Terms and Conditions
TERMS AND CONDITIONS
1.1 These Terms are between Kapalo Pty Ltd trading as The Samba Shop (ABN 54 615 748 260) its successors and assignees (referred to as “we”, “us” or “our”) and you, the person, organisation or entity that purchases Products and Services from us (referred to as “you” or “your”), and collectively the Parties. These Terms apply to all sales made by us to you.
1.2 You have requested the Products and Services, described on and able to be ordered via our Site. You accept these Terms by:
(a) completing our online order form and/or supplying us with your product and service requirements and sizes.
(b) instructing us to proceed with the Products or Services; or
(c) making full payment for the Products and Services, set out in our tax invoice to you.
1.4 You agree that these Terms form the agreement under which we will supply Products and Services to you. Please read these Terms carefully. Please contact us if you have any questions using the contact details at the end of these Terms. Using or purchasing our Services indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms, and that you are 18 years or older, or have the consent of a legal guardian who is 18 years or older.
2.3 We will not commence performing the Services nor delivering Products until you have paid the Fees in full unless stated and agreed otherwise via deposit for custom costumes.
2.1 Access to some of our Services may require you to register for an account. It is your responsibility to keep the details of your account, including user name and password, confidential. You are liable for all activity on your account, including any purchases made using your account.
2.2 You agree to provide us with all materials and information necessary to supply the Services to you, including correct body measurement and costume design specifications, and you acknowledge that our supply of the Services is dependent on the accuracy of the materials and information provided by you.
2.3 We agree to perform the Services with due care and skill.
2.4 We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.
2.5 We may provide the Services to you using our employees, contractors and third party providers and they are included in these Terms.
2.6 Third parties who are not our employees or our direct contractors or third party suppliers will be your responsibility. We are not responsible for the products or services provided by those third parties.
2.7 If you request a Variation we have discretion as to whether we perform it for you and an adjustment to the Fee will be required in respect of it.
2.8 If we agree to perform a Variation, then we will inform you of any Variation Fee. You must pay the Variation Fee before we commence the Variation. We will invoice you accordingly for the Variation.
- PRICE, INVOICING AND PAYMENT
3.1 You agree to pay us the Fees set out on our Site. All amounts are stated in Australian dollars. All amounts include Australian GST (where applicable). You will be required to make payment by way of credit card, Stripe or other payment methods as set out on the Site at the time of purchase.
- YOUR OBLIGATIONS AND WARRANTIES
4.1 You warrant that throughout the term of these Terms that:
(a) there are no legal restrictions preventing you from agreeing to these Terms;
(b) you will cooperate with us and provide us with information, documents, submission forms costume, design specifications and measurements as are reasonably necessary to enable us to perform the Costume Design Services as requested by us from time to time, and will comply with these requests in a timely manner;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Services;
(e) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we and you will use all reasonable efforts to resolve your concerns;
(f) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
(g) you consent to the use of your name and Intellectual Property in relation to the Services in a way which may identify you;
(h) if applicable, you hold a valid ABN which has been advised to us; and
(i) if applicable, you are registered for GST purposes.
- OUR INTELLECTUAL PROPERTY
5.1 The Materials contain material which is owned by or licensed to us and is protected by Australian and international laws. We own the Intellectual Property rights in the Materials including but not limited to copyright which subsists in all creative and literary works incorporated into our Materials.
5.2 You agree that, as between you and us, we own all Intellectual Property rights in our Materials, and that nothing in these Terms constitutes a transfer of any Intellectual Property rights in our Materials, except as stated in these Terms or with our written permission.
5.3 Your use of our Materials does not grant you a licence, or act as a right to use, any Intellectual Property in the Materials, whether registered or unregistered, except as stated in these Terms or with our written permission.
5.4 You must not breach our Intellectual Property rights by, including but not limited to:
(a) altering or modifying any of the Materials;
(b) creating derivative works from the Materials; or
(c) using our Materials for commercial purposes such as on-sale to third parties.
5.5 Upon full payment of our Fees, you will be provided with Licensed Material.
5.6 We grant you a perpetual, non-exclusive, revocable, worldwide and non-transferable licence to use the Licensed Material for your internal business purposes or personal use only.
5.7 This clause will survive the termination of these Terms.
- YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
6.1 If you provide information including any Intellectual Property to us, then you:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us;
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Services to you; and
(c) consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
6.2 If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
(a) irrevocably consent to any amendment of the Intellectual Property in any manner by us;
(b) irrevocably consent to us using or applying the Intellectual Property without any attribution of authorship;
(c) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
(d) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.
- CONFIDENTIAL INFORMATION
7.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than, where necessary); to use all reasonable endeavours to protect Confidential Information from any unauthorised disclosure; only to use the Confidential Information for the purpose for which it was disclosed by you, to provide better quality services to you, and not for any other purpose.
7.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect our Confidential Information from any unauthorised disclosure; and only to use our Confidential Information for the purpose for which it was disclosed or provided by us to you, and not for any other purpose.
7.3 These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
7.4 This clause will survive termination of these Terms.
- FEEDBACK AND DISPUTE RESOLUTION
8.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.
8.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(b) If the Parties cannot agree how to resolve the dispute at the initial meeting, any Party may refer the matter to a mediator. If the parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith to seek to resolve the dispute.
8.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, at law or in equity.
9.1 These Terms terminate automatically upon the Services being provided in full.
9.2 Either Party may terminate these Terms, if there has been a material breach of these Terms, subject to the dispute resolution procedure contained in these Terms.
