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Ecommerce Terms and Conditions
The website artistguitars.com.au and its related services, products, websites, tools and applications (Website) is owned and operated by Artist Guitars Pty Ltd ABN 59 160 522 574 (Artist Guitars).
These ecommerce terms and conditions (Terms and Conditions) govern the supply of any Products (as defined below) ordered by you on the Website or by any other means, including in-store, by telephone or email. Other terms and conditions contained in the privacy policy (Privacy Policy) and elsewhere on our Website also form part of our agreement with you.
By using the Website or by placing an order with one of the above methods or by giving your acceptance to these terms, you agree to be bound by these Terms and Conditions. If you don’t agree to be bound by these Terms and Conditions, you must not use the Website.
These Terms and Conditions may be updated by us from time to time. Each order placed on the Website will be a separate contract and the Terms and Conditions that will apply to you will be the then version of the Terms and Conditions that is on the Website at the time you place your order. Each time you use our Website you should revisit these Terms and Conditions.
1. DEFINITIONS & INTERPRETATION
1.1 Definitions
In these Terms and Conditions unless inconsistent with the context or subject matter the following terms have the corresponding meanings:
(a) Account: an account on the Website.
(b) Applicable Laws: any Applicable Laws (including orders, by-laws and regulations) in the jurisdiction in which you, and any User you are interacting with are located or which in any way govern or affect the use of the Services.
(c) Australian Consumer Law: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
(d) GST: the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(e) Loss: any loss, liability, cost, charge, expense, tax, duty or damage of any nature whatsoever, including special, incidental, or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
(f) our, us and we: Artist Guitars.
(g) Privacy Policy: our privacy policy accessible on the Website.
(h) Products: has the meaning given to it under clause 2.1 and includes any other products offered for sale on the Website from time to time.
(i) Services: any services we provide to you, including the Website and the sale of Products.
(j) State: New South Wales, Australia.
(k) User: means any person who uses the Website.
(l) you and your: means a User.
1.2 Interpretation
In these Terms and Conditions, unless inconsistent with the context or subject matter:
(a) Headings and subheadings are for convenience only and do not affect the interpretation of these Terms and Conditions.
(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms and Conditions.
(c) References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
(d) Words denoting the singular include the plural and words denoting the plural include the singular. Words denoting any gender include all genders.
(e) The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
(f) A reference to any agreement or document (including these Terms and Conditions) includes any amendments to or replacements of that document.
(g) A reference to a law includes legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
(h) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally and is for the benefit of them jointly and each of them severally.
(i) No provision of these Terms and Conditions will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms and Conditions.
(j) A reference to time or day is a reference to time in the capital city of the State.
(k) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
(l) Specifying anything in these Terms and Conditions after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
(m) A reference to writing or written includes email.
2. USING THE WEBSITE
2.1 Artist Guitars supplies musical instruments and other products made available through the Website (together the Products).
2.2 Your use of this Website is by non-exclusive licence granted by us strictly in accordance with these Terms and Conditions.
2.3 You may not use this Website in any manner which could damage, disable, overburden, or impair the Website or interfere with any other party's use and enjoyment of the Website.
3. YOUR ACCOUNT
3.1 In order to use most of the functionality of the Website, you may need to register with us and set up an Account with your email address and a password. You are solely responsible for maintaining the confidentiality of your password and you are liable for all activities that happen under your Account, even if you do not authorise such activities.
3.2 If we enable you to connect to the Website with a third-party service (e.g. Facebook or Google+), you hereby grant us permission to access, store, and use your information from that service as permitted by that service and as may be described in our Privacy Policy. You should contact us immediately if you believe your Account has been compromised or misused in any way.
3.3 When you notify us of your Account being accessed without your authority or your Account not being secure, we may restrict your use of the Website in our absolute discretion.
4. PLACING AN ORDER FOR PRODUCTS
4.1 You may place an order for Products by following the prompts on the Website and submitting your order to us in accordance with these Terms and Conditions.
