ONLINE STORE TERMS AND CONDITIONS
BETWEEN Hayley Jenkin T/A WHOLEHEARTED STUDIO ABN 52 938 178 589 (‘Wholehearted’)
1.1 In exchange for the receipt of payment of cleared funds for the Total Price of the Goods, Wholehearted agrees to sell the Goods to the Customer.
1.2 The Customer accepts this Agreement by clicking on the button which states ‘accept’ or words of a similar nature when prompted by the Website.
1.3 When the Customer places an order via Wholehearted’s website, the Customer will receive an acknowledgement e-mail confirming receipt of the Customer order: this email will only be an acknowledgement and will not constitute acceptance of the Customer order.
1.4 Wholehearted may accept the Customer’s order in writing by sending the Customer a confirmation by e-mail that the Goods which the Customer ordered have been dispatched to the Customer (‘Confirmation Email’).
1.5 For clarity, a binding contract between Wholehearted and the Customer will not be formed until Wholehearted sends the Confirmation Email.
1.6 Only those goods listed in the confirmation e-mail sent at the time of dispatch (‘Agreed Order’) will be included in the contract formed.
This Agreement shall commence upon the Customer accepting the Agreement and end when the Goods are delivered to the Customer or the termination of this Agreement, whichever is earlier.
3. Pricing and availability
3.1 Whilst Wholehearted endeavor to ensure that all details, descriptions and prices which appear on this Website are accurate, errors may occur. If Wholehearted discover an error in the Purchase Price of any Goods which the Customer have advertised, Wholehearted will correct the error.
3.2 Delivery costs will be charged in addition to the Purchase Price; such additional charges are clearly displayed where applicable and included in the Total Cost.
4.1 Upon receiving the Customer’s order Wholehearted will debit the Purchase Price from the Customer’s Payment Card.
4.2 The monies received upon the debiting of the Customer card must be treated as a deposit against the value of the Goods the Customer wishes to purchase.
4.3 Once the Goods have been dispatched and the Customer have been sent a confirmation email the monies paid as a deposit must be used as consideration for the value of the Goods.
5. Delivery of goods
5.1 International Customers
a) Wholehearted does not offer international delivery of Goods. Goods must be delivered to a postal address located within Australia.
2) Agreed Orders from Customers located within Australia, unless requested otherwise by the Customer prior to purchase, are sent by Australia Post via registered post but without insurance.
b) Extra cover through Australia Post is available at an additional cost for orders over $100.00.
c) It is the sole responsibility of the Customer to access any compensation which may be offered by Australia Post for items lost or damaged by Australia Post.
5.3 The Customer must notify Wholehearted of any non-delivery of Goods, as soon as possible.
5.4 While Wholehearted will endeavor to take all reasonable steps to ensure the Customer’s Agreed Order is delivered in a timely manner, Wholehearted will not be liable for any Loss or damage incurred by any person as a result of delay, incorrect delivery or failure of delivery caused by the Carrier or any event outside of Wholehearted’s reasonable control, including but not limited to the Customer providing an incorrect or incomplete delivery address to Wholehearted.
6. Receipt of goods
6.1 The Customer must inspect the Goods immediately upon their arrival.
6.2 If the Goods are not in accordance with their Specified Requirements, the Customer must give notice to Wholehearted within 7 days of receipt of the Goods. If the Customer fail to give such notice, the Goods must be deemed to be in all respects in accordance with the Specified Requirements.
6.3 No Claim will be recognised by Wholehearted unless made in writing and received by us within 7 days after receipt of the Goods by the Customer.
6.4 This Clause does not apply to Goods which are subject to consumer guarantees imposed under the Australian Consumer Law — where consumer guarantees apply, refer to Clause 10 below.
6.5 This Clause shall survive the termination or expiry of this Agreement.
7. Refund policy
7.1 It is the responsibility of the Customer to choose the Goods carefully. Subject to Clause 6.2, Wholehearted does not offer a refund if the Customer:
2) Simply changes their mind, decides they do not like the purchase or has no use for it;
b)Discovers they can buy the goods or services more cheaply elsewhere;
c) Has damaged the goods by using them in a way that was unreasonable.
7.2 Wholehearted may, in its sole discretion, elect to offer a refund to a Customer in any of the circumstances listed in this Clause.
7.3 This Clause shall survive the termination or expiry of this Agreement.
8. Limitation on claims
8.1 Wholehearted has no liability to the extent that:
1) Wholehearted’s performance of the contract is prevented by Force Majeure;
b) A failure of the Goods is attributable to any act or omission on the Customer’s part.
