Terms + Conditions
The website at www.benikesh.com and all associated digital platforms, social media accounts and any mobile applications (together, Website) and the Website’s contents, products, materials and services are owned, operated and provided by CTH Design Pty Ltd trading as Beni Kesh ABN 70 626 089 218 (Beni Kesh, we, us or our). The term ‘you’ refers to any user or browser of the Website or purchaser of our Products.
The terms and conditions set out in this document and any additional disclaimers, policies and legal notices displayed on our Website from time to time (together, Terms and Conditions) govern and explain how you may use the Website and purchase Products.
It is important that you read and understand these Terms and Conditions. By accessing any information on our Website or purchasing the Products, you will be deemed to have accepted and agreed to be bound by these Terms and Conditions, as updated from time to time, whether or not you are a visitor simply browsing the Website or are purchasing the Products (together, customers).
You acknowledge and agree that the use of the Website is at your own risk and that using the Website in any way other than what is expressly stated in these Terms and Conditions will amount to a breach of the Terms and Conditions, and your use of the Website may be terminated in accordance with the provisions below.
If you are under the age of eighteen (18), you must obtain your parent’s or guardian’s prior consent to use the Website.
These Terms and Conditions do not modify, restrict, or exclude any additional rights you may have under applicable laws that cannot be so modified, restricted or excluded. If at any time you do not agree with the Terms and Conditions (or any changes to them), please do not continue to use the Website.
1. PERMITTED USE
Beni Kesh prohibits the use of the Website or any of its functionalities, features and content, in any manner other than expressly indicated. You agree to use the Website responsibly and to comply with any applicable laws and regulations. You agree you must not interfere with or disrupt the platforms, servers or networks connected to the Website. You agree you may not use the Website for any purpose that is unlawful or to solicit the performance of any illegal activity or other conduct that infringes Beni Kesh’s rights or the rights of others.
You may not use the Website for any commercial purpose or for the benefit of any third party, including but not limited to incorporating, modifying, copying, reproducing, republishing, uploading, posting, transmitting, translating, selling, creating derivative works, exploiting or distributing in any manner or medium (including by email or other electronic means) any content or additional information accessed or purchased through our Website, or any other communications provided by us for your personal use, or in a manner not permitted by the Terms and Conditions.
2. THE SERVICES
The information, content and material contained in or made available through the Website are provided for general information purposes only. None of the contents on this Website represent or warrant that the Products are appropriate for you. To the extent that we provide any explicit or implied recommendations of any Products, such recommendations are only general and not specific to any situation.
All information provided by us is provided in good faith, though we make no guarantees of any specific results or outcome from the use of the Website or Products. We derive our information from sources that we believe to be accurate and up to date as at the date of publication, however, we do not make any representations or warranties that the information we provide is reliable, current or complete at all times. Your reliance on any of the information on this Website is solely at your own risk, and we make no guarantees as to the suitability, outcome or results.
Testimonials/reviews (visual and written) and any publicity materials displayed on our Website are examples of real experiences and opinions of people's experiences with us, our Website and/or Products, and are for illustration only. All testimonials and publicity materials are displayed with permission and are of actual people and their results. Testimonials are not intended to guarantee current or future users the same or similar results.
3. ENQUIRIES, REGISTRATION AND SUBSCRIPTION
By using any current or future messaging service or online purchase system on our Website or subscribing to any current or future newsletter or blog on our Website, purchasing our Products, you will be added to our email list. If you do not want to remain on our database you can follow the instructions on the form to update your subscription or data preferences or unsubscribe from our email communications or email us at any time at email@example.com.
If we offer account registrations and you register an account with us via our Website, you are responsible for maintaining the confidentiality of your account details and password and are fully responsible for all activities that occur under your account. You agree to notify us immediately of any unauthorised use of your password or account or any other breach of security.
Our online shop includes the sale of vintage Moroccan rugs, new made Moroccan rugs, Moroccan floor runners, mirrors, blankets, pouffes, print collections, cushions, homewares, etc. (Products). Further details are available on the Website.
