If the Advertiser, User and Purchaser do not agree to be bound by these Terms and Conditions, they may not enter the Website; they must exit the Website immediately and they may not use or access the Website or print or download any materials from it.
I. WHO WE ARE
Laura Rust, trading as Own Your Day Weddings [ABN: 3213 653 0723] (“OYDW”) provides:
(a) A membership directory services for Australian Wedding Vendors (‘the Services’); and
(b) Where offered, the sale of wedding related products (‘the Goods’)
These terms and conditions outline the rights and responsibilities of each party in the use of the Services, and the purchase of the Goods provided by OYDW. By using the OYDW Services and purchasing Goods, and thereby accepting the OYDW Terms and Conditions, you also agree to abide by these terms and conditions as modified from time to time.
There are three parts to these terms and conditions:
(1) Those that relate to the Services of advertising on the membership directory;
(2) Those that relate to the Services allowing you to use the membership directory to search for a suitable wedding supplier;
(3) Those that relate to the purchase of the Goods on this Website.
By viewing this Website, obtaining the Services, or purchasing the Goods from our website, you agree to be bound by these Terms and Conditions (as amended from time to time by OYDW, at its sole discretion and without the requirement of any notice to the Advertiser, User or Purchaser).
To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing and you acknowledge that you have not relied on any state, promise or representation or assurance or warranty that is not set out in the Terms and Conditions.
II. PART A OYDW DIRECTORY SERVICES – TERMS FOR THE ADVERTISER
General Terms for Advertisers
1. OYDW provides digital and online services to;
1.1 advertise Australian wedding vendors through directory services (‘the Advertiser’); and
1.2 assist engaged couples with wedding planning by providing guidance through the directory, a dedicated Facebook group, email marketing and social media (‘the Users’).
2. By the Advertiser submitting an advertisement with OYDW, the Advertiser acknowledges that:
2.1 they are over 18 years of age and will not imply that they are under the age of 18;
2.2 they are independent and not proprietors or employees of any other wedding services directory; and;
2.3 they are the legal owner of or have written permission to use any information and material (including photographs) submitted to and posted on the Website and no other third party has a right to such information and material;
3. The Advertiser agrees that if the Advertiser is found, in the opinion of OYDW acting reasonably, to:
3.1 be using the photos or advertising material of another person as their own; or
3.2 be a wedding services directory posing as an independent service provider; or
3.3 be sending another company in their place for any appointment; or
3.4 be using the Website to refer Users to any other wedding services directory or any other website (except the client’s own personal website); or
3.5 be using photographs, information and material not owned by them or which in OYDW’s opinion a third party has expressed a right over such photographs, information and material; or
3.6 have an interest in another website, business or venture that competes with the Website, the OYDW Services or OYDW; or
3.7 have breached any of these terms and conditions,
The Advertiser’s subscription may, in OYDW’s absolute discretion (in addition to all other rights and remedies open to it), be cancelled without refund (except as required at law) and the Advertiser’s profile will be immediately removed from the Website.
4. The Advertiser authorises and consents to OYDW publishing the Advertiser’s supplied photographs, multimedia and information on the Website, and any other website OYDW manages in order to promote the OYDW Services, including on any social media platform and grants OYDW a worldwide, royalty-free, non-exclusive, irrevocable licence to publish the photographs and information in any form or medium, including print, online or other. The Advertiser warrants that it is authorised to grant OYDW the licence in this clause.
5. Subject to clause 4 OYDW will publish images online in the manner they are received from the Advertiser, unless notified by the Advertiser in writing via email to do otherwise.
