Terms and Conditions for Website or Mobile Application - Word & PDF Template Form Pro · AU-law

WEBSITE TERMS AND CONDITIONS

________

Effective Date: ________

These terms and conditions (hereinafter the "Terms") govern Your access to and use of the following website (which is hereinafter referred to as "the Product"): ________

The Product is owned and operated by ________ (ABN ________) of ________.

These Terms constitute a binding contract between You and ________.

In connection with Your use of the Product, We may also provide You with access to various other content, documentation, materials, information, goods or services. In these Terms, We refer to all of these items collectively as "the Items".

These Terms will govern Your use of all pages of the Product, as well as Your use of the Items.

If You continue to use the Product, You acknowledge that You have been given the opportunity to review these Terms, that You understand these Terms and that You agree to be bound by them.

If You do not understand these Terms, if You do not agree to be bound by them, or if You need more time to review and consider them, then You must stop using the Product immediately.

Nothing in these Terms operates to exclude, restrict or modify any guarantee, right or remedy conferred on You by the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law) or any other applicable law where to do so would be unlawful.

1. DEFINITIONS

"Australian Consumer Law" means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).

"Company IP" includes, but is not limited to, the contents, layout, design, colours, appearance, graphics and imagery of the Product, Content and Materials, as well as all copyright, trade marks, trade secrets, patents and other intellectual property contained in the Product, Content and Materials.

"Content" means any content, writing, images, audiovisual content or other information published on the Product.

"Contract" means these Terms.

"Dispute" means any dispute, controversy or claim arising out of or in relation to these Terms, including any dispute, controversy or claim relating to the existence, validity or termination of these Terms.

"Effective Date" means the date that these Terms come into force, as stated above.

"Goods" means any or all goods provided by or on the Product.

"Identifying Information" means information provided by You when registering to use the Items, including but not limited to Your name and email address, a user name and a password.

"Items" means any and all of the Product, Goods, Content and Materials collectively.

"Materials" means any materials, information or documentation that We may provide to You in connection with Your use of the Goods or Product, including documentation, data, and information developed by Us or owned by Us, and other materials which may assist in Your use of the Goods or Product.

"Parties" means both You (the user of the Product) and Us (the owner of the Product) collectively.

"Personal Information" has the meaning given to it in the Privacy Act 1988 (Cth).

"Product" means the website including all pages, all sub-pages, all blogs, all forums, all other connected pages and all other connected internet content whatsoever, the home page or main page of which is located at: ________

"Terms" means these terms and conditions.

"Third Party Goods and Services" means Goods and/or services sold by third parties via the Product or via Third Party Links.

"Third Party Links" means links or references to websites or applications other than the Product, to content other than the Content or to materials other than the Materials, none of which are controlled by Us.

"Us", "We", "Our" or "the Owner" refers to ________, and also includes any employees, affiliates, agents or other representatives of ________.

"You" or "Your" refers to the user of the Product.

"Your Content" means any Content posted to or added to the Product, Content or Materials by You, or by somebody authorised by You or doing so on Your behalf.

2. INTERPRETATION

a. In these Terms, unless the context otherwise requires, the following rules of interpretation apply:

I. Words referring to one gender include every other gender.

II. Words referring to a singular number include the plural, and words referring to a plural include the singular.

III. Words referring to a person or persons include companies, firms, corporations and organisations, and vice versa.

IV. Any obligation on a Party not to do something includes an obligation not to allow that thing to be done.

V. A reference to legislation includes that legislation as amended, replaced or re-enacted from time to time, and any regulations made under it.

3. YOUR AGREEMENT AND REPRESENTATIONS

a. By continuing to use the Product and the Items You warrant and acknowledge that You have had the opportunity to review and consider these Terms, that You understand these Terms and that You agree to be bound by them. If You do not understand these Terms or do not agree to be bound by them, then You must stop using the Items immediately. We only agree to provide use of the Items to You on the basis that You agree to these Terms.

b. By continuing to use the Product and the Items You represent and warrant to Us that You have legal capacity to enter into these Terms, and that if You are entering into these Terms on behalf of another person or entity, You are authorised to bind that person or entity.

c. By continuing to use the Product and the Items You represent and warrant to Us that You have complied and will continue to comply with all of these Terms.