We endeavour to ensure that all Products available via our online shop on our Website are accurately described. Where we offer products supplied by third-party suppliers, we rely on information provided to us by our suppliers. Unfortunately, on some occasions it is possible that our Website will contain errors and we reserve the right to correct any errors or inaccuracies at any time, including after you have placed an order. From time to time we may offer Products for sale made from handmade or natural or organic materials, and there may be small variations between the Product image(s) and the Product you receive. We endeavour to ensure that all colours are displayed accurately but you should be aware that colours may appear slightly differently on different electronic displays and screens. The shade or colour that may appear on one screen compared to another shall not be grounds for returning a Product based on a fault or error. Any return based on the shade or colour of any Product will be classified as a 'change of mind' and will be at the expense of the customer.
To the extent permitted by applicable law, we do not warrant that the Product descriptions, colours, information or other content available or offered on our Website are accurate, complete, reliable, current or error-free, nor do we make any warranty about the standard or quality of any of the Products offered via our Website.
We do not represent or guarantee that the products will be free from allergens or defects, and you hereby release Beni Kesh from all liability relating thereto. You are responsible for checking the labels of the products prior to use and should consult your medical professional as to whether there may be any adverse reactions to the ingredients as stated on the product labels.
We may refer to third-party products, services, experts, and other third-party service providers on the Website. Any such reference is not intended as an endorsement or statement that the information provided by the third party is accurate. We make no warranties as to the suitability or reliability of third-party service providers nor give any guarantees as to the outcome or results of their products or services. It is your responsibility to conduct your own research and make your own determination about any such products, services, experts, and other service providers.
We may participate in affiliate marketing and may allow affiliate links to be included on our Website. This means that we may earn a commission when you click on or make purchases via affiliate links. We will inform you when one of the links on our Website is an affiliate link and will only affiliate with products, services, experts and other third-party service providers that we believe will provide value to our customers and followers. You recognise that it remains your personal responsibility to investigate whether any affiliate offers are right for you. You will not rely on any recommendation, reference or information provided by us and will conduct your own research and will rely upon your own research in deciding whether to purchase the affiliate product or service.
The majority of Beni Kesh items are one of a kind vintage pieces. If you find an item Out of Stock, please email firstname.lastname@example.org with an enquiry, as we can keep an eye out on future sourcing trips, and will email you when new shipments arrive so you don't miss out. Please note, we are also more than happy to personally source items for you whilst on our travels for the perfect treasures. Simply email email@example.com to discuss this personal service offered.
On rare occasions, our suppliers may find themselves unable to deliver Products to us or the Products delivered may not be of sufficient quality or workmanship. We reserve the right to withdraw any Products from our Website at any time and/or remove or edit any materials or content on our Website. Whilst we will make our best efforts to process all orders, there may be exceptional circumstances which mean that we may need to refuse to process an order after we have sent you an order confirmation, which we reserve the right to do at any time, at our sole discretion. We will not be liable to you or any other third party by reason of our withdrawing any Product from our Website, whether it has been sold or not, removing or editing any materials or contents on our Website, or for refusing to process or accept an order after we have sent you the order confirmation.
If you would like to purchase a large number of items, please contact us at firstname.lastname@example.org for a quote and more details about our wholesale and trade terms.
Products, and Fabric Care Instructions
Below are our guidelines to help you care for some of our specific products. Set out below are a few guidelines to help you care for any fabric-based products offered via our online shop. Please note, these care tips are guidelines only and variations will apply, and we will not be liable under any circumstances for how you choose to use and interpret this information.
Washable natural fibres should be pre-washed to avoid shrinkage. It is recommended that you pre-wash in the same way you intend to wash in the future. Wash light and bright colours separately, as some colours may run in their first few washes. Special washing instructions will apply to some fabrics such as beaded, coated or foiled fabrics as well as specialty weights/styles and delicate products. If you have any questions, please do not hesitate to contact us.
