Terms and Conditions

These Terms and Conditions (these “Terms”) govern your use of websites operated by peachycorp fz llc (collectively “we,” “us,” or “our”) and any of its mobile applications (together, referred to as the Site"), any social media plugins provided by us that reference these Terms, and any other services operated by us that reference these Terms (collectively, including the Site, referred to as the “Services”).

 

          Please read these Terms, together with the other agreements, conditions, notices and policies contained herein (the “Agreement”) carefully. The Agreement constitutes a legal agreement between you and us and states the terms and conditions that govern your use of the Site, the Services offered on the Site and the sale of the products to you.

 

          PLEASE BE AWARE THAT SECTION 13 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

 

1. Acceptance

1.1     PLEASE READ THESE TERMS AND PRIVACY POLICY CAREFULLY. BY USING THE SITE AND OR SERVICES, YOU AGREE TO THESE TERMS, AND YOU CONSENT TO THE COLLECTION, USE AND DISCLOSURE OF INFORMATION AS DESCRIBED IN THESE TERMS AND OUR PRIVACY POLICY. YOUR USE OF THE SITE AND OR SERVICES SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.  IF YOU DO NOT AGREE TO THESE TERMS AND OUR PRIVACY POLICY, YOU MUST DISCONTINUE ANY USE OF THE SITE AND OR SERVICES. 

1.2     By agreeing to the Agreement, you represent and warrant to us that: (a) you are at least 18 years old (or at least 13 years old and your parent or guardian has agreed to the Agreement on your behalf) and have the legal capacity to contract, (b) you have not previously been suspended or removed from any Services, and (c) your registration and your use of the Services is and will comply with all applicable laws and regulations.

1.3     WE MAY CHANGE THESE TERMS AT ANY TIME BY POSTING UPDATED TERMS AND CONDITIONS ON THE SITE OR BY SENDING REGISTERED USERS AN EMAIL NOTICE OF THE CHANGES. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHOULD CEASE USING THE SERVICES. CONTINUED USE OF THE SERVICES DESPITE SUCH MODIFICATION AND NOTICE, WILL BE TAKEN AS YOUR ACCEPTANCE TO THE CHANGE.

1.4     These Terms do not alter in any way the terms or conditions of any other agreement you may have with us or our suppliers and affiliates for other products or services.

1.5     Our Privacy Policy explains how we collects and uses your personal information, and is incorporated into these Terms. For further information please refer to our PRIVACY POLICY.

1.6     Please make sure to check this page from time to time to take notice of any changes we have made to these Terms.

1.7     These Terms were updated as of 1 January, 2023.

 

2. Use Of Site

2.1     For the purposes of these terms of use, "Content" means, collectively, any text, images, graphics, software, source code, specifications, audio files, videos, articles, trademarks, logos and other information or content available through the Site that are not submissions (as that term is defined below), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such content. This Content is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

2.2     This Site and Services is intended for access and use by persons with legal capacity under applicable laws and is not intended for use by minors, or other individuals otherwise barred by law from such access and use. 

2.3     As long as you comply with these Terms and all applicable laws and regulations, we hereby grant you a personal, limited, revocable, non-transferable and non-exclusive license and privilege to access and use the Site by displaying it on your internet browser only for the purpose of shopping for items for personal use that are sold on the Site and or Services and not for purposes of resale or any other commercial use or use on behalf of any third party, except as explicitly permitted by us in advance. Any breach of this Agreement may result in the immediate revocation of the license granted in this paragraph without notice to you. 

2.4     You further agree that you will not:

2.4.1    resell or make commercial use of the Site or Content therein;

2.4.2    modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works of, transfer, create derivative works from, translate, sell, lease, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any Content;

2.4.3    collect or use any product listings or descriptions;

2.4.4    use any data mining, robots, or similar data gathering and extraction methods from the Site;

2.4.5    other than for your use of the Site as expressly permitted in these Terms of Use, access or attempt to access any systems or servers on which the Site are hosted or modify or alter the Site in any way;

2.4.6    forge headers, create a false identity or otherwise manipulate identifiers in order to deceive others or disguise the origin of any Content or other information transmitted to or via the Site;

2.4.7    use, frame or utilize framing techniques to enclose any trademark, logo or other proprietary information (including the images found at the Site, the content of any text or the layout/design of any page or form contained on a page) without our express written consent; or

2.4.8    use any meta tags or any other “hidden text” utilizing a name, trademark, or product name without our express written consent. 

