1.1 These Terms and Conditions (Terms) are between BlisterPod Pty Ltd, its successors and assignees (referred to as “we”, “us” or “our”) and you, collectively the Parties.
1.2 You have requested specific services, described on and able to be ordered via our Website (Services). You accept these Terms by: (a) ticking the online acceptance box; (b) confirming that you accept the Terms; (c) instructing us to proceed with the Services; or (d) making payment for the Services as set out in our tax invoice to you (Invoice).
1.3 You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions. Purchasing Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older. You must not order services from us if you are under 18 years of age or do not have the consent of a legal guardian who is 18 years or older. If you do not agree to these Terms, you should not purchase from us.
1.4 We will not commence performing the Services until you have paid our Fees.
2.1 We agree to perform the Services with due care and skill.
2.2 Upon your request and payment for our Services, we will be in touch within 24 hours to ask initial questions.
2.3 We may, from time to time, refer you to third party specialists (Third Party Specialists). Such Third Party Specialists are not our employees or our direct contractors, and you are required to assess the suitability of the Third Party Specialists and make your own arrangements with the Third Party Specialists. We are not responsible for the services provided byThird Party Specialists.
2.4 For the avoidance of doubt, the Services we provide relate to friction blisters on the feet only. Our Services are not suitable for:
(a) other foot problems including, but not limited to, burns, allergies and insect bites; or
(b) blisters on any part of your body aside from your feet.
3. PRICE, INVOICING AND PAYMENT
3.1 You agree to pay us the amounts set out on our Website, for the chosen Services. All amounts are stated in Australian dollars. Any GST will be separately shown.
3.2 You acknowledge and agree that no Services will be provided until payment of our Invoice is received and processed.
3.3 Our pricing structure, payment methods and these Terms may be amended from time to time at our discretion. The pricing changes will apply to you for Services provided to you after the date of the change. All other changes will apply from the date that the amended or new Terms are posted on our Site or are provided to you, whichever is earlier.
4. YOUR OBLIGATIONS AND WARRANTIES
4.1 You warrant that throughout the term of these Terms that:
(a) there are no legal restrictions preventing you from agreeing to these Terms;
(b) you will cooperate with us and provide us with information that is reasonably necessary to enable us to perform the Services as requested by us from time to time, and comply with these requests in a timely manner;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Services;
(e) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
(f) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
(g) if applicable, you hold a valid ABN which has been advised to us; and
(h) if applicable, you are registered for GST purposes.
5. OUR INTELLECTUAL PROPERTY
5.1 The work and materials that we provide to you in carrying out the Services, including our advice to you and email correspondence between you and us, contains material which is owned by or licensed to us and is protected by Australian and international laws (Materials). We own the intellectual property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
5.2 You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any intellectual property rights in our Materials, except as stated in these Terms or with our written permission.
5.3 Your use of our Materials does not grant you a licence, or act as a right to use any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
5.4 Our Materials are provided based on your personal needs. Our Materials should be for your personal use only and should not be shared with third parties. You must not breach our Intellectual Property rights by, including but not limited to:
(a) altering or modifying any of the Materials;
(b) creating derivative works from the Materials; or
(c) using our Materials for commercial purposes such as onsale to third parties.
6. YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
6.1 You agree to provide information including any Intellectual Property (for example, copyright in photographs that you have taken) to us to enable us to provide the Services. You:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us; and
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Services to you.
7. CONFIDENTIAL INFORMATION
7.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary, Third Party Suppliers); to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality services to you, and not for any other purpose.
7.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; and only to use the Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
7.3 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
7.4 The obligations under this clause will survive termination of these Terms.
8. FEEDBACK AND DISPUTE RESOLUTION
8.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
8.2 If you are unsatisfied with our Services, please notify us in writing. We will arrange to provide you with a refund of the Fees you paid for our Services. Any refund we make will be by the same payment method used to purchase the Services.
8.3 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet via Skype or phone conference in good faith to seek to resolve the dispute by agreement between them (Initial Meeting).
(b) If the Parties cannot agree how to resolve the dispute at the Initial Meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Western Australia to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
8.4 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
9.1 Either Party may terminate these Terms, if there has been a material breach of these Terms, subject to following the dispute resolution procedure.
9.2 We may terminate these Terms immediately, at our sole discretion, if:
(a) we consider that a request for the Service is inappropriate, improper or unlawful;
(b) you fail to provide us with clear or timely instructions to enable us to provide the Services;
(c) we consider that our working relationship has broken down including a loss of confidence and trust; or
(d) for any other reason outside our control which has the effect of compromising our ability to perform the work required within the required timeframe.
9.3 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
9.4 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
10. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
10.1 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights). Our liability is governed solely by the ACL and these Terms.
10.2 Services: If you are a consumer as defined in the ACL our services come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any other loss or damage. You are also entitled to have the services remedied if they fail to be of acceptable quality and the failure does not amount to a major failure. To the extent we are able to exclude liability; our total liability for loss or damage you suffer or incur from the Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
10.3 Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services in the period estimated, where it is affected by your delay in response, or supply of incomplete or incorrect information.
10.4 Referral: On request by you, we may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or failure to advise or provide services.
10.5 Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
10.6 Liability: To the extent permitted by law, we exclude all express or implied representations, conditions, guarantees and terms relating to the Services and these Terms, except those set out in these Terms, including but not limited to:
(a) implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
(b) the Services being unavailable; and
(c) any loss, damage, costs including legal costs, or expense whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your inability to access or use the Services, and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
10.7 Limitation: Our total liability arising out of or in connection with the Services, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the amount recoverable under our existing professional indemnity insurance.
10.8 Disclaimer: Our Services include advice in relation to foot blisters. You acknowledge and agree that the quality of the advice that we provide are dependent on the information that you provide. As our Services are provided via email correspondence, we accept no responsibility and will not be liable for any harm or damage that you suffer directly or indirectly, as a result of any advice that is inaccurate, incomplete or incorrect, due to your failure to provide us with accurate, complete and correct information and images.
10.9 This clause will survive termination of these Terms.
11.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) any breach of these Terms; and (c) any misuse of the Services from or by you, your employees, contractors or agents. 11.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
11.3 The obligations under this clause will survive termination of these Terms.
12.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
12.2 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
12.3 GST: If and when applicable, GST payable on the Services will be set out on our Invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
12.4 Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
12.5 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
12.6 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
12.7 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days’ notice in writing.
12.8 Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the email address you provided when requesting our Services. Our email address is set out at the end of these Terms. Any notice may be sent by email, and notice will be deemed to have been served at the time of transmission in the case of transmission.
12.9 Jurisdiction & Applicable Law: These terms are governed by the laws of Western Australia and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia.
12.10 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
13.1 Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
13.2 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
13.3 Intellectual Property includes any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), registered and unregistered trademarks, designs (whether or not registered or registrable), circuit layouts, trade names, trade secrets, business names, company names or internet domain names.
13.4 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
13.5 Website means the website, available at www.blisterprevention.com.au.
BlisterPod Pty Ltd
ABN 91 624 460 386
B/116 Dempster Street, Esperance WA 6450
Phone: +61 8 9072 1514
Email: [email protected]
Last update: 28 February 2018