Rug Care Instructions: Rotate your rug every 3 months to ensure an even wear process. Vacuuming & shaking out your rug regularly keeps professional maintenance low and slows down the ageing process. You can also hang your rug out in the sun for a few hours, as long as it is in a safe space and the weather permits. For any spills, immediately use a damp cloth with tepid water to help avoid any stains. We recommend our rugs be cleaned by a professional as the natural dyes will easily run if not attended to correctly.
Cactus Silk Cushion Care Instructions: Dry clean only. Do not spot clean. We do recommend using a canvas protector spray as liquid will discolour these pieces due to their natural hand dying techniques. No chemicals are used to fix the colour, therefore any liquid will affect the natural colour and can cause the natural vegetable dyes to run and or transfer to other materials. Please also take care when filling and un-filling your cushions.
Moroccan Wedding Blanket Care Instructions: If your piece has a spill of some sort immediately use paper towel on the spill to dry any moisture and please ensure you do not rub. Never put your blanket away whilst damp, as this will cause rust on the beading and will prevent the natural fibres from staying fresh.
Leather Pouffe Care Instructions: We recommend all of our Moroccan Leather Pouffe’s be professionally cleaned if they need it. If your piece has a spill of some sort immediately use paper towel on the spill to dry any moisture and please ensure you do not rub.
Floor Cushion Care Instructions: We recommend all of our Moroccan Floor Cushion’s be cleaned by a professional, as the natural dyes will easily run if not attended to correctly. If your piece has a spill of some sort, immediately use paper towel on the spill to dry any moisture and please ensure you do not rub.
Merino: machine washable on a gentle/wool cycle using a wool detergent, do not wring. Do not bleach. Tumble dry on a cool setting or dry flat in shade. Use warm iron. Do not dry clean.
Silk: dry clean only or handwash at your own risk using a silk friendly detergent. Do not bleach or tumble dry. If hand washing, dry in shade. Use warm iron.
Cotton: wash separately, cool hand wash, cool machine wash on delicate setting. Do not tumble dry, do not wring, soak or bleach. Some parts of the product may be delicate and are required to be handled with care.
Linen: cool handwash or gentle machine wash, wash colours separately, do not wring. Tumble dry on a cool setting or dry in shade. Use a warm/hot iron.
Rayon/Viscose: dry clean or cool machine wash or hand wash. Do not twist or wring. Warm iron on the reverse side.
Wool: dry clean only, use cool/warm iron, steam when pressing, brush wool to remove surface soil.
Triacetate: dry cleanable or cool machine wash or hand wash. Do not twist or wring. Warm iron on reverse side.
Tencel/Lyocell: cold machine wash, dry on low temperature, cool iron, dry cleanable, do not bleach.
Acetate: dry clean, machine wash or hand wash separately in warm water. Do not soak coloured items, do not twist or wring, warm iron on reverse side. Do not tumble dry.
Laces/Jacquards: dry clean only. These fabrics are delicate so be careful against rough surfaces and snagging.
Velvet: dry clean only, do not spot clean. Never iron as ironing is likely to crush or flatten the natural pile. A hand-held steamer can be used to remove creasing. Alternatively, hang your fabric or garment in a steamy bathroom as the steam may help relax any creasing. Avoid using clip hangers as these can bruise or mark the fabric.
Nylon/Polyester: dry clean or cold machine wash, tumble dry on low temperature, cool iron, do not bleach.
Leather: to remove dirt or surface residue, use a soft damp cloth. Gently rub for removal. For a deeper clean, use a leather cleaner to help preserve the natural smooth oils instead of stripping them. Let your handmade leather goods dry naturally. To prevent leather from losing suppleness over time use a wax-free leather conditioner that will nourish and restore the flexibility and suppleness of your leather goods. To waterproof your handmade leather pieces, treat them with a layer of water protectant while maintaining the leather’s breathability.
Prices quoted in an order are fixed once your order has been confirmed. Subsequent price changes will not be retroactively applied to confirmed orders. You agree to pay the total amount listed for each product as set forth on the Website, including any merchant fees.