2.5     You may not make any commercial use of any of the information provided on the Site or make any use of the Site for the benefit of another business unless explicitly permitted by us in advance. 

2.6     Any unauthorised use of the Site will terminate the permission or license granted by these Terms of Use, will result in you being barred from use of the Site, and may violate applicable law including copyright laws, trademark laws (including trade dress), and communications regulations and statutes.

 

3. Copyright

3.1     The Content and Site as well as the selection and arrangement thereof, are the sole property of us and/or our licensors and/or our affiliates and are protected by patent, copyright, trademark and other intellectual property laws and may not be used except in accordance with these Terms or with our express written consent. Other than as necessary for your use of the Site in accordance with these Terms, we grant no other privileges or rights in the Content to you, and you must keep intact all patent, copyright, trademark and other proprietary notices on the Content. Any Content owned by us and or our partners, suppliers, licensors may be subject to additional restrictions. Except as expressly provided in these Terms of Use, no part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, Web site, smart phone, tablet or other medium for publication or distribution or for any commercial enterprise, without our express prior written consent.

3.2     If you print, copy or download any part of the Site in breach of these Terms of Use, your right to use the Site will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. You may print one copy, and may download extracts of any page(s) from the Site for your personal non-commercial purposes. You must not modify the paper or digital copies or any materials you have printed or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. Our status (and that of any identified contributors) as the authors of material on the Site must always be acknowledged.

 

4. Trademark

4.1     All trademarks, service marks, trade names, logos, slogans, trade names, words and trade dress, whether registered or unregistered (collectively the "Marks") that appear on the Site and or Services are proprietary to us or such Marks' respective owners. You may not display or reproduce the Marks other than with our prior written consent, and you may not remove or otherwise modify any trademark notices from any Content. The Marks are protected by trademark, trade dress, copyright, and various other intellectual property rights and unfair competition laws. For the avoidance of doubt, regardless of whether these have been applied for or registered in Australia as trademarks or any types of intellectual property rights, and regardless of whether these are specifically and statutorily protected under the applicable laws and regulations, to the maximum extent permitted and available by the applicable laws and regulations, the Marks and any rights and interest therein are protected and respected, and you shall not infringe the Marks and our rights and interest therein.

4.2     You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use the Marks in any manner that disparages or discredits us, our partners, affiliates, and or suppliers. You may not use any of the Marks in metatags without our prior explicit consent.

4.3     In addition, all page headers, custom graphics, button icons, and scripts are trademarks, service marks, trade names and/or trade dress of us and or our partners, affiliates, suppliers or their respective owners, and may not be copied, imitated, or used, in whole or in part, without our prior written permission.

 

5. Your Account and password

5.1     If you use the Services and such use requires setting up an account and/or password(s), you are solely responsible for (i) maintaining the security and confidentiality of your account and your account password; (ii) restricting access to your computer and your account; and (iii) keeping your email address listed on your account current.

5.2     Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with the Terms, and we have no obligation to investigate the authorization or source of any such access or use of the Site.

5.3     You are solely responsible and liable for all activities, including, without limitation, all purchases of products and services through the use of the Site that occur under your account or your account password.

5.4     You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security by contacting us using the contact details at the end of these Terms. To the extent permitted by applicable laws, we have the right to disable any account or password at any time, for any reason.

5.5     You may not use anyone else’s password or account at any time without the express permission and consent of the holder of that password or account. We cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

5.6     Please refer to our Privacy Policy for information about the circumstances in which we may lawfully collect, access and disclose personal information you provide to us, including where we are required to do so or otherwise where we may do so in order to protect our rights or another party including but not limited to our partners, affiliates and or suppliers.

