1 Legally Binding Agreement
1.1 This Terms of Use Agreement (“Terms”) and the Privacy Policy constitute a legally binding agreement (“Agreement”) between Dash Australia Pty Ltd (ACN 144 715 560), trading as Condom Sales Australia and via CondomSales.com.au (“Condom Sales Australia", CondomSales.com.au”;“We”;“Us”or“Our”) and each user (“You”or“Your”) regarding your use of and interaction with CondomSales.com.au (the“Website”).
1.2 By using or accessing the Website, you agree to be bound by this Agreement. If you do not agree to the terms of this Agreement, please do not use or access the Website.
2 Use of the Website
2.1 These Terms apply to your use of the Website to access content on the Website and to purchase products from the Website.
2.2 You must be over 18 years of age, or have the consent of a parent or guardian (who are over 18 years of age) in order to use this Website.
2.3 You may wish to register an account (“Account”) with us in order to facilitate faster check-out process. However, it is not necessary to register an Account to use the Website.
2.4 We collect certain information which may identify you (“Personal Information”) from you when you place an order to purchase products from our Website (“Purchase Order”). The types of Personal Information that we collect, the purposes for which we collect your Personal Information and the way such Personal Information is stored or disclosed is covered by the Privacy Policy.
2.5 We make no warranties whatsoever that the Website will be fully functional and free of errors, bugs or viruses at all times. Accordingly, you agree that CondomSales.com.au will not be held liable for any delay, disruption or interruption in your access to the Website or ability to purchase Products.
2.6 Subject to your agreeing to these Terms, we grant you a non-exclusive, non-transferable, worldwide licence to use the Website, provided that:
(a) you will not copy or distribute any part of the Website (including these Terms) in any form without our prior written consent; and
(b) you will otherwise comply with these Terms and the Privacy Policy.
2.7 Failure to comply with these Terms may lead to your licence being immediately revoked by CondomSales.com.au, in accordance with clause 13 below.
3 Your Account
3.1 In the event that you choose to register an Account with us, you may be required to enter your personal details including personally identifying information such as your name, phone number, address and email address (“Personal Information”). You will also be required to enter your payment details (for example, your credit card or PayPal account details) which will be stored in your Account to facilitate a faster checkout process.
3.2 Other information which we collect and store in your Account include:
(a) your shipping address(es);
(b) your order history; and
(c) your wish list.
3.3 You have the right to remain anonymous in your dealings with us. You may use a pseudonym when registering your Account or when entering your shipping information. However, please note that your Purchase Order will be delivered to the person named in the Purchase Order or Account, and we will not accept any responsibility for any undeliverable items.
3.4 You agree that it is your responsibility to keep your Account up to date. If any of your Personal Information (such as your postal address, PayPal account or credit card details) changes after you have registered your Account, you must update your Personal Information in your Account as soon as possible after any changes which affect our ability to deliver the products to you.
3.5 Upon registering an Account, you will choose a user name (your email address) and password (“Authorisation Details”) which will allow you to save your shipping address, payment details (such as your PayPal account or credit card details) and order history to facilitate a faster checkout process. It is your responsibility to keep your Authorisation Details secure. If you suspect that your Authorisation Details have been used without your consent, or any other breach of security with respect to your Account, please immediately notify us in writing and we will, as soon as practicable after such notification, terminate access to your Account.
3.6 You agree, however, that we will not be liable to compensate you for any loss or damage incurred which is caused by, or which arises as a result of or in connection with any use of your Authorisation Details without your consent.
3.7 For the purposes of this Agreement, any use of the Website which can be attributed to your Account is deemed to be a use of the Website by you, unless you have previously notified us in writing of an unauthorised use of your Authorisation Details or Account or any other breach of security according to clause 3.5 above.
3.8 You may change your Authorisation Details at any time by updating your Account.
3.9 You may not sell, transfer or assign your Account or profile to any third party unless you have obtained prior written consent from us.
3.10 You may not use another user’s account without their express written consent. We may require proof of their consent at any time.
3.11 We reserve the right to terminate your Account and restrict access to all or part of the Website at any time in our sole discretion and without notice.
4 Buying, Shipping and Delivery
Payment
4.1 It is your responsibility to ensure that you have fully read and understood both the Product description and these Terms and Conditions before purchasing or attempting to purchase a Product.
4.2 You must fully and accurately complete the relevant sections of the Checkout page on the Website (“Checkout”) in order to purchase any Product online. Please note that unless expressly provided otherwise, we are currently unable to process any Purchase Orders made over the phone.
