E-Commerce Website Terms

Instance of E-Commerce Website Terms

Parties

Provider means Safiery Pty Ltd (ABN 87624588807) of 45/8 Distribution Court, Arundel 4214 QLD, Australia, contactable on [email protected].

Customer means you, the person using Provider’s Service, contactable on any email communicated to Provider.

E-Commerce Website Background

Capitalised words and phrases are defined in the “Definitions” section of this document unless otherwise specified.

  • Provider operates the Service.
  • The parties intend that Customer will use the Service to purchase Products on the terms and conditions of the Agreement.

It is agreed as follows.

1. Agreement Creation

Customer agrees to the terms of the Agreement with the clickwrap procedure on the Service.

2. Services Use

Provider grants Customer a right to use the Service subject to the terms and conditions of the Agreement.

3. Age Restrictions

Customer will not use the Service unless Customer is over 18 years of age.

4. Service Accounts

Account undertakings

Customer agrees to:

  • provide accurate and complete information to Provider to establish the Account;
  • keep details used to access the Account secure and private; and
  • notify Provider in the event that the Account’s security is compromised in any way.

Account responsibility

Customer agrees that it will be responsible for the Account’s activity, even if the Account is used in an unauthorised way by another person.

5. Placement of Orders

Placing orders

By placing an order, Customer agrees:

  • to pay Provider the amounts listed on the Service by Provider in exchange for the Products; and
  • to pay Provider for the Products using the payment method specified by Provider on the Services.

Shipping and refund

By placing an order for Products, Customer agrees to Provider’s:

  • Shipping Policy; and
  • Refund Policy.

Provider may decline an order for a Product at its discretion and will provide a full refund for any declined order.

6. Product Delivery

Customer agrees that:

  • the Products are the responsibility of Customer when they reach the delivery address; and
  • that the Products remain the property of Provider until Customer has paid Provider for the Products in full.

7. Intellectual Property Protection

  • Provider reserves the right to alter any element of the Service IP at its discretion.
  • Customer agrees not to reverse engineer any part of the Service IP.
  • No licence or right is granted over any intellectual property in the Service IP unless explicitly described in the Agreement.
  • Customer does not have any right to resell or sub-licence the Service IP unless the Agreement explicitly provides otherwise.
  • If Customer provides Feedback to Provider, Customer Transfers Intellectual Property Ownership in the Feedback (and any resulting enhancements to the Service) to Provider.

8. Privacy

  • Provider will store and use the Personal Information of Customer in accordance with Provider’s Privacy Policy.
  • Customer is responsible for its own compliance with privacy law. Provider does not promise that any use of the Services by Customer complies with any privacy law.

9. Acceptable Use

  • Customer agrees to use the Service in accordance with the law at all times and only in ways that the Service was designed to be used.
  • Customer agrees not to use the Service to communicate or store any Prohibited Information.
  • Customer agrees not to use the Service such that the use interferes with Provider’s ability to provide the same service to other parties.
  • The parties agree that a breach of this acceptable use clause gives Provider the right to immediately suspend Customer’s access to the Service until Provider is reasonably satisfied that the use breaching this clause will be discontinued.

10. Posted Information

Customer agrees that:

  • it is responsible for the legal consequences arising from Posted Content;
  • Provider is in no way responsible for legal consequences arising from Posted Content;
  • Provider may edit or remove Posted Content at its discretion; and
  • Customer promises that it will not, by posting Posted Content, infringe the Intellectual Property Rights of any third party, or cause Provider to do so.

11. Relying on information

  • Provider does not promise that any Service Content is complete or correct.
  • Customer agrees that it should verify any Service Content before relying on it in any way.
  • Provider may change the Service Content at its discretion without any warning or notification to Customer.
  • To the extent that Service Content is third party advertising, Customer agrees that Provider does not endorse the third party advertiser or any of its information, products or services.

12. Product information

  • Any Service Content dealing with Products is for example purposes only and not necessarily accurate.
  • Photographs of Products may not match the colour or size of Products.

13. Limitation of Provider’s Liability

The amount Customer can claim from Provider in relation to the Agreement, Services and Products (including for any Example Limitation Risks) is Limited To The Legal Minimum.