8.2 In all other respects, Wholehearted’s total liability for loss or damage of every kind, whether:
a) arising pursuant to this Agreement; or
b) arising in any other way out of or in relation to the supply of the goods, their sale, delivery or the way they behave, and whether in tort or contract or in any other cause of action,
is limited to an amount equivalent to the sum paid by the Customer to us for the goods.
8.3 Except in relation to liability for personal injury (including sickness and death), and except as otherwise stipulated in this Agreement, Wholehearted expressly excludes Liability for any Loss which may be suffered or incurred by the Customer in respect of Goods supplied pursuant to this Agreement and the Customer indemnifies Wholehearted against any Claims arising out of such matters.
8.4 This Clause shall survive the termination or expiry of this Agreement.
9. Warranty disclaimer
9.1 To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is hereby excluded.
9.2 The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this agreement (by virtue of any law relevant to this agreement) is excluded.
10. Australian Consumer Law
10.1 This Clause applies if the Competition and Consumer Act 2010 (Cth) (‘the Act’) is deemed to apply.
10.2 The parties agree:
a) Notwithstanding anything contained in this Agreement, the agreement and relationship between Wholehearted and the Customer may be subject to the Act;
b)The provisions of this Agreement, where in conflict with the Act, shall be read down to the extent required by operation of the provisions of Act;
c)Wholehearted does not purport to exclude or attempt to exclude such guarantees provided in the Act; and
d) The provisions of the Act shall only be enforceable by the Customer in relation to goods purchased by the Client as a consumer pursuant to the Act.
10.3 Where the Act applies, the Goods come with guarantees that cannot be excluded under the Australian Consumer Law and:
a) The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage; and
b) The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
10.4 Wholehearted’s liability for failure to comply with a consumer guarantee is limited to the replacement of the Goods or the supply of equivalent Goods (or the payment of the cost of the replacement or supply), or the repair of the Goods (or the payment of the cost of the repair).
10.5 This Clause shall survive the termination or expiry of this Agreement.
11. Intellectual property
11.1 The specifications and design of the Goods (being all intellectual property, including but not limited to, copyright, design right, trade marks or other intellectual property) remain owned by and vested in Wholehearted.
12. Title and risk
12.1 Title in the Goods does not pass to the Customer until payment has been received. Risk of loss or damage to the Goods passes to the Customer upon dispatch.
13.1 Either Party may terminate this Agreement by written notice to the other Party if the Goods are not delivered to the Customer.
14.1 Remedies: Each Party to this agreement acknowledges and agrees that if any of them breach the warranties, representations, indemnities, covenants, agreements, undertakings and obligations (for the purposes of this Clause referred to as the "agreed terms") on each of their parts contained in this agreement, damages may not be an adequate remedy and the agreed terms will be enforceable by injunction, order for specific performance or such other equitable relief as a court of competent jurisdiction may see fit.
14.2 Multiple Party: If a Party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly and an obligation, representation or warranty in favour of more than one person is for the benefit of them separately and jointly.
14.3 Statutes: The provisions of any Statute which alters the effect of any provision of this Agreement shall not apply to this Agreement insofar as it can lawfully can be done.
14.4 Severance: If anything in this Agreement is invalid, unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force to the extent available at law.
14.5 No Waiver: A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. No waiver is effective unless it is in writing. The waiver of a power or right is effective only in that specific instance and for the specific purpose for which it was given.
14.6 Amendment: No variation or modification of this Agreement shall be of any effect unless in writing and signed by the Parties.
14.7 Assignment: This Agreement is personal to the Parties and cannot be assigned.
14.8 Entire Agreement: This Agreement contains the entire agreement and understanding between the Parties on the subject matter of this Agreement and supersedes all prior discussions and agreements.
14.9 Good Faith: Each Party agrees that it will do all things and execute all documents necessary or desirable to give full effect to this Agreement even though not specifically provided for.
14.10 Business Days: If anything is required to be done on a day that is not a Business Day, then it must be done instead on the next Business Day where “Business Day” means a week day other than a statewide public holiday.
14.11 Warranty of Authority: Each person signing this Agreement as an Officer, Attorney, trustee or other representative of a Party, assures each other Party or signatory that he/she possesses unrestricted authority to execute this Agreement in that capacity at the time of signing.
14.12 Contra Proferentum: No rule of construction of documents shall apply to the disadvantage of a Party on the basis that the Party put forward this Agreement.
14.13 Governing Law: This Agreement is governed by the laws of Queensland and the Parties irrevocably submit to the non-exclusive jurisdiction of Queensland courts in respect of any action or proceeding concerning this Agreement.