9.3 We may terminate these Terms immediately, at our sole discretion, if:
(a) we consider that a request for the Service is inappropriate, improper or unlawful;
(b) you fail to provide us with clear or timely instructions, information, documents, design specifications or floor plans to enable us to provide the Services;
(c) we consider that our working relationship has broken down including a loss of confidence and trust;
(d) you act in a way which we reasonably believe will bring us, our Services or our Site into disrepute;
(e) you provide us with incorrect payment details or any other incorrect information;
(f) we cannot process your payment with the payment particulars you provide us; or
(g) for any other reason outside our control which has the effect of compromising our ability to perform the Services within the required timeframe.
9.4 On termination of these terms other than pursuant to clause 9.3(g), you agree that any payments made are not refundable to you.
9.5 On termination of these Terms you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and Intellectual Property.
9.6 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and Intellectual Property.
9.7 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
9.8 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
- CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
10.1 Services: If you are a consumer as defined in the ACL, the following applies to you: “We guarantee that the Services we supply to you are rendered with due care and skill; fit for the purpose that we advertise, or that you have told us you are acquiring the Services for or for a result which you have told us you wish the Services to achieve, unless we consider and disclose that this purpose is not achievable; and will be supplied within a reasonable time.” To the extent we are to exclude liability; our total liability for loss or damage you suffer or incur from our Services is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
10.2 Delay: Where the provision of Services depends on your information, documents, instructions or response, we have no liability for a failure to perform the Services in the period set out on the Site where it is affected by your delay in response, or supply of incomplete or incorrect information.
10.3 Refunds: We offer you a refund if the products and services provided to you are proven to be faulty.
10.4 Warranties: To the extent permitted by law, we exclude all express and implied warranties, and all material and work is provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties including but not limited to implied warranties of merchantability and fitness for a particular purpose.
10.5 Suitability: You are solely responsible for determining the suitability of the Services, and your reliance on any information that is provided to you through our Site or Services are at your own risk.
10.6 Liability: To the extent permitted by law, we exclude all liability for:
(a) implied or express guarantees, representations or conditions of any kind, which are not stated in these Terms;
(b) the Services or Products being unavailable;
(d) the performance of the costume designed and products provided to you, as affected by any circumstances out of our control, including but not limited to:
- Inappropriate care for costume and its materials ;
- any changes in the physical environment such as exposure to weather and changes to design materials;
(e) any loss, damage, costs including legal costs, or expenses whether direct, indirect, incidental, special, consequential and/or incidental, including loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation, use or any indirect, remote, abnormal or unforeseeable loss, or any loss or damage relating to business interruption, or otherwise, suffered by you or claims made against you, arising out of or in connection with your inability to access or use the Services/Site, the use of our Services/Site and the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.
10.7 Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Services and Products, however arising, including under contract, tort, including negligence, in equity, under statute or otherwise, will not exceed the total fees paid by you to us in the twelve (12) month period prior to the event giving rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made, as applicable.
10.8 Refund: If we do not supply the Licensed Material to you within the timeframe stipulated on the Site or otherwise advised by us we will provide you, upon request, with a full refund of Fees paid.
10.9 This clause will survive termination of these Terms.
11.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) any breach of these Terms by you;
(c) any misuse of the Services, the Site or Materials or Licensed Material from or by you, your employees, contractors or agents; and
(d) your breach of any law or third party rights.
11.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
11.3 This clause will survive termination of these Terms.
12.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
12.2 Publicity: You consent to us using advertising or publically announcing that we have undertaken work for you, including but not limited to our Site and on social media.
12.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
12.4 GST: If and when applicable, GST payable on the Services will be set out on our invoices. By accepting these Terms you agree to pay us an amount equivalent to the GST imposed on these charges.
12.5 Relationship of parties: These Terms are not intended to create a relationship between the parties of partnership, joint venture, or employer-employee.
12.6 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
12.7 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
12.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. If we are delayed from performing our obligations due to such a circumstance for a period of at least 2 months, we may terminate our agreement with you by giving you 5 business days' notice in writing.
12.9 Notice: Any notice required or permitted to be given by either Party to the other under these conditions will be in writing addressed to you at the address nominated in your account, including your email address, provided at the time you order our Services. Our address is set out at the end of these Terms. Any notice may be sent by standard post or email, and notice will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission.
12.10 Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.
12.11 Entire Agreement: Without limiting any rights under common law, these Terms and any document expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing.
13.1 Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement or otherwise.
13.2 Confidential Information includes confidential information about you, your credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property, technology, and other information of wither Party whether or not such information is reduced to a tangible form or marked in writing as "confidential".
13.3 Fees means the fees payable for the Services and are set out on the Site.
13.4 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
13.5 Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs (whether or not registered or registrable), any corresponding property rights under the laws of any jurisdiction, discovery, circuit layouts, trade names, trade secrets, secret process, know-how, concept, idea, information, process, data or formula, business names, company names or internet domain names.
13.6 Licensed Material means the Costume Designs and Quotes provided to you as a part of the Custume Services.
13.7 Materials means work and materials that we provide to you in carrying out the Services and also the products we sell on our website.
13.8 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
13.9 Services means the services described on our Site.
13.10 Site means our website at www.thesambashop.com.au.
13.11 Terms means these terms and conditions.
13.12 Variation means amended or additional services, including but not limited to changes in scope or variations to design requirements.
13.13 Variation Fee means the additional cost for a Variation.
Kapalo Pty Ltd t/a The Samba Shop (ABN 54 615 748 260)
Suite 1A, Level 2
802 Pacific Highway
Gordon NSW, Australia, 2072
Last update: 25 May 2016