4.2 Orders may be placed online via the Website or by other means if offered by Artist Guitars, including in-store and by telephone or email. Any reference to Website in these Terms and Conditions shall include references to such other locations in which the Products are sold (such as in-store, on Facebook business pages or Instagram business pages). Whether you are placing an order on the Website or by any other means, these Terms and Conditions will apply to you.
4.3 Any order placed through the Website for Products is an offer by you to purchase the Products for the purchase price specified on the Website at the time you placed the order. You acknowledge that by placing your order, you are agreeing to pay for and accept delivery of the Products ordered, subject to any limitations shown on the Website.
4.4 All orders placed are subject to availability. Our rights to cancel your order are set out under clause 7. You may not cancel your order once it is placed other than as expressly provided for in these Terms and Conditions. We may in our sole discretion, limit or cancel quantities purchased per person, per household or per order (including those placed without limitation by the same customer account, same credit card, or same billing and/or shipping address).
4.5 In the event that you purchase a Product on behalf of a third party, you represent and warrant that you have made that third party aware of these Terms and Conditions and you acknowledge and agree that actions of that third party shall also be attributed to you for the purposes of these Terms and Conditions.
4.6 The purchase price for the Products will be displayed on the Website at the time you place an order. Prices and all other details for our Products are subject to change without notice.
4.7 You must make payment via a method accepted by us as stated on the Website. We will charge you and you agree to pay the purchase price and any other fees shown to you on the Website for the Products at the time you place your order, except where otherwise agreed. Any payments for an order of Products must be received in cleared funds before the Products will be dispatched. If your payment cannot be processed, or fails to clear, your order will be rejected, and you will be notified by the Website.
4.8 By placing an order, you are declaring that the Products are for your personal use only and will not be made available for resale by you or by someone else.
4.9 You authorise us, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud.
4.10 Our payment provider may charge you a fee depending on the payment method used by you (for example, payments made by credit card may attract a small surcharge). You agree to pay such fees at the same time as you make payment to us, even if such fees are not explicitly disclosed on the Website.
4.11 Prices shown on the Website are in Australian Dollars (AUD) and include GST, unless otherwise stated.
4.12 All payments must be made in clear funds without set-off or counter claim.
4.13 You acknowledge and agree that you are solely responsible for ensuring that you have read and understood any applicable third-party (such as PayPal) terms and conditions when using the Website. We will not be liable for any loss or damage suffered by you in connection with such third party terms, regardless of whether we bring these to your attention or not. You are solely responsible for obtaining a copy of and reviewing such third party terms.
4.14 We are not party to any transaction between you and a third party. For example, if you incur a debt to a third party payment provider in connection with a purchase through the Website, you are solely liable for that debt and you acknowledge that we are unrelated to, and have no control over that third party payment provider.
4.15 Each order placed by you will be a separate and binding agreement between you and us in respect of the supply of the Products.
5. SHIPPING AND DELIVERY OF PRODUCTS
5.1 Costs of Delivery
Available delivery options, terms and charges for each Product will be shown on the relevant checkout page at the time you place your order. The costs of delivery of Products are payable in addition to the price of the Products, unless otherwise stated (such as where you order a minimum quantity of Products). The option selected by you and the applicable costs of delivery and estimated delivery times will be shown in your checkout summary at the time you place your order. Payment of delivery costs is due at the time you place an order.
5.2 Delivery of Products
(a) Once we have accepted your order and received valid payment in full for the Products (if required) and delivery costs (where applicable) we will endeavour to process your order within the timeframes as specified on the Website however we are unable to guarantee delivery and/or collection within these timeframes and we will not be in breach of these Terms and Conditions if we fail to deliver within those timeframes (and you are not permitted to cancel your order on the basis we fail to deliver within those timeframes).
