The website at https://www.wanderingescapes.com.au/ and all associated digital platforms, social media accounts and mobile applications (together, the Website) and the Website’s contents, products, materials and services (together, Website Services) are owned, operated and provided by Wandering Escapes Pty Ltd ABN 88 645 287 109 (Wandering Escapes, we, us or our). The term ‘you’ refers to any user or browser of the Website or purchaser of our Website Services.
The terms and conditions set out in this document and any additional disclaimers, policies and legal notices displayed on our Website from time to time (together, Terms and Conditions) govern and explain how you may use the Website and the Website Services.
It is important you read and understand these Terms and Conditions. By accessing any information on our Website or using the Website Services, you will be deemed to have accepted and agreed to be bound by these Terms and Conditions, as updated from time to time, whether or not you are a visitor simply browsing the Website or are using the Website Services (together, users).
You acknowledge and agree that the use of the Website and Website Services is at your own risk and that using the Website and Website Services in any way other than what is expressly stated in these Terms and Conditions will amount to a breach of the Terms and Conditions, and your use of the Website and Website Services may be terminated in accordance with the provisions below.
If you are under the age of eighteen (18), you must obtain your parent’s or guardian’s prior consent to use the Website and Website Services. Please note that you cannot make a booking for our short-term rental accommodation unless you are at least twenty-one (21) years old.
These Terms and Conditions do not modify, restrict or exclude any additional rights you may have under applicable laws that cannot be so modified, restricted or excluded. If at any time you do not agree with the Terms and Conditions (or any changes to them), please do not continue to use the Website and Website Services.
1.WEBSITE PERMITTED USE
Wandering Escapes prohibits the use of the Website or any of its functionalities, features and content in any manner other than expressly indicated. You agree to use the Website and Website Services responsibly and to comply with any applicable laws and regulations. You agree you must not interfere with or disrupt the platforms, servers or networks connected to the Website. You agree you may not use the Website or Website Services for any purpose that is unlawful or to solicit the performance of any illegal activity or other conduct that infringes Wandering Escapes’ rights or the rights of others.
You may not use the Website or Website Services, or any part of them, for any commercial purpose or for the benefit of any third party, including but not limited to incorporating, modifying, copying, reproducing, republishing, uploading, posting, transmitting, translating, selling, creating derivative works, exploiting or distributing in any manner or medium (including by email or other electronic means) any content or additional information accessed or purchased through our Website Services, or any other communications provided by us for your personal use, or in a manner not permitted by the Terms and Conditions.
2.OUR ACCOMMODATION SERVICES AND SERVICES DISCLAIMER
Our Website aims to provide information about our short-term rental accommodation at our properties located along the South Coast, New South Wales, Australia (Property). Information about how to contact us, make a booking and find out more about our Property and short-term rentals of the Property (Accommodation Services) is available on the Website.
The information, content and material contained in or made available through the Website and Website Services are provided for general information purposes only. None of the content on this Website represents or warrants that the Website Services or Accommodation Services are appropriate or effective for you.
To the extent that we provide any explicit or implied recommendations of any Website Services or Accommodation Services, such recommendations are only general and not specific to any situation. The information we provide is not intended to be a substitute for professional financial or legal advice, nor do we claim to be an expert in any specific commercial field.
All information provided by us is provided in good faith, though we make no guarantees of any specific results or outcomes from the use of the Website, Website Services or Accommodation Services. We derive our information from sources that we believe to be accurate and up to date as at the date of publication, however, we do not make any representations or warranties that the information we provide is reliable, current or complete at all times. Your reliance on any of our Website Services or the information on this Website is solely at your own risk, and we make no guarantees as to the suitability, outcome or results.
Testimonials (visual and written) and any publicity materials displayed on our Website are examples of real experiences and opinions of people's experiences with us, our Website, Website Services and/or Accommodation Services, and are for illustration only. All testimonials and publicity materials are displayed with permission and are of actual people and their results. Testimonials are not intended to guarantee current or future users the same or similar experiences though Wandering Escapes endeavours to ensure every guest is reasonably satisfied.
