Terms and Conditions – Easytow
These Terms are between you and Easytow Boat Trailers Pty Ltd ACN 114 897 086 (referred to as We, Our or Us).
Your Acceptance These are the terms on which We permit Users (referred to as You or Your) to:
(a) access and use Our Website including using the services and functionality made available through the Website;
(b) place an Order through our Online Store;
(c) view and interact with any Content; and
(d) communicate with Us.
You agree to be bound by these Terms when You use, browse or access any part of the Website.
The Website is subject to change at any time without notice and may contain errors. We may from time to time review and update these Terms including to take account of new Laws, products or technology. Your use of the Website will be governed by the most recent Terms posted on the Website. By continuing to use the Website, You agree to be bound by the most recent Terms.
The Australian Consumer Law
Australian consumers and businesses have certain rights under the Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth) (ACL). The terms of this Agreement are not intended to affect your rights as an Australian consumer under the ACL.
1. Definitions and Interpretation
1.1 Definitions
ACL means Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.
Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award or loss, whether based in contract, civil, common law, tort (including negligence) or statute and whether involving a Party, Third Party or otherwise.
Confidential Information means:
(a) Information that at the time of disclosure by a Disclosing Party is identified to the Receiving Party as being confidential; and
(b) all other Information belonging or relating to a Disclosing Party, or any Related Entity of that Disclosing Party, that is not generally available to the public at the time of disclosure other than by reason of a breach of these Terms or which the Receiving Party knows, or ought reasonably to be expected to know, is confidential to that Disclosing Party or any Related Entity of that Disclosing Party.
Disclosing Party means the Party to whom Information belongs or relates.
Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute in the relevant jurisdiction. Information means any information, whether oral, graphic, electronic, written or in any other form, including:
(a) forms, memoranda, letters, specifications, processes, procedures, statements, formulae, technology, inventions, trade secrets, research and development information, know-how, designs, plans, photographs, microfiche, business records, notes, accounting procedures or financial information, sales and marketing information, names and details of customers, suppliers and agents, employee details, reports, drawings and data;
(b) copies and extracts made of or from that information and data, whether translated from the original form, recompiled, partially copied, modified, updated or otherwise altered; and
(c) samples or specimens disclosed by either Party.
Intellectual Property Rights means all present and future intellectual and industrial property rights conferred by statute, at common law or in equity and wherever existing, including:
(a) patents, inventions, designs, copyright, trade marks, brand names, product names, domain names, database rights, rights in circuit layouts, plant breeder’s rights, know how, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(b) any application or right to apply for registration of any of these rights;
(c) any registration of any of those rights or any registration of any application referred to in paragraph (b); and
(d) all renewals, divisions and extensions of these rights.
Law means:
(a) principles of law or equity established by decisions of courts;
(b) statutes, regulations or by-laws of the Commonwealth of Australia, or any State or Territory of the Commonwealth of Australia or a Government Agency; and
(c) requirements and approvals (including conditions) of the Commonwealth of Australia or any State or Territory of the Commonwealth of Australia or a Government Agency that has the force of law.
Loss means any loss, damage, cost or expense.
Online Store means the online store available on our Website.
Order means an order for products or services (including spare parts and all other products and services offered for sale through the Website).
Party means You or Us.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form, electronic form or otherwise, about an identified individual or an individual who is reasonably identifiable, and includes anything that is defined as personal information or as sensitive information in the relevant Privacy Laws.
Privacy Law means any applicable Law, statute, regulation, ordinance, code, standard or requirements of any government, governmental or semi-governmental body which relates to privacy or health information, including without limitation the Privacy Act 1988 (Cth) and the Australian Privacy Principles under that Act, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth), and any Australian (including State or Territory) legislation from time to time in force which relates to or affects privacy rights or Personal Information.
Receiving Party means the Party to whom Information is disclosed or who possesses or otherwise acquires Information belonging or relating to a Disclosing Party.
Related Entity has the meaning given to that term in the Corporations Act 2001 (Cth). Content means content, information, communications, advice, text or other material provided by Us or Our Related Entities on or in connection with the Website.
