In this Agreement, “you” and “your” means the individual accessing or using any of the Sites and where you are accessing the Sites in your capacity as an employee of or contractor to a body corporate or other legal entity, “you” includes your employer or the entity that is engaging you. By using the Sites, you agree to be bound by all the terms and conditions contained in this Agreement and any and all rules, guidelines and directions found throughout the Sites. If you do not agree to the terms of this Agreement, you must not use or access our Sites. If you violate any of the terms of this Agreement, we may terminate your right to use and access our Sites.
Please read this Agreement carefully. This Agreement applies to all users of the Sites, including users who are viewers of material on the Sites and users who register for the Sites as set out below in Section 7. By using the Sites you also represent that you are at least 18 years old or have your parent or guardian’s consent to use the Sites. Company does not knowingly collect personally identifiable informatiTon from users under the age of 18. Such users are expressly prohibited from submitting their personally identifiable information to us and any information submitted by such users will not knowingly be used, posted, or retained by us. You may not use or register for the sites if you are under the age of 18 unless you have the consent of a parent or guardian.
You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your use of the Sites and receipt of data, materials and information available at or through the Sites.
4. DISPUTE RESOLUTION
- the Company at:
Attention: Legal Department
1 Billabong Place
Burleigh Heads QLD 4220
- to you at your last-used billing address of the billing and/or shipping address that we may have on file for you or, if no such address has been provided, to any email address that you may have provided to us or used to register for an accountant on any of our Sites. If you issue us with a Dispute Notice and you have otherwise not provided us with a contact address through registration or similar, please provide us with an email address and address we may reply to.
Both you and the Company agree that this dispute resolution procedure is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party, provided however that nothing in this Agreement will prevent a party seeking urgent injunctive or similar interim relief from a court.
If a Dispute Notice and Reply Notice are given, then you agree to discuss (either in person or by telephone) the Dispute with an authorised representative of the Company in an effort to resolve the Dispute. At least one meeting or discussion relating to the Dispute must take place within 30 days of service of a Reply Notice.
If the Dispute is not resolved within 30 days of service of a Reply Notice or if a Reply Notice is not given by the relevant party, then the parties agree to try to resolve the Dispute by mediation, to be held in Gold Coast, Queensland Australia and administered by the Australian Disputes Centre according to its Guidelines for Commercial Mediation (“Guidelines”). The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. If the Dispute is not settled within 30 days after the referral of the Dispute to mediation, then either party may commence legal proceedings in relation to the Dispute.
5. GOVERNING LAW
This agreement is governed by the laws in force in the State of Queensland, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the State of Queensland and of the Commonwealth of Australia in respect of any matter relating to this Agreement or the access and use of any of our Sites.
6. RESTRICTIONS ON USE OF MATERIALS
Boardriders, Quiksilver, Billabong, Roxy, DC Shoes, RVCA, Element, VonZipper, Xcel, Kustom, Palmers, Dot Dash and other trade marks, service marks, trade names, and trade dress indicated on our Sites are trade marks or registered trade marks of Company and/or its related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth)) or licensors and licensees in Australia and other countries. All rights in such names are hereby reserved. The use or misuse of these trade marks or any materials, except as permitted under this Agreement, is expressly prohibited, and nothing stated or implied on the Sites confers on you any license or right under any patent or trade mark owned or controlled by Company, its related bodies corporate, its licensors or any third party.
All information, text, images, photographs, graphics, videos, music, user interface and other content and materials contained on the Sites are the copyrighted property of Company, its related bodies corporate or its third-party licensors to the full extent provided under the Copyright Act 1968 (Cth) and all international copyright laws. Under applicable copyright laws, you are prohibited from copying, reproducing, modifying, distributing, displaying, performing, or transmitting any of the contents of the Sites for any purposes. Nothing stated or implied on the Sites confers on you any license or right under any copyright of Company or any third party. The Sites and the information contained in reference herein are for your personal, non-commercial use only. Except as otherwise specifically permitted under this Agreement, you shall not broadcast, duplicate, copy, reproduce, edit, manipulate, modify, publish, rent, sell, publicly display, perform, distribute, transmit, or circulate to anyone the contents of the Sites, or use the contents of the Sites in litigation, or for any commercial or promotional purposes, without the express written consent of Company or its lawful successors and assigns. For usage permission, please contact us via e-mail at firstname.lastname@example.org.