We may refer to third-party products, services, experts and other third-party service providers on the Website. Any such reference is not intended as an endorsement or statement that the information provided by the third party is accurate. We make no warranties as to the suitability or reliability of third-party service providers nor give any guarantees as to the outcome or results of their products or services. It is your responsibility to conduct your own research and make your own determination about any such products, services, experts and other service providers.
We may participate in affiliate marketing and may allow affiliate links to be included on our Website. This means that we may earn a commission if and when you click on or make purchases via affiliate links. We will inform you when one of the links on our Website is an affiliate link and will only affiliate with products, services, experts and other third-party service providers that we believe will provide value to our customers and followers. You recognise that it remains your personal responsibility to investigate whether any affiliate offers are right for you. You will not rely on any recommendation, reference or information provided by us and will conduct your own research and rely upon your own research in deciding whether to purchase the affiliate product or service.
3.NSW CODE OF CONDUCT FOR THE SHORT-TERM RENTAL ACCOMMODATION INDUSTRY
In providing its Accommodation Services, Wandering Escapes abides by the NSW Code of Conduct for the Short-Term Rental Accommodation Industry (as amended) (the Code) which became mandatory on 18 December 2020.
The Code is accessible at the NSW Fair Trading website at:
The Code sets minimum standards of behaviour and requirements not only for booking platforms, letting agents and facilitators, and hosts, but also for guests. Guests must comply with the Code, criminal and planning laws, by-laws for strata premises such as those offered by Wandering Escapes the terms of their Short-Term Rental Agreement and other applicable laws. Under the Code, Guests have obligations to neighbours in relation to the use of the Property and personal and other property at the premises and are responsible for their visitors.
We therefore recommend that guests ensure they have read and are familiar with their obligations under the Code before making a booking or commencing their stay at the Property.
The Property is registered on the Premises Register administered by NSW Fair Trading as required from 1 June 2021.
4.BOOKING ENQUIRIES AND BOOKINGS
By making a booking enquiry, making a booking via our online booking system, accessing any information, or otherwise using our Website Services or Accommodation Services, you will be added to our email list. If you do not want to remain on our database, you can follow the instructions on the form to update your subscription or data preferences or unsubscribe from our email communications or email us at any time at email@example.com
Booking enquiries may be sent to Wandering Escapes via firstname.lastname@example.org. Submitting a booking enquiry does not secure your booking and all bookings must be made through Wandering Escapes’ online booking system ‘Staah’ operated by STAAH Limited (or such other online booking system which we may use from time to time) (Online Booking System).
5.BOOKINGS AND SHORT-TERM RENTAL AGREEMENT
Guests are recommended to make themselves fully aware of the terms and conditions of our Short-Term Rental Agreement available on the Website before making a booking.
Care should be taken when making a booking as you will not be permitted to transfer your booking into another person’s name or change the commencement date or duration of the booking.
Under the Code, persons who are listed on NSW Fair Trading’s Exclusion Register are not permitted to make bookings and Wandering Escapes is not permitted to let the Property for short-term rental to any person listed on the Exclusion Register.
There is a maximum number of guests for the Property as indicated on the Website. If the number of guests at the Property exceeds the maximum number stipulated, you may incur a fee in accordance with our Schedule of Costs and we shall be entitled in our discretion to immediately terminate your booking and your stay at the Property.
By using Wandering Escapes’ Online Booking System, you agree to their terms and conditions accessible at the website or at such other online booking system which we may use from time to time).
By making a booking via our Online Booking System, you, for yourself and also on behalf of all other guests:
acknowledge you have read and agree to be bound by these Terms and Conditions and our Short-Term Rental Agreement; and
represent and warrant that you are at least twenty-one (21) years old and that you are aware of any age restrictions relevant to your booking or imposed by external service providers. If a third party is making the booking on your behalf you warrant you have authorised the third party to do so, and you have been advised of these Terms and Conditions.
