauthorised use of your profile on the Vendor Portal.
4.1 Vendors may use the Vendor Portal to post an accurate and complete description of any product that they wish to sell through the Site (Listing).
4.2 Listings of products should include the price payable by the Consumer that is inclusive of all costs, including any payment processing fees and other fees (Product Value). Delivery costs will be payable in addition to the Product Value and will be calculated based on the delivery option in the Listing that is selected by the Consumer (Delivery Costs). GST will also be payable on the Purchase Price and Delivery Costs, and will be displayed separately. These amounts, collectively, are the “Purchase Price”. All amounts are to be stated in Australian dollars.
4.3 As a Vendor, you agree:
(a) that you are legally entitled to, and capable of, supplying the product described in any Listing (including, that you have good title to the product and it is free from any encumbrances);
(b) to provide all details requested by us about the product in a Listing, including an accurate description, up to date photographs and the price of the product (as reasonably determined by you), and any other details requested by us;
(c) that we may at any time and for any reason reject the Listing, or remove the Listing from our Site, in our reasonable discretion; and
(d) that the product will be available for Consumers to order on our Site, unless the Listing for the product is removed by you or marked as out of stock.
5.1 A Consumer may order products from Vendors as set out in Listings on the Site. Any order placed through the Site is an offer by the Consumer to purchase a particular product or products from the Vendor for the price specified in the Listing (plus the delivery costs and any other applicable charges and taxes set out in the Listing or on the Site) and in accordance with any terms and conditions set out in the Listing, at the time the Consumer places the order.
5.2 It is the Consumer’s responsibility to check the order details, including selected products and pricing, before submitting the order through the Site.
5.3 When the Consumer orders and pays on the Site, the order is deemed accepted by the Vendor and results in a separate binding agreement between the Vendor and the Consumer for the supply of products in accordance with the Terms. Once the payment by the Consumer has been validated, we will provide the Consumer with an order confirmation email, which may include an order number, an order ID, the delivery and billing addresses and a description of what was ordered.
6.1 We may contact you via the Site using in-account notifications, or via off-Site communication channels, such as text message or email.
7 Fees and payment
7.1 We make available the Site and process payment for orders on behalf of Vendors as the agent of the Vendor through our payment processor.
Applicable to Consumers only
7.2 You must pay us, at the time you place your order, the Purchase Price.
7.3 You must pay the Purchase Price using one of the methods set out on the Site. Only once the Purchase Price has been paid in full, will your products be dispatched to you by the Vendor.
7.4 You agree to comply with your chosen third party payment processor’s terms and conditions.
7.5 You must not pay, or attempt to pay, the Purchase Price by fraudulent or unlawful means. In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the Purchase Price.
7.6 We may from time to time issue promotional discount codes for certain products on the Site. To claim the discount, you must enter the promotional discount code at the time of submitting your order through the Site. The conditions of use relating to promotional discount codes will be specified on the Site at the time they are issued. We may also from time to time run competitions on the Site or associated social media platforms. Such competitions are subject to terms and conditions which will be made available on the Site at the time of the competition.
Applicable to Vendors only
7.7 In consideration for providing the Site, allowing you to advertise and sell your products and providing the ordering facility and the payment processing facility, we charge Vendors the service fee, as set out on the Site (Service Fee). The Service Fee is exclusive of GST and calculated as a percentage of the Purchase Price minus any Delivery Costs.
7.8 Where a third party payment processor charges payment processing fees on an order for one of your products, you agree to pay us the relevant payment processor fee (Transaction Fee).
7.9 You must pay us the Transaction Fee and Service Fee plus any applicable GST on those amounts, for all purchases of your products made by Consumers. To the maximum extent permitted by law and unless specified otherwise in these Terms, our Transaction Fees and Service Fees are non-refundable.
7.10 Upon receipt of the Purchase Price from the Consumer, you agree that we may deduct the Transaction Fee and our Service Fee and hold the remainder (cumulatively, the Net Sales Proceeds – which includes the Delivery Costs paid by the Consumer) on your behalf. You are not entitled to any interest or other earnings for amounts we hold for you.