 

6. Electronic Communications

6.1     In accordance with applicable laws, and where you agree, we may send you electronic communications in the form of email and/or SMS at the email address and/or mobile number nominated by you. You may opt-out of receiving these communications at any time using the instructions set out in the communication. Please note that it may take up to 5 business days for your request to be processed. If you opt-out, you may still receive communications from us about your account or any services you have asked to receive from us. You acknowledge and agree that any electronic communication in the form of such email, SMS or posting on the Site and or Services shall satisfy any legal requirement that such communication be in writing.

6.2     You agree that we may use and/or disclose information consistent with our Privacy Policy.

 

7. Reviews and Comments

7.1     You acknowledge that you are responsible for the information, profiles, goals, opinions, messages, comments, photos, videos, product or services feedback or ideas and any other content or material that you submit, upload, post or otherwise make available on or through the Services (each a "Submission") and through the services available in connection with the Site, and that you, and not us, have full responsibility for each such Submission you make, including its legality, reliability, appropriateness, and trademark, copyright and other intellectual property ownership. By making a Submission you grant a License (as defined below) in that Submission to us, and it is your responsibility to ensure you are able to lawfully provide such a License. You represent that the posting and use of your Submission on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; you agree to pay for all royalties, fees, and any other monies owed by reason of Submission you post; and you have the legal right and capacity to enter into these Terms of Use in your jurisdiction.

7.2     Unless otherwise explicitly stated herein or in our Privacy Policy, you agree that any Submission provided by you in connection with the Site is provided on a non-proprietary and non-confidential basis.

7.3     You agree that we are free to use a Submission for the purpose of providing you and others with use of the Services and providing you with the associated products and services, and, unless the rights in such submission are assigned to us under these Terms, you grant us a sub-licensable, transferable, perpetual, nonexclusive, worldwide, royalty-free license ("License") to (in any media, whether now known or not currently known or invented) link to, utilize, use, publicly perform, publicly display, reproduce, distribute, edit, adapt, modify and prepare derivative works of the Submission.

7.4     In addition, to the extent any Submission contains your or any other person’s name, likeness, voice or biographical information ("Personal Submissions"), you must comply with any applicable legislative requirements and hereby grant and will cause such other person to grant to us and our related companies, suppliers and or affiliates a License to (in any media, whether now known or not currently known or invented) exploit or use such Personal Submissions for any advertising or marketing of our products and services (in any media, whether now known or not currently known or invented). Submissions shall be considered non-confidential and we and our related companies, suppliers and or affiliates are under no obligation to treat such Submissions as proprietary information except pursuant to our Privacy Policy applicable to personally identifiable information. SUBJECT TO THE LICENSES GRANTED IN THESE TERMS, YOU RETAIN OWNERSHIP OF ANY COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS IN YOUR SUBMISSIONS.

7.5     For the avoidance of doubt, to the maximum extent permitted by the applicable laws, you acknowledge and agree that, your and our rights and obligations in respect of the Submission, the License and Personal Submissions are subject to the laws of New South Wales, Australia regardless of your residence or location, or where those are created or published.

7.6     You represent and warrant that: (i) you own all Submissions posted by you on or through the Services or otherwise have the right to grant the Licenses to us set forth in this section, and (ii) your Submission is accurate and not misleading and (iii) the posting of your Submissions on or through the Services does not violate any applicable privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity or violate any applicable law, rule, regulation or order. You agree to pay for all royalties, fees, damages and any other monies owing to any person by reason of any Submissions posted by you to or through the Services.

7.7     When submitting Submissions to or otherwise using the Services you agree that you will comply with these Terms and without limitation, that you will not:

7.7.1    use the Services in a manner that uses technology or other means to access the Services, or other content that is not authorised by us;

7.7.2    use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of content.

