1.1 Currency: These Terms and Conditions apply to the provision of all Services by us to you from the date that you accept these Terms and Conditions.
1.2.1 when you submit your email address on our Website;
1.2.2 when you check the Terms and Conditions opt in box on our Website; or
1.2.3 by accessing and using the Services or by continuing to use the Services.
1.3 Minors: If you are under 18 years old you acknowledge that a parental guardian has explained these terms and conditions to you and you understand these terms and conditions.
2. USAGE OF THE SERVICES
2.1 Permitted usage: You may view and download Content provided by the Services for your personal non-commercial use, provided that you do not change or remove any Intellectual Property Rights contained in the Content.
2.2 Non-permitted usage: You must not use the Services or the Content for the following purposes:
2.2.1 the reproduction or distribution of the Content in any material form;
2.2.2 the re-transmission of the Content by any medium of communication;
2.2.3 uploading and/or reposting the Content to any other site or location on the WWW, on-line service or bulletin board;
2.2.4 framing the Content on the Website with other content or material on any other WWW site or location, on-line service or bulletin board.
2.3 Modification: You may not modify or copy the layout of the Website or any computer software or code contained in the Website.
2.4 Other non-permitted usage: You may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense or create derivative works from the Website or Content, nor may you use any network monitoring or discovery software to determine the site architecture, or extract information about usage, individual identities or users. You may not use any software, device or manual process to monitor or copy the Website or Content without our prior written permission.
2.5 Lawful purpose: You shall ensure that the Services are used only for lawful purposes and in accordance with any applicable laws and you shall not use the Services or content in any way that:
2.5.1 violates or infringes the rights of any person, including any Intellectual Property Rights;
2.5.2 is defamatory, threatening, obscene, indecent, pornographic or could give rise to any civil or criminal liability; or
2.5.3 includes any computer viruses, worms, trap doors, Trojan horses, hacks or any other harmful software code.
3. SUSPENSION AND TERMINATION
3.1 Termination by you: You may terminate access to our Services by unsubscribing by clicking the Unsubscribe button on our Website and submitting your email address.
3.2 Termination or restriction by us: We may terminate access or restrict your use of our Services at any time, at our discretion, without notice or any explanation or justification for the termination or restriction and we have no liability for any costs, losses or damages of any kind arising as a consequence of terminating or restricting your access to our Services.
3.3 Termination by Default: If a Default Event occurs, without limiting any other right we have under these Terms and Conditions, our Services shall terminate immediately.
3.4 Content on termination: On termination of the Services for whatever reason, you must immediately destroy any downloaded or printed Content provided pursuant to the Services.
4. EXCLUSIONS AND LIMITATIONS
4.1 ACL exception: The exclusions and limitations in this clause 4 are subject to clause 5 (Statutory Rights).
4.2 Excluded rights: All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms and Conditions, that are not contained in it, are excluded to the fullest extent permitted by law
4.3 Limitation of liability: Any liability arising in relation to Services that we provide to you, however arising and whether for consequential loss or otherwise, including any liability arising by virtue of any representation or warranty, whether express or implied by law, is hereby excluded to the fullest extent permitted by law.
4.4 Limitations: No warranty is given and we will not be liable for:
4.4.1 interference with our Services for which we are not responsible;
4.4.2 damage or loss caused by unusual or non-recommended use of our Services; or
4.4.3 loss caused by any factors beyond our control.
4.6 Total liability: Our total liability for breach of these Terms and Conditions or breach of our contractual obligations or duties at law or in equity (however arising) is limited at our option to provide the Services again.
4.7 Third party work If we obtain services from a third party in order to carry out our Services:
4.7.1 we will not be liable for any breach of these Terms and Conditions if that breach is as a result or is connected with the provision by a third party of such services;
4.7.2 we acquire such services as agent for you not as principal and will have no liability to you in relation to the provision of these services; and
4.7.3 any claim by you in relation to the provision of such services must be made directly against that third party at your own cost.
4.8 Third party websites: Any links to third party websites provided as part of our Services are provided as a convenience to you and at your own risk. Any third party websites and their content are not controlled, reviewed or endorsed by the Company and are not the responsibility of the Company.
4.9 Third party website liability: We make not warranties and accept no liability in relation to content contained on third party websites.
5. STATUTORY RIGHTS
5.1 ACL rights: In circumstances where you are considered to be acquiring Services from us as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule 2 of) the ACL, we acknowledge and agree that certain statutory guarantees and rights shall apply to you as provided by relevant laws but subject to these Terms and Conditions as applicable and where permitted by relevant laws.
5.2 No restriction: Nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL and corresponding provisions and relevant laws of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers services in various circumstances.
5.3 Unfair contract: If section 23 of the ACL applies to any provisions in these Terms and Conditions, any such provision(s) shall be void to the extent it is unfair within the meaning of section 24 of the ACL.
6. INTELLECTUAL PROPERTY
6.1 Your intellectual property If you provide us with Material to be used in the provision of the Services:
6.1.1 you warrant and represent to us that any Services supplied to you based on the Material you provide to us will not infringe the Intellectual Property Rights of any third party; and
6.1.2 you indemnify and will keep us indemnified from and against any and all claims, liabilities, obligations, expenses or damages which we may suffer or incur as a result or in connection with the representation or warranty in clause 6.1.1 being untrue or breached.
