Terms of Sale
Last updated: 11th March 2019
1.1 Who we are. Welcome to the Kicks website! This website and its domain name (collectively, Website) are owned and operated by Universal Sony Pictures Home Entertainment Australia Pty Limited ABN 39 152 425 735 and its affiliated companies (Unisphe, we, our). Please feel free to browse the Website at any time; however, by accessing, using and remaining on the Website, you are subject to the terms and conditions of the Website (Terms). If you do not accept the Terms, please discontinue your use of this Website.
1.2 What the Terms cover. These are the terms on which you access and use this website, and on which we supply products to you.
1.3 Why you should read them. Please read these Terms carefully before you use the Website or submit any order to us. These Terms tell you who we are, how we will provide products to you, how you and we may change or end the contract, what to do if there is a problem and other important information. If you think there is a mistake in these Terms, please contact us to discuss.
1.4 Terms may change. Unisphe reserves the right, in its sole discretion, to amend the Terms, and to modify, add or discontinue any aspect, content or feature of the Website. Such amendments, modification, additions, deletions will become effective upon notice, which may be provided to you by posting the Terms on the Website, via email or any other means. Please check the Website from time to time to take notice of any changes we have made, as they are binding on you. Your continued use of the Website will constitute your binding acceptance of any such amendments, modifications, additions or deletions.
2.1 How to contact us. You can contact us by telephoning our customer service team at 1 800 134 006 or by writing to us at firstname.lastname@example.org or Sarah Nye, Kicks, c/o CDM Direct, REPLY PAID 85790, SEAFORD VIC 3198.
2.2 How we may contact you. If we have to contact you, we will do so by telephone or by writing to you at the email address or postal address you provided to us in your offer.
3.1 Benefits of the Website. This Website allows you to search for and purchase products described on this Website [including DVDs, Blu-ray and 4K Blu-ray]. You can also participate in competitions and take advantage of special offers through the Website, subject to these Terms and any terms set out in relation to any specific offering.
3.2 No warranty as to accuracy of information. Unisphe has prepared this Website in good faith. Information on this Website may be derived from third party sources. Unisphe believes the information on this Website is accurate and up to date; however Unisphe makes no representation or warranty as to the accuracy or currency of the information.
3.3 Interruptions to service. Unisphe may cease, interrupt or withdraw your access to the Website for any reason, including for upgrades and maintenance of the Website.
4. REGISTRATION MAY BE REQUIRED TO ACCESS
4.1 Registration. Unisphe may require you to register in order to make purchases over the Website, or to access certain features or services offered on or through the Website (including setting up a user ID and password). You may not register an account for someone else. Please ensure that you enter all information carefully when creating an account. You warrant to Unisphe that all information you provide in relation to your account is complete, true and accurate. You acknowledge that, except to the extent required by law, Unisphe will not be liable to you, or any other person, for any loss, damage, cost or expense whatsoever suffered as a direct or indirect result of your account information being incomplete or inaccurate, or any unauthorised use of your login details or your account which takes place before you notify Unisphe.
4.2 Keep login detail secure. Where you register with Unisphe, you must keep your registration and login details confidential. You will be responsible for any access to and all activity that occurs under your account on the Website using your registration details, even if the access is by another person, or as a result of your failing to keep this information secure and confidential. You must notify Unisphe immediately if you become aware of any actual or potential unauthorised use of your login details or account.
5. YOUR USE OF THE WEBSITE
5.1 Appropriate use of the Website. You must not:
(a) use the Website in breach of any applicable laws or regulations, or in any way that is prohibited by these Terms;
(b) use the Website for any activity which infringes a third party’s rights or privacy;
(c) use the Website to harm, abuse, harass, stalk, threaten or otherwise offend others;
(d) link, frame or mirror in any way any part of the Website without Unisphe's express prior written authorisation; or
(e) interfere with, disrupt, or create an undue burden on, the Website.