Gateways and Merchants
We reserve the right to change the preferred payment gateway from time to time and without notice.
Credit Cards, Chargebacks and Payment Security
All prices online are in Australian Dollars (AUD). If you change the displayed pricing to your local currency, you will still be charged in Australian Dollars (AUD). We accept Debit, Visa Card, MasterCard, Paypal, Apple Pay, Google Pay and Lay-Buys payments for Products sold on our online shop. After completion of your order, you will receive a confirmation email.
You may also pay via Direct Deposit. For this option, please email email@example.com with your contact details, address and the Products you would like to purchase. We will endeavour to contact you within 24 hours to confirm your order and send through appropriate banking details. You agree that we will not be held liable for any loss you incur arising from your payment by credit card or use of our payment gateway unless it is caused by our fraud or negligence. To the extent that you provide us with your credit card(s) information for payment, we shall be authorised to charge your credit card(s) for any prior unpaid charges. You shall not make any chargebacks to our account or cancel the credit card that is provided as security, without our prior written consent. You are responsible for any fees associated with recouping payment on chargebacks and any collection fees associated therewith. You shall not change any of the credit card information provided to us without notifying us in advance. Beni Kesh reserves the right to reject and/or report credit card payments that are suspected of fraud or any other illegal activity.
Beni Kesh also offers our customers payments by instalments via PayPal for a set period of time (Lay-Buys). To use this option, we charge a once off 1.9% admin fee, no interest charges and you select how long the lay-buy payments is for. All payments are secure and made through your PayPal account.
Two consecutive missed payments will result in your order being cancelled, and there will be a 30% restocking fee charged of the Lay-Buy orders full amount. We will contact you and PayPal will also contact you if any payments have been missed, however it is your responsibility to ensure PayPal is able to deduct the scheduled payments on time.
If for any reason you would like to cancel your Lay-Buy, a 30% cancellation fee will be incurred calculated on the full amount of the order.
5.SHIPPING AND DELIVERY
You acknowledge and agree that Beni Kesh uses third parties to ship and deliver all Products purchased via our online shop, and that Beni Kesh is not responsible for any shipping or delivery, including any late or failed deliveries. By purchasing Products, you agree to review, accept and comply with the shipping terms provided by the third-party supplier and that your sole recourse of action for any issues with your delivery will be between you and the relevant supplier.
You understand that delivery times noted on your order confirmation or receipt or on the Website are guidelines only and Beni Kesh is not liable for delays or changes to the delivery times.
You are responsible for providing an accurate mailing address and Beni Kesh accepts no responsibility for delivery to an incorrect mailing address.
Please refer to our Website or contact us at firstname.lastname@example.org for questions about and details of delivery charges, including any entitlements to free delivery.
We do not offer 'Authority to Leave' and all deliveries must be signed for unless they fit within your post box.
If applicable, tracking details for orders will be emailed promptly after they become available.
Domestic Shipping and Delivery
To ensure that your Products arrive safely, please ensure that someone is home to accept the order. In the event that someone is not home, your order will be directed to either your nearest Australia Post or will need to be redelivered by our courier service organised by you.
We estimate a delivery time of 3 to 10 business days for delivery within Australia. Small items will be shipped via regular post. The cost of delivery is determined by weight/volumetric weight. Larger items will be sent via our chosen courier service. Bulky items like our cushion inserts and fragile items including mirror will incur shipping charges. If you are unsure of these charges once at checkout, please get in contact with us at email@example.com.
International Shipping and Delivery
We do offer international shipping, and are currently working on a more streamline way to make international deliveries easy and more affordable. For international shipping, please contact us for a quote at firstname.lastname@example.org before placing your order. Please provide the details of the item you wish to purchase and your full shipping address, including area and zip/post code. Any taxes incurred upon arrival into your country will need to be paid by the customer.
6. CANCELLATIONS, REFUNDS AND RETURNS
Beni Kesh may, at its sole discretion, cancel your order for products at any time prior to dispatch. In the event of a cancelled order, funds paid in relation to that order will be refunded in full as soon as is reasonably practicable.
