Terms and Conditions
1.
Interpretation
1.1 In
these conditions:
(a) “Kangarama, we, us, our” shall mean Kangarama Pty Ltd (ACN 644
053 369);
(b) the word “person” shall be deemed to include a corporation,
words importing the singular or plural number shall be deemed to include the
plural or singular number respectively and words
importing the masculine gender only shall include the feminine or neuter gender
as the case may require;
(c) “Goods and Services” shall mean goods and services agreed
to be supplied or supplied by Kangarama to the Customer;
(d) “Customer, you” shall mean a person who purchases the Goods
and Services.
(e) “Terms” means these Standard Terms of Use and Sale
(f) “TGA Law” means the Therapeutic
Goods Act 1989 and its associated regulations and legislative instruments.
2.
Nature of Goods
2.1 Our
Goods are registered on the Australian Register of Therapeutic Goods (ARTG
Number 349484) and comply with the TGA Law.
Goods distributed by Kangarama are not considered to be personal protective
equipment (PPE) wear. The properties of the Goods are not intended to replace
the normal hygiene or washing or maintenance of garments. Kangarama assumes no
responsibility or liability whatsoever for the use of the Goods for purposes
for which they have not been approved or certified, nor does it assume any
responsibility or liability in connection with the improper use of the Goods.
3.
Prices
3.1 The
price for Goods and Services shall be as set out in Kangarama’s standard list price
published on the website as at the date of order. All prices include GST, but
exclude delivery (which will be notified separately). These prices apply unless
a fixed price or a price fluctuation has been agreed, in writing, between you
and us (eg for bulk orders
or customised orders)
4.
Kangarama Online
4.1 ORDERS
(a) By representing our Goods and
Services online for sale, Kangarama is inviting you to make an offer to us to
purchase those Goods and Services on the Terms set out.
(b) To offer to purchase Goods and
Services online, you must:
(i) Set up
an Account: You are required to provide your name and email address and select
a password (your “Account Information”), which you may not transfer to or share
with any third parties. If someone accesses our website or Services using your Account Information, we will rely on that Account
Information and will assume that it is really you or your representative who is
accessing the website and Services. You are solely responsible for any and all
use of your Account Information and all orders and activities that occur under or
in connection with the Account.
(ii) place an order for the Goods and Services using the
process set out on the website;
(iii) confirm the order details in accordance with the
procedure on the website. You must ensure that you check the order carefully;
(iv) make payment in full on the website at the time of placing
the order; and
(v) accept our pricing and terms.
(c) Once you have placed your order,
you cannot cancel or revoke your order, unless expressly provided for in these
Terms, or if one of the exceptions under the Electronic Transactions Act
applies.
(d)
You acknowledge and agree that:
(i)
the electronic transmission of information is
sometimes unreliable and it is possible that your
offer or payment may not be received by Kangarama for reasons beyond either
parties' reasonable control;
(ii) to the extent permitted by law, Kangarama is not
liable to you in any way for any loss or damage at all and however caused,
arising directly or indirectly in connection with your use of the website, the
transmission of an electronic communication through the website, or any failure
to receive an electronic communication for whatever reason; and
(iii) we are under no obligation to investigate the
authenticity or authority of persons using your login and password, or placing
an order, or to verify the accuracy and completeness of such electronic communications.
(e) You will receive an email from Kangarama
as soon as practicable after you have made payment. If you have any questions
regarding your order you may contact Kangarama. Contact details for Kangarama
will be displayed on your order confirmation, or they can be found on our website.
(f)
We may, in our sole and absolute
discretion, accept or reject any offer to purchase made by you for any reason,
including but not limited to an error in the advertised price for, or
description of, the Goods and Services on the website, or an error in your order.
(g) While we endeavour to accept and
fulfil all orders, there may be occasions where we may not be in a position to
accept your order. If that occurs, we will notify you by telephone or email and
arrange for an account credit or a full refund of any payment made by you in
relation to that order to be processed.
4.2 ONLINE
Price
(a) Prices shown on our website are
in Australian dollars and will include GST unless otherwise noted. Prices will
not include delivery which will be notified as a separate amount. Prices are
subject to change.
(b)
Unless otherwise stated, any
accessories shown in any image of Goods and Services are not included in the
price.
(c) We reserve the right to correct any
errors published on the website.
4.3 ONLINE
Payment
(a) To pay for an order, you will
need to provide Kangarama
with the information necessary to process an order from you,
including your shipping address and the billing information requested on the website
to pay for such order. .