4. LICENCE TO USE PRODUCT, CONTENT AND MATERIALS

a. We may provide You with certain other Items in connection with Your use of the Product.

b. Subject to these Terms, We grant You a licence to use the Product, Content and Materials solely in connection with Your use of the Items. The licence created under these Terms is non-exclusive, limited, non-transferable, worldwide and revocable.

c. You may not use the Product, Content or Materials for any purpose other than in accordance with the licence provided under this clause. This licence to use the Product, Content and Materials terminates upon Your cessation of use of the Items or upon termination of this Contract.

5. SALE OF GOODS AND SERVICES

a. We may sell Goods, or may allow third parties to sell Goods, on the Product. If this occurs, then certain specific exclusions of liability will apply, as described in the "Exclusion of Liability" clause, subject always to the Australian Consumer Law.

b. Please refer to Our additional terms and conditions for the sale of goods as applicable.

6. EXCLUSION OF LIABILITY

a. The provisions of this clause apply subject to the "Australian Consumer Law" provision in the "General Provisions" clause, and nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on You by the Australian Consumer Law or any other applicable law that cannot lawfully be excluded.

b. The Product, Content and Materials are provided for general information only and may change at any time without prior notice.

c. You accept and acknowledge that the Items may contain mistakes, errors and inaccuracies.

d. Subject to paragraph (a), Your use of the Product, Content and Materials is entirely at Your own risk. It is Your responsibility to make sure that any Goods, services, Materials, Content or other information available through the Product suits Your particular purpose.

e. To the maximum extent permitted by law, and subject to paragraph (a), We hereby expressly exclude all warranties, guarantees, representations or terms (whether express or implied) except for those expressly set out in these Terms or imposed by law.

f. To the maximum extent permitted by law, and subject to paragraph (a), We hereby expressly exclude any liability in relation to the accuracy, completeness, performance, reliability, timeliness, quality, merchantability, safety, legality or suitability for a particular purpose of the Items.

g. To the maximum extent permitted by law, and subject to paragraph (a), We hereby expressly exclude any liability in relation to loss of data, interruption to Your business or any damages which are incidental to or arise from such loss of data or interruption to business.

h. To the maximum extent permitted by law, and subject to paragraph (a), We will not be liable for any damage, loss, cost or expense, including legal costs and expenses, whether direct or indirect, incurred by You in connection with Your use of the Items.

i. Where We are liable to You in respect of a failure to comply with a consumer guarantee under the Australian Consumer Law in relation to Goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Our liability is limited, at Our option, to the matters set out in section 64A of the Australian Consumer Law.

j. In relation to Third Party Goods and Services:

I. You acknowledge and agree that We have no control over those Third Party Goods and Services and that You acquire such Third Party Goods and Services at Your own risk.

II. You acknowledge and agree that, to the maximum extent permitted by law, We assume no liability and provide no warranties or guarantees regarding the accuracy, completeness, performance, reliability, timeliness, quality, merchantability, safety, legality or suitability for a particular purpose of Third Party Goods and Services.

III. For any claim You may have against the third party provider of the Third Party Goods and Services (such as the manufacturer or vendor) You agree to pursue that claim directly with that third party provider and not with Us.

IV. To the maximum extent permitted by law, You hereby release Us from any claim related to Third Party Goods and Services, including any and all warranty and product liability claims.

7. DELIVERY

a. We may arrange delivery of physical Goods by courier or by Australia Post. We process deliveries promptly upon receipt of full payment.

b. Delivery of physical Goods within Australia may take approximately ________.

c. Delivery of physical Goods outside of Australia may take approximately ________.

d. Any digital Goods are delivered immediately. You acknowledge and accept that there are inherent risks associated with downloading any digital Goods. Please contact Us using the details at the end of these Terms if You experience technical problems regarding delivery of digital Goods.

e. Subject to the Australian Consumer Law, We take no responsibility for Goods that are lost or damaged during delivery once they have passed out of Our control.

f. Subject to the Australian Consumer Law, We may choose in Our sole discretion whether or not to replace Goods which are lost or damaged during delivery.

g. Any disputes regarding physical Goods which are lost or damaged during delivery should be taken up directly with the relevant courier company or with Australia Post as applicable, subject always to Your rights under the Australian Consumer Law.