(b) Please note that all shipping times listed on the Website are an estimate time of delivery only and to the extent permitted by law, we are not responsible for any delays experienced or Loss suffered as a result of delays.
(c) Shipping will be provided by our nominated third party delivery service provider.
(d) You must ensure there is clear and safe access for delivery. If the delivery service provider arrives at the agreed time but is unable to deliver the Product or considers that it is unsafe or inappropriate to do so, you may be required to pay for re-delivery.
(e) If you provide us with authority to leave the Products, then your order will be left unattended at the delivery address you nominate at checkout. In doing so we will not be held liable for any loss or damage that is suffered to your Products as a result.
(f) If you do not provide us with authority to leave then if you are not available to take delivery of the Products, or if another issue arises we may at our discretion either take your Products to a delivery service provider’s local depot or redeliver the Products to your delivery address at a later date (in which case you must pay the costs of return, storage and redelivery prior to the Products being re-delivered).
(g) Some Products may require extra delivery personnel which may incur an additional charge as advised to you before you submit your order.
5.3 Click and collect
(a) It may be an option to collect the Products from the designated locations specified on the Website and as nominated by you at the checkout page. If Products are being collected, please collect them within 7 days after we inform you that the Products are ready for collection. You will be responsible for transportation when picking up the Products.
(b) If you fail to collect them within this time, then unless you make arrangements with us for late collection, we will assume you have cancelled your order. This means we may re-sell the Product, and you may be required to pay a re-stocking fee or, in the case of specially ordered or custom-made product, forfeit any deposit/payment you have made. We may need to verify your identity upon collection.
(c) Pick-up is only available during business operation hours and not available on public holidays in New South Wales.
5.4 Additional information
(a) We deliver to most residential and business addresses within Australia, however unfortunately there are certain areas that we are unable to deliver to. Please review the Website at the time you place your order for available shipping locations.
(b) If there is any delay with the delivery of your order, then we will contact you as soon as possible.
5.5 Risk and Title
(a) All fully paid orders will be shipped by the postage carrier nominated by us. Until an order is paid for in full, title in the relevant Product remains with us.
(b) All risk in the Products ordered will pass to you at the time the Products are:
(i) delivered to the delivery address (or some other address as agreed by the parties) (where delivery is nominated); or
(ii) collected by you (where you click and collect).
6. PROMOTIONS AND DISCOUNTS
6.1 From time to time we may provide you with a promotional or coupon code for use when placing an order. It is your responsibility to ensure that the code is valid, and that you enter the code for use at the correct time. The code cannot be applied after you have submitted your order. Some promotional or coupon codes may only be valid while stocks last. We reserve the right to cancel any promotional or coupon code or discount at any time for any reason at our discretion. Separate terms may apply to the use of the code and will be advised by us. We reserve the right to reverse or disallow the use of any promotional or coupon code. We will not be responsible for any loss incurred by you in redeeming or attempting to redeem any promotional or coupon code.
7. CANCELLATION
7.1 Our cancellation rights
We reserve the right to accept or reject your order (or any part thereof) at any time and for any reason in our absolute discretion, including after you have placed the order and received a confirmation email and/or invoice or we have previously accepted such order. We may cancel your order for example, in the following circumstances (without limitation):
(a) if the Products are not available;
(b) you place an order to be delivered outside our delivery zones; or
(c) where there is an error in the description or price of any Products on the Website relevant to your order.
If we do cancel your order, we may do so without any liability to you for that cancellation except as set out in this clause. Where we cancel your order, we will endeavour to notify you and provide you a refund of all payments made for such order.
7.2 Your cancellation rights
You may not cancel any order unless otherwise agreed by us in writing.
8. RETURNS AND REFUND POLICY
8.1 Consumer Guarantees
Our Products come with guarantees that 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 Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure. Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Australian Consumer Law) which cannot by law be excluded, restricted or modified.
