GENERAL TERMS & CONDITIONS
1. General Terms and Conditions of Access to the Website
1.1 In this agreement "you" means the user of this website and any person acting on your behalf in respect of this website or any promotion (as defined below) and "we", "us" or "WhatsOnOffer" means WhatsOnOffer.com.au Pty Ltd ACN 140 498 399.
1.2 Clauses 5.4, 6 and 7 contain important disclaimers and limitations on liability.
1.3 This Website and its related computer and telecommunication systems (referred to in these terms and conditions as the "Website") are owned and operated by us on the World Wide Web ("WWW").
1.4 The material on the Website ("the copyright material") is the copyright of WhatsOnOffer, 7 Realms Pty Ltd ACN 137 240 807 and/or other copyright owners.
1.5 We grant you the entitlement to access the Website on the terms and conditions set out herein and below and as specified on the other pages on the Website.
1.6 Your entitlement to access the Website and to receive and reproduce any copyright material is conditional on your acceptance of the terms and conditions in their entirety save for any provisions prohibited at law. In consideration for your accessing the Website you are agreeing to be bound by these terms and conditions.
1.7 Access by you to the Website in breach of any of these terms and conditions constitutes unauthorised reproduction of the copyright material and unauthorised access to the Website and its related computer systems and may subject you to civil and criminal penalties.
1.8 You agree not to attempt to subvert any measures or steps taken to restrict the use of or access to the Website or any part thereof, or to cause disruption to the Website.
1.9 In accordance with the terms herein, you may access material from the Website only for your personal non-commercial use through a web browser.
1.10 This agreement is the whole agreement between yourself and us in relation to the general use of the Website.
1.11 Further terms and conditions apply if you are a subscriber of the Website or using a subscriber's account (as specified in #) or are placing any promotions on the Website (as specified in #) and you agree to be bound by those terms which shall supersede the terms contained below if you are a member or engage in such conduct.
2. Use of material on the Website.
2.1 We present on the Website information about purported promotions ("a promotion") from persons claiming to have authority to make such promotions on behalf of the provider of goods or services ("the relevant business") which is the subject of the promotion.
2.2 You agree and acknowledge that in providing information regarding promotions and offers, we:-
(a) where the Website provides facilities in connection with the purchase of goods or services or the redemption of offers through the Website or third party systems referred to by the Website ("sale features"),
(i) intend to act as agents of the person which has sought to use the sale features (or an associated underlying business entity);
(ii) in doing so shall never be entering into any contract or promise directly with you in respect of such goods and services; and,
(iii) do so on the basis of representations made to us which we may or may not be in a position to independently verify; and,
(iv) do not warrant that any such authority exists in fact.
(b) save as referred to in clause (a) above, do not act as the agent of either the person placing the promotion on the Website or the relevant business;
(c) do not warrant or represent that the promotion is genuine, accurate, has been made by an authorised person, or that it will be honoured by the relevant business;
(d) do not warrant or represent that any statement, review or comment in respect of any product or promotion is accurate or complete;
(e) do not warrant or represent or agree that any goods and services will be provided or made available as referred to in the promotion;
(f) are not obliged to provide any promotions to you nor to provide such promotions to any useable standard; and,
(g) to the extent permitted by law, will not be liable to you or any other person for any loss of any nature caused in any way whatsoever as a result of any inaccuracy, invalidity or dishonour of any promotion or any breach of contract or negligence by any person accepting the terms of any promotion – whether or not that may be the relevant business.
2.3 You furthermore acknowledge that (and notwithstanding that a promotion may be genuine and/or may have previously been honoured by the relevant business or another person):-
(a) a promotion (including any related offer) may be withdrawn at any time without notice;
(b) except as allowed by the relevant business (in its absolute discretion) a promotion may not be used in conjunction with any other promotion or offer;
(c) a promotion may be of such a nature that the relevant business may reasonably be unable to meet actual demand in connection with the promotion;
(d) whilst herein and on the Website a promotion may be referred to as an "offer" or similar terms, a promotion will only constitute a binding offer capable of acceptance by you where:
(i) the sale features are involved; and,
(ii) the entity which we intend to act as agent actually exists.
and in every other instance will is instead to constitute a mere promotion, advertisement or an invitation to treat; and,
(e) additional restrictions may be imposed by the relevant business in respect of a promotion.