7.11 At the end of every month, we will aggregate the Net Sales Proceeds of the month. We will deduct any amounts payable to us from the Net Sales Proceeds (i.e. any refunds made to Consumers) and arrange for the remainder of the Net Sales Proceeds to be deposited in your nominated bank account via direct deposit. This deposit will normally appear in your bank account within 3-7 Business Days after payment settlement is initiated but this timeframe may be delayed due to factors beyond our control, including Force Majeure Events, you providing the wrong deposit details or delays caused by our third-party payment processor.
7.12 You appoint us as your limited payment collection agent solely for the purpose of accepting the Purchase Price from the relevant Consumer. You agree that we will not be required to pay you any amount until we have received the Purchase Price from the relevant Consumer, that we will deduct the Transaction Fee and our Service Fee from the Purchase Price we receive and that we may grant refunds to Consumers in accordance with these Terms.
7.13 You agree that when we receive full payment of the Purchase Price for an order from a Consumer, this will constitute payment to you for the order and the Consumer’s payment obligation to you will be deemed completed at that time and you will have no further claims against the Consumer with respect to that payment.
7.14 If you have not provided the product or products in an order to a Consumer or if we determine a Consumer should be refunded the Purchase Price in accordance with clause 11 (Returns), we have the right to refuse to pay the Net Sales Proceeds to you. You acknowledge that we may set off any amounts you owe to us from time to time against any amounts we owe to you.
7.15 You acknowledge and agree that we may, in our sole discretion, establish limitations around payments on the Site by Consumers or Vendors, including individual or aggregate transaction limits on the amount or number of orders a Consumer may make or a Vendor receives within certain time periods. You agree that we may refuse to process any payment if we believe that a transaction is fraudulent, invalid, suspicious or breaches applicable law or these Terms.
7.16 If you are involved in a dispute, you agree that we may place a temporary limit on the funds we hold for you to cover the amount of any potential liability. If the dispute is resolved in your favour, we will lift the limit on your funds and those funds may be released to you. We may also place a limit on your account in circumstances where we suspect you of fraudulent or other unacceptable behaviour, while we investigate any such matter.
7.17 This clause 7 will survive the termination or expiry of these Terms.
8 Availability and Cancellation (applicable to Consumers only)
8.1 All orders made through the Site are subject to availability. While we do our best to require that Vendors keep products (including available volumes) up to date so that the Site reflects the products that are actually available for purchase, this may not always be the case.
8.2 We or the relevant Vendor reserves the right to cancel, at any time before delivery and for whatever reason, an order that we or the Vendor has previously accepted, including where there is a considerable delay in dispatching your order, if for any reason a Vendor cannot supply the products you order (for example due to an event beyond our or a Vendor’s reasonable control) or if the products ordered were subject to an error on our Site (for example in relation to a description, price or image). We will contact you using the details you provided when you placed your order and offer you a refund.
9 Delivery, Title and Risk (applicable to Consumers only)
9.1 If possible, the relevant Vendor will deliver the products to the delivery address you provide when making your order. The relevant Vendor will deliver Australia-wide using their courier of choice through the third party platform, EasyShip. If you are not in the delivery area please contact us to discuss delivery options.
9.2 Delivery costs are set out on the Site, may vary from Vendor to Vendor and will depend on the type of delivery you choose.
9.3 You may need to sign for certain deliveries. If neither you nor your authorised representative is at the delivery address to accept delivery, the products may be delivered to your nearest post office.
9.4 Vendors normally dispatch products within 1-2 business days of receiving an order, unless otherwise noted on the Site. Any delivery periods displayed on the Site are estimates only, based on the information provided by the Vendor and EasyShip.
9.5 You will receive a tracking number for all orders which will enable you to see the delivery status of your order. Where you have purchased more than one product or these products are coming from different Vendors, you will receive multiple tracking numbers (one for each delivery).
9.6 Title to the products will remain with the Vendor until you have paid us the Purchase Price in full in accordance with the Terms. Until title passes, you must not do anything which seeks to create an encumbrance, lien, charge or other interest in or over the products.
9.7 Risk in the products will pass to you as soon as they are delivered to the delivery address you provided in your order. Once risk in the products passes, you will be solely responsible for them.
10 Delivery (applicable to Vendors only)
10.1 When a Consumer has a made an order through the Site, the order will be sent to you via email or by other means. You agree to deliver the product in accordance with these Terms.
10.2 You must prepare the product for delivery by packing the product in appropriate and good quality packaging (including to protect against loss or damage to the product during delivery).