You do not have to register to view the Sites. You can visit the Sites, read articles and other materials, browse merchandise, post comments and product reviews and check on offerings without registering for a user account. You can also contact us about a particular video, picture, audio file or other posting without having an account. However, you must register for an online user account in order to access the full features of the Sites, including but not limited to the ability to purchase products through the Sites. To register, you must create a user account, which requires you to provide your name, e-mail address and select a password. When creating a user account, you must provide accurate, complete and updated registration information. By creating an account you agree (or, if you are under 18, you have obtained your parent or legal guardian’s consent) to receive commercial electronic messages from Company. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You are fully responsible for your failure to safeguard information and/or to permit any other person to access or use the Sites using your profile and/or account, and for all activities that occur under your profile and/or account. You may not sell or otherwise transfer your profile or account or any portion thereof. You must notify Company immediately of any breach of security or unauthorised use of your account. Company will not be responsible for any losses caused by any unauthorised use of your account. Company reserves the right to refuse registration or terminate, suspend, or cancel access to a user account at any time in its sole discretion. If we suspend or cancel access to your account, you may be prevented from accessing the Sites (temporarily or permanently), your account details and/or any files or other various Sites materials, including all text, comments, icons, images, messages, tags, links, photographs, audio, video and other content that are contained in or accessible through your account, all of which may be deleted by us. Such suspension or cancellation of your account will mean that you may lose access to all content submitted by you. You may also terminate or discontinue your own account at any time by sending an email request to email@example.com
8. RETURNS, SHIPPING AND DELIVERY
Please review our Returns and Store Credit Policy here and our Shipping and Delivery Policy here, which also govern your visit to the Sites, as applicable. The terms and conditions of these documents are incorporated herein and made a part of this Agreement.
We welcome your comments and feedback about the Sites and our products. In addition, in some places the Sites enable users to post comments and product reviews which may be viewed by other users. If you post any comments, reviews, testimonials, feedback, notes, messages, ideas, suggestions or other communications (collectively, "Comments") on the Sites or sent to us, whether through the Sites, e-mail, facsimile, postal mail or by other means, you automatically grant, or warrant that the owner of such Comments has expressly granted the Company, a royalty-free, full-paid, perpetual, irrevocable, worldwide, unlimited, nonexclusive, sublicensable, and transferable license to use, re-use, reproduce, sublicense, create derivative works from, modify, publish, edit, translate, distribute, re-distribute, transmit, print, copy, host, store, cache, archive, index, categorize, comment on, broadcast, stream, import, perform, exhibit, and display the communication or content material in any media or medium, or any form, format, or forum now known or hereafter developed. The Company may sublicense its rights through multiple tiers of sublicenses. You should not submit any Comments to us that you do not wish to license to us. The Company is and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay any compensation for any Comments; or (3) to respond to any Comments. You grant the Company the right to use the name that you submit in connection with any Comments. You agree to the foregoing grant of rights, consents, and agreements whether or not your Comments are used by us.
You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, and waivers set forth in this Agreement.
Without limiting the scope of this section or any future grant of rights, consents, agreements, and waivers you may make with respect to Comments, you hereby ratify any prior grant of rights, consents, agreements, and waivers made by you with respect to Comments submitted by you to us.
11. LICENSE AND SITE ACCESS
Company grants you a limited, revocable and nonexclusive license to access and make personal use of the Sites but not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Company. This license does not include any resale or commercial use of the Sites or their contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Sites or their contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, spiders or similar data gathering and extraction tools. Neither the Sites nor any portion of the Sites may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Company. You may not frame or use framing techniques to enclose any trade mark, logo, or other proprietary information (including images, text, page layout, or form) of Company and its related bodies corporate, licensors or licensees without express written consent of Company. You may not use meta tags or any other hidden text using Company's brand names or trade marks without the express written consent of Company. Any unauthorized use will immediately terminate the permission or license granted by Company. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Sites so long as the link does not portray Company or its products or services in a false, misleading, derogatory, or otherwise offensive manner as determined by Company in its sole discretion. You may not use any Company logo or other proprietary graphic or trade mark as part of the link without express written permission of Company. You may not make any other part of the Sites, other than the home page of the Sites, available as part of another service by "deep linking," or otherwise, without prior written permission from Company. Any permitted links to the Sites must comply will all applicable laws, rules and regulations.