2.4 We will use our reasonable endeavours to remove any promotion which we confirm is not genuine, unauthorised or is misleadingly or deceptively inaccurate.
2.5 The Website including its associated computer systems contain various mechanisms by which promotions may be provided or made available to you in different forms. In using these facilities and any materials produced from such mechanisms you must:-
(a) use the Website and its associated computer systems in good faith;
(b) not seek to make use of a promotion on multiple occasions except where, and to the extent that, the promotion allows such repeated use and such use is agreeable to the relevant business;
(c) not seek to make use of any promotion outside of the jurisdiction for that promotion (and if no jurisdiction is stated or can reasonably be inferred, then Australia) or where you have notice that there is an error, withdrawal or invalidity in respect of the promotion;
(d) not breach any law which is applicable to such use by you, including without limitation any laws in relation to spam or the sending of electronic messages or intellectual property laws;
(e) not use the Website, any promotion or any related materials in a manner which is reasonably capable of being seen as being defamatory, offensive, an infringement of intellectual property rights or otherwise likely to harm or tarnish the goodwill, reputation or intellectual property of WhatsOnOffer or any relevant business; or
(f) not reproduce the promotion except to the extent reasonably needed by you to make use of the promotion or as apparently allowed by the relevant business as stated on the Website.
2.6 Except as is reasonably necessary for the ordinary use of the Website, you may not copy, modify, or inject anything into:
(a) the layout of the Website; or
(b) any computer software and code contained in the Website.
2.7 Except for the limited uses set out in this Agreement, you may not use the Website, or the material connected with it, for any purpose, including:
(a) the reproduction of the material in any material form;
(b) the distribution of the material in any material form;
(c) re-transmission of the material by any medium of communication;
(d) uploading and/or reposting the material to any other site on the WWW; and,
(e) "framing" the material on the Website with other material on any other WWW site including by way of "hotlinking" or by otherwise causing any such material to be accessed from another Website or service.
2.8 We reserve all our intellectual property rights, including, but not limited to, copyright in material and/or services provided by it. Except as is reasonably necessary for the ordinary use of the Website and its associated computer systems, the material provided on the Website is provided for personal use only and may not be:
(a) re-sold and/or re-distributed in any material form;
(b) stored in any storage media; and/or
(c) re-transmitted in any media,
without our prior written consent.
3. Accuracy of information and authority to send messages
3.1 You warrant that the personal information you supply to us is accurate and not misleading in any way. If you continue use of the Website after any change in your personal information, you must at such time ensure that your use of the Website reflects your change in personal information.
3.2 You hereby warrant that you are the account holder of any e-mail address supplied by you as being your true and correct e-mail address.
3.3 Where you use any referral features of the Website or any other facilities capable of sending electronic or other communications, you hereby agree and warrant that you have the authority and consent to do so (express or implied) from the recipient of any such communication and will upon request provide reasonable proof of such consent.
3.4 You agree and consent that we may send you commercial electronic messages within the meaning of the Spam Act 2003 from or on behalf of WhatsOnOffer and third parties for the purposes of conducting the operations of the Website and to the extent permitted by law, without any obligation upon us to provide an unsubscribe facility.
3.5 Notwithstanding the above, communications sent by us may contain unsubscribe facilities with a view to notifying the person authorising the sending of the message of your desire to opt out of such messages. If those facilities are not addressed directly to the relevant person, then we shall use reasonable endeavours to forward such messages to that person.
3.6 Communications may be sent to you by us on behalf of persons representing to us that they have your consent and authority to send you such messages.
3.7 You hereby acknowledge and agree that we will be acting in reliance upon the persons referred to in clause 3.6 as to their having your consent and as to their acting upon unsubscribe messages and that you will release us and hold us harmless against any failure by such person to have your consent.
4. Links to other Websites.
4.1 The Website contains links (including references to Uniform Resource Locators ("URLs") to sites on the WWW owned and operated by third parties and which are not under our control.