6.2 Licence: You grant to us an exclusive license throughout the universe to use all Intellectual Property Rights in all Materials for so long as necessary or convenient at our discretion for the production of the Services and the matters contemplated in relation to the delivery of the relevant Services, without any compensation to you.
6.3 Our intellectual property: All Intellectual Property Rights in and relating to the production, development and provision of the Services (excluding Materials licensed to us pursuant to clause 6.2) will remain our property and will not be used, reproduced, distributed, displayed or transmitted in any manner, for any purpose to any other person by you without our prior written consent, other than in relation to the use of such information on the Website as part of our Services.
6.4 Company confidential information: You shall keep confidential and shall not use any confidential information communicated by us to you without our prior written consent.
7. USAGE OF INFORMATION
7.3 Usage of information: You agree that you understand that we shall use your information pursuant to this clause 7.
8. DISPUTE RESOLUTION
8.1 No proceedings: A party must not start court proceedings in respect of a Dispute unless it has complied with this clause 8.
8.2 Notice: A party claiming that a Dispute has arisen must notify each other party to the Dispute giving details of the Dispute.
8.3 Authorised representative: During the Initial Period after a notice is given under clause 8.2 each Disputant must authorise a representative to use their best efforts to resolve the Dispute.
8.4 No resolution in Initial Period: If the Dispute is not resolved within the Initial Period, the Disputant that initiated the Dispute must within 10 days refer the Dispute to arbitration by an arbitrator as agreed between the Disputants.
8.5 Nominated arbitrator: If the Disputants fail to nominate an arbitrator within 10 days, the Disputant that initiated the Dispute may request the Institute of Arbitrators and Mediators Australia to nominate a single arbitrator pursuant to the rules of commercial arbitration of that institute.
8.6 Binding: The decision of the arbitrator will be final and binding on the parties.
8.7 Legal representation: A party may be represented at the arbitration by a legal practitioner.
8.8 Noncompliance: If, in relation to a Dispute, a Disputant breaches any provision of clauses 8.1 to 8.7, each other Disputant need not comply with clauses 8.1 to 8.7 in relation to that Dispute.
8.9 The parties agree that the courts of New South Wales shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms and Conditions.
9.1 Indemnity: You agree to indemnify and keep us indemnified in respect of all damages, losses, costs and expenses (including legal costs) that we may incur as a result of your breach or alleged breach of these Terms and Conditions.
9.2 Binding: These Terms and Conditions shall bind our successors, administrators and permitted assigns and your executors and permitted assigns, or, being a company, its successors, administrators and permitted assigns.
9.3 Time of the essence: Time shall be of the essence in relation to any date or period under these Terms and Conditions.
9.4 Variation: We may vary these Terms and Conditions at any time without notice to you.
9.5 Force Majeure: If a Force Majeure Event occurs, we may:
9.5.1 totally or partially suspend our Services or any part of our Services during any period in which we may be prevented or hindered from delivering our Services by our normal means due to that Force Majeure Event; and
9.5.2 elect to extend at our discretion the period for performance of an obligation under these Terms and Conditions as is reasonable in all the circumstances.
9.6 Severability: Each clause in these Terms and Conditions is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.
9.7 Waiver: No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.
9.8 Governing law: These Terms and Conditions shall be governed by the laws of the State of New South Wales.
10. INTERPRETATION AND DEFINITIONS
10.1 Personal pronouns: Except where the context otherwise provides or requires:
10.1.1 the terms we, us or our refers to the Company; and
10.1.2 the terms you or your refers to the Customer.
10.2 Defined terms: In these Terms and Conditions, unless otherwise provided, the following terms shall have their meaning as specified:
ACL means the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth) as amended.
Collateral means property that is subject of a security interest.
Company means Dunphy Sports Fishing Imports Pty Ltd
Content means all content, information and software provided on and through the Website.
Customer means any person or entity that agrees by conduct or by virtue of notice or otherwise to be bound by these Terms and Conditions, including any related company, related party, officer and authorised person of the relevant person.
Default Event means any breach by you of the usage of the services specified in clause 2 of these Terms and Conditions.
Disputant means a party to a Dispute.
Dispute means a dispute arising out of or related to these Terms and Conditions.
Force Majeure Event means circumstances beyond our reasonable control shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, your acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, or loss or damage to Goods in transit.
Initial Period means the 14 day period after a notice of a Dispute is given under clause 8.2.
Intellectual Property Rights means all forms of intellectual property rights (whether registered or unregistered) in copyright, designs, patents, trade marks, domain names, trade secrets, know-how, confidential information, and all other similar proprietary rights and all extensions and renewals thereof anywhere in the world which currently exist and/or are recognised in the future including, but not limited to, the Company’s website www.shimanofish.com.au and the website graphics, content, design, images, audio or video.
Material(s) means any material in which you have Intellectual Property Rights provided by you for use by us in the production, development and provision of the Services to you.
Services means our Website and services provided by the Company on its Website from time to time, including, but not limited to, reviews on the latest equipment from Shimano, articles and newsletters on fishing and Shimano equipment, tips and tricks from fishing professionals and/or fishing enthusiasts on how to use fishing equipment and online competitions.
Website means www.shimanofish.com.au
WWW means the world wide web.