If Wandering Escapes reasonably believes that the information you have provided is false, inaccurate or misleading to the potential material detriment of Wandering Escapes, it may in its sole discretion suspend your booking pending resolution of the issue, or terminate your booking and your access to the Property, in which case no refund of any amounts will be payable to you.
The Property is not permitted to be used for schoolies, parties, functions and large group gatherings and persons under the age of twenty-one (21) are not permitted to make bookings. If you breach these restrictions Wandering Escapes may cancel or terminate your booking and no refund of any amounts will be payable to you, and if your booking has commenced you may be liable to pay additional amounts under our Schedule of Costs.
Bookings may only be varied and cancelled in accordance with the terms and conditions of our Short-Term Rental Agreement and are subject to minimum notice periods. If you cancel your booking after that time, any deposit and accommodation fees you have paid may not be refundable in full and we will be entitled to an administration fee. Please refer to the Short-Term Rental Agreement for further details.
Under the Short-Term Rental Agreement, any breach by guests may result in liability for additional fees as outlined in the Schedule of Costs and other associated consequences, including termination of the booking and your stay without any right to receive a refund.
Wandering Escapes will not be liable for any losses, costs and/or expenses incurred by guests as a result of the termination of a booking.
6.FORCE MAJEURE AND PUBLIC HEALTH CANCELLATION OF BOOKINGS
Wandering Escapes may vary or cancel your booking due to force majeure, terrorism, natural disasters, pandemics, political instability or other external events making it impractical, unsafe or unviable for Wandering Escapes to uphold the booking. Where the booking has been varied or cancelled we will where feasible use our best endeavours to provide alternative accommodation that is, as far as practical and possible, substantially the same as or similar to our Property, or voluntarily offer you the right to cancel or change the booking.
You may request Wandering Escapes to reschedule the commencement date of your booking to another date within twelve (12) months or cancel your booking if you are unable to commence the booking in order to comply with public health and related Australian State and Federal Government regulatory and legislative obligations, orders, directions and restrictions (including those in relation to COVID-19 or any comparable pandemic) (Public Health Laws) or because of the direct impact of Public Health Laws on your ability to use your booking, as long as you provide reasonable evidence in support if requested. Wandering Escapes will have the discretion to agree to reschedule your booking (subject to availability). Wandering Escapes will consider any requests for cancellation made with less than the minimum period of notice on a case by case basis and if we agree to cancel a booking in these circumstances we may retain your deposit in our discretion but will refund all other amounts paid less an administration fee.
To enable Wandering Escapes to comply with Public Health Laws, we also have a right to vary or cancel bookings in our discretion if we are affected by Public Health Laws or any health alerts or guidelines in connection with Public Health Laws including COVID-19. Wandering Escapes may offer you the opportunity to reschedule the commencement date of your booking to another date within twelve (12) months or may cancel the booking in which case you will receive a refund of all amounts paid less an administration fee.
Please do not check-in or commence your stay if you or any of your guests are unwell. If Public Health Laws apply to your stay, we may ask all guests to provide a declaration at check-in as to their health and exposure to any illness (including COVID-19) which is the subject of the Public Health Laws. Wandering Escapes has the right to cancel your booking if any guest refuses to give the declaration or the responses to any given declaration means it is not, or there is a significant risk that it is not, safe to permit you and your guests to stay at the Property, if at the time of check-in or any time during your stay it reasonably appears to or is known by any Wandering Escapes staff that any guest displays or has flu-like symptoms, appear to be or are unwell or express that they are feeling unwell with any respiratory or flu-like illness, or if it becomes known to Wandering Escapes that any guest has breached any Public Health Laws which directly or indirectly puts Wandering Escapes or any person at the property at risk. In such circumstances you will not be entitled to any refund of any amounts you have paid, and you will have to pay any additional fees incurred.
You acknowledge the necessity for cancellations and variations due to Public Health Laws may arise from time to time and any offers of compensation, refunds or claims in respect of any such variations or cancellations will be limited to those outlined in the Short-Term Rental Agreement. Under these circumstances, we will not be responsible for any incidental expenses that you may have incurred as a result of or in connection with the booking.
