DATED: THE 19th DAY OF JULY 2013
In these terms and conditions, “we” “us” and “our” refers to MIGENIUS PTY LTD. Your access to and use of all information on this website including purchase of our product/s and use of our services is provided subject to the following terms and conditions.
We reserve the right to amend this Notice at any time and your use of the website, our products or our services following any amendments will represent your agreement to be bound by these terms and conditions as amended. We therefore recommend that each time you access our website, products or services you read these terms and conditions.
2. You agree to ensure that your registration details are true and accurate at all times and you undertake to update your registration details from time to time when they change. You further agree not to register multiple times whether or not you utilise the same registration details, for the purposes of obtaining evaluation access multiple times.
3. On registration and possibly payment, we provide you with access to the products and services that you have purchased or that you are entitled to access on an evaluation basis. On registration you agree to pay for our products and services as set out on our website.
4. We reserve the right to terminate your registration at any time if you breach these terms and conditions.
5. Our services are provided to adults over the age of eighteen (18) years. By proceeding to purchase through our website, you acknowledge that you are over 18 years of age.
6. Prices shown in Australian Dollars (AUD) are inclusive of GST. Prices shown in other currencies are available only to purchasers outside Australia and exclude any applicable local taxes. Responsibility for payment of any local applicable taxes rests solely with the Registered User. We endeavour to ensure that our price list is current. Our price list can be accessed from our home page and we reserve the right to amend our prices at any time. If you have placed an order, we reserve the right to cancel your order should our prices change.
7. Our services are provided subject to availability. Not all services may be available at all times and no guarantee or warranty that our services will be available at a given time is provided. We will make every effort to ensure that Registered Users are kept informed of factors affecting the availability of our services.
8. We reserve the right to offer discounts or promotions for our services and such offers shall not impact time credit that has already been purchased.
9. We strive to ensure that our products are described as accurately as possible on our website, however we do not warrant that the description is accurate. Where we become aware of any misdescription, we reserve the right to correct any error or omission.
10. Images have been provided for illustrative purposes only and we do not guarantee that any image will reproduce in true colour nor that any given image will reflect or portray the full design or options relating to that product.
11. Our products are for sale to adults over the age of eighteen (18) years. By proceeding to purchase through our website, you acknowledge that you are over 18 years of age.
12. We endeavour to ensure that our product list is current however we give no undertaking as to the availability of any product advertised on our website.
13. Our products are for sale for the express purpose of providing access to our services. Use of our products for purposes other than accessing our services is prohibited.
14. Prices shown in Australian Dollars (AUD) are exclusive of GST. Prices shown in other currencies are available only to purchasers outside Australia and exclude any applicable local taxes. Responsibility for payment of any local applicable taxes rests solely with the Registered User. We endeavour to ensure that our price list is current. Our price list can be accessed from our home page and we reserve the right to amend our prices at any time.
15. When you order from us, we require you to provide your name, address, your email address, telephone contact and possibly credit card details. We undertake to take due care with this information; however in providing us with such information you accept that we are not liable for its misuse due to error in transmission or virus or malware.
16. We undertake to accept or reject your order within Seven (7) days. If we have not responded to you within Seven (7) days, your offer is deemed to be rejected. We are not required to give reasons for rejecting your offer to purchase however the most likely reason for rejecting your offer will be that we do not currently have capacity available to provide the services accessed through our products.
17. Delivery of your ordered product/s will be as set out on our website. Your use of the product/s is subject to the terms of the End User License Agreement provided with the product/s. Our terms of payment are set out on below.
18. We reserve the right to offer discounts or promotions for our products and such offers shall not impact products that have already been purchased.
19. We may provide you with both products and services with differing terms of payment. Our products and services require payment in advance. Products are delivered electronically on confirmation of payment. Services require payment in advance for time credit and the Registered Users account is immediately credited with access to the purchased services. Our services are delivered to the Registered User as they are consumed on a time charged basis. We reserve the right to offer additional payment methods, such as post payment in the future.
20. The Registered User by agreement to these Terms and Conditions agrees to Delayed Presentment of services purchased and agrees to delayed delivery of our services at the time when then user choose to consume our services.
21. Once purchased, time credit for our services correspond to the amount of time credit purchased and shall not be varied, regardless of whether we chose to alter the pricing for new time credits.
22. Time credit may be used at any time of the Registered Users choosing subject to availability of our services. Time credit represents pre-booking of a period of time (defined when ordering) for use of our services in conjunction with our products.
23. You may be offered a Trial of our Product, or both our product and services together. When participating in a Trial we may record your credit card information and upon expiration of the Trial, the timeframe of which will be stated during ordering, your credit card will be charged for the listed price of the product or the product and services together at the time your trial commenced. Should you choose to cancel your Trial prior to it expiring then your credit card will not be charged. If your Trial is only for the product but not the services then you will be required to pay for the services in order to use the product.
24. Once payment has been made, all sales are final to the extent permitted by the law. No returns or refunds are permitted.
25. Payment for time credits used with our services is non-refundable. In the event that a Registered User can show conclusively that we have incorrectly deducted time credit without providing the associated services then we shall replace the time credit that was incorrectly deducted.
26. When you visit our website, we give you a limited licence to access and use our information for personal use.
27. You are permitted to download a copy of the information on this website to your computer for your personal use only provided that you do not delete or change any copyright symbol, trade mark or other proprietary notice. Your use of our content in any other way infringes our intellectual property rights.
28. Except as permitted under the Copyright Act 1968 (Cth), you are not permitted to copy, reproduce, republish, distribute or display any of the information on this website without our prior written permission.