Terms means these agreed terms.
Third Party means any party other than Us or You.
User means any person who accesses and uses the Website or Content.
Website means https://easytow.com.au/.
1.2 Interpretation
In these Terms, unless the context requires otherwise:
(a) the singular includes the plural and vice versa;
(b) a gender includes the other genders;
(c) the headings are used for convenience only and do not affect the interpretation of these Terms;
(d) other grammatical forms of defined words or expressions have corresponding meanings;
(e) a reference to a document includes the document as modified from time to time and any document replacing it;
(f) a reference to a party is to a party to these Terms and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
(g) if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
(h) the word “person” includes a natural person, partnership, body corporate, association, governmental or local authority, agency and any other body or entity whether incorporated or not;
(i) the word “month” means calendar month and the word “year” means 12 months;
(j) the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(k) a reference to a thing includes a part of that thing;
(l) a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time;
(m) wherever “include”, “for example” or any form of those words or similar expressions is used, it must be construed as if it were followed by “(without being limited to)”;
(n) money amounts are stated in Australian currency unless otherwise specified;
(o) a reference to time is to Melbourne, Australia time;
(p) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body that performs most closely the functions of the defunct body;
(q) any agreement, representation, warranty or indemnity in favour of two or more parties (whether those parties are included in the same defined term or not) is for the benefit of them jointly and severally; and
(r) any agreement, representation, warranty or indemnity by two or more parties (whether those parties are included in the same defined term or not) binds them jointly and severally.
2. Content
2.1 The Website is owned and operated by Us or on Our behalf.
2.2 All Intellectual Property Rights, including copyright, in the Website and Content are owned or licensed by Us or Our Related Entities. You must not copy, modify or transmit any part of the Website or Content.
2.3 The Website and Content may also contain Our, or Our Related Entities’, trade marks, logos and trade names, which may be registered or otherwise protected by Law. You are not permitted to use any trade marks, logos or trade names appearing on the Website or Content.
2.4 We grant You a non-exclusive and non-transferable licence to use the Website and Content for Your own personal use, subject to the restrictions specified elsewhere in these Terms. It is not to be otherwise used for commercial exploitation.
2.5 If You have a complaint regarding any Content, Our sole obligation will be to review any written complaint notified to Us and, if We see fit, in Our sole discretion, to modify or remove the particular Content.
3. Payments
3.1 Payment for an Order is made online on our Online Store (Online Payment).
3.2 Upon Online Payment, your Order will be delivered to You using a delivery service selected by Us.
3.3 Unless stated otherwise, charges for delivery of products apply in addition to the price for the products.
3.4 We may use third party payment processors to provide the payment services for the Website. For more information on their privacy and security processes, please visit their respective websites.
3.5 We accept Online Payment via Our payment processors using the payment methods from time to time offered when You check out Your Order through Our Online Store.
3.6 For payments made by credit card, the credit card holder must be either the billing or shipping recipient.
3.7 If You choose to pay by credit card, You authorise Us to debit the amount that is payable for an accepted Order from Your nominated credit card account.
3.8 If We are unable to successfully process Your credit card or other payment method for Your Order that is accepted by Us, then We may cancel Your Order.
3.9 You must not pay, or attempt to pay, for Orders through any fraudulent or unlawful means.
3.10 We will provide You with a receipt at time of confirmation of the Order (in respect of Online Payments) which specifies the total fees and charges for the products and services in Your Order.
3.11 Any additional terms and conditions of supply for any products or services purchased via the Website will be notified to You via the Online Store before You finalise Your Order. Your confirmation of any Order indicates Your acceptance of those terms and conditions of supply, which will upon confirmation of the Order be incorporated into these Terms in respect of that Order.
3.12 In this clause, the expressions Consideration and GST have the meanings given to those expressions in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
3.13 All prices or other sums payable or Consideration to be provided under or in accordance with this Agreement are shown on the Website inclusive of GST.