5.2 No interference with Website. Without limiting the above, you must not, and must not permit a third party to:
(a) use any method or process (including data scraping, web-bots, collection or accumulation tool, robot, spider or scripted responses) for the purpose of obtaining, processing, copying, replicating, distributing, reconfiguring, republishing, reproducing, viewing, uploading, posting, assessing, analysing, altering, modifying, publically displaying, encoding, translating, transmitting or repackaging the text, information, graphics, user interfaces, visual interfaces, photographs, trade marks, logos, sounds, downloads and computer code (Website Content);
(b) circumvent, disable or otherwise interfere with security-related features of the Website;
(c) use, obtain, or attempt to obtain from the Website, information in order to identify or discover the identity of any user, or any underwriting, rating and related business methodology or systems;
(d) do anything which will or may damage, disrupt access to or interfere with the proper operation of the Website, or any transaction being conducted on the Website, or with any other person's use of the Website;
(e) reverse engineer, reverse assemble, decompile, or otherwise attempt to discover source code or other arithmetical formulae or processes in respect of the software underlying the infrastructure and processes associated with the Website;
(f) attempt to gain unauthorised access to any portion or feature of the Website, or any other systems or networks connected to the Website or to any Unisphe server, or to any of the products or services offered on or through the Website, by hacking, password "mining" or any other illegitimate means;
(g) probe, scan or test the vulnerability of the Website or any network connected to the Website, nor breach the security or authentication measures on the Website or any network connected to the Website; or
(h) reverse look-up, trace or seek to trace any information on any other user of or visitor to the Website, or any other customer of Unisphe, including any Unisphe account not owned by you, to its source, or exploit the Website or any service or information made available or offered by or through the Website, in any way where the purpose is to reveal any information, including but not limited to personal information, other than your own information, as provided for by the Website.
5.3 Responsibility for your actions. You acknowledge that you are solely responsible for all results of your actions from your use of the Website.
5.4 Indemnity. You agree to indemnify, defend and hold Unisphe and its affiliates, and their respective officers, directors, owners, shareholders, employees, agents, information providers and licensors (collectively the “Indemnified Parties”) harmless from and against any and all claims, liability, losses, actions, suits, costs and expenses (including legal fees) arising out of or incurred by any breach by you of these Terms. Unisphe reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Unisphe's defence of such claim.
6. MATERIAL YOU SUBMIT
6.1 Do not submit your creative material. While we are always happy to hear from you, it is our policy not to accept or consider creative materials, ideas, or suggestions other than those we specifically request. This is to avoid any misunderstandings if your ideas are similar to those we have developed, or are developing, independently. Therefore, we must request that you do NOT send to us any original creative materials such as screenplays, stories, original artwork, etc.
6.2 Rights in your submitted material. Any communication or material you do transmit to us by email or otherwise will be treated as non-confidential and non-proprietary, and will be subject to an irrevocable, exclusive, worldwide, royalty-free, transferable licence for us to use for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Unisphe is and will be under no obligation to: (1) maintain any of your or any user’s submissions in confidence; (2) to pay to you or any user any compensation for any submissions; or (3) to respond to any of your or any other user’s submissions.
7. USER INTERACTION
7.1 Chat rooms, message boards and bulletin boards. The Website may provide you and other users an opportunity to submit, post, display, transmit and/or exchange information, ideas, opinions, photographs, images, video, creative works or other information, messages, transmissions or material to us, the Website or others (Postings).
7.2 Unisphe not responsible for users' Postings. Postings do not reflect the views of Unisphe; and Unisphe does not have any obligation to monitor, edit, or review any Postings on the Website. Unisphe assumes NO responsibility or liability arising from the content of any such Postings nor for any error, defamation, libel, slander, omission, falsehood, obscenity, pornography, profanity, danger, or inaccuracy contained in any information within such Postings on the Website.