8. RETURNS, REFUNDS AND REPAIRS

a. We handle returns, refunds and repairs in accordance with Our obligations under the Australian Consumer Law. Nothing in these Terms limits any remedy to which You may be entitled under the Australian Consumer Law where Goods or services fail to meet a consumer guarantee.

b. If You are seeking a return, refund or repair, You may contact Us using the details at the end of these Terms. To enable Your request to be handled promptly, please provide full details regarding Your reason for the return, refund or repair.

9. NO PROFESSIONAL ADVICE

You might use the Product or other Items to consult with Us directly in order to seek professional advice. Aside from any information provided to You directly from Your professional adviser after a direct consultation between You and Your professional adviser, and after Your professional adviser has considered Your particular circumstances:

a. The information provided through the Product, Content, Materials or other Items is for information purposes only. It does not address Your specific circumstances and is not professional advice.

b. You acknowledge and agree that any information provided on the Product, Content, Materials or through the other Items is not professional advice.

c. You acknowledge and agree that Your use of the Product and Items is at Your own risk and that, to the maximum extent permitted by law, We do not assume responsibility or liability for any information provided through the Product or other Items.

d. You acknowledge and agree that it is Your responsibility to evaluate all information provided through the Product or other Items in consultation with Your own professional adviser or advisers as appropriate.

e. You acknowledge and agree that Your use of the Product does not create a fiduciary relationship between Us and You.

f. You acknowledge and agree that a fiduciary relationship may only be created between You and Your professional adviser after You have a direct consultation with Your professional adviser.

10. INDEMNITY

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11. TERMINATION

a. We may immediately terminate these Terms at any time, with or without cause.

b. We specifically reserve the right to terminate these Terms if You breach these Terms in any way.

c. These Terms terminate automatically if We cease to operate the Product for any reason.

d. If You have registered for an account with Us, You may terminate these Terms at any time by contacting Us and requesting termination.

e. On termination of these Terms, any provisions which would by their nature be expected to survive termination shall remain in full force and effect, including but not limited to Our exclusions of liability as outlined in the "Exclusion of Liability" clause, the "Indemnity" clause and the "Intellectual Property" clause.

12. OTHER ACTION

a. We reserve the right to take any of the following actions in Our sole discretion:

I. monitor, review, edit or delete any Content which You have added, uploaded or posted to the Product or through the other Items, whether or not You have breached these Terms;

II. record any correspondence that occurs in public sections of the Product;

III. review any allegations about breaches of these Terms, and determine in Our sole discretion whether to take any action in response to those alleged breaches, including removal of any Content in relation to those alleged breaches;

IV. determine in Our sole discretion whether to terminate Your or another Product user's access to any particular section or sections of the Product or other Items.

13. ACCEPTABLE USE

a. You agree not to use the Product or the Items for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Product or the Items in any way that could damage the Product, the Items, or Our general business.

b. You further agree not to use the Product or the Items:

I. to harass, abuse or threaten any other person or to otherwise violate any other person's legal rights;

II. to violate any intellectual property rights of Us or of any third party;

III. to upload or otherwise disseminate any computer viruses or other software that may damage the property of another;

IV. to commit any kind of fraud;

V. to engage in or create any unlawful gambling, sweepstakes or pyramid schemes;

VI. to publish or distribute any obscene or defamatory material;

VII. to publish or distribute any material that incites violence, hatred or discrimination towards any person, group or community;

VIII. to unlawfully gather information about others.

c. Unauthorised use by You of the Items may be a criminal offence and may give rise to a claim for damages.

14. VARIATION OF TERMS

a. You hereby acknowledge and agree that these Terms may be varied or amended from time to time in Our sole discretion. If You continue to use the Product following any such variation or amendment, You will be deemed to have confirmed and agreed to the new Terms as varied or amended.

b. You agree to routinely monitor these Terms and to refer to the Effective Date posted at the top of these Terms in order to identify any modifications or variations. You further agree to clear Your cache when doing so in order to avoid accessing a prior version of these Terms.

c. In the event that You fail to monitor any modifications to or variations of these Terms, You agree that such failure shall be considered an affirmative waiver of Your right to review the modified or varied Terms.