We reserve the right to refuse or grant refunds for the Accommodation Services pursuant to the Australian Competition and Consumer Act 2010 (Cth). Any requests for refunds must be detailed in writing and will only be considered when options for remedies or replacements have been exhausted.
7.ASSUMPTION OF RISK
The use of the Property, facilities and any equipment at the Property by you, your guests and visitors, is at your own risk.
You hereby waive and release, indemnify, hold harmless and forever discharge Wandering Escapes and its current and/or former agents, employees, officers, directors, affiliates, successors and trustees from and against any and all claims, demands, debts, contracts, expenses, causes of action, lawsuits, damages and liabilities, of every kind and nature, whether known or unknown, in law or equity, that you ever had or may have, arising from or in any way related to your usage and that of your guests and visitors of any facilities and equipment and/or your stay and usage of the Property and that of your guests and visitors, and any activities that you or your guests or visitors may partake in or have partaken in at the Property, provided that the waiver of liability will not apply to any acts of gross negligence or intentional or wilful misconduct by Wandering Escapes.
You assume all risk and take full responsibility for all personal injury, sickness, disease (including but not limited to contracting or spreading infectious diseases), death for any reason, damage to and loss of personal property and losses of all kinds whatsoever arising out of, attributable to, caused by, or resulting from the usage of equipment at the Property (including sporting and leisure equipment), the Property and any part of it and all facilities at the Property and all guests’ stay at the Property, which may include but is not limited to using the Property or any part of it in any manner, and participating and/or engaging in any activities at the Property.
8.CHANGES TO OUR SERVICES, PAYMENT AND PRICING
Our Website Services and, subject to any Short-Term Rental Agreement we have with you, our Accommodation Services may be subject to change without notice. We reserve the right at any time and without notice to modify or discontinue any Website Services and Accommodation Services and we shall not be liable to you or any third party for any modification, price change, suspension or discontinuance of any Website Services or Accommodation Services. Subject to law, we reserve the right to limit the sales of our Accommodation Services to any person, region or jurisdiction. All descriptions of our Website Services and Accommodation Services and pricing on our Website are subject to change at any time without notice, at our sole discretion.
Subject to our Short-Term Rental Agreement with you, you will only be permitted to check-in if you have provided a security bond by credit card payment and have paid our accommodation fees in full.
A fifty percent (50%) deposit is payable at the time of booking using our Online Booking System. Subject to our Short-Term Rental Agreement with you, all other amounts, including our accommodation fees, are payable by credit card.
Transactions are processed in AUD figures. GST shall be applied where applicable. Fees that are paid in a foreign currency will be reconciled as at the date of payment and will be subject to the prevailing exchange rate and transfer fees.
In the rare circumstance that accommodation rates are increased after you have paid, we will notify you and you can decide whether to pay the difference or receive a refund of all amounts paid.
Your participation, correspondence or business dealings with any affiliate, individual or company found on or through our Website, all purchase terms, conditions, representations or warranties associated with payment, refunds and/or delivery related to your purchase, are solely between you and that third party. You agree that we shall not be responsible or liable for any damage, refunds or other losses of any sort that may be incurred as the result of such dealings with a merchant.
All bookings require a refundable security bond to be provided by credit card payments and or credit card pre-authorisation no later than seven (7) days before your stay commences.
By paying the security bond, you irrevocably agree that Wandering Escapes is permitted, and you authorise Wandering Escapes, to claim against or charge from the security bond at any time without prior notice to you, all outstanding and/or additional fees and any costs that Wandering Escapes is entitled to be paid under the Schedule of Costs in relation to your stay at our Property, including the cost of any damage to our Property and the cost of any required repair or replacement for all breakages or damage to, or loss of, any of the facilities, equipment and other items provided at the Property, in accordance with the Short-Term Rental Agreement (Additional Costs).