7.3 Prohibited Postings. You are strictly prohibited from posting or transmitting any unlawful, threatening, libellous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law. Unisphe will fully cooperate with any law enforcement authorities or court order requesting or directing Unisphe to disclose the identity of anyone posting any such information or materials.
7.4 Disputes with other users. You, and not Unisphe, are responsible for resolving any disputes you may have with other users of the Website. Unisphe does not confirm each user's purported identity on the Website. We may provide information about a user; however, this information is based solely on data that a user submits and we provide such information solely for the convenience of users and the provision of such information is not an introduction, endorsement or recommendation by Unisphe as to the user's identity or credentials.
8. TERMINATION OF USE
Termination. Unisphe may, in its sole discretion, terminate your password, account (or any part thereof) or your access to the Website, or remove and discard any Posting or other communication by you, or information stored, sent, or received via the Website without prior notice and for any reason, including, but not limited to:
(a) concurrent access of the Website with identical user identification numbers;
(b) permitting another person or entity to use your user identification number to access the Website;
(c) any other access or use of the Website except as expressly provided in these Terms;
(d) any violation of the Terms;
(e) tampering with or alteration of any of the software and/or data files contained in, or accessed through, the Website; or
(f) failure to use the Website or portion thereof on a regular basis.
9. INTELLECTUAL PROPERTY
9.1 Trade marks. The trade marks, logos and service marks (Trade Marks) used in this Website are registered or unregistered Trade Marks of Unisphe or its licensors. You may not copy, reproduce, adapt, distribute, sell, modify, publish, store or transmit any Trade Mark in any form, other than with the prior written consent of Unisphe, or as permitted by law. All rights of Unisphe and its licensors are reserved.
9.2 Rights in all content. All text, information, graphics, user interfaces, visual interfaces, photographs, trade marks, logos, sounds, downloads, services, and computer code (collectively, Content), including but not limited to the design, structure, selection, coordination, expression, "look and feel" and arrangement of such Content, contained on the Website is owned, controlled or licensed by or to Unisphe, and may be protected by copyright, patent and trade mark laws, and various other intellectual property rights and consumer laws.
9.3 No implied licence and aggressive enforcement of rights. Nothing contained on the Website should be construed as granting, by implication, estoppel or otherwise, any licence or right to use any Content without the written permission of Unisphe or such third party that may own or control rights in the Content. Your misuse of the Trade Marks or the Content is strictly prohibited. You are also advised that Unisphe or its licensors will aggressively enforce its intellectual property rights to the fullest extent of the law, including seeking criminal prosecution if applicable.
9.4 Non-commercial and personal use. You may download material displayed on the Website for non-commercial, personal use only (provided that you retain all copyright and other proprietary notices contained on such material). Unisphe does not warrant or represent that your use of such material will not infringe the rights of any third parties which are not owned or affiliated with Unisphe.
10.1 This Website may use 'cookies' as part of its interaction with your internet browser. Cookies enable us to provide you with a superior, customer-oriented service. A 'cookie' is a small text file placed on your computer by our web server. A cookie can later be retrieved by our servers. Cookies are frequently used on websites and you can choose if and how a cookie will be accepted by configuring your preferences and options in your browser. Cookies do not alter the operation of your computer or mobile device in any way.
10.2 It is recommended that you accept cookies to make full use of this Website. Cookies may also be used to record non-personalised information such as the date or the pages accessed, for this Website's administration, statistical and maintenance purposes. Any such information will be aggregated and not attributed to individual users.
10.3 Most web browsers allow you to disable cookies on your computer. If you disable cookies, you may be unable to use this Website to the fullest and optimum extent.
11. THIRD PARTY CONTENT
11.1 Links. The Website may contain links to or display the content of third parties (Third Party Content), including links to websites operated by other organisations and individuals (Third Party Websites).
11.2 Unisphe not responsible for Third Party Content. Third Party Content and Third Party Websites are not under the control of Unisphe. Unisphe does not endorse, approve, guarantee or make any warranty or claim regarding Third Party Content, Third Party Websites or the products, services or information available on any Third Party Website, or in respect of the owner or operator of a Third Party Website or their conduct.
