Terms of Use.
Website Terms of Use
Welcome to the website of Design Merchants Pty Ltd as trustee for the J L Borshoff Trust (ABN 70 208 007 879) ("we", "us" or the "Company"), a visual merchandise designer, providing visual merchandising design services as well as educational, training and coaching services to business owners on visual merchandising.
This website is located on the web via the domain https://www.designmerchants.com.au/ and includes all of the files located in that domain as well as the files located at https://designmerchants.mykajabi.com/Visual-Merchandising-Bootcamp (collectively referred to as "our site").
Agreement to these Website Terms of Use
By accessing our site, you agree to be bound by these terms of use ("Website Terms of Use"). These Website Terms of Use constitute a binding agreement between you and the Company and govern your use of our site.
Privacy Policy
As part of these Website Terms of Use, your use of our site is also subject to our Privacy Policy , which is incorporated by reference into these Website Terms of Use.
Restrictions on use
Prohibited conduct
Your use of our site is subject to the rules set out in Schedule 1 below.
Violations of these Website Terms of Use
Without limiting any other remedies available to the Company at law or in equity, the Company reserves the right to, without notice:
· temporarily or indefinitely suspend, or terminate, your access to our site or refuse to provide services to you if:
- you breach any provision of these Website Terms of Use;
- the Company is unable to verify or authenticate any information that you provide to us; or
- the Company believes that your actions may cause damage and/or legal liability to the Company, any of its customers or suppliers or any other person; and
· remove or block access to any information and/or materials (in whole or in part) that the Company, at its sole and absolute discretion, regards in any way to be objectionable or in violation of any applicable law, any person's intellectual property rights or these Website Terms of Use.
Indemnity
You indemnify and hold harmless the Company and its officers, employees, agents, consultants, licensors, partners and affiliates from and against any losses, liabilities, costs, expenses or damages (including actual, special, indirect and consequential losses or damages of every kind and nature, including all legal fees on a solicitor-client basis) suffered or incurred by any of them due to, arising out of, or in any way related to (directly or indirectly):
· any material or information that you submit, post, transmit or otherwise make available through our site;
· your use of, or connection to, our site; or
· your negligence or misconduct, breach of these Website Terms of Use or violation of any law or the rights of any person.
Registration and account security
Requirement for registration
The Company reserves the right to make any parts of our site accessible only to users who have registered (including, but not limited, to programs we host on Kajabi).
Username and password
Upon registration with our site, you will be issued with a username and password to access your account. You are responsible for maintaining the security of your password for our site. The Company will not be liable for any loss or damage arising from or in connection with your failure to comply with this security obligation. You agree that the Company will be entitled to assume that any person using our site with your username and password is you or your authorised representative.
You must notify the Company immediately of any known or suspected unauthorised use of any password or any other breach of security.
User information
In order to register an account with our site, you must agree to these Website Terms of Use and provide the Company with:
· a valid email address;
· accurate billing and contact information (including your street address and the name and telephone number of your authorised billing contact and administrator); and
· any other information that may be required by the Company during the registration process.
You must promptly update this information to maintain its accuracy at all times.
You represent and warrant to the Company that all information provided to the Company by you, including the information provided by you through our account registration module or entered into your account profile, is true and not misleading and does not violate any applicable law or regulation or any person's intellectual property or other rights.
Multiple accounts and automated account opening
One person may not maintain more than one account with our site. Accounts registered by "bots" or other automated methods are not permitted.
Approval of registrations
The Company reserves the right to accept or reject any application for registration of an account with our site at its discretion.
Intellectual property
Copyright
In these Website Terms of Use, the term "Proprietary Content" means:
· our site;
· all of its content (including all of the text, graphics, designs, software, data, sound and video files and other information contained in our site, and the selection and arrangement thereof); and
· all software, systems and other information owned or used by the Company in connection with our site (whether hosted on the same server as our site or otherwise).
All Proprietary Content is the property of the Company or its licensors (as applicable) and is protected by Australian and international copyright laws. You must not reproduce, transmit, republish or prepare derivative works from any of the Proprietary Content, except as expressly authorised by these Website Terms of Use or with the prior written consent of the Company or other copyright owner (as applicable).
You may download and print out content from our site only for your own personal and non-commercial use and provided that you do not remove or modify any copyright, trademark or other proprietary notices.