15. THIRD PARTY LINKS

a. You hereby acknowledge that We may from time to time include links or references to other websites, other content or other materials ("Third Party Links"), none of which are controlled by Us.

b. You hereby acknowledge that these Third Party Links are provided for Your information only and that, to the maximum extent permitted by law, We do not make any representations, warranties or guarantees as to the accuracy, completeness, performance, reliability, timeliness, quality or suitability for a particular purpose of these Third Party Links. We do not endorse, approve or support these Third Party Links. You use the Third Party Links at Your own risk.

16. AFFILIATE MARKETING AND ADVERTISING

a. Through the Product and other Items, We may engage in affiliate marketing whereby We receive a commission on or a percentage of the proceeds of sales of Third Party Goods and Services that occur through Our Product and other Items.

b. Through the Product and other Items, We may accept advertising and sponsorships from commercial businesses, whereby third parties pay Us to advertise on the Product or through Our other Items, or We may receive other forms of advertising compensation.

c. We will comply with the Australian Consumer Law in relation to the disclosure of any commercial relationships and will not engage in conduct that is misleading or deceptive or likely to mislead or deceive.

17. CHANGES TO PRODUCT

a. You acknowledge and agree that We may, in Our sole discretion, vary, alter, amend, change or update the Content, Materials or the Product at any time.

b. You acknowledge, agree and accept that the Product may be unavailable from time to time (whether due to maintenance or for any other reason).

c. You acknowledge, agree and accept that, to the maximum extent permitted by law, We take no responsibility for, and shall not be liable in any way for, the Items being temporarily unavailable, whether due to reasons within Our control or not.

18. INTELLECTUAL PROPERTY

a. The Items contain intellectual property that is owned by Us and/or that is licensed to Us. This includes, but is not limited to, the contents, layout, design, colours, appearance, graphics and imagery of the Product, Content, Materials and Goods, as well as all copyright, trade marks, trade secrets, patents and other intellectual property contained in the Items ("Company IP").

b. You hereby acknowledge and agree that, as between Us and You, We own all intellectual property rights in the Items and that nothing in these Terms amounts to a transfer of any intellectual property rights from Us to You.

c. You hereby acknowledge and agree not to use the Company IP for any unlawful or infringing purpose.

d. You hereby acknowledge and agree not to reproduce or distribute the Company IP in any way, including electronically or via registration of any new trade marks, trade names, service marks or Uniform Resource Locators (URLs), without Our express written permission.

e. You hereby acknowledge and agree that, by adding, posting or uploading any Content on the Product ("Your Content"), You grant Us a worldwide, irrevocable, perpetual, non-exclusive, royalty-free and transferable right and licence to use Your Content in any way We choose. This licence includes a right and licence to:

I. reproduce, copy, alter or make derivative works from Your Content in any way We choose; and

II. display, communicate to the public, broadcast or transmit Your Content in any way We choose; and

III. authorise any other person, company or organisation to use Your Content in any way We choose.

f. To the extent permitted by the Copyright Act 1968 (Cth), You consent to any act or omission by Us (or persons authorised by Us) that would otherwise infringe Your moral rights in Your Content.

g. You represent and warrant to Us that You have all necessary rights to grant the licences and to provide the consents set out in this clause in relation to "Intellectual Property".

h. All of the provisions of this clause in relation to "Intellectual Property" shall survive any termination of these Terms.

19. USER REGISTRATION

a. You may be asked to register with Us in order to use or access the Items.

b. If You register with Us, You may be asked to provide personal details such as Your name and email address, as well as choosing a user name and a password ("Identifying Information"). This Identifying Information will allow You to access the Items.

c. You acknowledge that You are responsible for ensuring the accuracy of any Identifying Information You provide as part of the registration process.

d. You agree that You will not share Your Identifying Information with any third party, and if You discover that Your Identifying Information has been compromised, You agree to notify Us immediately in writing.

e. You acknowledge that You are responsible for maintaining the safety and security of Your Identifying Information, as well as keeping Us informed of any changes to Your Identifying Information.

f. You acknowledge that providing false or misleading information, or using the Items to further fraud or unlawful activity, is grounds for immediate termination of these Terms.