8.2 Change of mind returns
Subject to the other terms of this clause, if you purchase a Product from us, and you wish to return it because you have changed your mind about the purchase, we are pleased to offer you a full refund on such Product provided that:
(a) you contact us via the Website within 100 days of the date of purchase;
(b) you present to us your receipt or other adequate proof of purchase; and
(c) the item is in re-saleable condition, with light wear only.
Provided you comply with the above, we will provide you with a return authorisation number and return shipping label (postage paid). We will arrange the free return shipping (instructions will be provided by us). It is your responsibility to package the item sufficiently to avoid damage in transit back to us. We encourage customers to photograph the items scheduled for return and the condition of the packaging before handing over to the delivery company. Claims made under this change of mind return policy are limited to a maximum of five claims per calendar year per customer/address. We reserve the right to deny claims where we consider you are abusing this policy.
8.3 Limited 3 Year Warranty
(a) Subject to the other terms of this clause, we represent and warrant that the Products will be free from manufacturing defects for a period of 3 years from the date of purchase (unless some other time is described on the Product listing on the Website).
(b) In order to claim pursuant to this warranty:
(i) you must present to us your receipt or other adequate proof of purchase;
(ii) you must comply with the notification and inspection requirements set out under clause 8.4;
(iii) you must return the Products to us in accordance with clause 8.5 (if applicable); and
(iv) the Products must be assessed by us as being faulty in accordance with clause 8.6.
(c) This warranty against defects is in addition to any rights you may have under the Australian Consumer Law.
8.4 Notification and inspection
(a) You must inspect all Products immediately on receipt of the Products and before use.
(b) You may reject any Products as faulty provided that you give us notice of such fault including information of your Products and the fault:
(i) in the case of a fault that is apparent on normal visual inspection, within 24 hours of receipt or before use/consumption (whichever is first); or
(ii) in the case of a latent defect (being a defect that is not apparent on an initial visual inspection), within a reasonable time of the latent defect having become apparent and within the warranty period.
(c) You must do all that is reasonable to prevent the Products from becoming faulty or mitigate any further harm or damage. Products must be stored in a manner that does not cause any further harm or damage to the Products. Products (whether faulty or not) must be stored and handled in the same manner as if they had no fault.
(d) We may require that you provide us with proof of the fault including by way of photographic or video evidence before you send it to us. In providing this information to us you authorise our use and disclosure to those third parties that may assist us in assessing the fault (such as the manufacturer or third party service providers).
8.5 How to return Products (if required)
(a) Once we have received the information about the fault and consider it likely that there may be a fault in the Products, we will provide you with instructions on how to send the Products back to us (if required). Please note that we reserve the right to assess the Products before providing a replacement or refund in accordance with clause 8.6.
(b) If the Products are able to be fixed by replacing a part, we may send the replacement part to you free of charge. In such circumstances you will not be required to return the Product to us.
(c) If you are required to send the Products back to us:
(i) ensure the Products are packaged and stored in a way that will not cause any further harm or damage to the Products. We are not responsible for any damage caused during return transit due to inadequate protection or storage methods;
(ii) ensure that the Products are packaged and delivered with registered post (or a similar service). We will not be responsible for any Products lost in the post;
(iii) certain costs may be incurred by you in returning the Products to us, including postage or freight costs. We will cover the costs of such returns; and
(iv) you must return the Products in the way as instructed by us or we will be unable to process your return and your Products may be forfeited.
8.6 Products being assessed
(a) We reserve the right to assess the condition and age of the Products before providing a replacement or refund.
