Terms of Service
TERMS OF SERVICE
TABLE OF CONTENTS
2. Entering into this agreement
2.1 When is this Agreement entered into?
2.2 Amending this Agreement
3.1 Correct information
3.3 Risk and property
3.4 Our discretion to sell
3.5 Shipping outside Australia
4. Guarantees, representations and liability
4.1 Statutory guarantees
4.4 Your indemnity
5. Use of the website
5.2 Our liability to You for third party conduct
5.3 Malicious use of Website
6. Force Majeure
TERMS OF SERVICE
IMPORTANT: THESE TERMS OF SERVICE CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN YOU AND US.
In this Agreement:
• “Flow State Coffee Pty Ltd”, “Flow State Coffee”, (ACN 476 638 117 183) of PO BOX 7013 BONDI BEACH, NSW 2026, Australia.
• “You” means the individual interacting with Our Website or purchasing goods or services from Us.
In this Agreement unless stated otherwise:
“Agreement” means this Agreement including the schedules thereto;
“Business Day” means any day other than a Saturday, Sunday or a public holiday in the “metropolitan municipal district” under the Public Holidays Act 1993 (NSW).
“Business Hours” means the hours of 8.30 am to 5.30 pm Sydney, Australia time on a Business Day.
“Force Majeure” means any event or condition not existing at the date of this Agreement, not reasonably foreseeable as of such date and not reasonably within the control of any party, which prevents in whole or in material part the performance by one of the parties of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable, including (but not limited to):
• war or warlike conditions, riot or civil commotion, terrorism, mobilisation, insurrections;
• import or export bans, blockades or embargoes;
• statutory or union contract reductions in working hours, strike or lockout or other labour conflicts; or
• natural catastrophe, earthquakes, storms, floods, fires, epidemics;
“Government Authority” means any governmental or semi-governmental or local government authority, administrative or judicial body, tribunal or court, department, commission, public authority, Minister, statutory corporation, authority or instrumentality.
“Indemnified Persons” means Us, Our Related Entities, and their officers, employees and contractors;
“Intellectual Property” means all current and future registered and unregistered trademarks, trade names, business names, service marks, domain names, patents, inventions, processes, technical know how, slogans, logos, emblems, registered and unregistered designs, copyright and other intellectual property rights;
“Material Adverse Effect” means a material adverse effect upon either:
• the ability of the party to perform its obligations under this Agreement; or
• the rights of the party upon or in relation to this Agreement;
“Related Entity” means a related entity as defined by the Corporations Act 2001 (Cth);
“Website” means Our website at - https://www.flowstatecoffee.co;
• words importing the singular are deemed to include the plural and vice versa;
• headings and subheadings are inserted for convenience only and will not be used to interpret the text;
• words denoting a natural person will include a corporation and vice versa;
• “including” and similar words are not words of limitation;
• words importing gender include every gender;
• references to any document (including this Agreement) are references to that document as amended, consolidated or supplemented from time to time;
• references to parties or to any party will include their or its respective successors, permitted assignors, executors and administrators;
• any reference to a monetary amount is to an amount denominated in the lawful currency of Australia unless otherwise expressed;
• a reference to any legislation, regulation, code or local law includes any modification, re-enactment or substitution of it;
• if an act must be done on a specified day that is not a Business Day, it must be done instead on the next Business Day.
2 Entering into this agreement
• When is this Agreement entered into?
• You enter into this Agreement with Us:
• every time that You purchase goods or services through the Website; and
• Every time that You otherwise interact with the Website by:
• Posting a comment or picture;
• Downloading any material.
• All goods and services are sold subject to this Agreement.
• This Agreement will prevail over all conditions of your order to the extent of any inconsistency.
• Amending this Agreement
• We may amend this Agreement from time to time without giving You notice.
• The wording of the Agreement that will apply will be that displayed on the Website at the time that the Agreement is formed.
• Correct information
• You must provide Us with your true name and such personal information as We require at the time of order.
• You must not make any false representation as to your location, age, health status or pregnancy status.
• We will use best endeavours to deliver your order within the timeframe (if any) indicated on the Website.
• If there is any unexpected delay in shipping your order then We will send You an email advising you of the delay.
• We will dispatch your order to the address that You have indicated, using the preferred shipping method that You have indicated.
• It is your responsibility to ensure that:
• You provide the correct shipping address; and
• somebody is available at that address to receive your order.
• Orders that cannot be delivered may need to be collected from a post office or courier depot, or will be returned to Us as undeliverable. This will occur at the discretion of your chosen delivery service who is not our agent.
• If your order is returned to Us by your chosen delivery service, We may in our discretion refund to You the purchase price less shipping costs. This will be your sole remedy.
• Risk and property
• Property and risk in any goods ordered passes to you at the time that we ship the goods to you.
• In the event of a refund being given under clause 2(f), property in the goods reverts back to Us.
• Our discretion to sell
• We may determine in our absolute discretion:
• to whom We sell goods or services;
• on what terms We sell goods or services and
• to which countries We will ship orders.
• We may cancel your order at any time prior to shipping by providing you with a full refund We will cancel your order if We believe that:
• You have provided false or incomplete personal information at the time of placing the order;
• there are irregularities with your payment, such as payment by a credit card issued in a different country to the delivery address.
• In the event of a cancelled order that has not been shipped, receipt of a full refund will be your sole remedy.