4.2 In relation to the other sites on the WWW, which are linked to the Website, we:
(a) provide the links to other sites as a convenience to you and the existence of a link to other sites does not imply any endorsement by us of the linked site; and
(b) are not responsible for the material contained on those linked sites.
5. Payments made through the Sale Features
5.1 Payments made by you through the sale features or otherwise through the Website may be forwarded by us in accordance with details ("payment instructions") provided to us by the person who has placed a promotion on the Website using the sale features.
5.2 You agree that we are under no obligation to withhold such funds for you and that even where we hold such funds we may make payment in accordance with the payment instructions irrespective of:-
(a) whether any contract intended to be entered into by you through the Website has been completed, is valid or has been performed correctly;
(b) whether you have any other claim against the person who placed the promotion on the Website using the sale features; or,
(c) any advice has been received from you that you wish us to not transfer the funds.
5.3 We may deduct any amount due to us in connection with the use of the sale features from any such payment made by you.
5.4 Without limiting any other disclaimer or limitation of liability herein, to the full extent permitted by law you agree that we shall not be liable to you for any payment made by us pursuant to this Clause 5.
6. Disclaimer.
6.1 We are making the Website available for others to publish information without assuming a duty of care to users such as yourself. We are not in the business of providing professional advice and give no warranty, guarantee or representation about the accuracy, reliability or timeliness or otherwise, of the information contained on the Website and/or linked sites on the WWW.
6.2 We may in our absolute discretion comply with any notices regarding the removal of any potential infringements of intellectual property and/or any requests for information from law enforcement and administrative authorities without notice to you.
6.3 To the full extent permitted by law, we disclaim any and all warranties, express or implied, regarding:
(a) the accuracy, reliability, timeliness or otherwise of any information contained or referred to on the Website, promotion and/or of any linked sites; and
(b) merchantability or fitness for any particular purpose for any service or product contained or referred to on the Website, promotion and/or on any linked sites.
6.4 We will not be liable under any circumstances for any loss of profits or any damages of any kind recognised by law (even if we have been advised of the possibility of such loss of profits or damages) which are the consequence of you:
(a) acting, or failing to act, on any information contained on or referred to on the Website and/or any of the linked Websites; and
(b) using or acquiring, or your inability to use or acquire, any service or product contained or referred to on the Website and/or any linked sites.
6.5 We do not warrant, guarantee or make any representation that:
(a) the Website, or the server that makes the site available on the WWW, are free of software viruses or other malware;
(b) the functions contained in any software contained on the Website will operate uninterrupted or are error-free; or,
(c) errors and defects in the Website will be corrected.
6.6 To the full extent permitted by law, we are not liable to you for:
(a) a failure by any business or entity to perform any contract entered into, or seemingly entered into, between you and such third party – irrespective of whether such contract was entered into through the real or apparent agency of WhatsOnOffer;
(b) errors or omissions in the Website, or linked sites on the WWW;
(c) delays to, interruptions of or cessation of the services provided in the Website, or linked sites; and
(d) defamatory, offensive or illegal conduct of any user of the Website,
(e) whether caused through our negligence, our employees or independent contractors, or through any other cause.
6.7 You agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing the Website.
7. Limitation of liability.
7.1 To the full extent permitted by law, our liability for any implied warranty or condition is limited, at our choice, to one or more of the following:
(a) If the breach of an implied warranty or condition relates to services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
(b) If the breach of an implied warranty or condition relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods; or,
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods, or having the goods repaired.
8. Privacy Policy and use of information gathered.
8.1 We and/or people authorised by us may gather and process the information:
(a) which you may provide when accessing the Website, such as your name, address, e-mail address and other personal information about you;
(b) which we may obtain from other sources and databases; and
(c) regarding the way in which you use the Website or any promotions including, without limitation, information acquired through the use of "cookies" programmed during the accessing of the Website,
for the purposes of conducting the activities of WhatsOnOffer and those of our affiliated and related bodies.
8.2 We shall not otherwise distribute the information referred to paragraph 7.1 to third parties (other than its affiliated and related bodies) except with your consent save that you agree and consent that we may make limited disclosure for the purpose of providing information to you about our activities and our affiliated and related bodies and any special promotions which may be made by third parties in relation to us and our activities.