(b) We will not be liable for or required to accept any return for any fault or damage where:
(i) such fault or damage is caused or partly caused by or arises as a result of:
A. your acts or omissions, including where you fail to take reasonable steps to prevent them from becoming defective or you fail to properly use, assemble or maintain the Products in accordance with our instructions or standard practice for products the same as or similar to the Products;
B. your continued use after discovering fault, or any authorised modifications or repairs without our consent (or by an unauthorised repairer). If a component of a product becomes defective, you must not attempt to repair it yourself. Doing so may cause damage which is not covered by this warranty;
C. you failing to maintain the Products in accordance with any care & maintenance booklets provided with the Products;
D. misuse, wilful damage, negligence or abnormal use or storage or working conditions (for example broken hardware from dropping the Product); or
E. fair wear and tear (scratches, fret wear, dirty fretboards, Nut wear and any other matters we reasonably consider to be fair wear and tear);
(ii) where the Products have been used for a purpose apart for the purpose for which it was designed and manufactured;
(iii) where such damage is a normal maintenance item that is your responsibility.
(c) You are solely responsible for ensuring that the Products are suitable or adequate for your purposes.
(d) For some Products that we cannot assess ourselves, we may arrange for the Products to be sent to the manufacturer for assessment. In these circumstances, depending on the Products, please be aware that it may take several weeks to complete this process.
(e) Once we receive the Products, and determine that they are defective, we will process the return within 48 hours.
(f) If there is a minor fault and the Products can be repaired, we will repair it for you or refund the purchase price, at our discretion.
(g) If there is a major fault, you may choose to receive a refund, replacement or repair.
(h) In the event that we do not find a fault in the Products, the replacement or refund will be refused, and the Products will be returned to you at your cost.
(i) In the event that you fail to comply with any of your obligations set out under this clause, including in respect of the return of Products, we reserve the right to refuse to provide you with a replacement or refund of the Products in our discretion (acting reasonably).
8.7 Exclusions
(a) This warranty does not apply to consumable products, including strings, drum sticks, batteries and valves (valves have a 90 days’ burnout warranty).
(b) This warranty does not cover:
(i) imperfections in an instrument. Lots of our instruments are made of wood and each has minor differences. Our quality control process is very strict but it's still not possible to make instruments that are identical and flawless;
(ii) Products specifically described as "damaged" or "faulty" are sold as is and not covered under this warranty;
(iii) set-up or adjustments, although we do offer lots of support here on our Website;
(iv) minor imperfections in the finish or scratches (if your purchase arrives damaged please contact us immediately).
8.8 General
(a) The warranty noted under this clause is provided to the original purchaser only and is non-transferrable.
(b) Any refunds provided under this clause will be issued to the same payment method which was used for the purchase and will be processed within 3 weeks of confirmation that the conditions of refund have been met.
9. ACCURACY OF INFORMATION
9.1 You agree to provide current, complete and accurate billing and contact information for all purchases made on the Website.
10. ACCESS AND TERMINATION
10.1 We reserve the right, at any time and without prior notice, to remove or disable access to this Website or any part of it for any reason.
11. PROHIBITED USE
11.1 Your use of the Website, and your information, must not:
(a) be false, inaccurate, misleading, fraudulent, deceptive or unlawful;
(b) be in any manner which could damage, disable, overburden, or impair the Website or interfere with any other party's use and enjoyment of this Website;
(c) infringe any third party’s rights or violate any Applicable Laws;
(d) contain any viruses or similar which could affect the integrity, operation or security of this Website;
(e) create liability for us or cause us to lose (in whole or in part) the services or custom of our internet service provider, other users or other suppliers;
(f) damage the credibility or integrity of the Website or Artist Guitars, or dilute, tarnish, or otherwise harm our brand in any way;
(g) breach or violate any of our policies;
(h) copy, store or otherwise access or use any information contained on the Website for purposes not expressly permitted by these Terms and Conditions;
(i) use the Website for any purposes that are not permitted by these Terms and Conditions or in any way that is inconsistent with the purpose of the Website, or in a manner that falsely implies Artist Guitars endorsement, partnership or otherwise misleads others as to your affiliation with Artist Guitars;
(j) attempt to circumvent payment of any fees in anyway; or
(k) circumvent, disable or otherwise attempt to interfere with any security related features.