14. Termination

Termination for breach

Provider can terminate the Agreement immediately by written notice if:

  • it notifies the breaching party of an Agreement breach in writing; and
  • the breach is not remedied 5 Business Days after the breach notification.

The non-breaching party’s obligations under the Agreement will be suspended until the notified breach is remedied

Insolvency

Provider may terminate the Agreement immediately with written notice if Customer becomes insolvent.

15. Dispute Resolution

Parties will use dispute resolution

  • Where any dispute arises between the parties in relation to the Agreement, the parties must comply with the procedure described in this section to resolve the dispute before a party brings court proceedings.
  • This section will not apply to payments due to Provider under the Agreement.
  • Nothing in this clause prevents any party from bringing court proceedings for urgent injunctive, interlocutory or declaratory relief.

Process

The parties agree to the Dispute Resolution Discussion as the first step followed by the Mediation Process.

16. App Store

Provider and Customer agree to the additional App Store Terms in relation to the Service.

17. Agreement Changes

  • Provider may change the Agreement at any time, without giving Customer notice.
  • Any such changes will only apply to any future use of the Services.
  • Customer must review the Agreement each time they use the Services.
  • If Customer does not agree to the Agreement changes, Customer must cease using the Services.

18. Taxes

  • Customer will be liable for all duties and taxes connected with the Agreement.
  • Customer will be liable for taxes incurred under GST Law.
  • Payment amounts referenced in the Agreement will be exclusive of GST Law amounts unless explicitly stated.

19. General Provisions

Governing law

  • The governing law of the Agreement will be the law of Queensland.
  • The parties agree that this state or territory will be the exclusive jurisdiction for any proceedings under the Agreement.

Notice

Parties will send notices and other written communications connected with the Agreement to the contact details listed in the “Parties” section.

Agreement technicalities

The parties agree to:

  • the Boilerplate Provisions; and
  • the Interpretation Principles.

Definitions

Account

means a digital account for the purpose of the Services.

Agreement

means the agreement arising between the parties in accordance with this document and the other documents referred to by this document.

App Store Owner

means the owner of the application store from which Customer purchased the Service, whether that be the Apple app store, the Google Play store or another analagous application store.

App Store Terms

  • The Agreement is between app runner and app downloader only.
  • app runner and not the App Store Owner is responsible for the app, and app runner is solely responsible for:
    • support and maintenance;
    • the investigation, defence, settlement and discharge of any claim that the authorised use of the app infringes third party intellectual property rights;
    • any claim that the app fails to conform to any applicable legal or regulatory requirement, including product liability claims and claims arising under consumer protection laws.
  • The App Store Owner’s liability to app downloader is limited to the refund of the purchase price of the app paid by app downloader. The App Store Owner will have no other liability to app downloader in relation to any other claims or liabilities with respect to the app.
  • The App Store Owner is entitled to enforce the terms of the Agreement against app downloader and app downloader agrees to submit to the App Store Owner’s legitimate enforcement.
  • app downloader’s right to use the app is non-transferable and non-sublicensable, except to the extent that the App Store Owner permits family sharing or like sharing arrangements.
  • If there is any inconsistency between the Agreement and the application usage rules set out in the App Store Owner’s terms of service, the App Store Owner’s terms of service will prevail to the extent of the inconsistency.
  • If app downloader purchased the app from the Apple app store, app downloader may only use the app on Apple branded products in accordance with the usage rules in the Apple store terms of service.
  • app downloader warrants that app downloader is not:
    • located in a country that is subject to a US Government embargo or that has been designated by the US Government as a ‘terrorist supporting’ country; or
    • listed on any US Government list of prohibited or restricted parties.
  • The App Store Owner may monitor app downloader’s use of the app.
  • If app downloader uses any third party service in the course of accessing or using the app, app downloader must comply with applicable third party terms and conditions.

Boilerplate Provisions

The following sections apply to the Agreement.

Further assurances

The parties agree to do everything required to give full effect to the Agreement.

Entire agreement

The Agreement and any other document incorporated by reference constitute the entire legal agreement. The parties agree that they have not relied on any representation or statements outside the terms of the Agreement.

