End User terms and conditions
(a) Giftnote provides personalised gifting services to third party retailers (Services). You wish to engage Giftnote to provide the Services with respect to your Nominated Recipient.
(b) These terms and conditions (Terms) apply to any Services that we provide to you. By requesting our Services through the Retailer, you confirm you have read, understood and agree to these Terms.
(c) In these Terms, Giftnote, we or us means Giftnote Online Pty Ltd ACN 655 779 829 and their officers, employees and agents and you or User means the person(s) using the Services from time to time.
We agree to perform the Services in accordance with the Provided Information and all laws relating to the performance of the Services.
You acknowledge and agree that:
(a) the scope of the Services is limited to sending a text message and/or email to your Nominated Recipient using the Provided Information upon receiving confirmation of delivery from the Delivery Agent (Scope of Services); and
(b) Giftnote is not otherwise responsible in any way whatsoever for the product supplied by the Retailer and/or the delivery of the product to your Nominated Recipient by the Delivery Agent.
3. User obligations
You agree to:
(a) provide us with information and associated content relating to you and your Nominated Recipient and any other information necessary for us to perform the Services in a timely manner, including by providing such information through the Retailer (Provided Information); and
(b) cooperate with us and act reasonably in connection with the Services.
3.2 Accuracy of information
You acknowledge and agree that:
(a) the Provided Information is true, accurate and relevant in all respects;
(b) you have all necessary permissions and consents required to provide us with the Provided Information;
(c) we have relied on the Provided Information and these acknowledgements in agreeing to and providing the Services; and
(d) to the extent such information is materially inaccurate, misleading or incomplete to such an extent that, in our opinion, it requires a change to the Services or the fees then we may, at our election, revise or amend the Scope of Services.
4. Intellectual Property Rights
The Intellectual Property Rights in the Services are, and shall remain the property of us, and we reserve the right to grant a licence to use the Services to any other party or parties.
4.2 Provided Information
(a) All Intellectual Property Rights in the Provided Information remain your property or the property of the relevant third parties, and nothing in these Terms shall be construed as giving us any rights to such Intellectual Property Rights.
(b) You grant us a perpetual, irrevocable, transferable, sub-licensable, worldwide and royalty free licence to use the Provided Information for the purposes of performing the Services and for other internal or marketing purposes.
4.3 Your warranty and indemnity
(a) You warrant that:
(i) you own, or hold any necessary license of, all Intellectual Property Rights in the Provided Information; and
(ii) in utilising any Provided Information, we will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
(b) You indemnify us from and against any liability arising out of any claim by a third party that the Provided Information violates or infringes any Intellectual Property Rights owned by a third party.
4.4 Restrictions on use
You acknowledge and agree that you will:
(a) comply with all applicable laws, regulations and codes of conduct;
(b) not use the Services in any way that is threatening, abusive, offensive, endangers any person, unlawfully discriminatory or immoral;
(c) not use the Services in any manner that breach the Intellectual
Property Rights of any third party;
(d) not do anything which is intended or reasonably likely to damage, impair, interrupt or interfere with the provision of the Services;
(e) not alter, modify, decompile, disassemble, reverse engineer, sublicense or change the Services or create a derivative work from the Services by any means; and
(f) not purport to grant to a third party any right to access or use our Services except as we permit.
5. Limited warranty and exclusion of liability
5.1 Limitation of Liability
(a) This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their employees, agents and subcontractors) to each other in respect of:
(i) any breach of these Terms;
(ii) any use made of the Services; and
(iii) we shall have no liability for the accuracy, completeness or timeliness of any Delivery Agent in connection with the Services;
(iv) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
(b) As far as the law permits and unless otherwise specified in these Terms;
(i) all liability to a party for any injury, loss damage, cost or expense relating to or arising from these Terms, except to the extent that the injury, loss, damage, cost or expense arises from the negligent act or omission of a party, is excluded;
(ii) we shall have no liability for any damage caused by errors or omissions in any information or instructions, including without limitation the Provided Information, that you provide to us in connection with the Services; and
(iii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms
5.2 Maximum liability
To the extent permitted by law, Giftnote’s total liability under or in connection with the provision of the Services is, at the option of Giftnote:
(a) reprovision of the Services; and
(b) refund of any amount paid by you or on your behalf for receipt of the Services.