14.14 Independent Advice: The Parties warrant they separately have had the opportunity to obtain independent legal, financial and taxation advice prior to signing this Agreement.
14.15 Further assurances: Each Party to this Agreement will, at its own expense and without additional consideration, upon receipt of a request by another Party promptly do such further acts and will execute, acknowledge, deliver and record such other documents and instruments as may be reasonably necessary or desirable from time to time to give full effect to this agreement and any transaction contemplated by this agreement.
14.16 Time of Essence: Time shall be of the essence of the Parties' obligations hereunder unless otherwise agreed in writing by the Parties.
14.17 Bargaining Power: The Parties acknowledge that prior to making this Agreement:
a) Each Party could negotiate for the alteration of or rejection of any of the provisions of this Agreement; and
b) There is no material inequality in bargaining power between the Parties; and
c) Each Party had consulted or had the opportunity to consult independent legal and or financial advisers.
14.18 Electronic: Both Parties acknowledge and agree:
a)In respect of any transaction, agreement or covenant evidenced by this Agreement they agree to communicate, transact and exchange documents by electronic means pursuant to the Electronic Transactions Act (Qld) 2001 including by email; and
b) the parties expressly consent pursuant to the Electronic Transactions Act (Qld) 2001:-
(i)for all information required to be given in writing to them;
(ii)for all information permitted to be given to them in writing;
(iii)for all signatures required to be given by them;
(iv)all documents to be produced by or to them,
c) in respect of this document and any transaction, agreement or covenant evidenced by it can be given or produced by electronic communication including by email.
14.19 Survival: If this Agreement is terminated for any reason, such termination will not affect any accrued rights or liabilities of either Party nor will it affect the coming into force of any provision of this Agreement which is expressly or by implication intended to come into force or continue on after the termination.
15. Definitions and Interpretation
15.1 In this Agreement, words have the following meanings:
a) Agreement means these Online Store Terms and Conditions.
b) Carrier means the carrier which Wholehearted or the Customer engages to deliver the Goods.
c) Claim means any allegation, debt, Liability, proceeding, claims, action, proceedings, notice threatening claim, demands, litigation, judgements, liabilities, suits howsoever arising and whether present or future, fixed or unascertained, actual or contingent, whether at Law, in equity, under statute or otherwise.
d)Goods means those Goods listed in the confirmation e-mail sent to the Customer at the time of dispatch.
e) Force Majeure means any occurrence or omission beyond Wholehearted’s reasonable control as a direct or indirect result of which Wholehearted are prevented from or delayed in performing any of Wholehearted’s obligations, including:
(i) forces of nature,
(ii) natural disasters,
(iii) acts of terrorism,
(iv) riots, revolution, civil commotion,
(v) epidemic, pandemic,
(vi) industrial action; and
(vii) action or inaction by a government agency.
f) Liability means all liabilities, losses, claims, damages, outgoings, costs and expenses of whatever description and whether present, unascertained, contingent or prospective.
g) Loss means all loss, damage, expense, costs (including legal fees and expenses of whatsoever nature or description) and debts including any liability for consequential or indirect losses, economic losses or loss of profits.
h) Website means the website for Wholehearted Studio published by Hayley Jenkin trading as Wholehearted Studio A.B.N 52938178589.
i) Order means the order placed by the Customer with Wholehearted.
j) Payment Card means the card of which the details have been provided to Wholehearted by the Customer for the purpose of purchasing the Goods.
k) Purchase Price means the purchase price displayed on the Website pertaining to the Goods.
l) Customer means any person whose Order is accepted by Wholehearted.
m) Total Cost means the total cost of the Goods including delivery costs and any other costs notified to the Customer by Wholehearted.
n) Specified Requirements means:
(i) Of acceptable quality;
(ii) Fit for any purpose that the Customer made known to Wholehearted before buying (either expressly or by implication), or the purpose for which Wholehearted said the Goods would be fit for;
(iii) Accurately described; and
(iv) Matching any sample or demonstration model.
15.2 In this Agreement:
a) The singular includes the plural and vice versa;
b) A reference to a clause or schedule is a reference to a clause or schedule to this agreement and a reference to this agreement includes any schedules;
c) A reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
d) A reference to $ is a reference to Australian currency;
e) A reference to any legislation or legislative provision any statutory modification or reenactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
f) A reference to an individual or person includes a corporation, client, joint venture, association, authority, trust, state or government and vice versa;
g) A reference to any gender includes all genders;
h) A reference to any party to this agreement or any other document or arrangements includes that party's executors, administrators, substitutes, successors, agents, representatives, guarantors, employees, related bodies corporate and permitted assigns;
i) A reference to writing includes typewriting, printing, photocopying and any other method of representing words, figures or symbols in a permanent visible form; and
j) Headings are for ease of reference only and do not affect interpretation.
