ACTIV-EARS PTY LTD
ACN 158 702 964
Terms and Conditions
In these Conditions the following terms have the following meanings:-
“Content” means all of the content featured or displayed on the Website, including but not limited to text, graphics, photographs, images, moving images, sound, illustrations and software.
“Formal Instrument” means a formal instrument, if any, signed by you whether or not it is signed by the Company.
“Services” means information, if any, provided by the Company to you in the course of your use of the System.
“System” means the Website and/or the Content.
“Company” means ACTIV-EARS Pty Ltd ACN 158 702 964
“Website” means the whole or any part of the website pages located at www.activ-ears.com.au (including the layout of the Website, graphic design elements of the website pages, underlying code elements of the website pages, underlying code elements and any text, graphics, sound, animated elements or other Content of the Website.)
“you” means the Customer specified in any Formal Instrument, all persons who sign a Formal Instrument, all persons who access or use the System and, to the extent that the parties are related, the parties jointly.
2. Commencement and Application
2.1 This Agreement commences when you sign a Formal Instrument to which these conditions are attached or the Company issues you with a username and a password, whichever first occurs.
2.2 If you have not signed a Formal Instrument, by accessing or using the System you agree to be bound by these conditions.
2.3 If you do not agree with one or more of these Conditions, do not access or use the System.
3.1 The Company reserves the right to amend these Conditions, and any additional conditions, or change or discontinue any feature of the System, from time to time at its sole discretion.
3.2 You agree to be bound by these Conditions and any other Website Conditions as amended from time to time, whether or not you become aware of them.
3.3 The most current version of the Website Access Conditions will be posted on the Website.
You agree to review the Conditions regularly.
4.1 The Company can terminate this Agreement and the operation of and/or access to the System or any part of the system at any time at its sole and absolute discretion, without notice or liability to you or any other person.
4.2 You can terminate this Agreement by advising the Company by email. The notice of termination must include your username and password. Termination will take effect when the Company acknowledges having received such notice.
4.3 In the event of termination, the Conditions shall continue to apply and be binding on you with respect to your prior use of the System and with respect to any subsequent use of the System.
5. Electronic Communications
5.1 The Company may communicate with you by email at the email address provided by you or by posting notices on the Website.
5.2 You consent to receiving electronically all agreements, notices, disclosures and other communications
that the Company provides to you in the manner set out in clause 5.1 above.
6. Permitted Use
6.1 You agree that you are only authorised to access and use the System solely for your own benefit and not for the benefit of any other person or entity.
6.2 You agree not to use the System to provide or facilitate direct online access to any other person or entity.
7. Restriction/Prohibition on Use
7.1 You agree not to:-
(a) access any part of the Company’s computer network which you are not authorised to access in the normal course of using the System (for example “hacking”);
(b) circumvent, bypass or disable security access controls on the Company’s computer network;
(c) do any act intended to “crash” or unnecessarily retard the Company’s computer systems or networks;
(d) read, copy, alter or delete another authorised user’s files;
(e) disrupt or interfere with any other user’s enjoyment of the System;
(f) execute any form of network monitoring which will intercept or receive data not intended for you (for example “sniffing”);
(g) modify or reconfigure the software or hardware of the Company’s computer systems or network;
(h) upload, post or otherwise transmit any computer virus, “Trojan horse” or other malicious code through the System;
(i) disrupt or interfere with the security of or otherwise cause harm to the System.
7.2 You agree not to:
(a) attempt to;
(b) assist someone else to; or
(c) assist someone else to attempt to, do any of the things set out in clause 7.1 above.
7.3 You release and indemnify the Company and its directors, officers, employees and agents
from any loss or liability that may arise from your breach of this Agreement.
8. Transmission Speed
The Company has no control over the speed of transmission of data where the internet is used for access.
9.1 The System and/or the Services may contain inaccuracies and typographical errors. You acknowledge that the company does not make any representations, warranties or conditions, express, implied or statutory as to the operation of the System and/or the Services or the accuracy, completeness, quality, currency or timeliness of the Services.