Trademarks
The Company’s logo and the phrase "Design Merchants" are trademarks of the Company. The look and feel of our site (including all button icons, scripts, custom graphics and headers) are the trademarks, service marks and/or trade dress of the Company. These trademarks, service marks and trade dress may not be used, copied or imitated, in whole or in part, without the prior written consent of the Company.
User Content
In these Website Terms of Use, the term "User Content" means any and all content that is submitted, posted or otherwise added to our site by any user, such as comments, forum posts, chat room messages, reviews, ratings and feedback.
Our site contains some features that enable you and other users to upload User Content. The Company reserves the right to display, refuse to display, remove and/or amend all or any part of any User Content at its absolute discretion. In respect of any User Content that you upload, you:
· represent and warranty to the Company that your sharing of that User Content does not infringe any copyright or other legal right of any other person; and
· grant to the Company a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform and otherwise exploit all or any part of that User Content in any way at the Company’s absolute discretion.
Copyright claims
If you believe that our site contains any material that infringes upon any copyright that you hold or control, or that users are directed through a link on our site to a third party website that you believe is infringing upon any copyright that you hold or control, you may send a notification of such alleged infringement to us in writing. Such notification should identify the works that are allegedly being infringed upon and the allegedly infringing material and give particulars of the alleged infringement.
In response to such a notification, we will give a written notice of a claim of copyright infringement to the provider of the allegedly infringing material. If the provider of that material does not respond to us in writing denying the alleged infringement within 14 days after receipt of that notice, we will remove or block the allegedly infringing material as soon as is reasonably practicable. If the provider of that material responds to us in writing denying the alleged infringement, we will, as soon as is reasonably practicable, send a copy of that response to the original notifying party.
If the original notifying party does not, within a further 14 days, file an action seeking a court order against the provider of the allegedly infringing material, we may restore any removed or blocked material at our discretion. If the original notifying party files such a legal action, we will remove or block the allegedly infringing material pending resolution of that legal action.
Disclaimer of warranties
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY AND ITS OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS, LICENSORS, PARTNERS AND AFFILIATES EXPRESSLY DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES (WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE) IN RELATION TO OUR SITE, INCLUDING ANY IMPLIED WARRANTY/GUARANTEE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
Our site is provided strictly on an "as is" basis. To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates make no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of our site or any of its content, and in particular do not represent, warrant or guarantee that:
· the use of our site will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;
· our site will meet your requirements or expectations;
· anything on our site, or on any third-party website referred or linked to in our site, is reliable, accurate, complete or up-to-date;
· the quality of any information or other material purchased or obtained through our site will meet any particular requirements or expectations;
· errors or defects will be corrected; or
· our site or the servers that make it available are free of viruses or other harmful components.
Limitation of liability
Exclusion of liability
To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates exclude all liability to you or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, these Website Terms of Use or the use of our site by you or any other person.
Remedies limited
To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates expressly limit their liability for breach of any non-excludable condition or warranty/guarantee implied by virtue of any legislation to the following remedies (the choice of which is to be at the Company's sole discretion):
· in the case of services:
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
Release
You agree that your use of our site is at your own discretion and risk. You agree to release the Company and its officers, employees, agents, consultants, licensors, partners and affiliates from any claim, demand or cause of action that you may have against any of them arising from these Website Terms of Use or the use of our site by you or any other person. The Company may plead this release as a bar and complete defence to any claims or proceedings.
Force majeure
To the maximum extent permitted by law, and without limiting any other provision of these Website Terms of Use, the Company excludes liability for any delay in performing any of its obligations under these Website Terms of Use where such delay is caused by circumstances beyond the reasonable control of the Company, and the Company shall be entitled to a reasonable extension of time for the performance of such obligations.
General
Interpretation
In these Website Terms of Use, the following rules of interpretation apply:
· headings are for reference purposes only and in no way define, limit or describe the scope or extent of any provision in these Website Terms of Use;
· these Website Terms of Use may not be construed adversely against the Company solely because the Company prepared them;
· the singular includes the plural and vice-versa;
· a reference to a "person" includes an individual, a firm, a corporation, a body corporate, a partnership, an unincorporated body, an association, a government body or any other entity; and
· the meaning of general words is not limited by specific examples introduced by "including", "for example", "in particular" or similar expressions.
