KNOBBY PTY LTD TERMS OF SERVICE
Last updated on February 22, 2017.
This Services Agreement (the “Agreement”) contains the complete terms and conditions which governs your use of the Site, the Products Sold and Memberships provided by Knobby (the “Services”).
1.1 In this Agreement –
(a) ‘Agreement’ means these Terms and Conditions.
(b) ‘Confidential Information’ means any information or documents disclosed or provided by a party to the other to enable the other party to comply with their obligations contained in the Agreement.
(c) ‘GST’ means the goods or services tax within the meaning of A New Tax System (Goods and Services Tax) Act 1999.
(d) ‘Intellectual property rights’ means all present and future rights conferred by statute, common law or equity which attaches to the Product including any copyright, trademarks, designs, patents, circuit layouts, business and domain names.
(e) ‘Knobby’ means Knobby Pty. Ltd. ACN 600 489 236 trading as Knobby.
(f) ‘Memberships’ means you join up to the Site as a member to receive the Product.
(g) ‘Parent / Legal Guardian’ means you are over 18 years of age and caring for a child who is under 18 years of age.
(h) ‘Personal Information’ means all personal information (as defined in the Privacy Act)) relating to the Customer, including all personal information set out in this Agreement and otherwise disclosed by the Customer to Knobby whether prior to or after the date of this Agreement.
(i) ‘Privacy Act’ means the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) and any regulations or other instrument made or issued under that Act, as amended from time to time.
(j) ‘the Customer (also known as You and Your)’ means the person entering into the Agreement with Knobby.
(k) ‘Payment/s’ means the amount you pay for the Product and is made by way of the payment system based in the United States of America and the payment gateway named Braintree.
(l) ‘the Price’ means the pricing for Products and Memberships (including any applicable shipping and handling fees) located on Knobby’s pricing page located at the URL http://www.knobbyunderwear.com.au/get-started (In Australian Dollars only).
(m) ‘the Product/s’ means customised male underwear.
(n) ‘the Site’ means Knobby’s website at the URL http://www.knobbyunderwear.com.au.
2.1 Knobby sells the Product to Customers.
2.2 The parties agree that Knobby will supply the Customer with the Product for the Prices outlined on the Site.
2.3 The Customer agrees to Knobby’s Payment systems beings based in the United States of America and governed by the laws of this country.
2.4 The Product will be delivered each month thereafter from the date the Customer signs up for a Membership and pays the Price.
2.5 Your first order will be shipped within 10 business days of your first purchase and then thereafter within five business days of each month. Shipping dates are estimates only. All shipments are sent via the Australian Postal Service.
2.6 Knobby is not required to but will provide support to the Customer in respect of issues relating to the Site such as non-functioning of facilities linked with the Customer’s membership and any faults with making payment of the Price.
3. CUSTOMERS OBLIGATIONS
3.1 The Customer must not distribute, electronically transmit or display the Product or Memberships supplied by Knobby, or by a third party, to a third party which;
(a) violate any state, federal or foreign laws or regulations;
(b) infringe on any intellectual property rights (e.g. copyright, trademark, patent or other proprietary rights) of Knobby or any third party; or
3.2 The Customer must not use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or content.
3.3 The Customer must not use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site.
3.5 The customer must be at least 18 years of age to sign up for a membership on the Site. If the customer is under 18 years of age, they confirm that they are using the Site, entering into Memberships and purchasing the Products with the consent of their Parent/ Legal Guardian.
3.6 Customers agree to provide accurate, current, and complete information as required for the purchase of the Product. Knobby reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data.
3.7 You must not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable.
4. THE PRICE
The Price is on the Site when you sign up for a Membership and unless otherwise stated, all prices quoted are in Australian dollars and inclusive of GST.
4.1 Knobby will debit the customers’ credit card each month for payment of the Price.
4.2 The Product will not be sent until Knobby receives payment of the Price in full in clear funds.
4.3 Unless this agreement is lawfully terminated, Knobby will continue to debit your credit card on the same day of each month.