6. The Advertiser agrees it is their sole responsibility and not the responsibility of OYDW to ensure that and the Advertiser hereby warrants that:
6.1 their advertisement is compliant with all relevant Australian State, Territory and Federal laws and laws of any other country in which the Advertiser advertises, or provides, wedding services, including States, Territories and countries that the Advertiser is providing a service in, including but not limited to the:
6.1.1 Competition and Consumer Act 2010 (Cth);
6.1.2 Fair Trading Acts in all applicable States and Territories;
6.1.3 Privacy Act 1988 (Cth) including the Australian Privacy Principles;
6.1.4 Human Rights and Equal Opportunity Commission Act 1986 (Cth); and
6.1.5 all anti-discrimination and equal opportunity legislation applicable in the State or Territory in which the Advertiser does business.
6.2 they hold all consents, licences and approvals, necessary to lawfully advertise, and provide, wedding services in any place, whether inside or outside Australia, where they so advertise or provide such services.
and the Advertiser releases and indemnifies OYDW in this regard.
7. The Advertiser will not place a link to any other advertising portal or directory on the Website.
8. The Advertiser consents to receiving electronic communication from OYDW.
9. The advertising period will commence at the time and date agreed to by OYDW and the Advertiser.
10. OYDW may decide, in its absolute discretion, to allow the Advertiser to pause advertising. Any advertising fees which have been pre-paid may be held as a credit for use at a later date but these credits must be used within ninety (90) days of the pause being initiated. Any advertising credit not used within ninety (90) days will expire and (subject to applicable laws) no refund will be given.
11. The Advertiser is under no obligation or requirement to agree to these Terms and Conditions. In the event the Advertiser is unwilling or unable to agree with these Terms and Conditions, OYDW is unable to provide the OYDW Services and advertising services to the Advertiser.
12. The Advertiser advertises on the Website at their own risk.
13. OYDW provides the search for information services as part of the OYDW Services as a service to its Advertisers and Users. Whilst care is taken to avoid errors and omissions, inaccuracies may occur and OYDW cannot accept responsibility for such errors and omissions but invites Advertisers to inform it if any are discovered.
14. OYDW is not responsible for, and expressly disclaims all liability for, damages of any kind arising from transactions that are instigated because of the Advertiser advertising or using the Website.
15. Without limiting clause 15, OYDW will not be responsible for any monies lost by Advertisers in respect of transactions that are instigated because of such advertisements or use of the Website. OYDW recommends that Advertisers express caution when accepting any pre-payments or deposits from any Users.
16. In addition to the rights of OYDW under clause 3, OYDW reserves the right to terminate or cancel any advertising, without notice to the Advertiser and at OYDW’s sole and unfettered discretion, where:
16.1 a complaint about the Advertiser is received from any third party;
16.2 if a third party takes any action against OYDW for any act, omission or negligence on the part of the Advertiser;
16.3 if, in the reasonable view of OYDW, the Advertiser has engaged in deceptive or misleading advertising or conduct;
16.4 if, in the reasonable view of OYDW, the Advertiser is bringing OYDW or the Website into disrepute; or
16.5 if, in the reasonable view of OYDW, the Advertiser is working for or represents another wedding services directory.
Payment by the Advertisers
17. The Advertiser agrees to pay the Fees in the following manner for obtaining OYDW Services:
17.1 In order to access the Website, the Advertiser must pay the Fees shown in the member pages of the Website, once the Advertiser has registered on the Website as a member and logged on to the member’s area of the Website;
17.2 All Fees are due and payable in accordance with the requirements of each OYDW Services (as set out from time to time on the Website).
17.3 Payment methods for our Services are by our Third Party Payment Providers as a single transaction or automatic regular payment subscription (such as PayPal or Stripe).
17.4 Payment for Goods is to be in advance and through the Third Party Payment Provider. When paying for the Goods via a Third Party Payment Provider such as PayPal, you agree to be bound by any terms and conditions of that Third Party Payment Service in addition to this agreement. The Third Party Payment Service or your bank or other financial institution may require you to pay processing fees or other fees and charges. Any such fees and charges are your sole responsibility and are not included in the price of the Goods, or other paid services unless otherwise specified. We accept no responsibility for your use of any Third Party Payment Service.