7.7.3    take any action that imposes or may impose (in our sole discretion) an unreasonably or disproportionately large load on our infrastructure;

7.7.4    attempt to gain unauthorized access to our computer network or user accounts;

7.7.5    encourage conduct that would constitute a criminal offense, or that gives rise to civil liability;

7.7.6    attempt to damage, disable, overburden, or impair our servers or networks;

7.7.7    fail to comply with applicable third party terms;

7.7.8    defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others;

7.7.9    use racially, ethnically, or otherwise offensive language;

7.7.10  engage in conduct that is otherwise illegal;

7.7.11  use explicit/obscene language or solicit/post sexually explicit images (actual or simulated);

7.7.12  post anything that exploits children or minors or that depicts cruelty to animals;

7.7.13  post any copyrighted, trade-secret, proprietary, patented proprietary or trademarked materials without the express permission from the owner of such rights; post any person’s name, likeness, voice or biographical information without the express permission from such person (or if that person is a minor, from that person’s parent or legal guardian);

7.7.14  disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation;

7.7.15  use any robot, spider, scraper or other automated means to access the Site; and

7.7.16  alter the opinions, goals, profiles or comments posted by others on the Site.

          This list of prohibitions provides examples and is not complete or exclusive.

7.8     To the extent permitted by applicable laws, if you engage in any of the prohibited misconduct listed above, we reserve the right in our sole discretion to (a) terminate your access to your account; (b) terminate your ability to post to the Site and or Services and (c) refuse, delete, modify, edit or remove any Submissions or for any action that we determine is inappropriate or disruptive to this Site and or Services or to any other user of the Site and or Services.

7.8.1    Submissions are intended to enhance the experience of the Services, however, it should not be understood as to be endorsed by or necessarily represent our views and we disclaim any duty to review or modify Submissions, and any responsibility for either the effects of harmful files, such as malware, that may be contained in the Submissions, or for conduct by users or any third parties in connection with Submissions submitted by them or you. We (without promising to do so) may decide it is in our best interests to block, remove, modify, or simply not post any Submissions, including reviews or ratings, for any reason determined by us in our sole discretion at any time and may not notify you if we do so.

7.9     In accordance with our Privacy Policy, we may report to and cooperate with law enforcement authorities in relation to, any actions that may be illegal, and any reports it receives of such conduct.

7.10   We take no responsibility and assume no liability for any Submissions posted or uploaded by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter in those Submissions. As a provider of interactive services, we are only a forum and, to the maximum extent permitted by applicable laws, are not liable for any statements, representations, or Submissions provided by users in any public forum or personal home page.

7.11   The foregoing prohibitions do not require us to monitor, police or remove any Submissions or other information submitted by you or any other user.

7.12   We prohibit crawling, scraping, caching or otherwise accessing any content on the Services via automated means, including but not limited to, user profiles and photos (except as may be the result of standard search engine protocols or technologies used by a search engine with our express consent).

7.13   It is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and to which certain specific terms, conditions and requirements may apply. Accordingly, we do not accept unsolicited materials or ideas, and take no responsibility for any materials or ideas so transmitted. If, despite our policy, you choose to send us content, information, ideas, suggestions, or other materials, you agree that we are free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to you.

8. Links

8.1     Links to third party websites: The Services may contain links to other resources operated by third parties, enable you to log in to the Services via various online third-party services, or display advertisements and promotional material of goods and services offered by third parties (“Third Party Services”). We do not control such Third Party Services and are not responsible for the content, products, services or information offered by any Third Party Services. By linking or otherwise displaying information from or providing access to any Third Party Services, we give no representation, warranty, or endorsement, express or implied, regarding the legality, accuracy, quality, or authenticity of content, information, products or services provided by those Third Party Services. Further, the way Third Party Services (including social networking services) use, store, and disclose your information is governed solely by the policies of those Third Party Services, and we have no liability or responsibility for the privacy practices or other actions of any third-party website or service that may be enabled within the Services. Conduct any diligence you feel necessary before engaging online or offline with any of these third parties. We disclaim all responsibility or liability for any harm resulting from your use of Third Party Services, including harm relating to payment, delivery or performance of related goods or services, and you irrevocably waive any claim against us regarding the content, products or operation of any Third Party Services.

8.2     Links to the Site: You may link to our Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. The Site must not be framed on any other site, nor may you create a link to any part of the Site other than the home page. The website from which you are linking must comply in all respects with these Terms. We reserve the right to withdraw linking permission without notice at our sole discretion.