4.4 Knobby reserves the right to change prices for Products and Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases unless you have already submitted payment for a monthly service or paid for a specific purchase, in which case there will be no change or alteration in pricing.
5.1 The Customer is responsible for maintaining the confidentiality of their password, You agree not to share your passwords or let anyone else access your passwords that might jeopardise the security of your passwords.
5.2 You agree to notify Knobby if there is any unauthorised use of your password on this Site or if you know of any other breach of security in relation to this Site.
6. INTELLECTUAL PROPERTY
6.1 The Customer is entitled to use the Product created by Knobby for the purpose for which it was created only. All Intellectual Property Rights with respect to the Product remain with Knobby. The Customer must not use the Product or any other goods supplied by Knobby for different purposes other than those specified in the Agreement.
6.2 Once the Price is paid in full and the Customer has completed all of its obligations under this Agreement Knobby grants to the Customer the right to use the Product as set out in the Price. The Customer may not –
(a) make any other use of the Product or design work; or
(b) sell or resell the Product, the artwork or design work, without the written consent of Knobby.
7. WARRANTIES AND LIABILITY
7.2 The “Law” means
7.2.2 If the Customer is a consumer within the meaning of the Competition and Consumer Act 2010 (“CCA”)including the Australian Consumer Law, being Schedule 2 of the CCA as in force under relevant Australian Commonwealth, State or Territory legislation (“the ACL”);
7.2.3 In jurisdictions other than within Australia those laws that may imply terms into this Agreement and which cannot otherwise be excluded by this Agreement.
7.3 Knobby and the Customers agree that nothing in this Agreement restricts or modifies the effect of the warranty terms under the Law may be implied into these terms and conditions and where the ACL applies are limited to the maximum extent permitted by section 64A of the ACL.
7.4 Subject to any warranty expressed herein or implied by the law, Knobby’s liability shall be restricted to the fullest extent permitted by law. Other than those expressly provided for in this Agreement, no other warranties are provided and Knobby shall not be liable for any loss or damage to the Customer, any other person or property, consequential or otherwise, howsoever suffered or incurred, in relation to the Products, including but not limited to any loss or damage howsoever suffered or incurred by any such person, caused by or resulting from:
7.4.1 any failure, defect, or deficiency whatsoever with respect to the Products; or
7.4.2 use of the Products by the Customer; and
7.4.3 If Knobby is liable for any loss or damage to the Customer or any other person for any reason the extent of Knobby’s liability shall be in total under all heads of claim and for all claims shall be limited to the Payment as set out in this Agreement.
8.1 The Customer can terminate this Agreement by emailing email@example.com stating “please terminate my order.” From the date that Knobby’s receives your email all further products, shipments and membership will be cancelled.
8.2 Within (7) business days of Knobby receiving the Customer’s email of termination Knobby will disable and remove the account(s) and all archives of the Customer’s sites and files will be removed from this date.
8.3 Knobby can terminate this Agreement without notice to the Customer if the Customer is in arrears for 30 days or more.
8.4 Knobby, in its sole discretion, can terminate this Agreement without notice to the Customer if the Customer is in default of any of the Sub clauses in clause 3 of this Agreement.
8.5 The Customer remains responsible for all monies owed to Knobby under the terms of this Agreement if the Agreement is terminated under clauses 8.4 or 8.5.
9. REFUND POLICY
9.1 If you are dissatisfied with the Product, you must provide written notice to Knobby at firstname.lastname@example.org within fourteen (14) days from the date of shipment providing reasons for your dissatisfaction.
9.2 Knobby will not provide a refund for a notice received more than fourteen (14) days after the date of shipment.
9.3 Knobby will provide a written response to you in five (5) business days from receipt of your notice if Knobby agrees to a refund. Knobby will credit the amount paid for the Product (including any shipping and handling costs/fees) to the credit card you used to make the original purchase. Knobby is not liable, nor required to refund your Payment for any products that are damaged or lost in transit.