Any balance remaining of the security bond will be refunded (if applicable) within seven (7) days after check-out provided any final deduction has been made. Any amounts owing to Wandering Escapes which are not satisfied from out of the security bond will either be charged to your credit card (if applicable) or you will be invoiced for the additional amounts which will be payable within seven (7) days of the date of the invoice and/or as otherwise provided in the invoice.
We will provide you with details of all amounts deducted from the security bond and/or charged to your credit card (as applicable) no later than seven (7) days after the date of check-out or otherwise as soon as reasonably possible.
Credit Cards, Chargebacks and Payment Security
We accept credit card payments for the Accommodation Services via the payment-processing merchant. You agree that we will not be held liable for any loss you incur arising from your payment by credit card or use of our payment gateway unless it is caused by fraud or negligence for which we are responsible. To the extent that you provide us with your credit card(s) information for payment, we shall be authorised to charge your credit card(s) for any prior unpaid charges. You shall not make any chargebacks to our account or cancel the credit card that is provided as security without our prior written consent. You are responsible for any fees associated with recouping payment on chargebacks and any collection fees associated therewith. You shall not change any of the credit card information provided to us without notifying us in advance. Wandering Escapes reserves the right to reject and/or report credit card payments that are suspected of fraud or any other illegal activity.
Gateways and Merchants
We reserve the right to change our preferred payment gateway from time to time and without notice.
9.CHILDREN AND CONDUCT AT THE PROPERTY
Persons under the age of twenty one (21) are only permitted as guests. If they are accompanied by their parent, legal guardian or an authorised responsible adult. Children between the age of twelve (12) and eighteen (18) must be supervised at the Property by a responsible adult at all times.
Accommodation prices for children are included in the standard rate and refer to using existing bedding.
You are responsible for ensuring that children are supervised at all times while at the Property during your stay. Wandering Escapes is not responsible for the safety or wellbeing of any person including children.
Guests will be required to adhere to the noise, good neighbour and other obligations set out in the Short-Term Rental Agreement, as well as the House Rules set out in our House Manual in relation to their conduct during their stay and whilst at the Property. Guests who are found to be flouting our House Rules and/or breaching the terms of our Short-Term Rental Agreement may have their booking cancelled and be asked to leave the Property at Wandering Escapes’ discretion. In such circumstances, there may be no entitlement to payment of any refund under the terms of the Short-Term Rental Agreement.
Guests also have obligations under the Code with respect to neighbours. Please refer to the Code which is accessible at https://www.fairtrading.nsw.gov.au/__data/assets/pdf_file/0012/925788/Code-of-Conduct-for-the-Short-term-Rental-Accommodation-Industry.pdf.
10.REVIEWS AND ONLINE COMMUNITY GUIDELINES
The Website and our other digital platforms, mobile applications and social media accounts (Communication Services) may allow you to post information, photos, content, user submissions and/or upload materials, including video and features such as live chat and forums (User-Generated Content), whether through external websites or otherwise. It may also allow you to see User-Generated Content submitted by others.
You agree you are responsible for your User-Generated Content, which includes but is not limited to, any data, text, files, information, usernames, images, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other materials that you submit, post or display on or via the Website or is in any way connected with the Website, Website Services and Accommodation Services including any stay at the Property.
Reviews and social media posts
Wandering Escapes encourages its guests to tag @Wanderingescapes when posting during their stay and unless expressly requested not to, Wandering Escapes may also tag its guests.
If guests provide Wandering Escapes with images of themselves or others taken during their stay at our Property, unless they expressly object, they agree to release and hold Wandering Escapes harmless from any liability in relation to the images which it may use for its marketing material or promotional purposes.
If guests experience any issue or problem during their stay, if the issue or problem relates to:
(a)alleged contraventions of the Code, criminal law or civil penalty provisions, or planning laws by referring the matter to the police or the relevant tribunal or regulatory body; or
(b)other matters, it must be resolved via an internal dispute resolution process and subject to obligations of confidentiality under the Short-Term Rental Agreement. Guests must allow Wandering Escapes the opportunity to rectify the situation before leaving negative reviews in the public domain which may be damaging to the reputation of Wandering Escapes.