12. DISCLAIMER
12.1 Except to the extent expressly set out in these Terms and Conditions and to the maximum extent permitted by law, we provide the Products on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory.
12.2 Without limiting the other terms of this clause, you acknowledge and agree that:
(a) although reasonable care has been taken to provide accurate information, any content provided on the Website is intended for general guidance only and neither the content or any of the Products are intended to be advice and should not be treated that way;
(b) you must use the Products with common sense, do not consume or put the Products in places they are not intended. Always use caution when using the Products. You should read all instructions and manuals provided with the Products prior to use. Use of the Products is at your own risk;
(c) all data, information, figures and statistics of the material properties and characteristics of the Products (including those stated on the Products) are indicative only and provided without implied warranty of any kind (except as set out in these Terms and Conditions). Such information is provided for general guidance and should not be considered binding specifications. The material properties and characteristics of the Products may vary from Product to Product and from your individual use of the Product (such as differing environments and use);
(d) the Products are intended to be used, stored and maintained in accordance with our instructions or user manual provided for each Product. We are not responsible for any problems that occur due to misuse of our Products;
(e) all pictures, images or videos of Products displayed on the Website are for illustrative purposes only and may not reflect how the Product you receive actually looks. Although we have made every effort to display as accurately as possible the colours and images of our Products on the Website, we cannot guarantee that your computer monitor's display of any colour will be accurate;
(f) any accessory featured with the Products may be sold separately (unless otherwise stated);
(g) we do not make any warranty or representation as to the suitability of the Website or the Products for any purpose
(h) we do not guarantee any results from your use of the Products; and
(i) we are not responsible for any information made available on this Website, and we do not represent or warrant the accuracy of any information. Artist Guitars does not promise that the Website or any content will be error-free or uninterrupted, or that your use of the Website or any Products will provide any specific results. You assume total responsibility for your use of the Website and Products.
13. LIMITATION OF LIABILITY
13.1 Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Products that are not expressly set out in these Terms and Conditions to the maximum extent permitted by law.
13.2 Without limiting clause 13.1, you acknowledge and agree that we will not be liable for any death, personal injury or damage to property arising out of or in connection with the Products, to the extent that such Loss or damage is attributable to your acts or omissions.
13.3 Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms and Conditions, including any breach by us of these Terms and Conditions however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual amounts paid by you in respect of the relevant Product which caused the Loss, damage or injury.
13.4 Nothing in these Terms and Conditions is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the Australian Consumer Law, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of goods, to the extent that the Australian Consumer Law applies to the Products.
13.5 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law that cannot be excluded, our total liability to you for that failure is limited to, at our option the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or 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.
13.6 The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
13.7 Without limitation to the other terms in these Terms and Conditions, we exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms and Conditions.
13.8 Notwithstanding anything else in these Terms and Conditions, our liability will be reduced to the extent the Loss or damage is caused by or contributed to by you.
13.9 Where you are or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under these Terms and Conditions, you must:
(a) use your best endeavours to recover that sum before making the claim;
(b) keep us at all times fully and promptly informed of the conduct of such recovery; and
(c) reduce the amount of the claim to the extent that sums are recovered.
13.10 We will not be liable for any claim under or in relation to or arising out of these Terms and Conditions including a breach of any warranty unless:
(a) you have first made a claim under any insurance policy held by you that may cover that claim; and
(b) that claim has been denied in whole or partly by the relevant insurer.
13.11 If you recover any amount under an insurance policy in respect of a claim under or in relation to or arising out of these Terms and Conditions and that amount is less than the loss or damage incurred by you, the amount of the shortfall will be the amount of your loss for the purposes of these Terms and Conditions.