9.4 Notwithstanding sub-paragraph 9.3, Knobby does not control when a specific credit card company processes a payment for a chargeback transaction. Any chargeback payment incurred on a refund made by Knobby must be paid by the Customer.
10.1 The Customer consents to:
(a) Knobby collecting their Personal Information;
(b) the use and disclosure by Knobby of the Personal Information for the purposes of enabling Knobby to comply with its obligations under this Agreement;
(c) the disclosure to, and use by, third parties and service providers (including the Services) engaged by Knobby of the Personal information for the purpose of –
(i) enabling Knobby to comply with and fulfil its obligations under this Agreement;
(ii) providing the Customer with information relating to future activities of Knobby; and
(iii) undertaking research in connection with this Agreement and future activities of Knobby; and
(d) the use and disclosure by Knobby of the Personal Information for the purposes of enabling Knobby to enforce its rights under this Agreement.
10.2 The Customer acknowledges that:
(a) the Personal Information is held by Knobby subject to the requirements of the Privacy Act (Commonwealth) and all relevant legislation in the United States of America.
(b) in accordance with the requirements of the Privacy Act, the Customer may during the duration of this Agreement request that any of the Personal Information be updated by contacting Knobby in writing.
11.1 A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
11.2 A party will not be in breach of sub clause 11.1 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
11.3 Knobby will take all reasonable steps to ensure that its employees and agents, and any sub-contractors do not make public or disclose the Customer’s
11.4 Notwithstanding any other provision of this clause, a party may disclose the terms of the Agreement to its related companies, contractors, solicitors, auditors, insurers and accountants, no matter where they are located.
11.5 This clause will survive the termination of the Agreement.
11.6 This clause is subject to clause 10 regarding Privacy.
12. DISPUTE RESOLUTION
12.1 Any dispute with respect to this Agreement must be referred to mediation under the Dispute Resolution Centres Act 1990 (Qld) and any regulations or other instrument made or issued under that Act, as amended from time to time before any party can commence any Court or other action.
12.2 The parties agree to act in good faith to resolve any disputes by mediation and a party who fails to comply is responsible to the other party in damages.
13.1 This Agreement is the entire agreement between the Customer and Knobby with respect to the Product and Memberships and supersedes all other agreements or understandings, written or oral between the parties.
14.1 In this Agreement singular words have the plural meaning and plural words have the singular meaning.
14.2 The covenants in this Agreement bind the parties jointly and severally.
14.3 In this Agreement words importing any gender include the other gender.
14.4 This Agreement binds the executors, administrators, heirs, successors and assigns of the parties.
14.5 If any part of this Agreement is held unenforceable, it must be read down to the minimum extent necessary to render it enforceable and valid, or must be severed from the remainder of the Agreement.
14.6 (a) This Agreement, its construction, interpretation and enforcement is governed by the laws in force in Queensland.
(b) The parties unconditionally and irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland and the courts of appeal from them.
(c) The parties waive any right they have in any action brought in those courts to claim that the action has been brought in an inconvenient forum or to claim that the courts do not have jurisdiction.
14.7 Any notice or demand under this Agreement can be delivered personally, posted by pre-paid post, email or sent by facsimile.
14.8 Each of the parties agrees to execute all documents and do all things necessary or desirable to give full effect to the provisions of this Agreement.
14.9 If a court finds that any part of this Agreement is void, voidable, illegal or unenforceable or this Agreement would be void, voidable, illegal or unenforceable unless any part of this Agreement was severed that part will be severable from and will not affect the continued operation of the rest of this Agreement.
14.10 (a) No waiver will be effective unless it is in writing.
(b) Failure to take advantage of any default will not be construed as waiving the default.
(c) No custom or practice which evolves between the parties will constitute a waiver or lessen the right to insist on the strict performance or observance of any provision of this Agreement or to exercise any other rights.
(d) A demand for money payable under this Agreement or the subsequent acceptance of money will not constitute a waiver of any earlier default.
14.11 A reference to a statutory enactment is a reference to that enactment as amended or re-enacted from time to time.