10.3 You must arrange for delivery of the product with one of the couriers offered on our Site through EasyShip, using the delivery option selected by the Consumer, as set out in the order (for example, standard or express post).
10.4 You must dispatch the product within the earlier of: (i) 1-2 business days from the order date; or the timeframe set out in your Listing on the Site.
10.5 You must notify us when the product has been dispatched and provide us and the Customer with the tracking number for the delivery of the product.
10.6 Without limiting any provision of these Terms, you must provide us with notice as to any matter which may change the nature, scope or timing of the delivery of the product, as applicable.
11.1 Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law. In Australia, goods come with guarantees which cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
11.2 As we are a marketplace and you as a Consumer have purchased your products from a Vendor listed on our Site, we are not responsible for any returns under the Australian Consumer Law.
11.3 Where you as a Consumer wish to return the products to seek an Australian Consumer Law remedy, you will need to cover any associated costs (for example delivery costs) of you returning the products. To make an Australian Consumer Law claim, please send us an email to firstname.lastname@example.org with your order number, a photograph of the product and a description of the issue. We will advise you as a Consumer of the next steps, which will include returning the products to the relevant Vendor. You as a Consumer may also contact the Vendor directly.
11.4 Where your claim is a valid claim under the Australian Consumer Law, the Vendor will refund your return delivery costs and, depending on the failure, either dispatch a new or repaired replacement product or refund you the Purchase Price of the relevant product.
11.5 For disputes between users of the Site (including claims for returns or refunds), we encourage users to contact us, using our contact details below, and we will use reasonable endeavours to facilitate discussions between the users. In the event that a dispute cannot be resolved in good faith between the users, the users may choose to resolve the dispute in any manner agreed between the users or otherwise in accordance with applicable laws.
11.6 This clause will survive the termination or expiry of these Terms.
12 Reviews (applicable to Consumers only)
12.1 We may allow you to review your experience with a Vendor and the products you have bought from them, subject to our approval (Review).
12.2 If approved by us, your Review will be available to any user of the Site. You agree to provide true, fair and accurate information in your Review. If we consider that a Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review or ban you from posting the Review. We do not undertake to review each Review. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.
12.3 You can write a Review about a Vendor if you have had an experience with that Vendor, which means that you have purchased goods from the Vendor through the Site (a Consumer Experience).
12.4 You may not write a review about a Vendor if you are an employee of that Vendor, or work for the Vendor. Similarly, you may not write a Review about a direct competitor to the Vendor you are employed by or work for.
12.5 Your Consumer Experience must have occurred in the 12 months prior to you writing a Review.
12.6 You may only write about your own Consumer Experience. You are not permitted to write a Review about somebody else’s Consumer Experience, such as that of a family member or friend.
12.7 You are encouraged to be specific and factual in your Reviews. If you have been offered an incentive by a Vendor to write a Review, you should include information about this in your Review. Incentives include the Vendor offering you a gift, reward, discount or advantage for writing a Review about the Vendor on the Site.
13 Intellectual Property and Content
13.1 We may allow you to, on or through our Site:
(a) post, upload, publish, send or receive relevant content and information, including Listings posted through the Vendor Portal and Reviews (User Content); and/or
(b) access and view User Content and the content and information we make available on the Site (Boutiques Australia Content),
(together, the Content).
13.2 Unless otherwise indicated, we own or licence all rights, title and interest (including Intellectual Property Rights) in our Site and all of the Content. Your use of our Site and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Site or the Content.
13.3 You must not, without the prior written consent of ourselves or the owner of the Content (as applicable) or except as expressly permitted by these Terms:
(a) copy or use, in whole or in part, any Content;
(b) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content designated as paid, exclusive or non-shareable content to any third party; or
(c) breach any Intellectual Property Rights connected with our Site, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.
13.4 Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable licence to use our Site and access and view any Content for your personal use, and any other purpose contemplated by these Terms, in accordance with these Terms. All other uses are prohibited without our prior written consent.
13.5 You grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty free, sublicensable and transferable right and licence to use, view, distribute, communicate, copy, store, modify and exploit in any manner the User Content to provide the Site and promote the Site, and if you are a Vendor, your products, in any media, marketing or promotional material.