5.3 Australian Consumer Law
If the Australian Consumer Law applies to the supply of goods or services under these Terms, we acknowledge and agree that our services come with a guarantee that cannot be excluded under the Australian Consumer Law, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to you will apply:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
(b) You agree and warrant that you hold all necessary consents, including without limitation from the Nominated Recipient, to allow us to share any Provided Information with the Retailer for the limited purpose of the Retailer fulfilling your order.
(c) Without prejudice to the generality of clause 6(a), you agree and warrant that you have all necessary and appropriate consents and notices in place to enable lawful transfer to us of any personal data or information, including without limitation in connection with the Provided Information, for the duration and purposes of these Terms so that we may lawfully use, process and transfer the personal data in accordance with these Terms.
7. Force Majeure
(a) Neither party shall be liable for any delay or failure to perform their obligations in a timely manner pursuant to this document if such delay is due to a Force Majeure Event.
(b) If a Force Majeure Event continues for a period of 60 consecutive days, then either party may terminate the Services affected by the Force Majeure Event by providing written notice to the other party.
(a) Where a variation to these Terms would:
(i) have a material adverse effect on you, we may vary these Terms at any time by notifying you at least 14 days prior to the variation coming into effect, provided that if you do not agree to the variation, you may terminate these Terms without penalty by providing us with written notice prior to the date that the variation will take effect. We will give you an additional notice 3 days before the expiration of that period; or
(ii) not have a material adverse effect on you, we may vary these Terms at any time by notifying you at least 14 days prior to the variation coming into effect.
(b) The laws of New South Wales govern these Terms and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and courts competent to hear appeals from those courts.
(c) A clause or part of a clause of this document that is illegal or unenforceable may be severed from these Terms and the remaining clauses or parts of the clause of these Terms continue in force.
(d) These Terms supersede all previous agreements about its subject matter. This agreement embodies the entire agreement between the parties.
(e) Each party must do all things reasonably necessary to give effect to this document and the transactions contemplated by it.
(a) A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as the person notifies the sender.
(b) A notice, consent or communication is given and received:
(i) if it is hand delivered, on the day it is given;
(ii) if it is sent by post, three business days after posting (if within Australia) or seven business days after posting (if outside Australia); and
(iii) if it is sent by email, that day, if the time of departure from the sender's mail server is before 5.00pm on a business day, or the next business day in any other case, unless the sender receives an automated message generated by the recipient's mail server (other than an 'out of office' message or other response generated by or at the instigation of the recipient) that the email has not been delivered within two hours.
10. Defined terms & interpretation
10.1 Defined terms
In these Terms:
(a) Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
(b) Delivery Agent means the delivery agent appointed by the Retailer to deliver the items connected with the Services to your Nominated Recipient.
(c) Force Majeure Event means an act of God, national emergency, pandemic, epidemic, terrorist act, sabotage, flood, storm, earthquake, fire, explosion, civil disturbance, insurrection, riot, war, industrial action, lockout, rebellion, quarantine, embargo and other similar governmental action or a general and continued energy shortage, power or utilities interruption or failure.
(d) Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.
(e) Retailer means a third party business which offers the Services that you use to request the Services.
(f) Nominated Recipient means the person that you nominate to receive the Services.
(g) Privacy Legislation means:
(i) the Privacy Act 1988 (Cth) (Privacy Act) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;
(ii) the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act; and
(iii) all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are being provided that relate to the processing of personal information.
(i) Provided Information has the meaning given to that term in clause 3.1(a).
(j) Scope of Services has the meaning given to that term in clause 2.2(a).
(k) Services means the services to be provided by us as specified in clause 1(a) or as otherwise agreed between the parties.