4.3 Upon completing all sections of the Checkout you will be deemed to have placed an irrevocable binding agreement to immediately purchase the stated Products, at the stated price and on the stated terms and conditions.
4.4 All prices are in Australian Dollars and are inclusive of GST, except for condoms and water-based lubricants, which are GST free.
4.5 Purchase Orders made by persons not resident in Australia will be GST free. However, it shall be your responsibility to ensure that such purchases are not prohibited by the law of the country in which you are resident. It is also your responsibility to pay any duties and taxes which may be applicable. In no event shall CondomSales.com.au be held liable for any breaches of such laws, nor for any duties and taxes which may be applicable, and you must indemnify and hold harmless Condomsales.com.au from any loss or damage arising from the breach or non-compliance with this clause 4.5.
4.6 For your privacy, the transactions on your credit card statement will not show this website or any Products that you have purchased. It will only show the payee as ‘Dash Australia Pty Ltd’.
4.7 Payment is to be made in full to us, including shipping and handling costs, either through PayPal or by online credit card payment, prior to your Purchase Order being shipped out to you. For security, we use SSL encryption technology to protect your payment details.
Shipment
4.8 All Australian Purchase Orders will be packaged in plain Australia Post packaging (such as pre-paid Parcel Post or Express Post satchels). We will not make any reference to this Website or the products purchased. International Purchase Orders will also be plain packaged but we must declare the nature of the goods on the customs declaration form.
4.9 We do not offer any free shipping options at this time.
4.10 Once we receive payment (including any applicable shipping costs) in full, we will ship your Purchase Order as soon as reasonably possible (and, provided that all items in your Purchase Order are in stock, your Purchase Order will be shipped within two Business Days) in the manner that you select at the Checkout. We will send an email to the email address you provided advising that your Purchase Order has been shipped and, where applicable, the tracking number of your parcel, which you may be able to track via Australia Post.
4.11 Please note that your Purchase Order will be delivered to the person named in the Purchase Order or Account at the postal address provided. If you use a pseudonym in your dealings with us, please be aware that your Purchase Order may be returned to us as an undeliverable item. We will not accept any responsibility for any undeliverable items.
4.12 In the event that we receive a returned, undeliverable item, marked with ‘return to sender’ or words of other like meaning, we will contact you by email at the email address that you have provided to us. You may request that the item be re-sent, provided only that you pay us the additional postage and handling fees which are applicable to the re-sending of your Purchase Order.
4.13 In the event that we receive the same item returned as an undeliverable item more than once, or you are unable to be contacted by email in circumstances where clause 4.12 applies, we will cancel your Purchase Order and refund the price of your Purchase Order, less any shipping expenses we have incurred in making attempted deliveries.
Non-delivery
4.14 You acknowledge that the delivery of your Purchase Order is outside of our reasonable control once your parcel has been shipped. As such, we cannot guarantee the timely delivery of your Purchase Order. However, in the event that your Purchase Order does not arrive within fourteen (14) days of the date that the date of the email advising that your Purchase Order has shipped, please contact us and we will use our reasonable efforts to attempt to resolve this issue.
4.15 However, you acknowledge and agree that we will not be liable for, and you will hold us harmless from any losses or damages occurring which is caused by, or which arises as a natural consequence of, any late, lost, stolen or undelivered parcels, or international parcels that have been purchased with the "no tracking" shipping option.
5 Returns
5.1 You should contact us immediately if you discover that a Product supplied by us:
(a) is not the Product you ordered;
(b) has been damaged in shipping; or
(c) contains a manufacturing defect.
5.2 If you notify us that a Product is a Faulty Product within twenty (28) days of the day that your Purchase Order was dispatched to you, we will, subject to this clause 5, replace any Product which we have confirmed falls within the categories in clause 5.1 (“Faulty Product”) with an identical Product, or where we have sent you the wrong Product, we will replace it with the correct Product. If we cannot replace the Product, we will offer you the option of choosing another product of the same value, or provide you with a refund for the total value of the Faulty Product.
5.3 Please choose carefully when placing a Purchase Order. We will not replace or refund any Product which is returned because you have changed your mind, or that your needs have changed.
5.4 Please contact us in writing here if you wish to return any Products, and the reason why you wish to return them in sufficient detail for us to determine whether the Product is a Faulty Product. We will then advise you within three (3) business days whether we will accept your return and, where we accept your return, whether we will replace your Product, or where that is not possible, refund the amount paid for the Faulty Product.