Under the Short-Term Rental Agreement, guests are prohibited from publishing reviews on any public forum if the booking has been terminated for breach and must raise any disputes and provide feedback directly with Wandering Escapes. The dispute and/or feedback may be subject to obligations of confidentiality.
General community guidelines
It is essential to ensure that all our members of our community adhere to our community guidelines to maintain a safe and ethical online environment for all. You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to a Communication Service. You agree you may not communicate any content or incite any behaviour that is offensive or directly attacks, intimidates or harasses someone based on religion or faith, race or ethnicity, nationality, sexual orientation, age, gender or gender identity or disability. You must not defame, stalk, bully, abuse, harass or intimidate anyone or restrict another user’s use and enjoyment of the community in any way. Wandering Escapes prohibits negative, dishonest or misleading conduct of any kind that threatens the integrity or security of the community on our platform. You must not create or operate from a user account on social media or any other platform for anyone other than yourself. You must not pretend that you are or that you represent someone else or impersonate any other individual or entity for any purpose.
You acknowledge we have the right, but not the obligation, to monitor and review User-Generated Content, and from time to time we may, at our sole discretion and without prior notice to you, remove or edit any of your User-Generated Content that we find you may not have the permission to post, is offensive or for any other reason. If it is found, or we have reasonable grounds to believe, that a member of the online community is threatening the safety of the community or has provided information that is not true, accurate, current and complete, we may suspend or terminate their access to the community, refuse future use of the Website Services and inform the relevant authorities where appropriate. You agree to indemnify us against all liability claims or proceedings whatsoever arising from the publication of your User-Generated Content. You acknowledge and agree that we do not authorise, condone or endorse any User-Generated Content, and are not responsible for the accuracy, legality or decency of such content. You are responsible for verifying the veracity of any claims or statements made in any User-Generated Content.
The Website may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible for the information, services or resources of any third parties, nor do they imply any endorsement by or affiliation with us. We do not guarantee, represent or warrant that the content of any third party is accurate, legal or inoffensive, or that they will not contain viruses or otherwise impact your hardware or software. Unless otherwise stated, these Terms and Conditions only cover the use of this Website and our Website Services. Any other link will be covered by the terms and conditions of that website or resource, of which we are not responsible either directly or indirectly. You acknowledge it is your sole responsibility to assume all risk arising from your use of any such websites, services or resources.
Wandering Escapes is responsible only for the support and maintenance of the Website. We may, at any time and without notice, modify, suspend or terminate the operation of, or access to the Website, or any part of it, for any reason, as necessary to perform maintenance, error correction or other changes. You acknowledge that we may make changes to the Website or Website Services provided through the Website. Access to the Website may depend on telecommunications, Internet service providers and other external factors, and therefore we do not guarantee the availability of the Website at all times or at any specific times.
13.PRIVACY AND SECURITY OF INFORMATION
14.INTELLECTUAL PROPERTY AND COPYRIGHT NOTICE
You acknowledge and agree that the Website and the Website Services contain information, content and material that is owned by us, and is protected by all intellectual property and copyright laws recognised throughout the world, including the Copyright Act 1968 (Cth), whether existing under statute, at common law or in equity, now or hereafter in force.
You are prohibited from copying, distributing, sharing and/or transferring information, content and material from the Website or Website Services (and/or any associated usernames/passwords, if applicable) you purchased to any third party or person. In some cases, we may encrypt and/or stamp licence details (including customer name, address, etc.) to ensure additional safety.
Wandering Escapes respects the intellectual property rights of others and warrants that all information and materials provided via the Website and Website Services is the original content of Wandering Escapes, or is otherwise provided with the relevant owner’s or owners’ consent, and does not violate the intellectual property rights of any third parties. All references made to third parties or third-party intellectual property is by means of reference only, and we make no claims or association to them or it.