• Shipping outside Australia
• We do not warrant that our goods may be imported into any country outside Australia.
• If You select a delivery address outside Australia, or use a re-shipper to forward your order on to an address outside Australia, then You are solely responsible for:
• ensuring that importation into the delivery destination is legal;
• ensuring that possession and use of the goods is legal in that jurisdiction;
• any import charges, tariffs or taxes that may apply at the time of importation.
• You must not arrange to have your order shipped to an address where the importation, possession or use of our goods is illegal.
4 Guarantees, Representations and Liability
• Statutory guarantees
• Goods and services that We sell are subject to guarantees under the Australian Consumer Law.
• We provide no guarantees in relation to our goods or services other than the statutory guarantees under the Australian Consumer Law.
• We make no representations as to the benefits or effects of our goods and services other than those that we expressly state:
• on the Website;
• on the goods or their packaging.
• Our liability in relation to your orders for goods or services is limited:
• in relation to undeliverable orders, under clause 2(f);
• in relation to cancelled orders, under clause 4(b); and
• in relation to your use or resupply of goods or services, under clause 2.
• Except to the extent:
• that the exclusion, restriction or modification of certain conditions, guarantees, warranties, liabilities and rights is prohibited by the Australian Consumer Law; and
• of any express warranty against defects,
• Any conditions, guarantee, warranties or rights implied to your benefit by legislation, conduct or common business practice are hereby excluded to the maximum extent permissible; and
• We will not be liable for any defects or damage caused in whole or in part by misuse, abuse, neglect, or accident;
• Our total maximum liability in relation to any goods or services is the amount paid by the You in relation to those goods or services.
• Your indemnity
You must indemnify the Indemnified Persons and hold them harmless from any damage, cost or liability, whether from a claim by you, your next of kin or another third party, arising from:
• your breach of clauses 1, 3.4(c) or 5.3 of this Agreement;
• consumption of our goods other than strictly in accordance with the printed instructions supplied with those goods;
• your supply of the goods to another person, where the warnings on our goods expressly state that that other person should not consume the goods.
5 Use of the website
• We do not warrant that the Website will be available 100% of the time, and You agree that We will not be liable to You where the Website is unavailable from time to time due to:
• server or internet connection outages.
• You agree that:
• the Website is not a “service” that We supply to You within the meaning of the Competition and Consumer Act;
• You have no right to legal or equitable right to be able to access the Website;
• We may block you from accessing the Website at any time; and
• We have no liability to You if You are unable to access the Website for any reason.
• Our liability to You for third party conduct
• We do not accept responsibility for any material that You or any other person upload or post on the Website, or that You or any other person send to other registrants through the Website, irrespective of whether We review such material. Such material, opinions or postings are not necessarily our views or opinions.
• We do not accept responsibility for the acts or omissions of any persons:
• who advertise on the Website;
• whose websites We may link to on the Website.
• You agree that We are not responsible for anything that we are not responsible for under paragraphs (a) and (b). You will not make any demand or claim against us with respect to such material, act or omission.
• Malicious use of Website
• You must not use the Website to upload or transmit any material that:
• is obscene, defamatory or illegal;
• infringes any third party Intellectual Property rights;
• incites hatred against, or disparages a person on the basis of their race, nationality, religion, political belief, sexuality, gender, age, health, disability or body shape;
• harasses, threatens or intimidates any person;
• constitutes a false or misleading testimonial on use of our goods or services;
• contains any Trojan horse, virus or other malicious code; or
• is illegal.
• You must not hack, pharm, spider, crawl or scrape the Website.
• You must not do anything that materially disrupts or hinders the operation of the Website, such as participating in a denial of service attack against the Website.
7 Applicable Law and Disputes
6 Force Majeure
If a Force Majeure arises so as to wholly or partly prevent or delay either party performing its obligations under this Agreement, the affected party will:
• not be liable for failing to perform this Agreement to the extent that it is prevented from doing so by the Force Majeure;
• use reasonable endeavours to remove the Force Majeure as quickly as practicable, but shall not be liable to settle any strike, lockout or other labour difficulty on terms not reasonably acceptable to that party; and
• Notify the other party of the Force Majeure, its likely duration and the period (in that party's opinion) of any consequent delays or other relevant events.
• Applicable law
This Agreement and any orders made through this Website are subject to the laws, and exclusive jurisdiction of the courts and tribunals, of Victoria, Australia and the federal courts and tribunals of Australia.
• Determination of dispute
• In the event of any dispute or claim arising under or related to:
• this Agreement;
• your use of the Website;
• our use of the Website;
• any other person’s use of the Website;
• your purchase of goods or services from Us,
at our sole discretion We may insist upon such dispute or claim being dealt with by commercial arbitration in the English language in Melbourne, Victoria, Australia under the rules set down by the Commercial Arbitration Act 1984 (Vic) or its successors.
• Paragraph (a) does not restrict your right to seek redress before an Australian court under the Competition and Consumer Act.
If any provision of this Agreement shall be held to be invalid or in any way unenforceable, it shall be severed and the remaining provisions shall not in any way be affected or impaired and this Agreement shall be construed so as to most nearly give effect to the parties’ intention when it was originally executed.
• This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties.
• You may not assign this Agreement.
• We may assign this Agreement without notice to you.