Electronic signature

The Agreement may be executed or entered into electronically.

Counterparts

The documents constituting the Agreement may be executed in multiple counterparts. The counterparts will be read as one legal document.

Waiver

No right or obligation under the Agreement will be waived unless the waiver is explicitly made in writing.

Severance

Any unenforceable or invalid term of the Agreement will only be severed to the extent of the unenforceability or invalidity without affecting any other term in the Agreement.

Binding on successors

The Agreement is binding on each party’s successors and permitted assigns.

Agreement expenses

The parties will cover their own expenses in preparing the Agreement documents.

Business Days

means a day, between the hours of 9am to 5pm, in the jurisdiction of the governing law of the Agreement (Area), that is not:

  • a Saturday or Sunday; or
  • a public holiday, special holiday or bank holiday in the Area.

Compulsory Conditions, Compulsory Condition

means any condition, warranty or guarantee that the law does not permit to be limited or excluded (such as the consumer guarantees under the Competition and Consumer Act 2010 (Cth)).

Consequential Loss

means any kind of consequential, special, incidental or indirect loss, including loss of profits, loss of revenue, expenses incurred, pure economic loss, loss of opportunity and any kind of punitive or exemplary loss or damages.

Dispute Resolution Discussion

  • The party claiming that there is a dispute must provide notice of the dispute in writing to the other party that includes full and detailed particulars of the dispute (Dispute Notice).
  • The party receiving the Dispute Notice must respond in writing to the initiating party with a response that includes full and detailed particulars of its position on the dispute within 10 Business Days (Dispute Response).
  • Within 10 Business Days of the Dispute Response due date both parties must arrange a meeting between representatives (in person or on the telephone) with sufficient authority to resolve the dispute (Resolution Meeting).
  • The discussion process above will be deemed to have ended if there is no resolution within 10 Business Days of the Resolution Meeting or a written agreement between the parties to extend this deadline.

Example Limitation Risks

means any liabilities arising from the risks described below.

Risks from data, including:

  • the storage of any third party data;
  • a third party pursuing a right conferred by privacy or data protection law;
  • breach of privacy or data protection law;
  • corrupted or lost data;
  • breach of any law in connection with spam; and
  • digital security issues like malware.

Risks from software and network, including:

  • failure of any software, hardware or network components provided by a third party;
  • faulty technical data created by software;
  • digital security issues like software vulnerabilities;
  • the use of software for unlawful activity;
  • software or network that’s inaccessible for any reason; and
  • software in a testing phase like (or analogous to) beta and alpha software.

Risks from intellectual property, including:

  • any third party claim or legal action for intellectual property infringement; and
  • risks relating to infringement of third party intellectual property.

Risks from the Agreement, including:

  • breaches of the Agreement;
  • any delay connected with the Agreement;
  • negligence connected with the Agreement and its subject matter;
  • the termination of the Agreement;
  • any act or omission connected with this agreement; and
  • third party reliance on the subject matter of the agreement.

Feedback

means any comments or suggestions on the Service by Customer resulting from use of the Services by Customer.

GST Law

means the A New Tax System (Goods and services Tax) Act 1999 (Cth).

Intellectual Property Rights

means all present and future rights conferred by common law, equity or statute connected with the results of intellectual activity, as well as the benefit of any application to register, renew or extend such a right.

Interpretation Principles

The Agreement will be interpreted as follows unless it explicitly states otherwise.

Grammatical Forms

In this document grammatical forms will be interpreted as follows:

  • headings are for convenience and will not affect interpretation; and
  • “$” means the Australian dollar.

Importing definitions

  • Defined terms begin with capital letters and are not legally effective except as described below.
  • Rights and obligations in definitions will be incorporated into the provision using the definition with the method described below.
  • Parameters for a definition are indicated in the definition with italic text.
  • Parameters in a definition inherit meaning from the equivalent concepts in a plain reading of the provision using the definition (Provision).
  • The Provision may stipulate exceptions to the rights and obligations in the definition, which will be read as an exception to the rights and obligations in the definition.
  • Where a definition refers to rights and obligations as “these” or “this” it refers to rights and obligations created by the use of the definition in a Provision.