(b)
Our store is hosted on Shopify
Inc. (“Shopify”). They provide us with the online e-commerce platform that
allows us to sell our Goods and Services to you, and provide payment services
to us (e.g., credit card transaction processing, merchant settlement and
related services). By purchasing any goods you agree
to be bound by Shopify’s Payments Terms of Use, available at
https://www.shopify.com/legal/terms-payments-us and Privacy Policy available at
https://www.shopify.com/legal/privacy. You consent to provide and authorise Kangarama and Shopify
to share any information and payment instructions you provide to the extent
required to complete payment transactions.
(c) If any other third
party supplier is utilised by Kangarama to process payments, use of the website
will be subject to any terms and conditions of that provider.
4.4 ONLINE
PAYMENT and credit card fraud
(a) To the extent permitted by law, Kangarama
will not be responsible for any damages or consequential losses (whether direct
or indirect) suffered by a user where a credit card account is fraudulently
used or is used in an unauthorised manner.
4.5 Disclaimer
and Indemnity
(a) To the extent permitted by law, Kangarama
excludes all liability to you or anyone else for loss or damage of any kind
(however caused or arising) relating in any way to the website including, but
not limited to, loss or damage you might suffer as a result of:
(i)
errors, mistakes or inaccuracies on the website;
(ii) any interruption or cessation of transmission to or
from the website;
(iii) you acting, or failing to
act, on any information contained on or referred to on the website and/or any
linked website;
(iv)
any unauthorised access to or use of the website’s
secure servers; and/or
(v) any malware, viruses, Trojan horses, worms or other
harmful or malicious code or communications which may be transmitted to or
through the website, save to the extent that Kangarama’s gross
negligence has directly caused or contributed to that liability.
(b)
Except as expressly provided in these
Terms, and to the fullest extent allowed by the law, Kangarama, its related bodies
corporate and their respective directors, employees, contractors, agents and
other third parties will not be liable
for any indirect, special, incidental or consequential damages arising out of
your access to or use of the website including, but not limited to, any loss of
profit, loss of opportunity, loss of income, loss of business, any loss of
goodwill or reputation; increase in expenses; and pure economic loss.
(c) You will at all times indemnify, and
keep indemnified, Kangarama and each of its related bodies corporate, including
their directors, officers, employees and agents from and against any loss
(including reasonable legal costs and expenses on a full indemnity basis) or
liability incurred or suffered by you or by any of them arising from any claim,
demand, suit, action or proceeding by any person against you or them where such
loss or liability arose out of, in connection with, or in respect of, your conduct
or breach of these Terms.
(d)
This clause is subject to the Non-excludable
Rights (as defined in clause 16 below).
5.
Online
Content
(a) When you access the website and/or Services, you
obtain access to various kinds of information (“Content.”). You agree that you
will not post any Content that infringes the
copyright, trademark, trade secret, or other intellectual property or proprietary
right of others; violates the applicable privacy, publicity, or other rights of
third parties; is false or inaccurate; is discriminatory, unlawful, tortious, illegal,
obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent,
vulgar, harassing, discourteous, hateful, abusive or racially, ethnically,
religiously, sexually or otherwise offensive, as determined by us in our sole
discretion. You will not upload or post anything that contains any viruses,
Trojan horses, spyware, malware, worms, time bombs, cancelbots, or other
disabling devices or other harmful component intended to damage, detrimentally
interfere with, surreptitiously intercept or expropriate any system, data or
personal information.
(b)
We may, but are not obligated to,
remove Content from the website for any reason, including if we determine or
suspect that such Content violates these Terms.
(c) When you post or publish Content or
otherwise make available your content, you grant Kangarama a fully paid,
royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully
sublicensable right (including any moral rights) to re-publish your content.
6.
Online
Communications
By using our website you consent to receive
communications from us in an electronic form; and agree that all terms and
conditions, agreements, notices, documents, disclosures, and other
communications that we provide to you electronically satisfy any legal requirement
that such communications would satisfy if it were in writing.
7. Third Party Content and Websites
7.1 Content
from third parties websites, and links to third party
websites may be made available to you through the our website. We do not
control such content. You agree that we are not responsible for any such
content. We do not make any warranties, representations, endorsements or
guarantees about the accuracy, currency, suitability, or quality of the
information in such content, and we assume no responsibility for unintended,
objectionable, inaccurate, misleading, or unlawful content made available by
other users, advertisers, and other third parties or violation of any third party rights related to such content. Our inclusion of
links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators.