Before accepting the return of any Products, all products will be reviewed. If your return of any Product is accepted, we will refund the price paid for the Product via your original payment method. If the returned Product does not meet our review standards, the Product will be sent back to you and you will not receive a refund.
Returns are usually processed within five (5) business days of receipt. Refunds may take up to five (5) business days depending on the payment method and you will be sent an email notification once your return has been processed.
To return a product, pack your product and the returns form into an appropriate post package and follow the instructions for postage.
Dissatisfied with purchase
If for any reason you are dissatisfied with your purchase, you can advise so in writing to email@example.com within 3 business days of the receipt date. Please include your order number and the reasons why you are dissatisfied with your purchase. On receipt of your email, we will advise authorisation to return the Products to Beni Kesh. Any shipping costs will be paid in full by you. All Products returned to Beni Kesh for an exchange, credit note or refund must be unused and still in original condition with packaging intact and the original labels attached.
Change of Mind
If you change your mind, Products can be returned for an exchange or credit note within ten (10) days of the receipt date. Credit notes cannot be used on Beni Kesh’s Prints range. All shipping costs to return the Products to Beni Kesh are to be paid in full by you. The cost of sending a replacement or new purchase via a credit note is also at your expense. Credit notes are valid for 12 months from the date of issue. Shipping costs are non-refundable and no returns will be available for gift vouchers.
Prints Return Policy
As all prints are made to order, unfortunately we do not offer refunds or exchange due to change of mind. Where a Product is found to be faulty within the first 48 hours after delivery or is already damaged on delivery, and you notify Beni Kesh of that fault within the first 48 hours after delivery, then Beni Kesh will either replace or repair the faulty Product at our discretion or if we are unable to provide a new replacement, Beni Kesh has the option to offer a full or partial refund dependant on the amount of damage to the Product. Where a new replacement is available, and you elect to receive a refund instead of a replacement, the refund will be for the amount of the purchase price excluding the initial & return delivery cost.
Sale and Discount Code Products
No returns are available for sale Product purchases, including sale Product purchased with a discount code, unless the Product is damaged or is deemed faulty.
All faulty or damaged products are eligible for return for a refund or exchange.
This does not include:
- normal wear and tear;
- damage arising from improper assembly or modification;
- damage arising from abnormal use or abuse;
- damage, wear and tear as a result of improper or lack of maintenance and/or care (e.g. fabric, leather, etc.);
- damage to external or product packaging only;
- insignificant minor variations in dimensions, colour, grain or finish; and
- insignificant minor imperfections or superficial blemishes.
In the unlikely situation where you have received a faulty/damaged Product or not what you ordered, please advise so in writing to firstname.lastname@example.org within 3 business days of receipt. You will be entitled to a refund or exchange within ten (10) days of the receipt date. Beni Kesh reserves the right to not accept a return or exchange if this is not deemed to be the case. Once we have received the faulty Product for further inspection, we will notify you via email. We will also notify you of the approval or rejection of your refund. All shipping costs to return the Product to Beni Kesh are to be paid in full by you. The cost of sending a replacement is also at your expense. We do not accept exchanges or returns on orders shipped outside of Australia.
Lost Products or Damage During Delivery
We are not responsible for any returned Products that are lost in transit. We recommend that you purchase secure tracking and/or insurance for the Products you are returning and that you keep proof of postage.
If your Product arrives with clear and noticeable damage to its packaging, please take photographic evidence and bring it to the attention of the delivery driver/provider. Where Products are already damaged on delivery, Beni Kesh requires photographic evidence of the damage to be emailed to email@example.com before authorising return of the Products. Where Products are already damaged on delivery, you should indicate this to the delivery driver when signing the proof of delivery and ensure it is noted on the proof of delivery.