5.5 In the event that you have contacted us notifying us of a return in accordance with clause 5.4 above, and we have accepted the return in writing, we will, in addition to replacing your Product or refunding you the amount paid for the Faulty Product, refund the actual amount paid for return postage (provided that you give us the Australia Post receipt as evidence of the postage cost). Please package the returned Product in the same type of packaging as used in sending the Product out to you in order to minimise the risk of the Product being damaged in transit.
5.6 Please post all returns to:
Dash Australia Pty Ltd
c/o Keep Safe Storage
5 McNeece Place
O'Connor, WA 6163
Australia
6 Warranties, indemnities and disclaimers
Indemnity and Disclaimer in relation to Health Information
6.1 From time to time, we may post certain blogs on the Website which provides general information in relation to sexual health and related topics including sexually transmitted infections (“STIs”), pregnancy, and condom use (“Health Information”). While we will take due care in ensuring that this Health Information is accurate, it should not to be used as a substitute for obtaining independent medical advice from a suitably qualified medical practitioner. You should obtain independent medical advice on all matters relating to sexual health and your individual requirements.
6.2 We expressly disclaim any and all liability for any loss or damage whatsoever suffered by you or any other person as a result of, in connection with, or as a consequence of reliance on the Health Information on our Website, and you agree to indemnify us, and hold us harmless against any such loss or damage caused by, or arising as a result of, in connection with, or as a consequence of reliance on this Health Information.
Indemnity and Disclaimer in relation to Products
6.3 The Product descriptions (including pictures) provided on the Website are intended to provide general information about the Product, and are not to be taken as any kind of representation or guarantee as to the Product’s suitability, quality, appearance or performance.
6.4 You acknowledge that no condom or other Product sold on the site is 100% effective in preventing the spread of STIs (including HIV) or preventing pregnancy. No part of the Website is intended to be, or is to be interpreted as, a representation that a Product is 100% effective in preventing STIs or pregnancy. Accordingly, we expressly disclaim any and all liability for any loss, damage or harm whatsoever suffered by you or any other person as a result of, in connection with, or as a consequence of the use of condoms or any Product sold on this Website, and you agree to indemnify us, and hold us harmless against any such loss, damage or harm caused by, or arising as a result of, in connection with, or as a consequence of your use of condoms or any Product sold on this Website.
6.5 You acknowledge that we do not manufacture any of the Products sold through the Website. We will take all reasonable care to ensure that Products shipped by us are safe and free from defects, but you acknowledge that there may be manufacturing defects beyond our control. However, before using any condom Product you should inspect it to ensure it is not damaged or otherwise defective in any way. If upon opening a condom Product you identify any damage or defect or anything that looks unusual, you should not use that Product but should notify us and we will seek to arrange for replacement by the Product’s manufacturer.
6.6 Other than as expressly provided for under the Australian Consumer Law, we make no warranties whatsoever in relation to the Products.
Disclaimer in relation to the operability of the Website
6.7 We will take reasonable care to ensure that the Website is operational at all times and to ensure that the Website is free from bugs, defects or errors, fully secure and compatible with most personal computers and digital devices from which the internet is accessible. However, you acknowledge that certain matters beyond our control may affect the availability, operation or security of the Website. Accordingly, we make no warranties whatsoever in relation to the operational status of our Website, or that the Website will be at all times free of bugs, defects or errors, or will be fully secure or compatible with any software or hardware, and disclaim any liability for any loss or damage occurring as a result of, or in connection with or as a consequence of any failure of the Website, except to the extent that as a direct result of such failure of the Website, we have charged you a greater amount than the amount payable under your Purchase Order, in which event we will refund the excess.
General
6.8 You warrant that you are over 18 years of age and have the legal capacity to enter into legally binding contracts, or have the consent of a parent or guardian who are over the age of 18 and have the legal capacity to enter into legally binding contracts.
6.9 You acknowledge and agree that any services or information provided Website is to be provided “as is”, and that you have not relied upon any representations made by CondomSales.com.au other than in this Agreement.
6.10 You agree to indemnify us, and hold us harmless against any such loss or damage caused by, or arising as a result of, in connection with, or as a consequence of, or in any way related to your use of this Website to purchase our Products, or your use of this Website for any other purpose, including, without limitation, to any loss or damage arising as a result of any denial of service, any inability to access the Website, any bugs or errors, or any breach of security.