 

9. Hacking, Viruses, Malware and Other Cyber Offences

9.1     You must not misuse our Services by knowingly introducing viruses, ramsonware, malware, botnets, browser hijacks, Trojans, worms, logic bombs or other material which is malicious, technologically harmful or cause impairment. You must not attack our Services via a denial or service attack or distributed denial or service attack. You must not attempt to gain unauthorised access to, or modification of, restricted data on our Services, the server on which our site is stored or any server, computer or database connected to our Site. You must not cause unauthorised impairment of our Services, or data on our Services, the server on which our site is stored or any server, computer or database connected to our Services. We will report any such breach by you to the relevant law enforcements authorities and we will co-operate with those authorities. In the event of such a breach, your right to use our Site will cease immediately.

9.2     You acknowledge and agree that we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our Services or to your downloading of any material posted on it, or on any website linked to it.

 

10. Indemnity

10.1   To the fullest extent permitted by applicable law you agree to indemnify, defend, and hold harmless our entities, officers, directors, employees, agents, suppliers, affiliates and third party partners from and against all claims, liabilities, damages, losses, expenses, tax assessments, penalties, interest, and expenses (including reasonable attorneys’ fees and costs) arising out of or connected with any claim, action, audit, investigation, inquiry, or other proceeding instituted by an individual or entity that arises out of or relates to:: (1) your wrongful or improper use of the Services; (2) your Submission or the Submissions you access through the Services; (3) your breach or alleged breach of these Terms; (4) any misrepresentation made by you; or (5) any violation by you of: (a) the Terms, including any of your obligations set forth in the Terms; (b) our privacy policy; (c) any other terms, guidelines or rules applicable to the Services; (d) any rights, including any intellectual property rights, of any third party person or entity; or (e) any applicable laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us hereunder, and you agree to cooperate with our defense of these claims. This means that you will, to the maximum extent permitted by applicable laws, be responsible for any loss or damage that we suffer as a result of your breach of these Terms.

 

11. Disclaimer of Warranties and Liability

11.1   Different limitations and exclusions of liability will apply to liability arising as a result of the purchase of products by you, which will be set out in our Terms and Conditions (Sale).

11.2   In these terms:

11.2.1  "Australian Consumer Law" means schedule 2 of the Competition and Consumer Act 2010 and any equivalent state or territory legislation;

11.2.2  "Consumer" has the meaning in accordance with the Australian Consumer Law; and

11.2.3  "Consumer Guarantee" has the meaning in accordance with the Australian Consumer Law.

11.2.2  The Australian Consumer Law provides Consumers with a number of Consumer Guarantees that cannot be excluded or limited. The limitations of liability set out in these Terms are therefore subject to, and will not apply to the extent that they limit or exclude any Consumer Guarantees that may apply to you if you are a Consumer. However where the Australian Consumer Law permits us to limit the remedies for a breach of such Consumer Guarantees we do so in accordance with clause 11.3 and 11.4.

11.3   Exclusion of implied terms: All implied terms, conditions, guarantees and warranties which otherwise might apply to or arise out of these terms are excluded other than:

11.3.1  those set out in these Terms; and

11.3.2  any term, condition, guarantee or warranty which cannot lawfully be excluded, restricted or modified by agreement under applicable laws including the Consumer Guarantees under the Australian Consumer Law ("Non-excludable Provision").

11.4   Our liability to you in connection with 11.3 and the supply of any goods and or services (including in respect of any breach of or failure to comply with any Non-excludable Provision, where it is permissible under applicable law to limit liability for such Non-excludable Provision) is limited to, at our sole option:

11.4.1  In the case of product(s)/good(s), the replacement of the product(s)/good(s) or the supply of equivalent product(s)/good(s), or the payment of the cost of replacing the product(s)/good(s) or of acquiring the equivalent product(s)/good(s), or the payment of the cost of having the product(s)/good(s) repaired; or

11.4.2  In the case of services, the supplying the services again, or the payment of the cost of having the services supplied again.

11.5   As a condition of your use of the site, you warrant to us that you will not use the site for any purpose that is unlawful or prohibited by these terms.

11.6   While we take reasonable steps to ensure what you see on the site is accurate, despite this the site may contain typographical errors or inaccuracies and may not always be complete or current. We therefore reserve the right to correct any errors, inaccuracies or omissions (including after an order has been submitted) and to change or update information at any time without prior notice. Please note that such errors, inaccuracies or omissions may relate to pricing and availability, and to the extent permitted by applicable laws, we reserve the right to cancel or refuse to accept any order placed based on incorrect pricing or availability information.