7. CHANGES TO OUR PRODUCTS AND PRICING
Our Products may be subject to change without notice. We reserve the right at any time and without notice to modify or discontinue any Products and we shall not be liable to you or any third party for any modification, price change or discontinuance of any Products. Subject to law, we reserve the right to limit the sales of our Products to any person, region or jurisdiction. All descriptions of our Products and pricing on our Website are subject to change at any time without notice, at our sole discretion.
8. COMPETITIONS, PROMOTIONAL CODES & OFFERS
All promotion codes are only valid at the time of purchase and cannot be redeemed after you have purchased an item. Please also note that some promotional offers will be deactivated at sale times as these cannot be used in conjunction with any other offer. You can redeem your other promotional offer once the sale is over and the previous offers have been reactivated. Only one promotional code can be applied to a single order.
Please always refer to the terms of the Competition or Promotion prior to purchasing.
Email newsletters sign up offer
We offer a 10% discount when you sign up to our email newsletter with your email address. To activate the 10% discount, use the unique code form your welcome email to receive 10% when you spend $150 or more on your first order. The 10% discount does not apply to sale items or gift vouchers, cannot be used in conjunction with any other promotional offers, cannot be applied to any previous or future purchases. The 10% discount can only be used once per customer (on their first order only) and may be deactivated during sale periods. Beni Kesh reserves the right to amend the details of this promotion at any time.
9. REVIEWS AND ONLINE COMMUNITY GUIDELINES
The Website and our other digital platforms, mobile applications and social media accounts (Communication Services) may allow you to post information, photos, content, user submissions and/or upload materials, including video and features such as live chat and forums (User-Generated Content), whether through external websites or otherwise. It may also allow you to see User-Generated Content submitted by others.
You agree you are responsible for your User-Generated Content, which includes but is not limited to, any data, text, files, information, usernames, images, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other materials that you submit, post or display on or via the Website or is in any way connected with the Website.
General community guidelines
It is essential to ensure that all our members of our community adhere to our community guidelines to maintain a safe and ethical online environment for all. You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to a Communication Service. You agree you may not communicate any content or incite any behaviour that is offensive or directly attacks, intimidates or harasses someone based on religion or faith, race or ethnicity, nationality, sexual orientation, age, gender or gender identity or disability. You must not defame, stalk, bully, abuse, harass or intimidate anyone or restrict another user’s use and enjoyment of the community in any way. Beni Kesh prohibits negative, dishonest or misleading conduct of any kind that threatens the integrity or security of the community on our platform. You must not create or operate from a user account on social media or any other platform for anyone other than yourself. You must not pretend that you are or that you represent someone else or impersonate any other individual or entity for any purpose.
You acknowledge we have the right, but not the obligation, to monitor and review User-Generated Content, and from time to time, we may, at our sole discretion and without prior notice to you, remove or edit any of your User-Generated Content that we find you may not have the permission to post, is offensive or for any other reason. If it is found, or we have reasonable grounds to believe, that a member of the online community is threatening the safety of the community or has provided information that is not true, accurate, current and complete, we may suspend or terminate their access to the community, refuse future use of the Products and inform the relevant authorities where appropriate. You agree to indemnify us against all liability claims or proceedings whatsoever arising from the publication of your User-Generated Content. You acknowledge and agree that we do not authorise, condone or endorse any User-Generated Content, and are not responsible for the accuracy, legality or decency of such content. You are responsible for verifying the veracity of any claims or statements made in any User-Generated Content.
10. THIRD-PARTY LINKS
The Website may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible for the information, services or resources of any third parties, nor do they imply any endorsement by, or affiliation with us. We do not guarantee, represent or warrant that the content of any third party is accurate, legal or inoffensive, or that they will not contain viruses or otherwise impact your hardware or software. Unless otherwise stated, these Terms and Conditions only cover the use of this Website and our Products. Any other link will be covered by the terms and conditions of that website or resource, of which we are not responsible either directly or indirectly. You acknowledge it is your sole responsibility to assume all risk arising from your use of any such websites, products or resources.