8. General Rules of Use
The Customer agrees not to use,
reproduce, duplicate, copy, sell, resell or exploit the Goods or any portion of
the website or Services, for any purposes other than for which the Goods, website
or Services are being provided to you. The Customer will not, and must ensure
than any authorised users will not:
(i)
do anything illegal;
(ii)
attempt to reverse
engineer or otherwise attempt to derive the source code of the software;
(iii)
attempt to gain
access to secured portions of the website or Services to which you do not
possess access rights;
(iv)
upload or transmit
any form of malicious code;
(v)
use any high volume
automatic, electronic or manual process to access, search or harvest information
from the website or Services (including without limitation robots, spiders or
scripts);
(vi)
interfere in any way
with the proper functioning of the website;
(vii)
use any robot,
spider, other automatic device, or manual process to extract, “screen scrape,”
monitor, “mine,” or copy any static or dynamic web page on the website or the
Content contained on any such web page for commercial use without our prior
express written permission; or
(viii)
impersonate any
person or entity, or otherwise misrepresent your affiliation with a person or
entity.
9. Special/Custom Orders
9.1 Goods
manufactured that include sponsors or layouts or other designs and specifications
that are customised for the Customer are not returnable to Kangarama under any
circumstances (unless those Goods are defective) and may be subject to additional
terms and conditions agreed between us and you at the time of order. The Customer
agrees to indemnify and to keep indemnified Kangarama from and against all
costs, losses and damages claimed in relation to any design defect in such Goods
and any third party claim that the Goods as manufactured
infringe any patent, registered design, copyright, trademark or common law
intellectual property right of any person.
10.1
We make reasonable
efforts to display our Goods and their colours as accurately as possible on our
website. The Customer agrees that that the displayed colours of the Goods will
depend upon your monitor and we cannot guarantee that your monitor will
accurately portray the actual colours of the Products.
11. Promotional offers.
11.1
We may run promotional
offers from time to time on the website. The terms of any such promotion will
be posted on the website. You acknowledge
that you have read and understood the applicable terms and information related to any such
promotion. Each promotional terms are incorporated by
this reference into, and made a part of, these Terms. Unless otherwise
indicated, we may modify, in our sole discretion, the terms of such promotional
offers and end such offer at any point.
12. Representations
12.1
All information
contained within our sales documentation, and representations made by our staff, or
on our website are for general guidance purposes only. The Customer is relying
on its own skill and judgement in relation to the purchase of the Goods and
Services.
13. Ownership
13.1 Ownership
of the Goods supplied passes to the Customer on delivery.
14. Delivery, Risk and
Receipt of the Goods and
Services
14.1 Delivery
of the Goods to the Customer at that address nominated by the Customer shall
constitute both delivery to and receipt of the Goods by the Customer. Kangarama
may deliver Goods in instalments.
14.2 Risk in the Goods passes to the Customer on delivery.
14.3 Kangarama
may supply Goods and Services that vary from the Goods and Services ordered by
the Customer and the Customer must accept the Goods and Services supplied provided
that such variations are not material.
14.4 The
Customer must comply with all safety, care, cleaning, disposal and manufacturing
directions or requirements issued by Kangarama in relation to the Goods.
14.5 Subject
to the Electronic Transactions Act and our Returns Policy published on our
website, Kangarama will not accept return for Goods ordered in error, or any Goods
that have been damaged in any way or where the Customer has not complied with
all safety, care, disposal and manufacturing directions or requirements.
14.6 Any
date for delivery of the Goods and Services by Kangarama is an estimated date
for delivery only. Kangarama shall be
under no liability for loss or damage, however it arises, if the Goods and
Services are not delivered by that date.
15. Privacy
15.1 Personal
information received from the Customer/s and any individual will be treated in
accordance with Kangarama’s Privacy Policy and the Privacy Act 1988.
16. Statutory
Warranty and Limitation of Liability
(a) Subject
to clause (b) below, Kangarama makes no
guarantee, condition or warranty as to materials, workmanship or
performance of the Goods and Services.
(b) Any warranties that may arise by implication, either by statute,
common law or in any other way, are expressly excluded to the extent that such
exclusion is not prohibited by law.