20. PRIVACY

a. Through Your use of the Product or other Items, You may provide Us with some of Your Personal Information. By using the Product or Items, You authorise Us to collect, hold, use and disclose Your Personal Information in Australia and any other country where We operate, in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

b. We take Our privacy obligations seriously and will handle Your Personal Information in accordance with applicable privacy laws.

c. Please refer to Our privacy policy, available at ________, for further information about what information We collect, how We use and store it, and Your rights in relation to it.

21. FORCE MAJEURE

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b. In the event that any such cause prevents or delays Our performance of Our obligations under these Terms, We will use Our reasonable endeavours to resume performance of Our obligations as soon as practicable.

c. You acknowledge and agree that, to the maximum extent permitted by law, We shall not be held liable for any loss, damage, cost or expense incurred by You as a result of any such failure or delay in performing Our obligations under these Terms due to any cause beyond Our reasonable control.

22. DISPUTE RESOLUTION

a. In the event that a Dispute arises between the Parties in connection with these Terms, the Parties agree to attempt to resolve the Dispute in good faith and by negotiation before commencing any court proceedings.

b. A party claiming that a Dispute has arisen must notify the other party in writing, providing details of the nature of the Dispute. On receipt of such notice, the Parties must use their reasonable endeavours to resolve the Dispute through negotiation between persons with authority to settle the Dispute.

c. If the Dispute is not resolved within ________ after the date of the notice, either party may pursue any remedy available to it at law.

d. Nothing in this clause prevents a party from seeking urgent injunctive or interlocutory relief from a court.

23. GENERAL PROVISIONS

a. Australian Consumer Law: You may have certain rights, warranties, guarantees and remedies under the Australian Consumer Law, which is contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), and these rights, warranties, guarantees and remedies may not be restricted, modified or excluded by Us. To the extent of any inconsistency between these Terms and the Australian Consumer Law, the Australian Consumer Law prevails.

b. Governing law and jurisdiction: Your use of the Product and the Items is subject to the laws of ________, Australia, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of ________, Australia and the courts hearing appeals from those courts.

c. Written communication: In relation to any correspondence or notification which is required under these Terms to be provided in writing from one party to the other party:

I. such notice is properly given if given to the other party:

A. by email to an email address that the other party has nominated, acknowledged or used in connection with the use of the Product or other Items;

B. by post to a postal address the other party has nominated, acknowledged or used in connection with the use of the Product or other Items;

II. such notice is taken to be received:

A. if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address, unless the sender receives an automated message that the email has not been delivered;

B. if sent by prepaid post within Australia, five (5) business days after the date of posting;

C. if sent by prepaid post to or from an address outside Australia, twenty-one (21) days after the date of posting.

d. No assignment: You must not assign, sub-licence or otherwise deal in any way with Your rights under these Terms without Our prior written consent. We may assign or novate Our rights and obligations under these Terms without Your consent.

e. Severability: If any clause or sub-clause of these Terms is held to be invalid or unenforceable, it is to be read down or severed such that the remaining clauses and sub-clauses will be enforced to the maximum extent possible. In such circumstances, the remainder of these Terms shall continue in full force and effect.

f. No waiver: In the event that We fail to enforce any provision of these Terms, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any clause or sub-clause of these Terms will not constitute a waiver of any other clause or sub-clause.

g. Headings for convenience only: Headings of clauses and sub-clauses under these Terms are for convenience only and shall not affect the meaning of any provision of these Terms.

h. Entire agreement: These Terms, together with any documents expressly incorporated by reference, constitute the entire agreement between the Parties in relation to their subject matter and supersede all prior representations, understandings and agreements.

i. Parties must take all reasonable steps: Each party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to these Terms and the events contemplated by them.

j. Separate agreements: You may have other legal agreements with Us. Those other legal agreements are separate from and in addition to these Terms. These Terms do not alter, amend, revise or replace the terms of any other legal agreements You may have with Us.

24. CONTACT US

You can contact Us about these Terms using the following details:

________