11.3 Third Party Websites will have independent privacy and security polices. Links to Third Party Websites are provided for your convenience. Unisphe is not responsible for the privacy or security practices of Third Party Websites. Third Party Websites should have their own privacy and security policies, which we encourage you to read before supplying any personal information to them. If you use or rely on Third Party Content or Third Party Websites, you do so solely at your own risk.
12. THIRD PARTY MERCHANTS
12.1 Dealings between you and merchants. Any correspondence or business dealing with, or any participation in any promotions of, any merchants found on or through the Website, including for the payment and delivery of related goods and services, and the associated terms, conditions, representations or warranties of that dealing, are solely between you and that merchant.
12.2 Unisphe not responsible for your dealings with third party merchants. Unisphe will not be responsible or liable for any loss or damage of any kind incurred as a result of such dealings, or a result of the presence of such merchants on the Website.
13.1 Place orders. You can place an order for products on the Website, by following the instructions on the Website.
13.2 Order is an offer. An order submitted by you is an offer by you to purchase the specified goods for the price plus any delivery charge. Unisphe may accept or reject your offer in its absolute discretion, for example if your offer is for the purchase of products in commercial quantities.
13.3 Confirmation receipt is not acceptance. When you place an order on the Website, we will send you a confirmation email confirming receipt, however this does not constitute acceptance of your order or a guarantee to the product.
13.4 Restricted material. Sale of certain products on the Website is subject to various Commonwealth, State and Territory laws. By placing an order for any goods which are only intended to be viewed, played, listened to or otherwise used by a person of at least a certain age (being 18 years of age or older where the products are classified R18+, and 15 years of age or older where the products are classified MA15+), you warrant to Unisphe that:
(a) you are of at least that relevant age; and
(b) you are not obtaining the restricted goods on behalf of a person who is not eligible to purchase the restricted goods themselves.
13.5 No acceptance. If we are unable to accept your order, we will inform you of this and will not charge you for the product. This might be because the product is out of stock, because of unexpected limits on our resources which we could not reasonably plan for, because we have identified an error in the price or description of the product or because we are unable to meet a delivery deadline you have specified. If you have paid by Paypal we will refund the amount paid to your PayPal account.
13.6 Acceptance is dispatch. We accept your order when we dispatch your order, creating a contract between you and Unisphe (Contract). We will notify you to confirm dispatch of your order when this occurs, and will assign you an order number at this point. It will assist us if you can tell us the order number whenever you contact us about your order.
13.7 Australian consumers. The Website is for the promotion of our products in Australia. We do not accept orders from, or deliver to, addresses outside this territory. Unisphe makes no representation that the materials on the Website are appropriate or available for use in other locations and other countries. Those who choose to access the Website from other locations or other countries do so on their own initiative and are responsible for compliance with local laws in that territory, if and to the extent that local laws are applicable.
14.1 Products may vary slightly from their pictures. Any images of products on the Website are for illustrative purposes only. Unisphe makes every effort to display colours accurately, but we cannot guarantee that your device's display accurately reflects the colour of the products. Your product may vary slightly from those images.
14.2 Product packaging may vary. Product packaging may vary from that shown on the Website.
14.3 Ensure correct measurements. Please check your measurements using our sizing guide to ensure you order the correct sizes of any apparel.
15. PROVIDING THE PRODUCTS
15.1 Delivery costs. The costs of delivery will be as displayed to you on the Website.
15.2 When we will provide the products. We will deliver your products within a reasonable period of time, bearing in mind the nature of the order, the availability of the products and the location to which they are being delivered. We use Australia Post to deliver your orders, so standard Australia Post delivery times will apply. We ship our products from Melbourne metro. Most deliveries take approximately 2-3 business days in metro areas within Melbourne. Interstate and rural orders may take longer depending on your location. Please check the Australia Post postage calculator for a more accurate estimate based on your post code, available at Australia Post.