12. THIRD-PARTY AND CO-BRANDED SITES
The Sites may contain hyperlinks ("links") to websites operated by persons or entities other than Company ("third-party Websites") or to co-branded websites operated by a third party, including Company's related bodies corporate and licensees ("co-branded Websites"). We provide such links for your reference and convenience only. A link from the Sites to a third-party or co-branded Website does not mean or imply that Company endorses the content on that third-party or co-branded Website or the operator or operations of that third-party or co-branded Website. Company explicitly disclaims any responsibility for, and excludes all liability to you for, the accuracy, completeness or availability of information, content and materials found on any third-party or co-branded Website. Company does not endorse any of the merchandise, nor can we ensure that you will be satisfied with any products or services that you purchase from a third-party or co-branded Website. Company does not make any representations or warranties as to the security of any information, content or materials (including, without limitation, credit card and other personal information) you might be requested to give to any third-party. You hereby irrevocably waive any claim against Company with respect to information, content and materials contained on any third-party or co-branded Website, and any information, content and materials you provide to such third-party or co-branded Website (including, without limitation, credit card and other personal information). You are solely responsible for determining the extent to which you use any content at any third-party or co-branded Website to which you might link from our Sites. Your use of any website linked to from the Sites is subject to the policies and procedures of the owner of such website, and your use of all such websites is subject to such policies and procedures and not to the terms and conditions of this Agreement. You understand that by using any third-party Website linked to from the Sites, you may be exposed to content or other materials that are offensive, indecent, defamatory or otherwise objectionable. We therefore strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third-parties.
COMPANY IS NOT RESPONSIBLE OR LIABLE FOR (AND EXCLUDES ALL LIABILITY TO YOU FOR) ANY LOSS OR DAMAGE INCURRED AS A RESULT OF ANY DEALINGS WITH ANY THIRD-PARTY OR CO-BRANDED WEBSITE, ANY MERCHANT OR OPERATOR OF A THIRD-PARTY OR CO-BRANDED WEBSITE, OR ANY OTHER PERSON WITH WHOM YOU ENGAGE IN ANY TRANSACTION.
13. YOUR RESPONSIBILITIES
You agree to comply with all applicable laws in connection with your use of the Sites, and such further limitations as may be set forth in any written or on-screen notice from Company. As a condition of your use of the Sites, you warrant that you will not use the Sites for any purpose that is unlawful or prohibited by this Agreement. All information that you provide in connection with any interaction with the Sites or any co-branded website must be accurate, complete, and current.
You must not restrict, inhibit or interfere with any other user’s use or enjoyment of the Sites or use the Sites to distribute, transmit or link to any content or material which contains a virus or other harmful or malicious software.
By using the Sites, you agree not to violate or attempt to violate the security of the Sites, including, by way of illustration but not limitation, actions such as accessing data not intended for you or logging into a server or account that you are not authorised to access; attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorisation; attempting to interfere with service to any user, host, or network, including, without limitation, by way of submitting a virus to or overloading, "flooding," "spamming," "mailbombing," or "crashing" the Sites; sending unsolicited e-mail, including promotions and/or advertising of products or services; and forging any TCP/IP packet header or any part of the header information in any e-mail or posting.
14. TERMINATION OR RESTRICTION
Company may terminate or restrict your access to all or any part of the Sites at any time, with or without cause, with or without notice, effective immediately. You may also terminate your use of the Services at any time, provided that all of the provisions of this Agreement, including without limitation, ownership provisions, warranty and disclaimers will survive any such termination.
15. RISK OF LOSS
All products purchased from the Sites are transported and delivered to you by an independent carrier not affiliated with, or controlled by, Company. Title to products purchased on the Sites, a well as risk of loss for such products, passes to you when Company delivers these items to the carrier.
16. PRODUCT INFORMATION
We attempt to be accurate in describing our products and services on the Sites. We do not warrant that product and service descriptions or other content on this or any other Sites are complete reliable, current or error-free.
We have made every effort to display as accurately as possible the colours of our products that appear on the Sites. However, as the actual colours you see depend on your computer monitor and other factors beyond our control, we cannot guarantee that your computer’s display on any colour on the Sites will be accurate.
Most products displayed in the Sites are available in select retail stores. In some cases, products displayed for sale at the Sites may not be available in retail stores. Unless otherwise stated, the prices displayed on Sites are quoted in Australian or New Zealand Dollars as applicable.
We may choose to not fill any orders (or part of an order) that you have placed where the website contains errors or inaccuracies, including without limitation, errors, inadequacies or out-of-date information regarding pricing, shipping, payment terms, or return policies.
17. DISCLAIMER OF WARRANTIES AND LIMITATIONS ON LIABILITY
THE SITES ARE PROVIDED BY COMPANY ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO ANY STATUTORY GUARANTEES THAT CANNOT BE LAWFULLY EXCLUDED, COMPANY MAKES NO REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITES OR THE INFORMATION, CONTENT, THIRD-PARTY CONTENT, MATERIALS, PRODUCTS, SERVICES OR LINKED SERVICES PROVIDED ON OR THROUGH THE SITES, INCLUDING WITHOUT LIMITATION, THAT THE INFORMATION PROVIDED THROUGH THE SITES WILL BE FREE FROM ERROR, OMISSION, INTERRUPTION, DEFECT, OR DELAY IN OPERATION, OR FROM TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS; THAT THE SITES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED; OR THAT THE CONTENT ON THE SITES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY INFORMATION ON THE SITES IS SUBJECT TO CHANGE WITHOUT NOTICE, AND WE DISCLAIM ALL RESPONSIBILITY FOR THESE CHANGES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITES IS AT YOUR SOLE RISK.