14. INDEMNITY
14.1 Except to the extent caused or contributed to by our breach of these Terms and Conditions, you agree to indemnify us against, and hold us harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by us arising out of or in connection with:
(a) your breach or negligent performance or non-performance of these Terms and Conditions or any policy or the terms and policies they incorporate by reference;
(b) the enforcement of these Terms and Conditions;
(c) any claim made against us by a third party arising out of your use of the Products;
(d) any claim made against us by a third party for death, personal injury or damage to property arising out of or in connection with the Products, to the extent that such damage is attributable to your acts or omission (or failure to follow our instructions); or
(e) your violation of any law or the rights of a third party, or otherwise arising directly or indirectly from your use of our Services (including the sale of the Products).
14.2 You must make payments under this clause:
(a) immediately on demand, in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
14.3 It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause.
14.4 The indemnities in this clause:
(a) are continuing obligations of yours, independent from your other obligations under these Terms and Conditions and survive termination or expiry of these Terms and Conditions; and
(b) are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 You acknowledge that we own all right, title and interest in and to the Website and the Products including without limitation all intellectual property rights in any images and descriptions for the Products, and such rights are protected by Australian and international intellectual property laws.
15.2 You consent to us transferring your data to third party IT providers, including our website host and back-up service provider which may be outside of Australia in accordance with our Privacy Policy.
15.3 You agree that:
(a) you will not copy, reproduce, reverse engineers, alter, modify, create derivative works, or publicly display (other than on the Website) any of our intellectual property except with our prior written permission or the appropriate third party authorised to grant such permission and when doing so you must adequately acknowledge us and, in the case of websites, include a link from your website to our Website;
(b) we own all right, title and interest in and to the Website and no right, title or interest is transferred or granted to you, except so far as expressly stated in these Terms and Conditions;
(c) if you add any information to the Website of any nature whatsoever that information is personally attributable to you and you warrant that you have the right to distribute that information;
(d) you acknowledge that when you provide us with information, we may receive additional related data, such as the time, date and place you provided the Information;
(e) we are not liable or responsible for any Loss that you may experience in submitting information to us or for our use of your information in accordance with the licence granted;
(f) we may in our sole and absolute discretion refuse or remove any information from the Website; and
(g) the Website contains trademarks of third parties which are protected by law, you must not use any of those trade marks appearing on the Website without obtaining the relevant third party owner’s consent.
16. PRIVACY
16.1 The Privacy Policy applies to your use of this Website, and its terms are made a part of these Terms and Conditions by this reference, and you agree to its terms.
16.2 By using this Website, you acknowledge and agree that internet transmissions are never completely private or secure and understand that any message or information you send to the Website may be read or intercepted by others.
16.3 You authorise us to use, store or otherwise process any information including personal information which relates to and/or identifies you, to the extent reasonably necessary for the provision of any Products requested by you.
17. REVIEWS
17.1 If you provide us with any feedback, ideas, modifications, suggestions, improvements or other content you agree that we may, at any time, without restrictions exploit, copy, republish, edit, or otherwise use such content on any medium worldwide (including on the internet). We will not be required to pay you any compensation for such content (regardless of our use). We have no obligation to review any content or otherwise remove any content that may be unlawful, offensive, threatening, defamatory or obscene.
17.2 Any reviews submitted to us (on our Website or elsewhere) will be our property on and from its creation and we will be able to deal with it unrestricted. Without limiting this right, we may remove any review, and use any review on our Website or on any medium online worldwide (including social platforms) at our discretion (regardless of the content). To the extent necessary you must assign all rights, title and interest in such reviews as required by this clause.
18. GENERAL TERMS
18.1 These Terms and Conditions are governed by the laws of the State, and the parties submit to the jurisdiction of the Courts of the State and relevant federal/Commonwealth courts competent to hear appears from them.
18.2 If a clause of these Terms and Conditions is void or unenforceable it must be read down to the extent necessary to give it legal effect or severed from if it cannot be read down and the remaining part and provisions shall remain in full force and effect.
18.3 You agree that these Terms and Conditions and all incorporated agreements may be assigned by us in its sole discretion without notice. You may not assign these Terms and Conditions without obtaining our prior written consent.