9. Termination of access.
9.1 We may terminate access to the Website at any time without giving any explanation or justification for the termination of access, and to the extent permitted by law, we will have no liability to you for any costs, losses or damages of any kind arising as a consequence of terminating access to the Website.
10. Alteration of Terms and Conditions of Access.
10.1 We reserve the right to change these terms and conditions:
(a) with or without further notice to you; and
(b) without giving you any explanation or justification for such change.
10.2 You hereby agree and warrant that you will review the terms and conditions on a regular basis or will otherwise ensure that you are familiar with the terms and conditions as issued from time to time.
11. Relevant jurisdiction.
11.1 This Agreement will be governed by and interpreted in accordance with the law of the State of South Australia or the Commonwealth of Australia (as applicable), without giving effect to any principles of conflicts of laws.
11.2 You agree to the jurisdiction of the courts of South Australia to determine any dispute arising out of this Agreement.
12. Uploading information.
12.1 You represent and warrant in relation to any material and/or information you provide to the Website that:
(a) you are authorised to provide the material and/or information;
(b) the material and/or information is accurate and not misleading, deceptive, defamatory, likely to confuse or a malicious falsehood in relation to any product, service, person or corporation;
(c) the material is not indecent, offensive, obscene or material constituting prohibited content, potential prohibited content or MA 15+ content within the meaning of the Telecommunications Act 1997 (Cth) and any other applicable legislative or administrative instruments;
(d) the material and/or information (or the use of it) is not the "passing off" of any product or service and does not constitute unfair competition; and,
(e) the material and/or information (or the use of it) does not infringe any intellectual property right including, but not limited to, trade marks, service marks or business names (whether registered or unregistered), confidential information and copyright.
12.2 You will comply with, and your use of the Website and anything in connection therewith will comply with, any relevant legislation or regulations of the Commonwealth of Australia and the State of South Australia and equivalent state and territory legislation and any other parliament competent to legislate in relation to the Website or any law in any country where the material and/or information is or will be available electronically to users of this Website.
12.3 A reference in these terms and conditions to providing material or information directly or indirectly and includes a reference to providing a link or URL.
13. Licence to use intellectual property.
13.1 By uploading any material which is intellectual property including, but not limited to, copyrighted works, trade marks and service marks (in this clause called the "intellectual property") on to the Website, you are granting us a perpetual, non-exclusive and payment-free licence throughout the world to:
(a) reproduce, use and exploit the intellectual property, as part of the Website and otherwise, to the full extent permitted by intellectual property law in any jurisdiction in which the Website is available to users; and
(b) allow us to sub-licence others the same rights granted to us in (a) above.
14. Removal of information.
14.1 In relation to any material and/or information included on the Website, we may remove any material and/or information, including but not limited to links to other sites on the WWW, at any time without giving any explanation or justification for removing the material and/or information.
14.2 Subject to clause 2.4, we make no representation as to whether we will remove any material from the Website, including material uploaded in breach of the terms and conditions except as required by law, and we are not otherwise obliged to remove any said material.
15. No Waiver.
15.1 A waiver of any provision of the Agreement must be in writing. No delay by any party in exercising any right or power pursuant to the Agreement will operate as a waiver of that right or power nor will any single or partial exercise of any right or power preclude any other or further exercise of that right or power.
16. Limit of liability.
16.1 We and our respective officers, employees and agents have no liability for any costs, losses or damages of any kind, which you may incur, arising whether directly or indirectly. This applies in relation to or in connection with any material and/or information supplied in respect of advertising on this Website; and as a consequence of removing any material and/or information from this Website.
17. Indemnity.
17.1 You will at all times indemnify us and keep us and our respective officers, employees and agents (referred to as "those indemnified") indemnified from and against any loss (including reasonable legal costs and expenses) or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of, in connection with or in respect of any breach of this Agreement by you (including any warranties) or publication of or distribution of the material and/or information supplied by you.
18. Severability.
18.1 If any part of this Agreement is found to be void, unlawful, or unenforceable then that part will be deemed to be severable from the balance of this Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.