18. Any refunds for Services will be made at the absolute discretion of OYDW, but in accordance with the relevant Australia Consumer Law;
19. Refunds will be processed promptly and payment made by direct deposit to the Advertiser’s nominated account. Refund payments may take up to seven (7) business days to be received.
20. In addition to all other rights and remedies available to it at law or equity or statute, OYDW may terminate the agreement with the Advertiser as set out in these Terms and Conditions at any time without notice.
21. In addition to all other rights and remedies available to it at law or equity or statute, upon termination:
I. OYDW will remove the Advertiser’s access to the Website; and
II. where applicable, the Advertiser must immediately pay OYDW any outstanding Fees that it owes OYDW.
22. The obligations of the Advertiser under any clause of these Terms and Conditions, survive the termination of this agreement.
23. Without affecting any of our other rights, we may suspend the performance of Services or terminate this Contract with immediate effect by giving written notice to you if:
I. you fail to pay any undisputed amount due under this Contract on the due date for payment;
II. you commit a material breach of any other term of this Contract and that breach is irremediable or (if that breach is remediable) you fail to remedy that breach within a period of 30 days after being notified to do so;
III. an insolvency event occurs in relation to you; or
IV. there is a change of control of your company without the consent of us, such consent not to be unreasonably withheld or delayed.
Goods and Services Tax
24. Unless stated otherwise all of the Fees are exclusive of GST.
25. Subject to clause 22, the Advertiser, when they initially sign up for the OYDW Services, will be automatically promoted via social media platforms (as selected by OYDW, at its sole discretion, from time to time). Such social media may include Instagram and Facebook.
26. The Advertiser agrees and understands that due to the nature of social media and the volume of posts, there may be old posts that remain in the timeline, and can be found in future by search engines.
27. If the Advertiser decides not to be promoted on social media in the future, or if the Advertiser’s OYDW advertising is terminated, the Advertiser agrees and understands that previous social media posts will remain online, and may not be able to be automatically deleted by OYDW.
28. If the Advertiser wishes to have previous social media posts deleted, the Advertiser must provide the direct links of all of these posts to OYDW. OYDW will not be responsible for any social media posts that are not removed. The Advertiser acknowledges that OYDW will not use any tools such as URL removal tools in this regard.
Third Party Search Engines
29. If the Advertiser’s subscription is cancelled, terminated or expires OYDW will remove the Advertiser’s content from the Website after the cancellation, termination or expiration.
30. The Advertiser acknowledges that notwithstanding the cancellation, termination or expiration of the Advertiser’s subscription the Advertiser’s content on the Website may still be viewable on the Website and third party search engines (notwithstanding its removal from the Website) and OYDW is not responsible for such content being visible and indexed by third party search engines. The Advertiser acknowledges that OYDW will not use any tools such as URL removal tools in this regard.
III. PART A OYDW DIRECTORY SERVICES – TERMS FOR THE USERS
Searching of Directory
31. The User searches and uses the Website at their own risk.
32. OYDW provides the search for information services as part of the OYDW Services as a service to its Advertisers and Users. Whilst care is taken to avoid errors and omissions, inaccuracies may occur and OYDW cannot accept responsibility for such errors and omissions but invites Users to inform it if any are discovered.
33. To the maximum extent permitted by law or statute, OYDW is not responsible for, and expressly disclaims all liability for, damages or loss of any kind arising from any form of use of the website including but not limited to use, reference to, or reliance on any advertisements contained on the Website or transactions that are instigated because of such advertisements or use of the Website.
34. The Website is a directory only and Users should satisfy themselves as to the accuracy of the advertisement and the legitimacy, suitability and qualification of the Advertiser.
35. Without limiting the above clauses, OYDW will not be responsible for any monies lost by Users in respect of transactions that are instigated because of such advertisements or use of the Website. OYDW recommends that Users express caution when making any pre-payments or deposits to any Advertisers.