4. Availability
4.1 All purchases are subject to availability. From time to time, some products may be out of stock. Where You have paid for an Order for which we are out of stock of one or more of the items in Your Order, We may cancel part or all of Your Order. In such case, We will notify You on the contact details attached to Your Order and will refund all amounts paid with respect to the cancelled parts of the Order (including delivery fees where all of the Order is cancelled) to the account from which payment was made.
5. Title and Risk
5.1 Except where an item is out of stock, Title in the products passes to You on payment in full by You to Us for the products in accordance with clause 3.
5.2 Risk in the products passes to You on delivery dispatch.
5.3 Scheduled delivery times are estimates only and We are not liable for late or non-delivery or any loss, damage or delay experienced by You as a result of late or non-delivery of the products.
6. Returns
6.1 In addition to Your rights under ACL, You may, by written notice to Us, reject any products which are, at the time of delivery, damaged or defective or which fail to comply with Your purchase order.
6.2 Within 2 Business Days after receiving a notice under clause 6.1 above, We may give written notice objecting to any rejection of products, in which case the matter must be resolved by expert determination. If We do not give notice under this clause 6.2 within 2 Business Days, We will be deemed to have accepted the rejection.
6.3 Without limiting Your other rights and remedies under these Terms, if products are rejected and We accept the rejection of any products, or an expert determines that the rejection complied with these Terms, then at Your option and request, We must:
(a) refund to You any payments made by You in respect of any rejected products and collect the rejected products within a reasonable time. If We do not collect the rejected products within a reasonable time, You may return the rejected products to Us at Our cost; or
(b) make good free of charge any rejected products.
7. Access and Communication
7.1 Subject to the consumer guarantees provided for in the ACL, We do not warrant that You will have continuous access to the Content or the Website.
7.2 We will not be liable if the Content or Website is unavailable to You due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities, interruption in telecommunications supply or otherwise.
7.3 We do not guarantee the delivery or security of communications over the internet as such communications rely on Third Party service providers, and electronic communication (including electronic mail) is vulnerable to interception by Third Parties.
7.4 We do not provide, and have no control over, communications, networks or services, the internet or other technology required or used across the Website and accept no responsibility for any direct or indirect Loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.
8. Prohibited Uses
8.1 You agree that in accessing and using the Website and Content, You will not engage or attempt to engage in any activities that:
(a) download (other than page caching), transmit, copy, store, reformat or otherwise modify any element of the Website or Content;
(b) are commercial, including selling, modifying, displaying, distributing or otherwise using any Content, in whole or in part, for any public or commercial purpose without Our prior written consent, marketing, advertising or promoting goods or services, collecting and using any product lists or pricing for the benefit of other merchants, or re-selling, sublicensing or translating the Website or Content, except if expressly permitted by these Terms;
(c) frame the Website or the Content without Our express written consent;
(d) deletes or alters or attempts to delete or alter attributions, legal notices, trademarks or copyright marks on any material contained in the Website or Content;
(e) use the Website or Content in a manner which is unlawful or would infringe the rights of another person, including any Intellectual Property Rights.
8.2 You also agree that in accessing and using the Website and any Content, You will not engage or attempt to engage in any activities that:
(a) damage or disparage Our reputation, or that of Our Related Entities, suppliers or advertisers;
(b) interfere with or disrupt any other third parties (including other users of the Website), equipment, functions, features, or the Website;
(c) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Website;
(d) involve the unauthorised use of any machine or network, denial of service attacks, falsification of header information or user identification information, monitoring or scanning the networks of others;
(e) disrupt, impair, alter or otherwise interfere with the functions, features, Content or the Website;
(f) improperly display any “TCP/IP packet header” or part of the header information in any email or other postings;
(g) express or imply that statements You make are endorsed by Us, without Our prior written consent;
(h) modify, adapt, decompile, reverse engineer, disassemble or otherwise reduce the Website to a human-perceivable form;
(i) remove any copyright, trademark or other proprietary rights notices contained in the Website or Content;
(j) harvest or collect information about the Website or Content users without their express consent; and
(k) use any meta-tags or any other “hidden text” utilising Our name or Content without Our express written permission.