WHOLEHEARTED STUDIO WEBSITE TERMS AND CONDITIONS
1.1 The site is published by Hayley Jenkin trading as Wholehearted Studio A.B.N 52938178589 (“WHOLEHEARTED”).
2. Acceptance of the Terms & Conditions
2.1 Please read these Terms & Conditions carefully before using the WHOLEHEARTED website as they form our agreement with you.
2.2 Use of the WHOLEHEARTED website implies acceptance without reserve of these Terms & Conditions
2.3 These Terms and Conditions are in addition to any other Agreement we may have with you.
3.1 You undertake:
a) not to use the WHOLEHEARTED website for illegal purposes or purposes that may damage the rights of WHOLEHEARTED or third parties, and in particular, not to use the site to distribute damaging or illegal information, or information that is distasteful, discriminatory or offensive towards WHOLEHEARTED or third-parties;
b) not to disrupt access to the WHOLEHEARTED. website, access WHOLEHEARTED computer systems, modify the site, use it to transmit computer viruses, hacking attacks, computer worms, etc, or commit misdemeanours likely to be qualified as computer crimes;
c) not to infringe any patent, trade mark, trade secret, copyright, database right or other intellectual property rights of WHOLEHEARTED or any other person or entity;
d) not to impersonate any person or entity, including, but not limited to, a WHOLEHEARTED official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
e) to comply with these general conditions of use. If you do not comply with these obligations, WHOLEHEARTED reserves the right to immediately prohibit and block access to its website and to its network without damages.
4. Information on the Site
4.1 While WHOLEHEARTED has made every effort to ensure that the information contained in the WHOLEHEARTED website is correct at the time of going live, WHOLEHEARTED cannot be held responsible for any errors or omissions or any information which may be incomplete, inaccurate or may have become out of date.
5. Ownership of Intellectual Property
5.1 You agree that the Intellectual Property Rights in the WHOLEHEARTED website and all content are retained and reserved by WHOLEHEARTED or its sub-contractors or head-licensors as the case may be, collectively referred to as the “Intellectual Property Owners”. WHOLEHEARTED has the lawful right to deal with the Intellectual Property Rights and/or owns the Intellectual Property contained within the WHOLEHEARTED website unless stated otherwise.
5.2 The name WHOLEHEARTED and any other WHOLEHEARTED trademarks, logos or graphics displayed on the WHOLEHEARTED website are registered trademarks of WHOLEHEARTED or its affiliates. Other company and product or service names displayed on the WHOLEHEARTED website may be the trademarks of their respective owners.
5.3 You are not granted any Intellectual Property Rights not stated as granted in this Agreement. Accordingly you shall not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Intellectual Property or content of the WHOLEHEARTED website in whole or in part.
5.4 You irrevocably agree to protect and recognise, to the benefit of the Intellectual Property Owners, absolutely and without exception whatsoever, the Intellectual Property Owners Intellectual Property Rights, Intellectual Property and goodwill in relation thereto disclosed or conveyed to it.
5.5 You irrevocably agree absolutely and without any exception whatsoever that any and all Intellectual Property Rights, Intellectual Property and goodwill in relation thereto developed or arising as a consequence of this Agreement together with any improvements or modifications shall without exception, shall exclusively and immediately:
a) automatically become the legal and or equitable property; or
b) remain the legal and or equitable property; or
c) automatically be assigned as the legal and equitable property of the Intellectual Property Owners and should consideration be required then the parties agree that the consideration payable is hereby set at $1.00 (one dollar).
5.6 Without any limitation on the intention and effect of the rights of the Intellectual Property Owners under this Agreement and notwithstanding any other Clause in this Agreement, the Client irrevocably agrees to do all such things as may be requested by the Intellectual Property Owners to confirm or protect the Intellectual Property Owner’s title in the Intellectual Property Rights and Intellectual Property, including by:
a) assigning to the Intellectual Property Owners all the Client’s existing and future Intellectual Property Rights and Intellectual Property (whether during or after the termination of this Agreement) at the Client’s expense;
b) applying, executing any instrument and undertaking to do all things reasonably requested by the Intellectual Property Owners to vest the registration of title or other similar protection to the Intellectual Property Owners ; and
c) ensuring all Intellectual Property Rights and Intellectual Property become the absolute property of the Intellectual Property Owners
7. Any assignment of Intellectual Property Rights and Intellectual Property is:
a) The obligations imposed on the Client under this Clause survive the termination of this Agreement and shall continue.
a) without restriction as to use or territory;
b) in perpetuity; and
c) effective without any further payment, whether by way of royalty or otherwise, in consideration for the assignment to the Intellectual Property Owners.