36. The User consents to receiving electronic communication from OYDW.
Obligations of The User
37. The User acknowledges, covenants and warrants that:
a) they will not reproduce, adapt, upload or link to any of the material on the Website without the prior consent of OYDW.
b) they will comply with their obligations under these Terms and Conditions;
c) they will not interfere with or disrupt the access of other Users of the Website in any way;
d) it is their sole responsibility and not the responsibility of OYDW to ensure that they comply with all laws relevant to the engagement of wedding services in the place where they engage such services, whether inside or outside Australia; and
e) they release and discharge OYDW from all liability for damages or loss of any kind arising out of use, reference to, or reliance on any advertisements contained on the Website or transactions that are instigated because of such advertisements or use of the Website.
IV. GENERAL TERMS FOR ADVERTISERS AND USERS
Representations, Warranties and Negative Warranties
38. The Advertiser and the User acknowledge and agree that OYDW has not made any representation or given any warranties:
I. in relation to the Website; or
II. the OYDW Services.
39. The Advertiser and the User and any other third party acknowledge that OYDW is not responsible in any way for any actions, omissions or negligence on the part of any Advertiser and Users of the Website and that any contract formed between Advertisers and Users as a direct or indirect result of the provision of OYDW Services, is solely and wholly between the Advertiser and User and not, under any circumstances, with OYDW.
40. OYDW will use its reasonable endeavours to protect all private information of the Advertiser and Users of the Website.
41. Advertisers and Users acknowledge and agree that data transmission over the internet cannot be guaranteed as totally secure. Whilst OYDW will use its reasonable endeavours to protect such information, OYDW does not warrant and cannot ensure the security of any information which is transmitted to OYDW. Accordingly, any information which an Advertiser or User transmits to OYDW is transmitted at their own risk, including (without limitation) private email addresses, personal information and images. OYDW takes reasonable steps to preserve the security of such information and images, but will not be held responsible if the information or images become public, under any circumstances.
42. OYDW gives no warranty as to accuracy, suitability or functionality of the Website or the OYDW Services. The Advertiser and User acknowledge that from time to time there may be faults, defects and errors with the Website and they must not hold OYDW responsible in this regard. If they become aware of such faults, defects or errors they must inform OYDW.
Liability, Indemnity and Release for Provision of Services
43. To the extent permitted by law, OYDW (including its respective officers, employees, sub-contractors and agents) is not responsible or liable whatsoever for:
43.1 cancellation, modification, suspension or delay of the OYDW Services;
43.2 the unavailability or inaccessibility of the OYDW Services and Website for any reason;
43.3 any loss suffered or sustained to a person or property, including but not limited to consequential (including economic) loss, by reason of any act or omission, deliberate or negligent by OYDW or its servants or agents in connection with the OYDW Services, the Website and any person agreeing to these Terms and Conditions;
43.4 The Advertiser and the User indemnify and keep indemnified OYDW, its officers, employees, sub-contractors and agents on demand against any loss, expense, cost, damage, claim, demand, suit, action, proceeding, judgment, order of a court or tribunal, legal costs (including but not limited to its own legal costs on a solicitor and own client basis) which OYDW pays, suffers or incurs or is liable for in respect of:
i. any negligent act or omission of the Advertiser or User, including (without limitation), sharing their username and password with any other third parties;
ii. any act or omission of the Advertiser or User which is intended to cause damage in any way to OYDW knowingly or unknowingly;
iii. any breach of these Terms and Conditions;
iv. the failure to comply with these Terms and Conditions; and
v. OYDW doing anything which the Advertiser or User must do under these Terms and Conditions but has not done or which OYDW considers has not done properly.
43.5 The Advertiser and the User release OYDW from, and agree that OYDW is not liable for any loss, expense, cost, damage, claim, demand, suit, action, proceeding, judgment, order of a court or tribunal or legal costs (on a solicitor and own client basis), arising from anything OYDW is permitted or required to do under these Terms and Conditions.