9. Links and advertisements
9.1 The Website may contain links to other websites. We have not reviewed all of the Third Party websites linked on the Website and are not responsible for and will not be liable in respect of their content or accuracy (including websites linked through advertisements). We provide those links as a ready reference for searching for Third Party goods and services on the internet and not as an endorsement, support or sponsorship of those websites, their operators, the goods, services or content that they describe.
9.2 Facebook, Twitter, Instagram, YouTube and other Third Party websites which are linked to the Website, are not covered by these Terms, and may have their own terms and conditions and privacy policy. If You choose to access these Third Party linked sites, You do so at Your own risk. We are not responsible for and will not be liable in respect of the content or operation of those websites or any of the goods, services or content that they describe.
10. Confidentiality
10.1 Obligations of confidentiality
Subject to clauses 10.2 and 10.3, the Receiving Party must:
(a) keep the Confidential Information confidential and not directly or indirectly disclose, divulge or communicate any Confidential Information to, or otherwise place any Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
(b) take all reasonable steps to secure and keep secure all Confidential Information coming into its possession or control;
(c) only use the Confidential Information for the purposes of performing, and to the extent necessary to perform, its obligations under these Terms;
(d) not memorise, modify, reverse engineer or make copies, notes or records of the Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under these Terms; and
(e) take all reasonable steps to ensure that any person to whom the Receiving Party is permitted to disclose Confidential Information under clause 10.2 complies at all times with the terms of this clause 10 as if that person were a Receiving Party.
10.2 Exceptions
The obligations of confidentiality under clause 10.1 do not apply to:
(a) any Confidential Information that:
(i) is disclosed to the Receiving Party by a Third Party entitled to do so, whether before or after the date of these Terms;
(ii) was already lawfully in the Receiving Party’s possession when it was given to the Receiving Party and was not otherwise acquired from the Disclosing Party directly or indirectly; or
(iii) is generally available to the public at the date of these Terms or subsequently becomes so available other than by reason of a breach of these Terms; or
(b) any disclosure of Confidential Information by the Receiving Party that is necessary to comply with any court order or applicable Law if, to the extent practicable and as soon as reasonably possible, the Receiving Party:
(i) notifies the Disclosing Party of the proposed disclosure;
(ii) consults with the Disclosing Party as to its content; and
(iii) uses reasonable endeavours to comply with any reasonable request by the Disclosing Party concerning the proposed disclosure.
10.3 Authorised disclosure
(a) A Receiving Party may disclose Confidential Information to any Related Entity, employee, agent, contractor, officer, professional adviser, banker, auditor or other consultant of the Receiving Party (each a Recipient) only if the disclosure is made to the Recipient strictly on a “need to know basis” and, prior to the disclosure:
(i) the Receiving Party notifies the Recipient of the confidential nature of the Confidential Information to be disclosed; and
(ii) the Recipient undertakes to the Receiving Party (for the benefit of the Disclosing Party) to be bound by the obligations in this clause 10 as if the Recipient were a Receiving Party in relation to the Confidential Information to be disclosed to the Recipient.
(b) The Receiving Party is liable for any breach of this clause 10 by a Recipient as if the Recipient were a Receiving Party in relation to the Confidential Information disclosed to the Recipient.
10.4 Breach of Confidence
Each Party must promptly notify the other Party if it becomes aware of any unauthorised access, use or disclosure of all or any part of the Confidential Information and must give that other Party all reasonable assistance in connection with any claim which it may institute in connection with that unauthorised access, use or disclosure.
10.5 Return or destruction of Confidential Information
Immediately on the written request of the Disclosing Party, a Receiving Party must:
(a) cease the use of all Confidential Information of or relating to the Disclosing Party (or any Related Entity of the Disclosing Party);
(b) deliver to the Disclosing Party all documents and other materials in its possession or control containing, recording or constituting that Confidential Information or, at the option of the Disclosing Party, destroy, and certify to the Disclosing Party that it has destroyed, those documents and materials; and
(c) upon delivery of the Confidential Information under clause 10.5(b), permanently delete that Confidential Information from all electronic media on which it is stored, so that it cannot be restored.
