In this Agreement:
“Agreement” has the meaning in clause 1.2;
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act
“Business Day” means 9:00am – 5:00pm Monday to Friday, excluding Saturdays, Sundays and public holidays in Victoria, Australia;
“Consumer Guarantee” has the meaning given in Division 1 of Part 3-2 of the Australian Consumer Law;
“Customer” means the person or legal entity listed on the purchase invoice or sales document and includes anyone acting on their behalf or with their express or implied authority;
“Delivery Cost” means the costs associated with delivery of our Products as specified in an Order, including, without limitation, transport, freight or shipping charges, insurance costs, import and export taxes and duties;
“Intellectual Property” means all present and future intellectual or industrial property rights (whether or not registered) throughout the world, including, without limitation, in respect of patents, copyright, moral rights, trade names, trade marks, logos, systems, circuit layout, designs, software, plant breeder’s rights, domain names, trade secrets and confidential information;
“Material” means any information, data, source codes, drawings, content, text or images in any form (whether visible or not), audio recordings, video recordings, lists, sound, video, links, layout, look and feel, control features and interfaces contained on the Site, or otherwise displayed, uploaded or published on, or via, the Site;
“Order” means an order for Products placed by a Customer on, or via, the Site;
“Products” means the products, goods or items listed or advertised on the Site for sale or otherwise, including, but not limited to our glassware;
“Site” has the meaning in clause 1.1; and
“you" or "your" means the person or entity accessing, using or relying upon the Site and includes, when applicable, the Customer.
Any reference in this Agreement to the singular includes the plural, to any gender includes all genders, to any act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations both corporate and incorporated and vice versa. Paragraph headings are for reference purposes only and all references to clauses are to clauses in this Agreement unless otherwise specified.
All prices listed on the Site are in Australian Dollars, include GST (unless otherwise specified) and do not include Delivery Costs (unless otherwise specified).
All prices displayed on the Site are subject to change without notice. Prices for items in an Order are fixed once your Order has been confirmed. Subsequent price changes either up or down will not be retroactively applied to confirmed Orders.
Promotional discount codes may be given at our sole discretion on terms and conditions notified at the time of the relevant promotional offer or discount.
If a discount code is entered at the checkout, it has the effect of applying a discount solely across the cost of the Products. Any associated Delivery Cost will be unaffected by the discount code and payable at the ordinary rate (unless otherwise specified).
You agree to pay Delivery Costs as they are calculated and listed in the Order confirmation at the time of purchase.
International Delivery Costs do not include insurance or any taxes or duties which may be applied by customs at the destination country and any duties or taxes incurred are the responsibility of the person who placed the Order.
In accordance with Australian export regulations we are required to declare the exact value of all items and identify the Order as dutiable “merchandise”. We are also prohibited by law from identifying an Order as a “gift” for export purposes, even if you have placed the Order with the intention of delivery to a gift recipient.
To the maximum extent permitted by law, we reserve the right to refuse a sale to any Customer.
Although we endeavour to provide accurate and complete information about the Products listed or advertised on the Site, we cannot guarantee that the information is up to date, accurate and complete at all times. We reserve the right to (but are not obligated to) make changes or updates to information displayed on the Site at any time without notice to you.
Unless otherwise stated, any accessories, decorations or furnishings shown in images of Products on the Site are not included.
All weights, widths, circumferences and other measurements listed on the Product specifications are provided for reference and are approximate only.
You may place an Order by completing the Order form on the Site and clicking the "ADD TO CART" button and proceeding to the checkout page.
Orders are subject to the availability of Products requested in the Order.
An Order is not accepted and legally binding on us until we confirm by email that:
payment has been received for the Order;
the Product is available; and
the Order has been processed.
To the maximum extent permitted by law, Orders may not be cancelled by you once they have been accepted by us, unless as otherwise outlined in clause 8.
We operate an online business and we will communicate with Customers or visitors to our Site who make an enquiry primarily via email. It is the Customer’s responsibility to therefore ensure that the correct contact details are provided and that the nominated email address is regularly checked for correspondence.
Each Order (once confirmed by us in writing) represents a separate agreement between the parties (and each separate Order placed by you on, or via, the Site will be subject to this Agreement).
We reserve the right, at our absolute discretion, to:
refuse to sell or to cancel Orders from Customers that request commercial quantities of Products; or
cancel your Order at any time prior to dispatch of the Products to you.
If an Order has been cancelled, refused or cannot be met due to unavailability of Products, funds paid in relation to that Order will be refunded in full as soon as is reasonably practicable. You will be provided with email acknowledgement of the cancellation and refund.
We accept no responsibility for Orders that are declined, misplaced, not received or not accepted due to disruptions caused to our internet connections or our computer systems.
Where you have provided an incorrect or incomplete delivery address for your Order and your Order is returned to us, we may redeliver the Order at your request and charge a redelivery fee for each subsequent delivery attempt.
We do not guarantee the availability of any Products displayed or ordered on, or via, the Site.