IN AUSTRALIA, OUR PRODUCTS COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. NOTHING IN THIS AGREEMENT PURPORTS TO MODIFY OR EXCLUDE THAT CONDITIONS, WARRANTIES AND UNDERTAKINGS, AND OTHER LEGAL RIGHTS, UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH) AND OTHER LAWS. ANY AND ALL WARRANTIES OR CONDITIONS WHICH ARE NOT GUARANTEED BY THE AUSTRALIAN CONSUMER LAW OR THE COMPETITION AND CONSUMER REGULATIONS ARE EXPRESSLY EXCLUDED WHERE PERMITTED, INCLUDING LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION.
IN NO EVENT WILL COMPANY, OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITES, BE LIABLE FOR (AND ANY LIABILITY IS HEREBY EXCLUDED FOR) ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL AND CONSEQUENTIAL DAMAGES OR ANY DAMAGES OF ANY TYPE OR NATURE ARISING OUT OF YOUR ACCESS, USE, MISUSE, OR INABILITY TO USE THE SITES OR ANY LINKED SITES OR SERVICES; IN THE EVENT A THIRD PARTY INTERCEPTS OR DECRYPTS ANY TRANSMISSION OF INFORMATION THAT YOU PROVIDE TO COMPANY THROUGH THE SITES; OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Company makes no representation that the contents of the Sites comply with the laws of any country outside Australia. If you access any of the Sites from outside Australia, you do so at your own risk and you are responsible for ensuring compliance with all laws in the place where you are located.
Company does not warrant that it will be able to prevent any illegal, harmful or inappropriate use, modification or alteration of the Sites or that it will give notice of such use, modification or alteration.
Where any applicable legislation implies any warranties, guarantees or conditions or imposes obligations upon Company which cannot be excluded, restricted or modified except to a limited extent, this Agreement must be read subject to those statutory provisions. If those statutory provisions apply, then to the extent to which Company is able to do so, its liability will be limited, at its option, to: (a) in the case of any goods supplied by Company, either: (i) replacement of the goods or supply of equivalent goods; (ii) repair of the goods; (iii) payment of the cost of replacing the goods or acquiring equivalent goods; or (iv) payment of the cost of having the goods repaired; or (b) in the case of any services performed by Company, either: (i) the performance of the services again; or (ii) the payment of the cost of having the services performed again.
You indemnify the Company against any claims, proceedings, losses, liabilities, costs or other expenses (including legal costs) and third party claims incurred by Company in connection with or arising, whether directly or indirectly, as a result of your breach of the terms of this Agreement, your use or access of the Sites or any violation of any applicable law in connection with this Agreement.
19. MISCELLANEOUS LEGAL PROVISIONS
Company may discontinue the Sites at any time and for any reason, without notice. Company may change, suspend, or cancel the contents, operation, or any and all other features of the Sites at any time for any reason, without notice.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Company as a result of this Agreement or your use of the Sites. Nothing contained in this Agreement is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Sites or information provided to or gathered by us with respect to such use. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Company’s failure to enforce any provision of this Agreement or respond to a breach by you or other parties is not in any way a waiver its right to enforce subsequently any terms or conditions of this Agreement or to act with respect to similar breaches. You must not resell or assign your rights, duties or obligations under this Agreement, and any attempted assignment or delegation will be void and of no force or effect whatsoever. This Agreement may be automatically assigned by Company, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees. Without limiting the foregoing, we may sell, transfer or otherwise share some or all of our assets, including your personal information, with any parent company, subsidiary, joint venture, and a company under our common control, as well as with a potential acquirer, lender, or investor, including in connection with a merger, reorganisation, or sale of assets, or in the event of bankruptcy. In each such event, the personal information we have collected from you may be one of the assets transferred.
If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect, and the invalid unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision.
This Agreement constitutes the entire and final agreement regarding the Sites and its contents, and supersedes any prior or contemporaneous communications between you and Company regarding the Sites and their contents.
All rights not expressly granted herein are hereby reserved to Company.
20. CONTACT US
If you have any questions of concerns regarding the Sites or this Agreement, please contact us by email at firstname.lastname@example.org or write to us at the following address:
Attention: Legal Department
1 Billabong Place
Burleigh Heads QLD 4220
T 07 5589 9899 – Monday thru Friday 9.00am to 5.00pm.