These Terms and Conditions do not transfer any of our intellectual property rights to you or any third parties. You are granted no rights with respect to or license of our trademarks, service marks and logos, used in connection with the Website Services and Website. All intellectual property displayed on the Website has been provided, where applicable, with consent. All names, logos and trademarks on the Website are the property of their respective owners. Nothing on the Website should be interpreted as granting any rights for the commercial use or distribution of any names, logos or trademarks, without the express written agreement of the relevant owners.
We may, from time to time, monitor your use of the Website or Website Services to determine if you are in breach of these Terms and Conditions. If you infringe our intellectual property rights or the rights of any third party, we have the right to suspend access to or terminate your use of the Website or Website Services, and to report you to the relevant authorities or take any actions as appropriate or necessary.
15.TERMINATION OF WEBSITE USE
We, at our sole and absolute discretion, may suspend or terminate your access and/or future access to the Website or Website Services, effective immediately, with no liability to you or any third party for the following reasons:
(a)where you are in breach of any of the Terms and Conditions or any related policies;
(b)where at any time you have committed any act of wilful or serious misconduct;
(c)if you fail to pay any fees or payments properly payable to us for our Website Services by the stipulated due date;
(d)where you have created a risk or possible exposure for us;
(e)where there are unexpected technical issues or problems;
(f)at the request of law enforcement or any government authority; or
(g)upon a request by you.
If you have entered into a Short-Term Rental Agreement for our Accommodation Services with us, please refer to the agreement in relation to our rights of termination of the Accommodation Services and consequences of termination.
In the event a dispute arises from, or in connection with, these Terms and Conditions, the party who claims that there is a dispute will give written notice to the other party, including details of the dispute and a proposed resolution. Within seven (7) days of receiving the notice, the parties will meet to resolve the dispute or if they are unable to do so they will agree upon another method to resolve the dispute in good faith. All aspects of such meetings, except the fact that the meeting was held, will be confidential and privileged. If the parties do not resolve the dispute or where the dispute remains unresolved following the meeting and the parties do not agree upon an alternative method to resolve the dispute, within twenty one (21) days after receipt of the notice, the dispute may be referred by either party to litigation by notice in writing to the other party.
17.WARRANTIES AND LIABILITY
CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH), MAY LIMIT THE ABILITY TO EXCLUDE LIABILITY OR MAY IMPLY WARRANTIES OR CONDITIONS OR IMPOSE OBLIGATIONS WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED EXCEPT TO A LIMITED EXTENT. THESE TERMS AND CONDITIONS MUST IN ALL CASES BE READ SUBJECT TO THESE STATUTORY PROVISIONS.
IF WE ARE LIABLE TO YOU UNDER THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH) OR SIMILAR LEGISLATION, TO THE EXTENT TO WHICH WE ARE ENTITLED TO DO SO, WE LIMIT OUR LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE PROVISIONS TO, IN THE CASE OF GOODS, AT OUR OPTION, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED, AND, IN THE CASE OF WEBSITE SERVICES, AT OUR OPTION, THE SUPPLYING OF THE WEBSITE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE WEBSITE SERVICES SUPPLIED AGAIN.
WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE WEBSITE OR WEBSITE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE WEBSITE AND/OR MAKE THE WEBSITE SERVICES UNAVAILABLE FOR INDEFINITE PERIODS, SUSPEND OR CANCEL THE WEBSITE SERVICES AT ANY TIME OR OTHERWISE LIMIT OR DISABLE YOUR ACCESS TO THE WEBSITE AND WEBSITE SERVICES WITHOUT NOTICE TO YOU, WHERE REASONABLY NECESSARY TO PROTECT OUR LEGITIMATE INTERESTS.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE WEBSITE AND WEBSITE SERVICES IS AT YOUR SOLE RISK. THE WEBSITE SERVICES AND ALL CONTENT DELIVERED TO YOU THROUGH THE WEBSITE ARE (EXCEPT AS EXPRESSLY STATED BY US) PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION OF IMPLIED WARRANTIES MAY NOT APPLY TO YOU. IN ADDITION, UNDER THE AUSTRALIAN CONSUMER LAW, THERE ARE CERTAIN CONSUMER GUARANTEES WHICH CANNOT BE EXCLUDED, INCLUDING GUARANTEES AS TO MERCHANTABILITY, FITNESS FOR PURPOSE, SUPPLY BY DESCRIPTION, REPAIRS AND TITLE.
