Effective 23 May 2018.
1. Your acceptance
1.1 These are the terms on which Hush Foundation ABN 75 138 088972 (Owners of Gathering of Kindness, referred to as Hush, we, our or us) permits users (referred to as you or your) to access and use the Gathering of Kindness website (Website) including using the services and functionality made available through the Website, viewing Content (defined in clause 9) provided by Hush, communicating with Hush, reviewing product information and placing an order for products, services or both (Order) through the online store (Online Store).
1.2 You agree to be bound by these Terms when you:
(a) use, browse or access any part of the Website;
(b) register an account with the Website; or
(c) place an Order through the Online Store.
1.3 Hush may from time to time review and update these Terms to take account of new laws, regulations, products or technology. Your use of the Website will be governed by the most recent Terms posted on the Website. By continuing to use the Website, you agree to be bound by the most recent Terms. It is your responsibility to check the Website regularly for updated versions of the Terms.
2. Orders for products, services or both through the Online Store
2.1 By placing an Order via the Online Store you are making an offer and commitment to purchase products, services or both in accordance with these Terms. An Order is subject to acceptance or rejection by Hush in its discretion after receipt of the Order. Provided you have not accepted delivery of the products, where possible, Hush may in its discretion permit an Order to be cancelled, but cancellations cannot be guaranteed once any applicable payment is received for the Order. The Order cannot be cancelled by you once you accept delivery of the products.
2.2 Once you have placed an Order in accordance with these Terms you will receive an email confirming the details of your Order and receipt of payment (where applicable) (Confirmation Email). If you do not receive a Confirmation Email, please enquire with us to check the status of your Order.
2.3 Notwithstanding anything to the contrary, while we will use best endeavours to ensure that products advertised for sale on the Website are available for purchase, we may at any time following receipt of your Order accept, decline, or limit your Order for any reason whatsoever, whether or not your credit card has been charged or we have otherwise received payment from you. We will issue you with a refund if your credit card has been charged or we have received payment from you, and your Order is cancelled by us.
3. Changes to products, services and pricing
3.1 We may modify prices and product and service offerings at our discretion for any reason (including but not limited to changes in market conditions, product discontinuation, changes in availability, manufacturer changes, errors in advertising, and in other circumstances).
3.2 All updates and modifications to the Website including any changes to the Content, Online Store, and all product and service pricing and offerings will be subject to these Terms. Any information we provide in relation to the availability of products is a guide only and is subject to change without notice. We will not be liable for any lack of availability of products that you may order through the Website. While we will use best endeavours to ensure that products advertised for sale on the Website are available for purchase, we cannot guarantee the availability of any product.
4.1 All transactions are processed in Australian Dollars.
4.2 Prices are inclusive of goods and services tax. In all other respects prices are exclusive of taxes, duties and charges imposed or levied in Australia in connection with the supply of goods or services.
5.1 Payment for an Order is made online through the Online Store.
5.2 We accept Online Payment using VISA and MasterCard credit cards or PayPal.
5.3 The credit card holder must be either the billing or shipping recipient.
5.4 If you choose to pay by credit card, you authorise us to debit the amount that is payable for an accepted Order from your nominated credit card account.
5.5 If we are unable to successfully process your credit card for your Order, then we may cancel your Order.
5.6 You must not pay, or attempt to pay, for Orders through any fraudulent or unlawful means.
5.7 We will provide you with a receipt at time of delivery that specifies the total fees and charges for the products and services in your Order.
6. Delivery of Orders
6.1 We ship using Third Party Couriers. Shipping and delivery of Orders will be in accordance with the delivery terms of the Third Party Couriers.
6.2 You must provide a physical delivery address where someone is likely to be available to accept the delivery of your Order during business hours. You may be required by the Third Party Couriers to provide proof of identification for verification checks, in accordance with their delivery terms.
6.3 Shipping costs are influenced by the size, weight and quantity of the products in your Order and your location.
6.4 We aim to ship all Orders, where products are in stock, within 3-4 business days. If for any reason we are unable to dispatch your Order we will endeavour to notify you within 2 business days. Shipping times are subject to the delivery terms of the Third Party Couriers.
6.5 Claims for damage in transit must be reported in writing within 3 days of delivery.
7. Risk and title
7.1 title to the products in your Order passes to you upon delivery.
8. Returns and refunds of an order and warranties
8.1 We do not normally provide a refund if you have simply changed your mind about an Order, so please choose carefully.
8.2 In order to obtain a refund or exchange a product purchased from Hush, you must have clear proof of purchase; typically, a receipt or invoice.
8.3 To return your product (including warranty returns for faulty products, or where you have been sent the wrong item), please contact us at firstname.lastname@example.org. We will review your request, and at our option, authorise a return. If we authorise the return, please include a note in the package when returning your product to us. You acknowledge that by authorising the return, we are not representing that your warranty claim is valid or that you will be entitled to have your product repaired or replaced, or a refund provided in relation to that product.
9.1 The Website is owned and operated by or on behalf of Hush.
9.2 All intellectual property rights (including copyright and patents) in the information, comment, content, communication, advice, text, training materials, trade marks, logos, service names and trade names of Hush, images of people or places or other content (Content) contained in the Website are owned or licensed by Hush.
9.3 The Content on the Website is for general information purposes only. Hush does not warrant or make any representations as to any third party products or services described or referred to on the Website. Any use of the Content by another person or organisation is at the user's own risk.
9.4 The Content on the Website is obtained and developed from a variety of sources including but not limited to collaborations with third parties and information provided by third parties under licence. Inclusion of Content on the Website is not an endorsement of any organisation, product or service.