Limited To The Legal Minimum

The limited party deals with the limiting party in respect of the limitation subject at its own risk. To the fullest extent permitted by law, limiting party excludes all liability (including Consequential Loss) to limited party for any liabilities connected directly or indirectly with the limited party and limiting party dealings in relation to the limitation subject, including liabilities based on:

  • contract law;
  • tort law; or
  • legislation,

and including liabilities caused by the limitation risks.

Where there is a limitation exception, this limitation of liability does not apply to the subject of the limitation exception.

Indemnities not limited

The foregoing limitation of liability will not apply to indemnities given by limiting party to limited party under the Agreement.

Failure to pay not limited

The foregoing limitation of liability will not apply to liabilities arising from limiting party’s failure to pay limited party any monies due under the Agreement.

Implied Conditions

To the fullest extent permitted by the law, all terms and conditions implied by any other source of law in relation to dealings between the limiting party and the limited party in respect of the limitation subject are excluded from the Agreement.

Compulsory Conditions

To the fullest extent permitted by the law, limiting party’s liability to the limited party for breaching a Compulsory Condition in relation to the limitation subject is limited to:

  • in a case where a breach is deemed to be a breach in respect of goods:

    • the replacement of the relevant goods or the supply of equivalent goods;
    • the repair of the relevant goods;
    • the payment of the cost of replacing the relevant goods or of acquiring equivalent goods; or
    • the payment of the cost of having the relevant goods repaired; and

  • in a case where a breach is deemed to be a breach in respect of services:

    • the resupply of the relevant services; or
    • payment of a sum equal to the cost of resupplying the relevant services.

The limiting party will choose which of these options will apply.

Mediation Process

  • Failing resolution via any previous dispute resolution process, either party may refer the dispute for mediation.
  • The mediator shall be agreed between the parties or, failing agreement, will be an accredited mediator appointed by the relevant chapter of the Institute of Arbitrators and Mediators Australia.
  • The parties agree to abide by the mediation rules of the Institute of Arbitrators and Mediators Australia, in seeking to resolve the dispute.
  • The mediation process above will be deemed to have ended if there is no resolution within 60 Business Days of the mediator’s appointment or a written agreement between the parties to extend this deadline.

Moral Rights

means the rights commonly referred to as “moral rights”, such as the right of attribution, which are recognised in the jurisdiction of the Agreement.

Personal Information

means any information that is categorised as ‘personal information’ or ‘personal data’ under privacy law, or is otherwise regulated by privacy law.

Posted Content

means any content or information posted by Customer that is available to third parties.

Privacy Policy

means Provider’s privacy policy published at https://safiery.com/privacy-policy/.

Products, Product

means the products for sale on https://safiery.com.

Prohibited Information

means information:

  • that could reasonably be considered racist or hate speech;
  • that infringes the intellectual property rights of a third party;
  • to harass any third party;
  • that is pornographic in nature;
  • that could reasonably be categorised as ‘malware’; or
  • that is unlawful.

Refund Policy

means the refund policy of Provider, posted on the Service.

Service Content

means any information, content or data provided with or in association with the Services.

Service IP

means the Intellectual Property Rights in the Services provided.

Service, Services

means:

  • access to the https://safiery.com web service; and
  • documentation for the Safiery web service.

Shipping Policy

means the shipping policy of Provider, posted on the Service.

Transfers Intellectual Property Ownership

  • The assignor assigns all current and future Intellectual Property Rights in the transfer subject to assignee.
  • The assignment is global unless the clause specifies a particular territory for the assignment, in which case the Intellectual Property Rights are assigned in that territory only.
  • The assignor warrants and represents to assignee that it has the right to transfer the Intellectual Property Rights under this clause and that the assignee’s legitimate exercise of the assigned Intellectual Property Rights will not infringe the rights of any third party.
  • The assignor agrees to do all things necessary to give effect to the foregoing assignment of Intellectual Property Rights.
  • The assignor gives (and where it does not hold the relevant Moral Rights warrants that it will obtain) any Moral Rights waivers and consents necessary to ensure the assignee can deal in the Intellectual Property Rights in the transfer subject in accordance with this clause without infringing Moral Rights.