Beni Kesh is responsible for the support and maintenance of its Website only. We may, at any time and without notice, modify, suspend or terminate the operation of, or access to the Website, or any part of it, for any reason, as necessary to perform maintenance, error correction or other changes. You acknowledge that we may make changes to the Website or Products provided through the Website. Access to the Website may depend on telecommunications, Internet service providers and other external factors, and therefore we do not guarantee the availability of the Website at all times or at any specific times.
12. PRIVACY AND SECURITY OF INFORMATION
13. INTELLECTUAL PROPERTY AND COPYRIGHT NOTICE
You acknowledge and agree that the Website contains information, content and material that is owned by us, and is protected by all intellectual property and copyright laws recognised throughout the world, including the Copyright Act 1968 (Cth), whether existing under statute, at common law or in equity, now or hereafter in force.
You are prohibited from copying, distributing, sharing and/or transferring information, content and material from the Website (and/or any associated usernames/passwords, if applicable) you purchased to any third party or person. In some cases, we may encrypt and/or stamp licence details (including customer name, address, etc.) to ensure additional safety.
Beni Kesh respects the intellectual property rights of others and warrants that all information and materials provided via the Website is the original content of Beni Kesh or is otherwise provided with the relevant owner’s or owners’ consent and does not violate the intellectual property rights of any third parties. All references made to third parties or third-party intellectual property is by means of reference only, and we make no claims or association to them or it.
These Terms and Conditions do not transfer any of our intellectual property rights to you or any third parties. You are granted no rights with respect to or license of our trademarks, service marks and logos, used in connection with the Website. All intellectual property displayed on the Website has been provided, where applicable, with consent. All names, logos and trademarks on the Website are the property of their respective owners. Nothing on the Website should be interpreted as granting any rights for the commercial use or distribution of any names, logos or trademarks, without the express written agreement of the relevant owners.
We may, from time to time, monitor your use of the Website to determine if you are in breach of these Terms and Conditions. If you infringe our intellectual property rights or the rights of any third party, we have the right to suspend access to or terminate your use of the Website, and to report you to the relevant authorities or take any actions as appropriate or necessary.
14. TERMINATION OF WEBSITE USE
We, at our sole and absolute discretion, may suspend or terminate your access and/or future access to the Website, effective immediately, with no liability to you or any third party for the following reasons:
(a) where you are in breach of any of the Terms and Conditions or any related policies;
(b) where at any time you have committed any act of wilful or serious misconduct;
(c) where you have created a risk or possible exposure for us;
(d) where there are unexpected technical issues or problems;
(e) at the request of law enforcement or any government authority; or
(f) upon a request by you.
In the event a dispute arises from, or in connection with, these Terms and Conditions, the party who claims that there is a dispute will give written notice to the other party, including details of the dispute and a proposed resolution. Within seven (7) days of receiving the notice, the parties will meet to resolve the dispute or if they are unable to do so they will agree upon another method to resolve the dispute in good faith. All aspects of such meetings, except the fact that the meeting was held, will be confidential and privileged. If the parties do not resolve the dispute or where the dispute remains unresolved following the meeting and the parties do not agree upon an alternative method to resolve the dispute, within twenty-one (21) days after receipt of the notice, the dispute may be referred by either party to litigation by notice in writing to the other party.
116. WARRANTIES AND LIABILITY
CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH), MAY LIMIT THE ABILITY TO EXCLUDE LIABILITY OR MAY IMPLY WARRANTIES OR CONDITIONS OR IMPOSE OBLIGATIONS WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED EXCEPT TO A LIMITED EXTENT. THESE TERMS AND CONDITIONS MUST IN ALL CASES BE READ SUBJECT TO THESE STATUTORY PROVISIONS.
IF WE ARE LIABLE TO YOU UNDER THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH) OR SIMILAR LEGISLATION, TO THE EXTENT TO WHICH WE ARE ENTITLED TO DO SO, WE LIMIT OUR LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE PROVISIONS TO, , AT OUR OPTION, THE REPLACEMENT OF THE PRODUCTS OR THE SUPPLY OF EQUIVALENT PRODUCTS, THE REPAIR OF THE PRODUCTS, THE PAYMENT OF THE COST OF REPLACING THE PRODUCTS OR OF ACQUIRING EQUIVALENT PRODUCTS, OR THE PAYMENT OF THE COST OF HAVING THE PRODUCTS REPAIRED.
WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE WEBSITE FOR INDEFINITE PERIODS OR OTHERWISE LIMIT OR DISABLE YOUR ACCESS TO THE WEBSITE WITHOUT NOTICE TO YOU, WHERE REASONABLY NECESSARY TO PROTECT OUR LEGITIMATE INTERESTS.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE WEBSITE IS AT YOUR SOLE RISK. THE PRODUCTS SOLD THROUGH THE WEBSITE ARE (EXCEPT AS EXPRESSLY STATED BY US) PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. IN ADDITION, UNDER THE AUSTRALIAN CONSUMER LAW, THERE ARE CERTAIN CONSUMER GUARANTEES WHICH CANNOT BE EXCLUDED, INCLUDING GUARANTEES AS TO MERCHANTABILITY, FITNESS FOR PURPOSE, SUPPLY BY DESCRIPTION, REPAIRS AND TITLE.
IN NO CASE SHALL WE, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE WEBSITE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE WEBSITE INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, EVEN IF ADVISED OF THEIR POSSIBILITY.
BECAUSE SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IN SUCH COUNTRIES, STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT SUCH LIMITATION IS PERMITTED BY LAW.
WE SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE WEBSITE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND YOU HEREBY RELEASE US FROM ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
WE DO NOT REPRESENT OR GUARANTEE THAT THE WEBSITE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND YOU HEREBY RELEASE US FROM ANY LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR SYSTEM, INCLUDING ANY CONTENT ACQUIRED OR RENTED THROUGH THE WEBSITE. WE ARE NOT RESPONSIBLE FOR DATA CHARGES YOU MAY INCUR FOR DOWNLOADING OR STREAMING OVER A DATA CONNECTION.
17. WAIVERS AND INDEMNITY
BY USING THE WEBSITE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD US, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES HARMLESS AGAINST ANY CLAIMS ARISING OUT OF YOUR BREACH OF THESE TERMS AND CONDITIONS, YOUR MISUSE OF THE WEBSITE OR ANY ACTION TAKEN BY US AS PART OF OUR INVESTIGATION OF A SUSPECTED VIOLATION OF THESE TERMS AND CONDITIONS OR AS A RESULT OF OUR FINDING OR DECISION THAT A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED. TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU SHALL NOT SUE OR RECOVER ANY DAMAGES FROM US, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES AS A RESULT OF OUR DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND, LIMIT OR TERMINATE YOUR ACCESS TO THE WEBSITE OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF OUR REASONABLE CONCLUSION THAT A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS AND CONDITIONS.
18. GOVERNING JURISDICTION
The laws of the State of New South Wales, Australia govern these Terms and Conditions and any access to or use of our Website. You irrevocably agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from those courts to resolve any dispute or claim between the parties arising from or in relation to these Terms and Conditions.
These Terms and Conditions constitute the entire agreement concerning your use of this Website and supersede all previous agreements or understandings, whether written or oral, in relation to your use of this Website.
We reserve the right to amend the Terms and Conditions at any time and to add new or additional terms and conditions on your access to and use of the Website.
Please check these Terms and Conditions regularly before using our Website to ensure you are aware of any changes. We will endeavour to highlight any significant or substantive changes to you where possible.
If any part of these Terms and Conditions is held invalid or unenforceable, that part may be severed and the remaining portions of these Terms and Conditions will remain in full force and effect.
If we do not exercise or delay in exercising any rights to enforce performance of any of your obligations under the Terms and Conditions, it is not a waiver of our right:
(a) to insist on performance of, or claim damages for breach of, that obligation unless we acknowledge in writing that we have waived our rights; and
(b) at any other time to require performance of that or any other obligation under the Terms and Conditions.
These Terms and Conditions will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
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