11.7   The Services provides information on our products that is general in nature and is based on our knowledge and experience. Products sold on our Services must be used as described on our Sites and in accordance with any packaging or instructions displayed on our Sites or provided with the products.

11.8   Any information on our Services is not a substitute for advice from medical professionals or health care professionals. Our menstrual products are not a medical good and are no substitute for seeking medical advice. Before making any changes to your hygiene routine, your health or otherwise, seek medical advice to evaluate any risks. Individual results from our products may vary and cannot be guaranteed.

11.9   We do not provide medical advice, and none of our staff are medically trained. Any recommendations or advice on the Site and or Services are general information only, or are personal opinions from our customers, and are in no way to be taken as medical advice and are not exhaustive of all possible solutions or remedies. We cannot guarantee any results from using any of our products or from you relying on any information on our Site and or Services.

 

12. Limitation of Liability

12.1   To the maximum extent permitted by law and without limiting your rights and remedies and our obligations under the Australian Consumer Law (which are subject to sections 11.1 to 11.5 above), you expressly acknowledge and agree that:

12.1.1  Considering the nature of the Services, our Services and its contents cannot be guaranteed to be free from errors, uninterrupted and available at all times;

12.1.2  The site, submissions and any content provided via the site including links, are provided on an "as is" and "as available" basis with no warranty of any kind;

12.1.3  No advice or information, whether oral or written, obtained from other users or through the services, will create any warranty not expressly made herein. Therefore, use of the Services is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you;

12.1.4  We will not be liable to you for any loss or damage or delays, whether in contract, tort (including negligence) or any other theory, breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with:

(a)   use of, or inability to use, or nonperformance of, our site;

(b)   use of or reliance on any content displayed on our site;

(c)   any omissions, inaccuracy, errors or unavailability of information provided (or unable to be  provided) via our Site;

(d)   any incorrect, outdated, or incorrect information provided by you;

(e)   any technical problems beyond our control;

(f)   any course of dealing or course of performance;

(g)   corruptions to or loss of data, viruses and malicious code, errors or interruptions, occurring in the course of using our site;

(h)   any interference or damage to your devices or your computer systems which arises in connection with accessing or using our site; and

12.1.5  We will not be liable to you in connection with these terms for:

(a)   loss of profits, sales, business, revenue or failure to realize expected savings;

(b)   loss of data, use, goodwill, or other intangible losses;

(c)   business interruption;

(d)   damages relating to your access to, use of, or inability to access or use the Services;

(e)   damages relating to any conduct or content of any third party or user using the Services, including without limitation, defamatory, offensive or illegal conduct or content;

(f)   damages in any manner relating to any third party services accessed via the Services;

(g)   damages relating to any unauthorized access to or use of our systems or any and all personal information or financial information stored on those systems;

(e)   loss of business opportunity, goodwill or reputation; or

(f)   any indirect, special, punitive, incidental, exemplary, multiplied or consequential damages of any kind whatsoever, that you suffer or incur, whether arising under contract, tort (including due to our or any other person's negligence), under statute or otherwise.

12.2   To the maximum extent permitted by applicable laws, we disclaim all representations, warranties and or conditions (express or implied) of:

 (a)   merchantable quality;

 (b)   merchantability;

 (c)   durability;

 (d)   fitness for a particular purpose;

 (e)   title;

 (f)   non-infringement;

       with respect to the site, submissions, the content and any products or services.

12.3   In addition, and to the extent permitted by applicable laws, we do not represent or warrant that the site, submissions, content or any products, services or any other information accessible via the site is uninterrupted and available at all times, secure, accurate, complete, error free or current or that any particular products or inventory will be available.

 

13. Dispute Resolution

13.1   If a dispute arises out of or relates to these Terms (including any dispute as to breach or termination or any claim) no Party may commence court or arbitration proceedings relating to the dispute unless that Party has participated in a mediation in accordance with 13.2 and 13.3 of this clause. This paragraph does not apply to an application for urgent interlocutory relief.