7 Our responsibilities
7.1 We will take all reasonable care to ensure that Products are packed securely and safely for shipping in order that it arrives undamaged. However, it is your responsibility to ensure that no Product has been damaged in shipping prior to use of the Product. If any Product has been damaged in shipping in any way it must not be used, and you should immediately notify us of the damage.
8 Your responsibilities
8.1 You must read all labels, packaging, instructions, safety directions, expiry dates, warnings and disclaimers which are distributed with the Products prior to use of the Products. We accept no responsibility or liability for any loss or damage whatsoever suffered by you or any other person arising from improper use of the Products or failure to read the instructions, labels, packaging, warnings and disclaimers.
9 Prohibited Use
9.1 Neither you nor anyone having access to your Account may do, or attempt to do, any of the following:
(a) Use the Website in a way which is, in our opinion, contrary in any way to these Terms or the Privacy Policy;
(b) Access areas of the Website which you are not authorised to access;
(c) Alter or tamper with any part of the Website except as expressly authorised;
(d) Use any automated means or interface, including, without limitation, robots, spiders, or similar technological devices or programs not provided by us to access the Website, or to extract data for whatever reason;
(e) Reverse engineer any aspect of the Website or do anything to discover the source code, or to circumvent measures put in place by us to prevent or limit access to any area of the Website; or
(f) Send viruses, or any computer code, file or program to the Website which is designed to, or has the effect of, destroying, interrupting or limiting the functionality of any computer software or hardware, or other telecommunications equipment.
9.2 We reserve the right to take any action we deem necessary to detect, identify, prevent, stop or remove any conduct which, in our opinion, constitutes a prohibited use under this clause 9. This includes, without limitation, the right to immediately and without notice terminate any user Account and block any IP addresses from accessing this Website.
10 Privacy
10.1 CondomSales.com.au is bound by the Privacy Act 1988 (Cth) and Australian Privacy Principles in respect of all data, information, content and materials submitted by you. We warrant that we will take all reasonable steps to keep Your Personal Information (as defined in the Privacy Policy) secure.
10.2 Your Personal Information will be dealt with in accordance with our Privacy Policy. By using our Website, you agree to the Privacy Policy which allows us to collect Personal Information about you and your use of our Website, including, without limitation, your internet protocol address, as well as Statistical Information (as defined in the Privacy Policy) such as your page visitation history, to the extent permissible by the laws of Western Australia and Australia. Please refer to our Privacy Policy for full details.
11 Modification or Variation of Terms
11.1 We may change any of these Terms at any time by posting a notice on our Website, and/or by email to you. You agree that you will be deemed to have notice of any modifications once we post them on our Website or notify you by email. You agree that your continued use of our Website after such notice will be taken as your acceptance of the modified Terms. It is your responsibility to check our Website periodically for any such modifications. If you do not agree with the modified Terms, you must close your Account and immediately stop using our Website.
11.2 Notwithstanding clause 11.1 above, where you notify us of a dispute (“Dispute”) in accordance with clause 15 below, any changes made to the Terms after you have notified us of the Dispute will not apply to you until the Dispute has been resolved.
11.3 We reserve the right to discontinue the Website or to change the content of the Website in any way and at any time, with or without notice to you, without liability.
12 Intellectual Property
12.1 All content on the Website, including, without limitation, to the text, graphics, and photos created by and for us (“Content”) and the trade marks, service marks and logos contained therein (“Marks”), as well as the ‘look and feel’ of the Website, including its structure, sequence and organisation are owned by or licensed to us, and is subject to copyright and other intellectual property rights under Australian and foreign laws and international conventions. Content on the Website is provided to you ‘as is’ for your information and personal use only and many not be used for any other purpose whatsoever, without the prior written consent of CondomSales.com.au or as expressly provided herein.
12.2 You may not, at any time, challenge or oppose, or cause, authorise, allow or assist any third party to challenge or oppose our exclusive ownership of all intellectual property rights in the Website.
12.3 You may not post deep links to any specific page on our Website, or frame any part of our Website on any other website (or otherwise make publicly available) without our prior express written consent. If you wish post a link to our Website on any other website (or otherwise publish the link to our website on any media), please link to the home page only.
12.4 You may not post screen shots of any part of our Website to any other website or media without our prior express written consent.
12.5 From time to time, you may contact us with any suggestion, comment, feedback or request that you may have in relation to the Website. By doing so, you acknowledge that the intellectual property rights in any alteration or modification to the Website made as a result of a suggestion, comment, feedback or request that you have made, will vest immediately in CondomSales.com.au.