29. The licence to access and use the information on our website does not include the right to use any data mining robots or other extraction tools. The licence also does not permit you to metatag or mirror our website without our prior written permission. We reserve the right to serve you with notice if we become aware of your metatag or mirroring of our website.
30. This website may from time to time contain hyperlinks to other websites. Such links are provided for convenience only and we take no responsibility for the content and maintenance of or privacy compliance by any linked website. Any hyperlink on our website to another website does not imply our endorsement, support, or sponsorship of the operator of that website nor of the information and/or products which they provide.
31. You may link our website without our consent. Any such linking will be entirely your responsibility and at your expense. By linking, you must not alter any of our website’s contents including any intellectual property notices and you must not frame or reformat any of our pages, files, images, text or other materials.
32. The copyright to all content on this website including applets, graphics, images, layouts and text belongs to us or we have a licence to use those materials.
33. All trade marks, brands and logos generally identified either with the symbols TM or ® which are used on this website are either owned by us or we have a licence to use them. Your access to our website does not license you to use those marks in any commercial way without our prior written permission.
34. Any comment, feedback, idea or suggestion (called “Comments”) which you provide to us through this website becomes our property. If in future we use your Comments in promoting our website or in any other way, we will not be liable for any similarities which may appear from such use. Furthermore, you agree that we are entitled to use your Comments for any commercial or non-commercial purpose without compensation to you or to any other person who has transmitted your Comments.
35. If you provide us with Comments, you acknowledge that you are responsible for the content of such material including its legality, originality and copyright.
36. Whilst we have taken all due care in providing the information on our website, we do not provide any warranty either express or implied including without limitation warranties of title or implied warranties of merchantability or fitness for a particular purpose.
37. To the extent permitted by law, any condition or warranty which would otherwise be implied into these terms and conditions is excluded.
38. We also take all due care in ensuring that our website is free of any virus, worm, Trojan horse and/or malware, however we are not responsible for any damage to your computer system which arises in connection with your use of our website or any linked website.
39. From time to time we may host third party content on our website such as advertisements and endorsements belonging to other traders. Responsibility for the content of such material rests with the owners of that material and we are not responsible for any errors or omissions in such material.
40. Schedule 2 of the Competition and Consumer Act 2010 (“C&C Act”) defines a consumer. Under the C&C Act we are a supplier of either goods or services or both to you, and as a consumer the C&C Act gives you statutory guarantees. Attached to the Standard Terms and Conditions are:-
(i) Schedule 2 of the C&C Act; and
(ii) those statutory guarantees, all of which are given by us to you if you are a consumer.
41. If you are a consumer within the meaning of Schedule 2 of the C&C Act of our goods or services then we give you a warranty that at the time of supply of those goods or services to you, if they are defective then:-
(i) We will repair or replace the goods or any part of them that is defective; or
(ii) Provide again or rectify any services or part of them that are defective; or
(iii) Wholly or partly recompense you if they are defective.
42. As a consumer under the C&C Act you may be entitled to receive from us notices under Schedule 2 section 103 of the C&C Act. In that regard:-
(i) If you are a consumer within the meaning of Schedule 2 of the C&C Act and the goods or services we are providing relate to the repair of consumer goods then we will give you any notice which we are obliged to give you under Schedule 2 section 103 of the C&C Act.
(ii) If we are a repairer of goods capable of retaining user-generated data then we hereby give you notice that the repair of those goods may result in the loss of the data.
(iii) If we are a repairer and our practice is to supply refurbished goods as an alternative to repairing your defective goods or to use refurbished parts in the repair, then we give you notice that the goods presented by you to us for repair may be replaced by refurbished goods of the same type rather than being repaired. We also give you notice that we may use in the repair of your goods, refurbished parts.
43. If you are not a consumer within the meaning of Schedule 2 of the C&C Act then this clause applies to you. If you are a consumer within the meaning of the C&C Act then this clause has no effect whatsoever to in any way limit our liability or your rights. If you are not a consumer:-
(i) To the full extent permitted by law, our liability for breach of an implied warranty or condition is limited to the supply of the services again or payment of the costs of having those services supplied again.
(ii) We accept no liability for any loss whatsoever including consequential loss suffered by you arising from services we have supplied.
(iii) We do not accept liability for anything contained in the post of a user or in any form of communication which originates with a user and not with Us.
(iv) We do not participate in any way in the transactions between our users.
44. By accessing our website, you agree to indemnify and hold us harmless from all claims, actions, damages, costs and expenses including legal fees arising from or in connection with your use of our website.
45. If a Force Majeure event causing delay continues for more than Thirty (30) days, we may terminate this Agreement by giving at least Seven (7) days Notice to you. “Force Majeure” means any act, circumstance or omission over which we could not reasonably have exercised control.
46. These terms and conditions are to be governed by and construed in accordance with the laws of Victoria, Australia and any claim made by either party against the other which in any way arises out of these terms and conditions will be heard in Victoria, Australia and you agree to submit to the jurisdiction of those Courts.
47. If any provision in these terms and conditions is invalid under any law the provision will be limited, narrowed, construed or altered as necessary to render it valid but only to the extent necessary to achieve such validity. If necessary the invalid provision will be deleted from these terms and conditions and the remaining provisions will remain in full force and effect.
48. We undertake to take all due care with any information which you may provide to us when accessing our website. However we do not warrant and cannot ensure the security of any information which you may provide to us. Information you transmit to us is entirely at your own risk although we undertake to take reasonable steps to preserve such information in a secure manner.