9.5 We may modify any information on the Website (including Content) at our discretion for any reason. All updates and modifications to the Website (including Content) will be subject to these Terms.
9.6 If you have a complaint regarding any Content on the Website, Hush's sole obligation will be to review any written complaint notified to it and, if it sees fit, in its sole discretion, to modify or remove the particular Content.
10. Prohibited uses
Unless expressly permitted by and in accordance with these Terms, you agree that in accessing and using the Website, you will not:
(a) download (other than page caching) or modify the Website or any portion of the Website;
(b) impersonate or falsely claim to represent a person or organisation;
(c) frame the Website without Hush's express written permission; or
(d) post, link to, or otherwise communicate or distribute any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful material or information, or otherwise use the Website in a manner which is unlawful or would infringe the rights of another person including any intellectual property rights.
11.1 The Website may contain links to other websites. We have not reviewed all of the third party websites linked on the Website and are not responsible for their content or accuracy. Hush provides those links as a ready reference for accessing related information on the internet and not as an endorsement, support or sponsorship of those websites, their operators, the goods, services or content that they describe.
12. Access and communication
12.1 Hush does not warrant that you will have continuous access to the Website. Hush will not be liable if the Website is unavailable to you due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunications supply.
12.2 Hush does not guarantee the delivery or security of communications over the internet as such communications rely on third party service providers, and electronic communication (including electronic mail) is vulnerable to interception by third parties.
12.3 Whilst Hush takes reasonable precautions to protect information transmitted via the Website (for instance, when you access your Account, or you make a purchase, a secure connection via Secure Socket Layer technology is established with your web browser to ensure that your details are encrypted and securely communicated to us), Hush cannot and does not guarantee the security or confidentiality of these communications or the security of the Website.
12.4 Hush does not provide, and has no control over, communications, networks or services, the internet or other technology required or used across the Website and accepts no responsibility for any direct or indirect loss in any form associated with them, whether due to congestion, technical malfunction, viruses or otherwise.
You will fully indemnify Hush in respect of all loss, damage, costs, expenses (including legal fees on a full indemnity basis), fines, penalties, claims, demands and proceedings howsoever arising, whether at common law (including negligence) or under statute, in connection with any of the following:
(a) any breach of these Terms by you;
(b) your use of the Website; or
(c) your communications with Hush
15. Warranties, consumer guarantees and limitation of liability
15.1 Any representation, warranty, condition, guarantee or undertaking that would be implied in these Terms by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by law, including any implied warranties of acceptable quality or fitness for a disclosed purpose.
15.2 Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL) or any other applicable law that cannot be excluded, restricted or modified by agreement.
15.3 To the fullest extent permitted by law, the liability of Hush for a breach of a non-excludable guarantee referred to in clause 15.2 is limited, at Hush's option, to:
(a) in the case of goods supplied or offered by us, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services supplied or offered by us:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
15.4 You acknowledge and agree that, Hush is not the manufacturer or producer of any Non-Hush Product, and the only warranties offered in respect of a Non-Hush Product are those of the manufacturer, not Hush. Except as expressly set out in these Terms and to the extent permitted by law including the ACL, Hush does not make or will not be deemed to have made any:
(a) warranty or representation, express or implied, as to:
(i) the title, condition, design, operation, acceptable quality or fitness for purpose of any product (or any part thereof);
(ii) the absence of any latent or other defects;
(iii) the absence of any infringement of any intellectual property rights (including copyright and patents);
(iv) the absence of obligations based on strict liability in tort; or
(b) other representation, guarantee or warranty whatsoever, express or implied,
with respect to any Product or any part thereof or services sold on the Website.
15.5 The Products and services sold on the Website come with certain consumer guarantees. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. Hush does not have to pay for damages or losses that (i) are not caused by Hush’s failure to meet a consumer guarantee, or (ii) are not reasonably foreseeable.
15.6 The consumer guarantees under the ACL have no set time limit, and depending on the price and quality of the Product, you may be entitled to a remedy even after any manufacturers' warranty for Non-Hush Products has expired. In that circumstance, Hush recommends that:
(a) in relation to Non-Hush Products, you contact the manufacturer's customer assistance department directly. Although the manufacturer's warranty has expired, the manufacturer may assess the nature, cause and extent of a failure or fault if you believe your consumer guarantees have been breached. If you are not satisfied with the manufacturer's remedy, then please contact us (see clause 21) for assistance.
15.7 Hush will not be liable to you for any indirect, incidental, special or consequential loss or damage, loss of profits or anticipated profits, economic loss, loss of business opportunity, loss of data, loss of reputation or loss of revenue (irrespective of whether the loss or damage is caused by or relates to breach of contract, tort (including negligence), statute or otherwise) arising in connection with the Website, the Content, all links to or from the Website or the goods and services advertised or purchased from the Website other than losses that 1) resulted from Hush’s failure to meet a consumer guarantee; and 2) are reasonably foreseeable.
15.8 Subject to this clause 17, to the maximum extent permitted by law, you agree that the maximum aggregate liability of Hush for all proven losses, damages and claims arising out of or in connection with these Terms or a supply under these Terms, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of $100.
16. Termination of your access to the Website
Hush may at any time immediately terminate your access (including restricting access) to the Website or any feature of the Website for any reason (including due to your breach or alleged breach of these Terms) in its sole discretion and without prior notice. Any indemnities given by you and any limitations of our liability survive such termination.
17. Jurisdiction and law
These Terms are governed by and must be construed in accordance with the laws of the State of Victoria, Australia. You submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms, their performance and subject matter.
Each provision of these Terms is severable from the others and no severance of a provision will affect any other provision.
19. Contacting us