13.6 You agree that you are solely responsible for all User Content that you make available on or through our Site. You represent and warrant that:
(a) you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and
(b) neither the User Content nor the posting, uploading, publication, sending or receiving of the User Content or our use of the User Content on, through or by means of our Site will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
13.7 Despite anything to the contrary, to the maximum extent permitted by law, you agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the User Content you make available on or through the Site, including as a result of an Intellectual Property Breach.
13.8 The Content is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, to the extent permitted by law, we make no representation or warranty regarding the Content. The Content is subject to change without notice. We do not undertake to keep our Site up-to-date and we are not liable if any Content is inaccurate or out-of-date.
13.9 This clause will survive the termination or expiry of these Terms.
14.1 You represent, warrant and agree that:
(a) you will not use our Site or services in any way that competes with our business;
(b) there are no legal restrictions preventing you from entering into these Terms;
(c) all information and documentation that you provide to us in connection with these Terms, is true, correct and complete, is in accordance with all laws and is not false or misleading;
(d) you must not introduce malicious programs into our hardware and software or Systems, including any viruses or malware through any channel;
(e) to the extent permitted by law, you have not relied on any representations or warranties made by us in relation to the services and Site (including as to whether the services or Site is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms; and
(f) you must not use the services or Site: (1) to break any law or infringe any person’s rights (including intellectual property rights) (2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or (3) in any way that damages, interferes with or interrupts the supply of the Site or services;
14.2 If you are a Vendor, you represent, warrant and agree that:
(a) Listings, as a default, will be presented on the Site in an order of presentation to be determined by us in our sole discretion;
(b) all products that you provide through the Site will be of merchantable quality, free from defects, free from encumbrances and supplied in accordance with all relevant laws;
(c) you will update any changes to the products in your Listings, including any changes to the price, specifications and inventory as soon as you become aware of such changes;
(d) unless otherwise noted in the Listing, products will be new and not second-hand, and if they are second-hand, will be in a saleable condition;
(e) you are solely responsible for selling, pricing, packaging, delivering and providing products offered to Consumers on the Site in accordance with all applicable laws (including the Australian Consumer Law) and regulations and you are responsible for any permits or authorisations you need to supply the products; and
(f) we do not set your fees, work hours, your schedule or location. We do not provide you with training, equipment or tools or any materials to provide or manufacture your products. You are responsible for any taxes payable on any fee you receive for your products.
15 Exclusions to liability
15.1 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
(a) your or your personnel’s acts or omissions;
(b) loss of, or damage to, any property or any injury to or loss to any person;
(c) any use or application of the Site or our services by a person or entity other than you, or other than as reasonably contemplated by these Terms;
(d) any aspect of the Consumer and Vendor interaction, including the products offered by the Vendor, the description of the products offered by the Vendor, the description of the products purchased, or the supply and delivery of the products by the Vendor;
(e) the Computing Environment;
(f) any works, services, goods, materials or items which do not form part of our services (as expressed in these Terms), or which have not been provided by us;
(g) any third parties or any goods and services provided by third parties, including customers, end users, suppliers, delivery, transportation or logistics providers or other subcontractors which the provision of the Site may be contingent on, or impacted by;
(h) the Site or our services being unavailable, or any delay in us providing the Site or our services to you, for whatever reason; and/or
(i) any event outside of our reasonable control (including a Force Majeure Event).
15.2 This clause will survive the termination or expiry of these Terms.
16 Limitations on liability
16.1 Despite anything to the contrary, to the maximum extent permitted by law:
(a) we will not be liable for Consequential Loss;
(b) each Parties’ liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other party (or any of that party’s personnel), including a failure to mitigate; and
(c) our maximum aggregate liability arising from or in connection with the Terms (including the products and/or the subject matter of the Terms) will be limited to, and must not exceed: (i) in the case of a Consumer: the portion of the Purchase Price paid by you to us for the products the subject of the relevant claim; (ii) in the case of a Vendor: the portion of Service Fees paid by you for the services the subject of the relevant claim; or (iii) in all other cases including where there are no amounts paid, $100.
16.2 This clause will survive the termination or expiry of these Terms.
17.1 Your Account or your Vendor Portal (as applicable) and these Terms may be terminated by you at any time, using the ‘cancel account’ functionality (or similar) in your in the settings page of your Account or the Vendor Portal, or by emailing us.