43.6 Advertisers and Users acknowledge and accept that they assume all responsibility and liability for the Risks, and release OYDW from, and indemnify OYDW against, any loss, expense, cost, damage, claim, demand, suit, action, proceeding, judgment, order of a court or tribunal or legal costs (including but not limited to its own legal costs on a solicitor and own client basis), arising from the Risks.
43.7 Subject to Clause 40.5 and 40.6, if OYDW is found to be liable its liability is limited to the maximum extent permitted by law or statute, the aggregate liability of OYDW to the Advertiser or User or any other party who may have a claim against OYDW in respect of the Website and/or OYDW Services, whether in contract, tort (including negligence) or otherwise, shall be limited to the price paid by the Advertiser or User (if any) for the OYDW Services or the cost of their re-supply, whichever OYDW elects in its absolute discretion and for a period of 30 days from the event which gave rise to such liability.
OYWD PROVISION FOR THE PURCHASE OF GOODS
44. By ordering, purchasing and obtaining the Goods from our website, you agree to be bound by these Terms and Conditions (as amended from time to time by OYDW, at its sole discretion and without the requirement of any notice to the Purchaser). To the extent permitted by law, no other terms are implied by trade, custom, practice or course of dealing and you acknowledge that you have not relied on any state, promise or representation or assurance or warranty that is not set out in the Terms and Conditions.
45. Any descriptions or illustrations on our site are published for the sole purpose of giving an approximate idea of the Goods described in them;
46. OYDW will supply the Goods to you in accordance with the specifications for the Goods appearing on our website at the date of your order in all material respects;
47. OYDW warrant to you that the Goods will be provided using reasonably care and skill;
48. OYDW will use all reasonable endeavours to meet any performance dates specified in the Order Confirmation, but any such dates are estimates only and failure to perform.
49. The Purchaser of Goods acknowledges, covenants and warrants that:
b. the terms of the order are complete and accurate;
c. they will cooperate with OYDW in all matters relating to the Goods; and
d. they will provide us with such information and materials we may reasonably require in order to supply the Goods, and ensure that such information is complete and accurate in all material respects.
50. Subject to the requirements of any applicable laws, for the sale of Goods:
i. If you cancel the purchase of the Goods, we will refund you in full for the price you paid for the Goods, by the method you used for payment. Refunds outside of the notice period of 24 hours will be entirely at our sole discretion.
ii. Once the Goods are received, in the unlikely event that a product is faulty or damaged in transit simply follow the steps below so any problems can be handled promptly by our team;
iii. All goods must be inspected within 24 hours of delivery. Any claims for damage or quality issues must be raised during this time, claims will not be accepted beyond 24 hours of the goods being delivered;
iv. Notification of any defect or damage must be provided to us within 24 hours of receipt of the Goods. That notification must include details of the nature of the quality issue, flaw or damage to the Goods and include digital photographic evidence. Claims will not be expected beyond 24 hours of the goods being delivered.
v. Notification to OYDW must be made in writing to firstname.lastname@example.org or 7 Lorrean Avenue, Brighton East VIC 3187
vi. Provided the returns process is followed, we will at our discretion either refund the purchase price in full or replace the Goods as soon as reasonably possible.
vii. We implore that you choose your items carefully as Goods may not be returned due to a “change of mind”, we do not issue refunds or exchanges. We provide photos, detailed descriptions and measurements for each item so that you can make an informed decision about whether you would like to purchase the product. We strongly suggest that you measure the area in which the item is to be placed to ensure that it fits. Only faulty or damaged goods may be returned and are subject to authorisation at our discretion.
viii. We will not accept returns nor any liability for repair, exchange or refund in respect of defects or damage caused in whole or in part by misuse, abuse, neglect, accident or failure to follow product warning or care information.