You can pay for your Order using any of the methods specified on the Site, including Shopify payments, PayPal, AfterPay and Zip. A surcharge may apply to payments made by credit card depending on the credit card used.
You agree and acknowledge that we will treat an electronic instruction as authentic and are under no obligation to investigate the authenticity or authority of persons issuing or transmitting such electronic instructions, or to verify the accuracy and completeness of such electronic instructions.
If your nominated payment method triggers our internal suspect transaction protocols, we may contact you to confirm additional details, or rescind the transaction. In this case, until your Order has passed our fraud prevention protocols your Order will not be fulfilled. If you do not provide the requested information within 7 days, your Order will be cancelled, and your payment will be refunded back to you via the method in which you paid. These information requests are sent to help protect credit card holders from online fraud though we provide no guarantee that we will identify any or all instances of online fraud that may occur in relation to any Order made on or via the Site.
Delivery and Ownership of Products
We will use reasonable endeavours to ensure that all Products are delivered in a prompt and timely manner. However, delivery dates are estimates only and factors outside our control may result in delays to delivery. The estimated date of delivery may change without notice. We do not accept any liability for loss or damage suffered by you or anyone as a result of any such delays.
Delivery Costs will vary depending on the Order you have made, the method of delivery, the location for delivery and any taxes or duties that may be charged in relation to delivery of the Order.
Orders must be paid in full before delivery can be made.
You acknowledge and agree that it is your responsibility to ensure that you have nominated the correct delivery address and provided sufficient and appropriate details to identify the recipient in making an Order, and we are not responsible for any misplaced parcels or for delivery of any Order to an unintended recipient as a consequence of incorrect details.
You must ensure that any person who collects or takes delivery of the Products on your behalf is authorised by you to do so. Title and risk in the Products pass to the Customer on signing for delivery of the Products. Where a Customer gives written authority for Products to be delivered without a signature:
any and all included insurance cover (if any) will be voided; and
title and risk in the Products pass to the Customer on delivery of the Products to your nominated delivery address.
The nominated courier will deliver the Products on a Business Day.
We are not responsible for the delivery times of Products. Once Products have been dispatched, it is the Customer's responsibility to liaise with our nominated courier company in relation to date of delivery and to make themselves available to take delivery at the nominated time for delivery. Any information provided by us to a Customer in relation to the method of delivery and estimated delivery time will be from a third party, and as such we do not guarantee the accuracy or currency of such information.
Repairs, Refunds and Returns
Nothing contained in this Agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation (the “Acts”) where to do so is unlawful.
To the maximum extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation is limited to supplying the Products again or payment of the cost of having the Products supplied again.
To the maximum extent permitted by law, we will not provide you with a refund, or exchange or repair the Products purchased by you on, or via, the Site where:
the Products are damaged through misuse, accident or abnormal use; or
the Australian Consumer Law or any manufacturer’s warranty does not apply.
To the maximum extent permitted by law, you may not cancel any Order where you have requested personalised engravings and we have already begun the process of manufacturing, and where the Product can no longer be resold to other customers.
Consumer Guarantees cannot be excluded and are in addition to any manufacturer’s warranties or extended warranties purchased or given to you.
If a Product is damaged, incorrect or faulty, you should contact us within 7 days of receiving your Order at firstname.lastname@example.org to arrange your return or exchange. You must comply with directions or instructions given by us in relation to returning the damaged, faulty or defective Products to us or the manufacturer.
Returned Products must be returned with proof of purchase, be in their original packaging, not have personalised engravings and be in a re-saleable condition. If you are returning Products due to a fault or defect under a Consumer Guarantee, you may return the Products without their original packaging.
It is the Customer’s responsibility to ensure that returned Products are returned safely and within a reasonable period of time. We accept no responsibility for Products lost in transit.
Where you are returning Products to us because of our failure to comply with a Consumer Guarantee, Products returned to us will be at our cost. Refunds may take up to 10 Business Days to be processed.
Customers are permitted to cancel their Order at any time prior to the Products being dispatched from our premises.
Our Warranty against defects provides benefits in addition to the rights and remedies to which you are entitled under the Australian Consumer Law and we offer our Customers a one-year warranty on our Products (“Our Warranty”).
Our Warranty is against defects, and does not cover loss, damage, breakage, changes in appearance, kinks or the gradual degradation of all or part of the Products due to:
Normal wear (including tarnishing);
The use of additional items not manufactured by us; or
Use outside of our care instructions.
You should contact us within one-year of receiving your Order at email@example.com to arrange your return or exchange to make a warranty claim. You must comply with directions or instructions given by us.
To make a warranty claim, you are required to submit a proof of purchase, plus a receipt, gift receipt, credit card, bank statement or tax invoice, or other evidence of purchase which is satisfactory to us. If you do not supply us with the aforementioned, we will not process your warranty claim.
If we are satisfied that the warranty claim is valid, we will arrange for either the repair or replacement of the Product.