17.2 We may suspend your Account or the Vendor Portal or terminate these Terms immediately upon written notice to you, if:
(a) you (or any of your personnel) breach any provision of these Terms and that breach has not been remedied within 10 business days of being notified by us;
(b) as a Vendor, you repeatedly receive negative reviews;
(c) there is any reason outside our control which has the effect of compromising our ability to provide the Site or our services; or
(d) you are unable to pay your debts as they fall due.
17.3 These Terms will terminate immediately upon written notice by you, if we:
(a) are in breach of a material term of these Terms, and that breach has not been remedied within 10 business days of being notified by you; or
(b) are unable to pay our debts as they fall due.
17.4 Upon expiry or termination of these Terms:
(a) we will remove your access to the Site (including your access to any Account or Vendor Portal);
(b) we will immediately cease providing our services to you;
(c) to the extent permitted by law and unless specified otherwise in these Terms, you agree that any payments made by you to us are not refundable to you;
(d) where you are a Vendor, you will fulfil any existing orders or refund the relevant Consumer; and
(e) where we terminate the Terms for any reason you also agree to pay us our additional costs arising from, or in connection with, such termination.
17.5 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
17.6 This clause will survive the termination or expiry of these Terms.
18 Collection Notice
18.2 We may disclose that information to third party service providers who help us deliver our services (including delivery couriers, our marketplace platform provider (currently EasyShip), inventory management software, information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. Where you are a Consumer, we will disclose your personal information to Vendors so that they can fulfill your order. If you do not provide this information, we may not be able to provide our services and/or the Site to you and Vendors may not be able to provide you with the products you order. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
19.1 Access: The Site may be accessed in Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Site.
19.2 Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. If you do not agree to the amended Terms, you must cease to use the service and Site and may terminate these Terms in accordance with clause 17.1 (Termination). As a Consumer, prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any order that has been accepted by a Vendor, the terms and conditions that apply to that order will be the ones that were in effect (and which you as a Consumer agreed to) when you as a Consumer placed your order.
19.3 Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.
19.4 Disputes: In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a Consumer and us, or a Vendor and us, a party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute. If the parties cannot agree how to resolve the Dispute at that initial meeting, either party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, either party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the parties. Nothing in this clause will operate to prevent a party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause will survive expiry or termination of these Terms.
19.5 Email: You agree that we are able to send electronic mail to you and receive electronic mail from you. You release us from any Liability you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
19.6 Feedback and complaints: We are always looking to improve our services. If you have any feedback or a complaint, please notify us on our contact details below and we will take reasonable steps to address any concerns you have.
19.7 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control (including but not limited to epidemics, pandemics, and Government sanctioned restrictions and orders, whether known or unknown at the time of entering into these Terms) (Force Majeure Event).
19.8 Governing law: These Terms are governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
19.9 Notices: Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to you at the address last provided to us (whether through your Account, the Vendor Portal, or your last order). Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 2 Business Days in the case of post, or at the time of transmission in the case of transmission by email (or, where the time of transmission is not on a Business Day, 9am on the next Business Day).
19.10 Photographs: If you provide us with photographs of the products, including via email or by tagging us on social media, you consent to us publishing such photographs and details (including but not limited to your name, location and date) for our marketing purposes including on the Site and social media.
19.11 Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship (except to the extent set out in the Payment clause as limited payment collection agent) between the parties.
19.12 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
19.13 Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
19.14 Vendor insurance: Where you are a Vendor, we may request that you provide evidence of your insurance. Where we do so, we are not confirming that the insurance you have is sufficient or suitable for the products you choose to provide to Consumers. If we do not ask you to provide evidence of insurance this does not indicate that we believe you do not require insurance. You acknowledge and agree it is your responsibility to make your own investigations and receive professional advice on the insurance you require.
For the purposes of these Terms, capitalised words have the following meanings:
ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
Computing Environment means your computing environment including all hardware, software, information technology and telecommunications services and Systems.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Intellectual Property Breach means any breach by you (or any of your Personnel) of any of our Intellectual Property Rights (or any breaches of third-party rights including any Intellectual Property Rights of third parties).
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.
System means all hardware, software, networks and other IT systems used by a party from time to time, including a network.
For any questions or notices, please contact us at:
Kohne and Co Pty Ltd ABN 32 640 937 168
Last update: 13 November 2020
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