15.3 Consolidating deliveries. Where you place separate orders, separate delivery charges may apply to each order. Where you order more than one product in one order, all products in that order will, if the order is accepted, be dispatched together where practicable. From time to time, products may be dispatched separately, for example: where the products are being dispatched from different locations or where the products are available for dispatch at different times.
15.4 We are not responsible for delays outside our control. If our supply of the products is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact us to cancel your order and receive a refund for any products you have paid for but not received.
15.5 If you are not at home when the product is delivered. Most of the products on our site do not require you to be at home to take delivery as they will fit through your letterbox. In the event that you have ordered a product which will not fit through your letterbox, and you are not available to take delivery, then the postal service will follow their usual procedure. This usually means a card is left to notify you of an attempted delivery and the item will be held at your local post office. You will have 10 business days to collect it before the item is returned to the sender. For items attempted for delivery by a courier service they will also leave a card and allow you to arrange for redelivery or collection.
15.6 If you do not re-arrange delivery. If you do not collect the products from us as arranged or if, after a failed delivery to you, you do not re-arrange delivery or collect them from a delivery depot we will contact you for further instructions and may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may end the Contract.
15.7 When you become responsible for the product. The product will be your responsibility from the time we deliver the product to the address you gave us.
15.8 Reasons we may suspend the supply of products to you. We may have to suspend the supply of a product to deal with technical problems or make minor technical changes, or to update the product to reflect changes in relevant laws and regulatory requirements.
16. YOUR RIGHTS IN RELATION TO PRODUCTS OR CONTRACTS
16.1 These Terms are subject to the ACL. Your purchase of goods will be subject to certain laws including, without limitation, the Australian Consumer Law. The Australian Consumer Law provides you with certain rights that cannot be excluded, including that the goods you purchase through the Website must be of acceptable quality, reasonably fit for the purpose that Unisphe represents they will be fit for, and that the goods will correspond with any relevant description. Nothing in these Terms shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Australian Consumer Law) which cannot by law be excluded, restricted or modified.
16.2 You can always end your Contract with us. Your rights when you end the Contract will depend on what you have bought, whether there is anything wrong with it, how we are performing and when you decide to end the Contract:
(a) if what you have bought is faulty or incorrectly described, you may have a legal right to end the Contract (or to get the product repaired or replaced or a service re-performed or to get some or all of your money back) - see clause 19;
(b) if you want to end the Contract because of something we have done or have told you we are going to do - see clause 16.3;
(c) if you have just changed your mind about the product, you may be able to get a refund if you are within the cooling-off period, but this may be subject to deductions - see clause 16.4.
16.3 Ending the Contract because of something we have done or are going to do. If you are ending a Contract for a reason set out as follows, the Contract will end immediately and we will refund you in full for any products which have not been provided and you may also be entitled to compensation:
(a) we have told you about an upcoming change to the product or these Terms which you do not agree to;
(b) we have told you about an error in the price or description of the product you have ordered and you do not wish to proceed;
(c) there is a risk that supply of the products may be significantly delayed because of events outside our control; or
(d) you have a legal right to end the Contract because of something we have done wrong.
16.4 Exercising your right to change your mind. You may change your mind within 14 days of receiving the ordered product and receive a refund. This right is more generous than your legal rights under the Australian Consumer Law and reflects the value we place on our relationship with you. However, we do NOT extend refunds in respect of:
(a) products sealed for health protection or hygiene purposes, once these have been unsealed after you receive them;
(b) sealed audio or sealed video recordings or sealed computer software, once these products are unsealed after you receive them; and
(c) any products which become mixed inseparably with other items after their delivery.
16.5 If any of the circumstances in clause 16.3 applies, any cost of returning the applicable product to us will be at our expense.
16.6 Where you are entitled to a full or partial refund as outlined above, we will refund you the amount to which you are entitled using the same method you used to purchase the products.