IN NO CASE SHALL WE, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE WEBSITE OR ANY OF THE WEBSITE SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE WEBSITE OR WEBSITE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE, EVEN IF ADVISED OF THEIR POSSIBILITY. UNDER NO CIRCUMSTANCES SHALL THE AGGREGATE LIABILITY FOR ALL CLAIMS AGAINST US RELATING TO THE WEBSITE SERVICES EXCEED THE GREATER OF ONE HUNDRED AUSTRALIAN DOLLARS (A$100) OR THE AMOUNT YOU PAID US, IF ANY, IN THE LAST TWELVE (12) MONTHS.
BECAUSE SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IN SUCH COUNTRIES, STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT SUCH LIMITATION IS PERMITTED BY LAW.
WE SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED TO US BY YOU IN CONNECTION WITH THE WEBSITE AND WEBSITE SERVICES, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND YOU HEREBY RELEASE US FROM ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
WE DO NOT REPRESENT OR GUARANTEE THAT THE WEBSITE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND YOU HEREBY RELEASE US FROM ANY LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR SYSTEM, INCLUDING ANY CONTENT ACQUIRED OR RENTED THROUGH THE WEBSITE. WE ARE NOT RESPONSIBLE FOR DATA CHARGES YOU MAY INCUR FOR DOWNLOADING OR STREAMING OVER A DATA CONNECTION.
18.WAIVERS AND INDEMNITY
BY USING THE WEBSITE AND WEBSITE SERVICES, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS AND LICENSORS HARMLESS AGAINST ANY CLAIMS ARISING OUT OF YOUR BREACH OF THESE TERMS AND CONDITIONS, YOUR MISUSE OF THE WEBSITE OR WEBSITE SERVICES OR ANY ACTION TAKEN BY US AS PART OF OUR INVESTIGATION OF A SUSPECTED VIOLATION OF THESE TERMS AND CONDITIONS OR AS A RESULT OF OUR FINDING OR DECISION THAT A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED. TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU SHALL NOT SUE OR RECOVER ANY DAMAGES FROM US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS AND LICENSORS AS A RESULT OF OUR DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR CONTENT, TO WARN YOU, TO SUSPEND, LIMIT OR TERMINATE YOUR ACCESS TO THE WEBSITE OR WEBSITE SERVICES OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF OUR REASONABLE CONCLUSION THAT A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THESE TERMS AND CONDITIONS.
The laws of New South Wales, Australia govern these Terms and Conditions and any access to or use of our Website or Website Services. You irrevocably agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from those courts to resolve any dispute or claim between the parties arising from or in relation to these Terms and Conditions.
These Terms and Conditions constitute the entire agreement concerning your use of this Website and the Website Services and supersede all previous agreements or understandings, whether written or oral, in relation to your use of this Website and the Website Services.
We reserve the right to amend the Terms and Conditions at any time and to add new or additional terms and conditions on your access to and use of the Website and Website Services.
Please check these Terms and Conditions regularly before using our Website and Website Services to ensure you are aware of any changes. We will endeavour to highlight any significant or substantive changes to you where possible.
If any part of these Terms and Conditions is held invalid or unenforceable, that part may be severed and the remaining portions of these Terms and Conditions will remain in full force and effect.
If we do not exercise or delay in exercising any rights to enforce performance of any of your obligations under the Terms and Conditions, it is not a waiver of our right:
(a)to insist on performance of, or claim damages for breach of, that obligation unless we acknowledge in writing that we have waived our rights; and
(b)at any other time to require performance of that or any other obligation under the Terms and Conditions.
These Terms and Conditions will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
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