9.2 You acknowledge that your access to the System may be interrupted, may not be secure and/or may be
intercepted or that the System may not be free from viruses, malicious computer code or other harmful components. You release and indemnify the Company and its directors, officers, employees and agents from any loss or liability that may arise from your use of the System.
9.3 Use of the System is at your own risk. You assume full responsibility and risk of loss resulting from your downloading, use of, or access to data, files, information, content or other material on or through the System. You release and indemnify the Company and its directors, officers, employees and agents from any loss or liability that may arise from your use of the System.
10. Limitation of Liability
10.1 To the extent permitted by law, under no circumstances will the Company or its directors, officers,
employees or agents be liable, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory whatsoever, for damages of any kind including, but not limited to, direct, special, indirect, punitive, incidental or consequential damages, business losses, lost savings, lost data, loss of use, lost profits, personal injury, fines, fees, penalties or other liabilities arising from or relating to your use, reliance upon or inability to use the System, whether or not the Company is advised of the possibility of such damages and/or if you transfer confidential or sensitive information to the Company or if the Company communicates such information to you at your request over the internet.
10.2 To the extent that any liability cannot lawfully be excluded, such liability will be limited to refunding the cost of the services (if any) or resupplying the services (if any) at the Company’s election.
11. Intellectual Property
The Content displayed or provided on the System belongs to the Company (or content providers to the Company) and is protected by copyright, trade mark and/or other intellectual property laws. You acknowledge that you do not acquire any property rights through your use of the System.
13. Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the Queensland Courts in Brisbane District.
14. Severance and Variation
If any provision of this Agreement is, for any reason, considered or found by a Court of competent jurisdiction or any competent Government authority to be invalid, illegal or unenforceable,
(a) that provision is to be severed from the remainder of the provisions of the Agreement. The remainder of the provisions of the Agreement will remain in full force and effect unless the basic purposes of the Agreement are defeated; or
(b) The Company may serve on you a notice varying that provision and you agree to be bound by that provision as varied as though it was always part of this Agreement.
15. Entire Agreement
This Agreement constitutes the full and complete understanding between the parties with respect to the subject matter of this Agreement, except to the extent that matters relating to your use of the System or your dealings with the Company are
dealt with in any other agreement between the parties. There is no other oral understanding, agreement, warranty or representation whether express, implied or collateral in any way extending, defining or otherwise relating to its provisions or binding on the parties. You acknowledge that you have not been induced to enter this Agreement based on any representation other than as expressly recorded in this Agreement.
In the interpretation of these Conditions unless the context otherwise requires:-
(a) Words denoting any gender include all other genders.
(b) Words denoting persons include all bodies, associations, trusts, partnerships, instrumentalities and entities corporate or unincorporate, and vice versa.
(c) References to any of the parties include in the case of a person, their personal representatives and permitted assigns, and in other cases their successors and permitted assigns.
(d) Any obligation on the part of two or more persons is deemed to bind or benefit, as the case may be, any two or more of them jointly and each of them severally.
(e) Words expressing the singular include the plural and vice versa.
(f) Headings are included for convenience only and do not affect the interpretation of this Agreement.
(g) References to the Agreement are to the Agreement as amended supplemented or varied from time to time.
(h) References to any document or Agreement includes all references to such document or Agreement as amended, novated, supplemented, varied or replaced from time to time.
(i) References to “$” and “dollars” are to Australian dollars.
(j) References to writing include typing, telex, facsimile and all other means of reproducing words in a permanent and visible form.
(k) References to any legislation includes any legislative provision which amends, extends, consolidates or replaces it and any orders, regulations, instruments, proclamations or other subordinate legislation made under it.
(l) References to institutes, associations, bodies and authorities whether statutory or otherwise will, if it ceases to exist or is reconstituted, renamed or replaced or its powers or functions are transferred, refer to the institute, association, body or authority established or constituted in its place or which substantially succeeds to its powers or functions.
(m) No rule of construction will apply to the disadvantage of a party because that party was responsible for the drafting of this Agreement or any part of it.