(c) You may have rights under the Australian Consumer Law or
other rights in relation to the supply of good and services that cannot lawfully
be excluded (Non-excludable Rights). Subject to the Non-excludable Rights, and
notwithstanding any other provision of these terms, Kangarama’s liability to
the Customer, whether arising under or in connection with these terms or the
performance or non-performance thereof or anything incidental thereto, and
whether by way of indemnity, by statute (to the extent that it is possible to
exclude such liability), in tort (for negligence or otherwise), or on any other
basis in law or equity is limited to an amount equal to the lesser of (as
determined by Kangarama):
(i)
the cost of having
the Goods and Services repaired; or
(ii)
the cost of replacing
the Goods and Services; or
(iii)
the cost of obtaining
and supplying equivalent goods.
(d) Subject to the Non-excludable Rights,
Kangarama shall not be liable for special,
indirect or consequential loss or damage whatsoever in connection with the
supply and use of the Goods and Services, including but not limited to any loss
of revenue or profits which would otherwise be derived from the use of the Goods
and Services.
17. Intellectual Property
17.1
These terms do not give
the Customer any intellectual property rights in the Goods and Services. Certain
of the names, logos, and other materials displayed on Goods, the website or in
the Services constitute trademarks, trade names, service marks, logos,
graphics, designs or other commercial symbols (“Kangarama Marks”) of Kangarama
or its related bodies corporate. You are not authorized to use any such Kangarama Marks. Ownership of all such Kangarama Marks and
the goodwill associated therewith remains with us or our related bodies
corporate.
17.2
The Customer warrants
that the use by Kangarama of any intellectual property rights, designs,
specifications, logo’s or other materials or
information of any nature provided to Kangarama by the Customer shall not
infringe any third party's intellectual property rights. If any claim is brought
or threatened against Kangarama in respect of such an infringement, Kangarama shall be entitled to suspend further work for the
Customer, and the Customer shall indemnify Kangarama against all actions,
claims, costs, demands, expenses and liabilities of whatsoever nature suffered or
incurred by Kangarama
as a result of any such claim or threatened claim brought against Kangarama.
18. Force Majeure
18.1
No failure or
omission to carry out or observe any of its obligations under these Terms shall
give rise to any claim against Kangarama or result in a breach of these Terms if
such failure or omission arises by reason of delay or inability to obtain
materials, fire, storm or other action of the elements, accidents, pandemics,
epidemics, government restrictions or from other causes whether like or unlike
the foregoing which are unavoidable or otherwise beyond the control of Kangarama.
19. International Use
19.1
The website is controlled
and offered by Kangarama from Australia. Kangarama makes no representations
that the website is available for use in other locations or that the Goods and Services
will be available to users in other countries. Those who access or use the website
or the Services from other jurisdictions do so at their own volition and are
responsible for compliance with local law.
20. Waiver
20.1
Failure by Kangarama
to insist upon the performance of any one or more of the conditions hereof
shall not be deemed to be a waiver of any rights and remedies that Kangarama
may have and shall not be deemed a waiver of any subsequent breach or
default. No provision of these Terms shall
be deemed to have been waived by Kangarama unless such waiver is in writing and
signed by an officer of Kangarama giving notice in that behalf.
21. Terms and Variation
22. These Terms may be varied from
time to time by us. The Terms published on our website at the time of an order
will be the Terms applicable to that order.
23. Disputes
23.1 If any dispute arises in relation to these
Terms and/or Goods and Services supplied by Kangarama to the Customer, Kangarama
may by notice in writing to the Customer at any time prior to determination by
a court require that such dispute or part thereof be determined by arbitration
according to law. The arbitration is to
be conducted in accordance with the relevant Commercial Arbitration Act (of
whatever name) of the State or Territory nominated as being the governing law
and in the capital city of that State or Territory. Kangarama may give notice that any dispute
with the Customer is arbitrated with any other dispute relating to the same Goods
and Services or issues. There is to be a
single arbitrator appointed by agreement or failing agreement by the president
of the law society of that State or Territory.
The arbitrator’s decision is final and binding subject to any right of
appeal under the relevant Commercial Arbitration Act.
23.2 The
reference of a dispute to arbitration does not affect the Customer’s obligation
to pay the price for the Goods and Services when due which must be paid without
deduction or equitable or other set off pending the resolution of any dispute
whether referred to arbitration or otherwise.
24. Severability
24.1 If
any of these terms are or later become illegal or unenforceable, the illegal or
unenforceable part of those terms are taken to be severed from these terms, but
all other terms remain in place.
25. Governing Law
25.1 These
terms will be governed by and construed in accordance with the laws of New
South Wales and the Customer irrevocably submits to the exclusive jurisdiction
of a competent court in the capital city of that State.