16.7 Any refund given under this clause will be done in accordance with clause 17.5 below.
17. HOW TO END THE CONTRACT
17.1 Tell us you want to end the Contract. To end the Contract, please let us know by following the instructions on the Website, or by contacting us on the details set out in clause 2.
17.2 Returning products after ending the Contract. If you end the Contract for any reason after products have been dispatched to you or you have received them, you must return them to us by post. Please contact us on the details set out in clause 2 to arrange the return. If you are returning goods because you have changed your mind, you must send off the goods within 14 days, and be able to demonstrate that the goods have been sent within that timeframe.
17.3 When we will pay the costs of return. We will pay any costs of return if the products are faulty or incorrectly described, or if you are ending the Contract on any of the grounds set out in clause 16.3. In all other circumstances (including where you are ending the Contract because you have changed your mind) you must pay the costs of return.
17.4 How we will refund you. We will refund you the price you paid for the products including delivery costs, by the method you use for payment. However, we may make deductions from the price as described below. We will not refund delivery costs where you have changed your mind.
17.5 When your refund will be made. We will make any refunds due to you as soon as possible. If you are receiving a refund because you changed your mind, then your refund will be made within 14 days from the day on which we receive the product back from you.
18. OUR RIGHTS TO END THE CONTRACT
We may end the Contract if you break it. We may end the Contract at any time by writing to you if:
(a) you do not make any payment to us when it is due; or
(b) you do not, within a reasonable time, allow us to deliver the products to you or collect them from us.
19. PROBLEMS WITH THE PRODUCT
19.1 How to tell us about problems. If you have any questions or complaints about the product, please contact us on the details set out in clause 2.
19.2 Your obligation to return rejected ducts. If you wish to exercise your legal rights to reject products you must post them back to us or (if they are not suitable for posting) allow us to collect them from you. We will pay the costs of postage or collection. Please contact us on the details set out in clause 2 for a return label or to arrange collection.
20. PRICE AND PAYMENT
20.1 Payment methods. We accept payment by Visa, MasterCard or by PayPal.
20.2 Payment timing. Unless expressly provided for otherwise, payment for products ordered must be made before we will dispatch those products.
20.3 Where the price is displayed. The price of each product will be displayed on the Website when you select that product, and the price indicated on the order page when you have placed your order. We take all reasonable care to ensure that the price of the product advised to you is correct.
20.4 Incorrect prices. Despite our best efforts, it is always possible that some of the products we sell may be incorrectly priced. We will normally check prices before accepting your order so that, where the product's correct price at your order date is less than our stated price at your order date, we will charge the lower amount. If the product's correct price at your order date is higher than the price stated on the Website at the time you place your order, we will contact you for your instructions before we accept your order. If we accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the contract, refund you any sums you have paid and require the return of any goods provided to you.
20.1 Australian currency and GST. All prices and delivery charges quoted are in Australian dollars and are inclusive of GST.