Notifications
The Company may provide any notification for the purposes of these Website Terms of Use by email and/or by adding the notification into your user control panel.
Costs
Except as specifically provided in these Website Terms of Use, each party must bear its own legal, accounting and other costs associated with these Website Terms of Use.
Assignment
You may not assign, transfer or sub-contract any of your rights or obligations under these Website Terms of Use without the Company's prior written consent. Your registration with our site is personal to you and may not be sold or otherwise transferred to any other person.
The Company may assign, transfer or sub-contract any of its rights or obligations under these Website Terms of Use at any time without notice to you.
No waiver
Waiver of any power or right under these Website Terms of Use must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver. Any failure by the Company to act with respect to a breach by you or others does not waive the Company's right to act with respect to that breach or any subsequent or similar breaches.
Severability
The provisions of these Website Terms of Use are severable and, if any provision of these Website Terms of Use is held to be illegal, invalid or unenforceable under present or future law, such provision may be removed and the remaining provisions shall be enforced.
Variation
The Company reserves the right to amend these Website Terms of Use and any other policy on our site at any time in its sole discretion and any such changes will, unless otherwise noted, be effective immediately. Your continued usage of our site will mean you accept those amendments. We reserve the right, without notice and at our sole discretion, to change, suspend, discontinue or impose limits on any aspect or content of our site.
You may only vary or amend these Website Terms of Use by written agreement with the Company.
Governing law and jurisdiction
These Website Terms of Use will be governed in all respects by the laws of Western Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of Western Australia and the courts of appeal from them.
Schedule 1 – Prohibited conduct
YOU MUST NOT:
· use any device, routine or software that interferes, or attempt to interfere, with the proper working of our site;
· engage in any action that requires, or may require, an unreasonable or excessively large load on our infrastructure;
· use our site to decipher passwords or security encryption codes, transmit any worms, viruses or Trojan horses, transfer or store illegal, threatening or obscene material or otherwise violate the security of any computer network;
· use our site to violate any applicable local, state, national or international law, to engage in any misleading or deceptive online marketing practices or for any fraudulent or malicious purposes;
· use any spider, robot or search/retrieval application or any screen scraping, data mining or similar data gathering device, process, program or means to access, retrieve or index any portion of our site;
· use our site by any automated means;
· use our site to transmit junk mail, spam or chain letters or pyramid schemes or engage in other flooding techniques or mass distribution of unsolicited email;
· access, retrieve or index any portion of our site for use in constructing or populating any database that is searchable online or for the purpose of soliciting or sharing reviews;
· interfere with the display of any advertisements appearing on or in connection with our site;
· reverse engineer, decompile, disassemble, adapt, modify, translate, frame or reformat any of the material contained on our site;
· reproduce, duplicate, copy or store any of the material appearing on our site other than for your own personal and non-commercial use;
· falsely imply that any other website is associated with our site;
· do anything that leads, or may lead, to a decrease in the value of the Company's intellectual property rights in our site;
· use or exploit any of the material appearing on our site for, or in connection with, any business or enterprise (whether for profit or otherwise), including any business or enterprise that is in competition with our site;
· release to the public any news release, advertising material, promotional material or any other form of publicity or information relating to the Company without the Company's prior written consent; or
· use our site to transmit any information or material that is, or may reasonably be considered to be:
- abusive, threatening, harassing, harmful, obscene, indecent, lewd, inflammatory, violent, vulgar, profane, racially, ethnically or otherwise objectionable or offensive in any way;
- libellous, defamatory, pornographic, sexually explicit, unlawful or plagiarised;
- infringing upon or violating any copyright, trademark, patent or other intellectual property or proprietary right;
- in breach of any duty of confidentiality by which you are bound, whether by way of a fiduciary or contractual relationship;
- in breach of any person’s privacy or publicity rights;
- a misrepresentation of facts, including the impersonation of any person or entity or a misrepresentation of an affiliation with any person or entity (including any sponsorship or endorsement);
- in violation of any applicable law, statute, ordinance or regulation, or encouraging of others to do so;
- containing any political campaigning material, advertisements or solicitations; or
- likely to bring the Company or any of its staff into disrepute.
Liability limited by a scheme approved under Professional Standards Legislation.
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