WEBSITE TERMS AND CONDITIONS OF USE
1. About the Website
1.1. Welcome to www.kirkmanbymelissakirkman.com.au (the ‘Website’). The Website facilitates interactions between:
(a) Customer (the ‘Buyer’); and
(b) Store Owner (the ‘Provider’),
making it easier for the Buyer and the Store Owner to locate, communicate, arrange payment and deliver the services in a fast and secure manner (the ‘Services’).
1.2. The Website is operated by Kirkman By Melissa Kirkman PTY LTD (ABN 56 465 488 290) T/A Kirkman By Melissa Kirkman. Access to and use of the Website, or any of its associated products or Services, is provided by Kirkman By Melissa Kirkman. Please read these terms and conditions (the ‘Terms’) carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of its products or Services, immediately.
1.3. Kirkman By Melissa Kirkman reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Kirkman By Melissa Kirkman updates the Terms, it will use reasonable endeavours to provide you with notice of updates of the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
2. Refund Policy
2.1 If a Buyer is unsatisfied with the services provided by the Provider or believes that they may be entitled to a refund, then Kirkman By Melissa Kirkman requires the Buyer to:
(a) contact Kirkman By Melissa Kirkman through the ‘Contact Us’ section of the Website or email us at firstname.lastname@example.org outlining why you believe you are entitled to a refund.
2.2. If the Provider agrees to a refund it is acknowledged that the Provider will instruct Kirkman By Melissa Kirkman to refund all or part of the payments made to the Buyer directly, less any fees and charges incurred by Kirkman By Melissa Kirkman in processing the refund.
2.3. Both the Buyer and Provider agree that they will comply with the Refund Policy contained in this Clause of these Terms.
3. Copyright and Intellectual Property
3.1. The Website, the Services and all of the related products of Kirkman By Melissa Kirkman are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Kirkman By Melissa Kirkman or its contributors.
3.2. All trademarks, service marks and trade names are owned, registered and/or licensed by Kirkman By Melissa Kirkman, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:
(a) use the Website pursuant to the Terms;
(b) copy and store the Website and the material contained in the Website in your device’s cache memory; and
(c) print pages from the Website for your own personal and non-commercial use.
Kirkman By Melissa Kirkman does not grant you any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved Kirkman By Melissa Kirkman.
3.3. Kirkman By Melissa Kirkman retains all rights, title and interest in and to the Website and all related Services. Nothing you do on or in relation to the Website will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or
(b) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or
(c) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process), to you.
3.4. You may not, without the prior written permission of Kirkman By Melissa Kirkman and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
3.5. Where you broadcast, publish, upload, transmit, post or distribute Your Content on the Website, then you grant to Kirkman By Melissa Kirkman a non-exclusive, transferrable, perpetual, royalty-free, irrevocable, worldwide licence to broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change Your Content.
5. General Disclaimer
5.1. Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
5.2. Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
(b) Kirkman By Melissa Kirkman will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
5.3. Use of the Website and the Services is at your own risk. Everything on the Website and the Services is provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Kirkman By Melissa Kirkman make any express or implied representation or warranty about the Services or any products or Services (including the products or Services of Kirkman By Melissa Kirkman) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of Kirkman By Melissa Kirkman; and
(d) the Services or operation in respect to links which are provided for your convenience.
5.4. You acknowledge that Kirkman By Melissa Kirkman Website and the Services are only intended to facilitate the interactions between the Buyer and the Provider and does not offer any services other than the Services and Kirkman By Melissa Kirkman holds no liability to you as a result of any conduct of the Members or the misuse of Your Content by any party (including other Members).
6. Limitation of Liability
6.1. Kirkman By Melissa Kirkman’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you.
6.2. You expressly understand and agree that Kirkman By Melissa Kirkman, its affiliates, employees, agents, contributors and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
6.3. You acknowledge and agree that Kirkman By Melissa Kirkman holds no liability for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you as a result of providing Your Content to the Website.
7. Termination of Contract
7.1. If you want to terminate the Terms, you may do so by providing Kirkman By Melissa Kirkman with 30 days’ notice of your intention to terminate by sending notice of your intention to terminate to Kirkman By Melissa Kirkman via the ‘Contact Us’ link on our homepage.
7.2. Kirkman By Melissa Kirkman may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) Kirkman By Melissa Kirkman is required to do so by law;
(c) Kirkman By Melissa Kirkman is transitioning to no longer providing the Services to Members in the country in which you are resident or from which you use the service; or
(d) the provision of the Services to you by Kirkman By Melissa Kirkman is, in the opinion of Kirkman By Melissa Kirkman, no longer commercially viable.
7.3. Subject to local applicable laws, Kirkman By Melissa Kirkman reserves the right to discontinue or cancel your membership at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Kirkman By Melissa Kirkman’s name or reputation or violates the rights of those of another party.
7.4. When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Kirkman By Melissa Kirkman have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
8.1. You agree to indemnify Kirkman By Melissa Kirkman, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
(c) any breach of the Terms.
9. Dispute Resolution
If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties’) must:
(a) Within 30 days of the Notice endeavour in good faith to resolve the
Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, 30 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Conflict Resolution Service or his or her nominee;
(c) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(d) The mediation will be held in South Australia, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
9.5. Termination of Mediation:
If 3 months have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
10. Venue and Jurisdiction
The Services offered by Kirkman By Melissa Kirkman is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of South Australia, Australia.
11. Governing Law
The Terms are governed by the laws of South Australia, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of South Australia, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
12. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
14. Third Party Websites
14.1. This website may contain links to third party websites. Those links are provided for convenience only and may not remain current or be maintained. Kirkman By Melissa Kirkman is not responsible for the content or privacy practices associated with linked websites. It is your responsibility to read and understand the terms and conditions applicable to any such websites. Kirkman By Melissa Kirkman will not be liable to you, or any other person, for any loss, damage, cost, expense, liability or inconvenience incurred, paid or suffered as a result of your use of such websites.
14.2. Payment Gateways
Kirkman By Melissa Kirkman uses Stripe [https://stripe.com/au/privacy]. Kirkman By Melissa Kirkman is not responsible for the content or privacy practices associated with these linked websites.
16.1. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
16.2. You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
16.3. If more that ten business days have passed since you received a shipping confirmation email from us, please contact us at email@example.com so that we may rectify the problem. You must contact us within 30 days of the shipping date for us to be able to help.
17. Applicable Law