12.6 You agree not to use any of the Content other than as expressly permitted under this Agreement. If you download or print a copy of the Content for personal or other use which is expressly permitted by law, you must retain all copyright and other proprietary legal notices contained on such Content.
12.7 The Website may include some open source software, codes, modules or languages. Any and all open source material used by us is governed by the relevant open source licences (including, without limitation, to GPL, Creative Commons or equivalent open-source licensing regimes). Our use of such material, if any, in developing the Website does not infringe any third party intellectual property or other rights. However, where you use this Website otherwise than in accordance with these Terms (including this clause 12), we make no warranties that such use by you otherwise than in accordance with these Terms will be permitted under the relevant open source licensing regimes, and you agree to hold us harmless from any loss or damage which may occur as a result of your use of this Website otherwise than in accordance with these Terms.
13 Termination
13.1 We reserve the right to terminate this Agreement with you at any time and for any breach of this Agreement by closing your Account and blocking your IP Address from accessing this Website. If we close your Account, you may not, under any circumstances, register a new Account without prior written consent and approval from us.
13.2 You have the right to terminate this Agreement at any time for any reason whatsoever. In the event that you wish to terminate this Agreement, you must contact us to request that Your Account be closed.
13.3 If we terminate your Account in accordance with clause 13.1 above, you will no longer have access to your Account, and you will no longer be authorised to use the Website.
14 Jurisdiction
14.1 This Agreement is governed by the law of Western Australia, excluding its choice of law rules. You agree to submit to the exclusive jurisdiction of the courts of Western Australia and any court having competent jurisdiction to hear appeals from such courts.
15 Dispute Resolution
15.1 Neither you nor CondomSales.com.au may start arbitration or court proceedings (except proceedings seeking urgent interlocutory relief) in respect of a dispute in relation to this Agreement (“Dispute”) unless this clause 15 and its relevant sub-clauses have first been complied with.
15.2 If you or CondomSales.com.au claims that a Dispute has arisen, then You or CondomSales.com.au must:
(a) Notify the other party by all reasonable means;
(b) Within seven (7) days after notice is given, both parties must nominate a representative who is authorised to settle the Dispute on its behalf;
(c) During the thirty (30) day period after a both parties have appointed a representative (or, if both parties agree to a longer period, that longer period), you and/or your authorised representative must meet with our authorised representative to resolve the Dispute.
15.3 If the Dispute is not resolved within the time specified in clause 15.2(c) above, the dispute must be referred to mediation in accordance with the Mediation Rules of the Institute of Arbitrators and Mediators Australia (“IAMA”) in force at the time to:
(a) A mediator agreed to by both parties, or if the parties cannot agree on a mediator, a mediator appointed by IAMA; and
(b) Each party must use their best efforts to make use of the mediation process to resolve the Dispute; and
(c) Any Dispute not resolved in accordance with clause 15.3(a) above within thirty (30) days after the appointment of a mediator (or, where the parties agree to a longer period, that longer period), then the Dispute may be referred to an appropriate court of competent jurisdiction.
15.4 The costs of resolving the Dispute in accordance with clauses 15.2 and 15.3 above will be borne equally between both parties.
15.5 The parties agree that during the Dispute, this Agreement will remain in full force and effect.
15.6 Nothing in the preceding clause 15 will deny either party the right to seek urgent interlocutory relief (including an injunction) from an appropriate court in relation to any Dispute arising under this Agreement.
16 General
16.1 Headings in the Agreement are provided for convenience only, and shall not be used to construe meaning or intent.
16.2 To the extent that there is any inconsistency between this Agreement and other content posted on the Website, this Agreement will prevail.
16.3 If any part of this Agreement is deemed invalid or unenforceable by a court, that part shall be modified or severed as appropriate to reflect the parties’ intention, and the rest shall remain in full force and effect as if the invalid or unenforceable term had never been included.
16.4 You agree that CondomSales.com.au will not be held liable for any delay or failure in its performance of its obligations cause by force majeure, including without limitation act of government or state, natural disaster, fire, flood, civil commotion, epidemic, industrial action or organised protests by third parties, war, failure of payment systems, or any event beyond the reasonable control of CondomSales.com.au.
16.5 Any failure or delay in or by CondomSales.com.au in enforcing any part of these Terms is not to be construed as a waiver of our rights. Any waiver of our rights must be given in writing.
16.6 Our rights and obligations under this Agreement may be transferred or assigned at any time.
16.7 CondomSales.com.au reserves all rights at law and in equity.