13.2   A party to this contract claiming that a dispute has arisen from the contract (“the Dispute”) must give written notice specifying the nature of the Dispute (“the Notice”) to the other party or parties to the contract. The parties must then participate in mediation in accordance with this clause.

13.3   If the parties do not agree, within seven days of receipt of the Notice (or within a longer period agreed to in writing by them) on:

13.3.1  the procedures to be adopted in a mediation of the Dispute; and

13.3.2  the timetable for all the steps in those procedures; and

13.3.3  the identity and fees of the mediator; then:

13.3.4  the President of The Law Society of New South Wales, Australia will appoint the mediator and determine the mediator’s fees and determine the proportion of those fees to be paid by each party (to be in equal shares unless otherwise agreed by the parties);

13.3.5  the parties must mediate the Dispute:

(a)   with the mediator appointed under clause 13.3.4;

(b)   with a genuine commitment to participate; and

(c)   in accordance with the Mediation Guidelines of The Law Society of New South Wales, Australia.

13.4   If a party commences proceedings relating to the Dispute other than for urgent interlocutory relief, that party must consent to orders under section 26 of the Civil Procedure Act 2005 that the proceedings relating to the Dispute be referred to mediation by a mediator.

13.5   If the parties do not agree on a mediator within seven days of the order referred to in paragraph 4, the mediator appointed by the President of the Law Society of New South Wales, Australia will be deemed to have been appointed by the Court.

13.6   If a party:

13.6.1  refuses to participate in a mediation of the Dispute to which it earlier agreed;

          or

13.6.2  refuses to comply with clause 13.3.5 of this clause, a notice having been served in accordance with clause 13.2; then

13.6.3  that party is not entitled to recover its costs in any court proceedings or arbitration relating to the Dispute, even if that party is successful; and

13.6.4  that party is deemed to have consented to a decree of the Supreme Court of New South Wales that it will specifically perform and carry into execution clause 13.3.5 of this clause.

 

14. Governing Law

14.1   To the extent permitted by applicable laws, all litigation, court proceedings, arbitration proceedings, mediation proceedings, lawsuits, court hearings and other hearings or actions initiated in connection with the Site must and will be venued exclusively in New South Wales, Australia. These Terms of Use and the relationship between you and us will be governed by the laws of New South Wales, Australia. For the avoidance of doubt but subject to the aforesaid, regardless of your residence and place where you created your account, or any other matters, if you access and/or use the website and engage in associated activities therein, Australian laws and regulations apply thereto and prevail laws and regulations in other jurisdictions.

 

15. Severability and waiver

15.1   If any provision of these Terms is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect the effectiveness or validity of any provision in any other jurisdiction, and these Terms will be reformed, construed and enforced in such jurisdiction as if such provision had never been contained herein. Any headings or titles herein are for convenience only.

15.2   No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived.

 

16. Excused non-performance

16.1   We will not be liable or responsible to you, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and if failure or delay is caused by or results from acts or circumstances beyond our reasonable control including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

17. Termination

17.1   We have the right to terminate the Agreement or revoke any and all of your rights granted under the Agreement with or without prior written notice. Upon termination of this Agreement, you shall immediately cease all access to and use of the Services and we shall, in addition to any other legal or equitable remedies, revoke all password(s) and account identification issued to you and deny your access to and use of this Services in whole or in part. Any termination of this Agreement will not affect the respective rights and obligations of the parties arising before the date of termination.

 

18. International use

18.1   This Services can be accessed from countries other than Australia, but may contain products or references to products that are not available outside of Australia. Any such references do not imply that such products will be made available outside Australia. If you access and use the Services outside Australia you are responsible for complying with your local laws and regulations.

 

19. Assignment

19.1   You may not transfer or assign your account or your obligations under the Agreement without our prior written consent. We may transfer or assign any or all parts of our rights under the Agreement without restriction and have the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Services.

 

20. Entire agreement

20.1   These Terms constitute the entire agreement between the user and us with respect to the Services and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to the Services. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved.

 

Questions or Concerns

If you have any concerns about material which appears on the Site, please contact us by emailing us at:  wecare [at] au.peecheecheex [dot] com