6. Intellectual Property Definitions
6.1 For the Purposes of this Agreement the following definitions apply:
6.2 Intellectual Property Rights means any and all intellectual and industrial property right, title or interest (legal or equitable) throughout the world in connection with and including but not limited to:
a) any Confidential Information;
b) Copyright and in particular Copyright in the Image;
c) Inventions, discoveries (including patents and/or legal or equitable right to a patent);
d) trade marks, service marks;
e) business names;
f) domain names and websites;
g) designs; and
h) technical information and improvements thereon which relate to or forms all of or part of the business and the business activities, including and without limitation:
i. the business activities;
v. flow charts;
vii. drawings, outlines, notes,
viii. results, data
ix. software, all software on the WHOLEHEARTED’S server or derived from the WHOLEHEARTED’S Server
x. templates, audit templates
xi. risk management methodologies and tools
xii. partial or intermediate versions or prototypes of any Intellectual Property
xiii. and other proprietary information and know how in the Clients possession or control which relates to the WHOLEHEARTED’S business activities.
6.3 Intellectual Property means the intellectual and industrial property defined in and the subject of the Intellectual Property Rights defined herein.
7. Links to third parties websites
7.1 There are several places throughout WHOLEHEARTED that may link you to other websites that do not operate under WHOLEHEARTED information privacy practices. When you click through to these websites, WHOLEHEARTED information privacy practices no longer apply. We recommend that you examine the privacy statements for all third party websites to understand their procedures for collecting, using, and disclosing your information.
8. Disclaimer of Warranty
8.1 Your use of the WHOLEHEARTED website is at your sole risk. This website is provided on an "as is" and "as available" basis.
8.2 WHOLEHEARTED makes no warranty or representation that:
a) the site will meet your requirements,
b) it will be uninterrupted, timely, secure, or error-free,
c) the results that may be obtained from the use of WHOLEHEARTED will be accurate or reliable,
d) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and
e) any errors will be corrected.
8.3 You will be solely responsible for any damage to your computer system or loss of data that results from the use of the site. No advice or information, whether oral or written, obtained by you from WHOLEHEARTED or through or from the WHOLEHEARTED website will create any warranty or other obligation not expressly stated in the relevant terms and conditions. Although reasonable precautions are taken to protect the security and integrity of internet and network access, WHOLEHEARTED cannot guarantee that use of an internet connection will be secure. Accordingly, you agree to use such services at your own discretion and risk and acknowledge that you are solely responsible for any damage to your computer system or loss of data that results.
8.4 To the fullest extent permitted by applicable law, WHOLEHEARTED expressly disclaims all warranties, conditions and other terms of any kind, whether express or implied, including, but not limited to any implied term of merchantability, satisfactory quality, fitness for a particular purpose, and any term as to the provision of services to a standard of reasonable care and skill or as to non-infringement of any intellectual property right.
9. Limitation of Liability
1. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations set out in this article may not apply. In particular, nothing in these Terms & Conditions will affect the statutory rights of any consumer or exclude or restrict any liability for death or personal injury arising from the negligence or fraud of WHOLEHEARTED. You expressly acknowledge and agree that WHOLEHEARTED, its officers, directors, employees will not be liable for:
- any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if WHOLEHEARTED has been advised of the possibility of such damages), resulting from use of the WHOLEHEARTED website. You expressly acknowledge and agree that WHOLEHEARTED will not be liable for the use or the inability to use the WHOLEHEARTED website;
- the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the WHOLEHEARTED website;
- unauthorised access to or alteration of your transmissions or data;
- statements or conduct of any third party on the WHOLEHEARTED website.
10. Security of Financial Transactions
10.1 WHOLEHEARTED uses secure technology provided by third party providers in order to safeguard personal information and financial transactions. As these services are relied upon by third party providers you acknowledge that WHOLEHEARTED cannot be held liable for any loss or damage suffered by you or your agent.
11.1 Any failure by WHOLEHEARTED to exercise or enforce any right or provision of these Terms & Conditions will not constitute a waiver of such right or provision. If any provision of these Terms & Conditions is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms & Conditions remain in full force and effect. The section titles in the Terms & Conditions are for convenience only and have no legal or contractual effect.
12. Applicable Law & Competent Court
12.1 These Terms & Conditions shall be governed by and interpreted in accordance with the laws of the state of QUEENSLAND Australia.