21.1 You accept risks by accessing. By accessing this Website, you assume all risks associated with its use, including the risk that your computer, software or data may be damaged by any virus transmitted by this Website or by any Third Party Content or Third Party Website. The Content, materials and products or services available in or accessible through the Website are "as is" and, to the fullest extent permissible by law, UNISPHE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THE CONSUMER GUARANTEES TO THE EXTENT THEY APPLY. EXCEPT AS MAY BE REQUIRED BY LAW, UNISPHE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN SUCH MATERIALS AND PRODUCTS, OR IN THE WEBSITE, WILL BE UNINTERRUPTED OR ERROR-FREE, WILL BE AVAILABLE FOR USE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, INCLUDING THE STORAGE SERVICES AND THEIR CONTENTS, OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
21.2 Liability excluded. With the exception of any applicable right or guarantee you may have under the Australian Consumer Law and any similar state or territory legislation, or other rights in relation to the supply of goods or services (such as terms implied into a contract) that cannot lawfully be excluded (Consumer Guarantees), YOUR USE OF, AND BROWSING IN, THE WEBSITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKS TO SATISFY YOUR REQUIREMENTS FOR THE ACCURACY AND SUITABILITY OF THE WEBSITE, INCLUDING THE INFORMATION, AND FOR MAINTAINING ANY MEANS THAT YOU MAY REQUIRE FOR THE RECONSTRUCTION OF LOST DATA OR SUBSEQUENT MANIPULATIONS OR ANALYSES OF THE INFORMATION PROVIDED HEREUNDER. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE AND ANY INFORMATION SENT OR RECEIVED IN CONNECTION THEREWITH, MAY NOT BE SECURE AND MAY BE INTERCEPTED BY UNAUTHORIZED PARTIES. YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ALL NECESSARY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY. IN NO EVENT SHALL UNISPHE, ITS PARENT OR SUBSIDIARY COMPANIES OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE WEBSITE OR WITH THE DELAY OR INABILITY TO USE THE WEBSITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ADVERTISED IN OR OBTAINED THROUGH THE WEBSITE, UNISPHE'S REMOVAL OR DELETION OF ANY MATERIALS OR RECORDS SUBMITTED OR POSTED ON THE WEBSITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF UNISPHE OR ANY OF ITS SUBSIDIARY COMPANIES, AFFILIATES OR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THIS WAIVER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY RECORD. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT UNISPHE, ITS PARENT OR SUBSIDIARY COMPANIES, AFFILIATES OR SUPPLIERS SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE WEBSITE.
21.3 No liability for business losses. We only supply the products for domestic and private use. If you use the products for any commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption or loss of business opportunity.
21.4 Available remedies. Our liability in respect of any breach of, or failure to comply with, any applicable Consumer Guarantee is limited to:
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again,
(c) the goods or services supplied are goods or services 'of a kind ordinarily acquired for personal, domestic or household use or consumption', as that expression is used in section 64A of the Australian Consumer Law;
(d) it is not 'fair or reasonable' for us to rely on such limitation in accordance with section 64A(3) of the Australian Consumer Law; or
(e) the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
22. OTHER IMPORTANT TERMS
22.1 Jurisdiction. These Terms are governed by the laws of New South Wales, Australia, and you submit to the non-exclusive jurisdiction of the courts in that state.
22.2 Severability. If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
22.3 Assignment. We may transfer our rights and obligations under these Terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under any agreement you have with us. If you are unhappy with the transfer you may contact us to end the transfer within 14 days of us telling you about it and we will refund you any payments you have made in advance for products not provided.
22.4 Entire agreement. These Terms constitute the entire agreement of the parties with respect to the subject matter herein, and supersede all prior or contemporaneous communications and proposals, whether oral or written, between the parties with respect to such subject matter.
22.5 Parties. Nobody else has any rights under these Terms or under any Contract. These Terms and any Contract are between you and us. No other person has any rights to enforce any item under these Terms or under a Contract. Neither of us will need to get the agreement of any other person in order to end a Contract or make any changes to these Terms.
22.6 Waiver. If we do not insist immediately that you do anything you are required to do under these Terms or a Contract, or if we delay in taking steps against you in respect of your breaching these Terms or a Contract, that will not mean that you do not have to do those things and it will not prevent us from taking steps against you at a later date. For example, if you miss a payment and we do not chase you but we continue to provide the products, we can still require you to make the payment at a later date.
23.1 In these Terms, unless a contrary intention is expressed:
(a) headings and italicised, highlighted or bold type do not affect the interpretation of this agreement;
(b) the singular includes the plural and the plural includes the singular;
(c) a reference to a 'person' includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any government agency (whether or not having a separate legal personality); and
(d) the words 'include', 'including', 'for example', 'such as' or any form of those words or similar expressions in this agreement do not limit what else is included and must be construed as if they are followed by the words 'without limitation', unless there is express wording to the contrary.