11. Warranties, Consumer Guarantees and Limitation of Liability
11.1 We have used our best endeavours to ensure all information, graphics, audio and video and other items appearing on the Website and in the Content are correct and up-to-date at the time of publication. We do not represent or warrant the accuracy or completeness of the Content or that the Website or Content are free from any errors, omissions or defects.
11.2 Subject to clause
11.3, any representation, warranty, condition, guarantee or undertaking that would be implied in these Terms by Law, trade, custom or usage is excluded to the maximum extent permitted by Law. 11.3 Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on You by the ACL or any other applicable Law that cannot be excluded, restricted or modified by agreement.
11.4 To the fullest extent permitted by Law, Our liability for a breach of a non-excludable guarantee referred to in the clause 11.3 is limited to:
(a) in the case of goods supplied or offered by us, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services supplied or offered by us:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11.5 Subject to clause 11.3, We are not liable to You for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation or loss of revenue (irrespective of whether the loss or damage is caused by or relates to breach of contract, tort (including negligence), statute or otherwise) arising out of or in connection with the products supplied to You under an Order you have made, the Website, the Content or all links to or from the Website.
11.6 Subject to this clause 11, Our maximum aggregate liability for all proven Losses and Claims arising out of or in connection with these Terms or the use of the Website products supplied to You under an Order you have made, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to: (a) where the liability relates to products or services under an Order you have made, the total fees paid by You to Us under that Order; and (b) in all other cases, the sum of $100.
12. Indemnity
You agree and acknowledge that You will fully indemnify Us in respect of all Loss, damages, costs and expenses (including legal fees on a full indemnity basis), fines, penalties, Claims, demands and proceedings however arising, whether at common law (including negligence) or under statute, in connection with:
(a) any breach of these Terms by You;
(b) Your use of the Website or Content, including any wrongful, wilful or negligent act or omission;
(c) Your communications with Us; or
(d) Your use of Third Party websites linked to the Website,
except to the extent caused or contributed to by Our breach of these Terms, Our negligence or wilful misconduct, or Our breach of Law.
13. Termination of Your access to the Website
13.1 We may at any time immediately terminate Your access (including restricting access) to the Website or any feature of the Website, and any Content, for any reason (including due to Your breach or alleged breach of these Terms) in our sole discretion and without prior notice.
13.2 This paragraph 13 and paragraphs 2.1 to 2.3, 5, 6, 10, 11 and 15 will survive termination of Your access to the Website in accordance with paragraph 13.1 and will continue to Our benefit and be enforceable by Us.
14. International Use
We make no representation or warranty that any competition, offering or content accessible through the Website is appropriate or available for use in locations outside Australia. We do not, at this stage, offer to sell or deliver goods outside Australia. If You choose to access the Website from other locations, You do so at Your own risk and are responsible for compliance with all applicable laws. You are not authorised to access the Website from any location where doing so would be illegal.
15. General
15.1 No adverse construction
These Terms, and any provision of these Terms, are not to be construed to the disadvantage of a Party because that Party was responsible for its preparation.
15.2 No waiver
(a) A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on the Party by these terms does not operate as a waiver of that power or right.
(b) A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these terms.
(c) A waiver of a breach does not operate as a waiver of any other breach.
15.3 Severability
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
15.4 Successors and assigns These Terms bind and benefit the Parties and their respective successors and permitted assigns under clause 15.5.
15.5 No assignment
You cannot assign or otherwise transfer the benefit of these Terms without Our prior written consent. We are permitted to assign or otherwise transfer the benefit of these Terms without Your prior consent.
15.6 Communication and Notice
You consent to Us contacting You by electronic means including through email.
15.7 Governing Law and jurisdiction
These Terms are governed by and must be construed in accordance with the Laws in force in the State of Victoria, Australia. The Parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, its performance or subject matter.
15.8 Operation of indemnities
Unless these terms expressly provide otherwise:
(a) each indemnity in these Terms survives the expiry or termination of these Terms; and
(b) a Party may recover a payment under an indemnity in these terms before it makes the payment in respect of which the indemnity is given.