You acknowledge that we or our licensors are the owners of all Intellectual Property Rights in the Site and in all Material published on the Site, and we retain all rights, title and interest in the Site and Material (including Intellectual Property Rights contained therein) irrespective of any licence we may grant to you to access, and use, the Site.
You may access and use the Site (including Intellectual Property Rights contained therein) for your personal and non-commercial use only. You must not in any form or by any means reproduce, modify, distribute, store, transmit, publish, use or display the Material on another website or create derivative works from any part of the Site or the Material or commercialise any information obtained from any part of the Site or Material without our prior written consent.
By uploading, posting, transmitting or otherwise making available any content or material via the Site (“Your Content”), you:
grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and sub-licensable licence to use, publish, reproduce and otherwise exploit Your Content in any form for any purpose and unconditionally waive any moral rights that you might have in respect of Your Content; and
represent and warrant that you either own the Intellectual Property Rights in Your Content or have the necessary permission to upload, post, transmit or otherwise make available Your Content via the Site.
We reserve the right to terminate any licence granted to you under the Agreement and/or remove any of Your Content from the Site, at any time, for any reason and without notice to you.
You agree that you will not modify or copy the layout or appearance of the Site nor any computer software or code contained in the Site, and that you will not decompile, disassemble, reverse engineer or otherwise attempt to discover, interfere with or access any source code related to the Site.
Linking to the Site
You must not establish a link to the Site in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
You must not establish a link to the Site from any website that is not owned by you.
This Site must not be framed on any other website, and you must not create a link to any part of this Site other than the home page. We reserve the right to withdraw linking permission at any time without written notice.
You agree to indemnify us and our officers, directors, employers or contractors (collectively, the “Indemnified”) and to keep indemnified and hold harmless the Indemnified from and against any and all actions, claims, demands, losses, damages, taxes, liabilities, costs and/or expenses that may be incurred by, or sustained by, the Indemnified arising out of, or in connection with, your access to, and use of, the Materials, the Site, any breach by you of this Agreement or your or anyone else’s use of the Products.
To the maximum extent permitted by law, we exclude all:
conditions, guarantees or warranties expressed or implied by law; and
any liability to you or to any third person however arising (and whether arising under statute, negligence or otherwise) for any personal injury or death to you or any third person, or for any special, direct, indirect or consequential loss or damage (including, but not limited to, loss of income or revenue, loss or interruption of business, loss of profits, revenue or contracts, loss of anticipated savings, loss of data, loss of use, loss of privacy or loss of goodwill),
arising out of, or in connection with, access and/or use of the Material, the Site, or any Products Ordered on, or via, the Site and this Agreement.
Without limiting the generality of the foregoing, you agree that in no event shall our maximum aggregate liability exceed AUD $100. You acknowledge and agree that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties.
To the maximum extent permitted by law, all typographical, clerical or other errors or omissions in sales literature, quotations, price lists, acceptances or offers, invoices or other documents or information issued by us will be subject to correction without any liability on our part.
The Site may contain links to third party websites. Any links to such websites provided on the Site are for convenience only. We do not represent that we have any relationship with any linked websites nor recommend or endorse any goods, services or third-party content appearing on, or via, other websites linked to this Site. We are not responsible for any loss or damage that may arise from your access to, and/or use of, third party websites, products and services. Additionally, we are not responsible for the content or privacy practices associated with linked websites. You should make your own enquiries before using and/or accessing third party websites.
You may not use the Site other than for its intended purpose. You agree that you will not engage in any activity that interferes with or disrupts the Site or the servers and networks that host the Site. You agree not to, circumvent, disable or otherwise interfere with security-related features of the Site or attempt to do so or otherwise interfere with, or restrict, any person or visitor from accessing or using the Site
Unless otherwise expressly stipulated in this Agreement, you must not copy, adapt, distribute, display, reproduce or transmit any content displayed or published on the Site.
You must take your own precautions to ensure that the telecommunications equipment and computer systems used by you to access and use the Site does not expose your telecommunications equipment and computer systems to any viruses, malicious computer code or other forms of interference which may damage your computer system. We accept no responsibility for any loss or damage to you or anyone else which may arise out of, or in connection with, your access to, and use of, the Site.
We reserve the right to make changes to this Agreement without notice to you. Any amendments to this Agreement will have immediate effect from the time that they are published on the Site.
Although we do our best to provide the most up-to-date information on the Site as this becomes available, we cannot warrant the accuracy or completeness of the information provided.
Any provision of this Agreement which is void or unenforceable may be severed from this Agreement without affecting the enforceability of other provisions.
A failure or delay by us to exercise a power or right under this Agreement does not operate as a waiver of that power or right, and the exercise of a power or right by us does not preclude our future ability to exercise that or any other power or right.
This Agreement is governed by, and must be construed according to, the laws of Victoria, Australia and the parties submit to the exclusive jurisdiction of the courts exercising jurisdiction there.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at firstname.lastname@example.org. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Burwood, Victoria before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Frankly James’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.
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