ix. If you have purchased the Goods using a Third Party Payment Provider, and that provider offers a return shipping cost option, the terms and conditions relating to that shall apply, except in circumstances where those terms are inconsistent with these terms
Liability, Indemnity and Release for Provision of Goods
51. Nothing in these Terms and Conditions limits or excludes our liability:
A. for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
B. for fraud or fraudulent misrepresentation by it or its employees, as applicable; or
C. where liability cannot be limited or excluded by applicable law.
52. Subject to clause 52, OYDW will not be liable to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Contract.
53. Subject to clause 52, our maximum aggregate liability to you for any loss or damage or injury arising out of or in connection with he supply of Goods under this Contract, including any breach by us of this Contract however arising, under any indemnity, in tory (including negligence), under any statute, custom, law or on any other basis, is limited to the amount paid by you for the Goods.
54. Nothing in this Contract is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth), or the exercise of a right conferred by such a provision, or liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of Goods.
55. If OYDW are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option, is the value of the Goods or the payment of the cost of the resupply.
56. Clause 52 to 57 will survive termination of the Contract.
GENERAL TERMS FOR ADVERTISERS, USERS AND PURCHASERS
A. OYDW may at any time assign all or any of its rights and liabilities arising under these Terms and Conditions;
B. The Advertiser is not entitled to assign or purport to assign any of its rights or liabilities under these Terms and Conditions without the prior written consent of OYDW (which consent may be given or withheld or given subject to conditions in OYDW’s absolute discretion).
58. Unforeseen circumstances
A. OYDW will not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fibre cuts; strikes, or shortages in transportation, facilities, fuel, energy, labour or materials; failure of the telecommunications or information services infrastructure, hacking, SPAM, or any failure of a computer, server or software, including errors or omissions, for so long as such event continues to delay the Websites performance.
B. OYDW will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (‘Event Outside our Control’)
C. If an Event Outside Our Control take place that affects the performance of our obligations under the Contract:
I. We will contact you as soon as reasonably possible to notify you; and
II. Our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. We will arrange a new date for performance of the Goods with you after the Event Outside Our Control is over.
If a provision of these Terms and Conditions is held to be invalid or unenforceable in whole or in part, the provision is ineffective only to the extent of the invalidity or unenforceability and the validity or enforceability of all other provisions of these Terms and Conditions is not affected.
A party may validly give a notice to another party only by:
a. personally serving the notice on the other party (the notice is treated as received at the time of service of the notice);
b. leaving the notice at the address of the party as specified in these Terms and Conditions or as otherwise notified in writing by that party to the sending party at any time (the notice is treated as received at the time the notice is left at the relevant address);
c. posting the notice by prepaid post to the address of that party as specified in these Terms and Conditions or as otherwise notified in writing by that party to the sending party from time to time (the notice is treated as received 5 days after the date on which it is posted);
d. emailing the notice to the email address of the other party and the email will be deemed to have been received within 24 hours of the time that the email is sent and the sender receiving notification of the successful delivery of the email transmission; or
e. sending the notice by facsimile, without transmission error (the notice is treated as received on production of a “successful transmission” notice) to the facsimile number of the party.
61. Governing law and jurisdiction
These Terms and Conditions are governed by, and must be construed in accordance with, the laws of the State of Victoria in the Commonwealth of Australia and the Advertiser, User and OYDW irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria or of the Commonwealth of Australia and the courts of appeal from them.
Waiver of a breach of, or default under, these Terms and Conditions or of any right, power, authority, discretion or remedy created or arising upon a breach of, or default under, these Terms and Conditions:
a. is not waived by any failure to exercise or delay in exercising or partial exercise of any right, power, authority, discretion or remedy under these Terms and Conditions; and
b. must be in writing and signed by the party granting the waiver.
OYDW may amend these Terms and Conditions at any time and the Advertiser and the User agree to be bound by the Terms and Conditions as amended.
Updated: 10 April 2020
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