Terms & Conditions

WEBSITE TERMS AND CONDITIONS OF USE

About the Website
(a) Welcome to https://whimsicalwildflowers.com.au/ (the ‘Website’). The Website
Personalised consultation and education sessions to better use technology devices
and be better connected (the ‘Services’).
(b) The Website is operated by Whimsical Wildflowers (ABN 43 244 109 734). Access
to and use of the Website, or any of its associated Products or Services, is provided
by Whimsical Wildflowers. Please read these terms and conditions (the ‘Terms’)
carefully. By using, browsing and/or reading the Website, this signifies that you have
read, understood and agree to be bound by the Terms. If you do not agree with the
Terms, you must cease usage of the Website, or any of Services, immediately.
(c) Whimsical Wildflowers reserves the right to review and change any of the Terms by
updating this page at its sole discretion. When Whimsical Wildflowers updates the
Terms, it will use reasonable endeavours to provide you with notice of updates to
the Terms. Any changes to the Terms take immediate effect from the date of their
publication. Before you continue, we recommend you keep a copy of the Terms for
your records.
Acceptance of the Terms
(a) You accept the Terms by remaining on the Website. You may also accept the Terms
by clicking to accept or agree to the Terms where this option is made available to
you by Whimsical Wildflowers in the user interface.
Registration to use the Services
(a) In order to access the Services, you must first register for an account through the
Website (the ‘Account’).
(b) As part of the registration process, or as part of your continued use of the Services,
you may be required to provide personal information about yourself
(such as identification or contact details), including:
(i) Email address
(ii) Preferred username
(iii) Mailing address
(iv) Telephone number
(c) You warrant that any information you give to Whimsical Wildflowers in the course of
completing the registration process will always be accurate, correct and up to
date.
(d) Once you have completed the registration process, you will be a registered
member of the Website (‘Member’) and agree to be bound by the Terms.
(e) You may not use the Services and may not accept the Terms if:
(i) you are not of legal age to form a binding contract with Whimsical
Wildflowers; or
(ii) you are a person barred from receiving the Services under the laws of
Australia or other countries including the country in which you are resident
or from which you use the Services.
Your obligations as a Member
(a) As a Member, you agree to comply with the following:
(i) you will use the Services only for purposes that are permitted by:
(A) the Terms; and
(B) any applicable law, regulation or generally accepted practices or
guidelines in the relevant jurisdictions;
(ii) you have the sole responsibility for protecting the confidentiality of your
password and/or email address. Use of your password by any other person
may result in the immediate cancellation of the Services;
(iii) any use of your registration information by any other person, or third parties,
is strictly prohibited. You agree to immediately notify Whimsical Wildflowers
of any unauthorised use of your password or email address or any breach of
security of which you have become aware;
(iv) access and use of the Website is limited, non-transferable and allows for the
sole use of the Website by you for the purposes of Whimsical Wildflowers
providing the Services;
(v) you will not use the Services or the Website in connection with any
commercial endeavours except those that are specifically endorsed or
approved by the management of Whimsical Wildflowers;
(vi) you will not use the Services or Website for any illegal and/or unauthorised
use which includes collecting email addresses of Members by electronic or
other means for the purpose of sending unsolicited email or unauthorised
framing of or linking to the Website;
(vii) you agree that commercial advertisements, affiliate links, and other forms of
solicitation may be removed from the Website without notice and may result
in termination of the Services. Appropriate legal action will be taken
by Whimsical Wildflowers for any illegal or unauthorised use of the
Website; and
(viii) you acknowledge and agree that any automated use of the Website or its
Services is prohibited.
Payment
(a) Where the option is given to you, you may make payment for the Services (the ‘
Services Fee’) by way of:
(i) Electronic funds transfer (‘EFT’) into our nominated bank account
(ii) Credit Card Payment (‘Credit Card’)
(b) All payments made in the course of your use of the Services are made using
Square. In using the Website, the Services or when making any payment in relation
to your use of the Services, you warrant that you have read, understood and agree
to be bound by the Square terms and conditions which are available on their
website.
(c) You acknowledge and agree that where a request for the payment of the Services
Fee is returned or denied, for whatever reason, by your financial institution or is
unpaid by you for any other reason, then you are liable for any costs, including
banking fees and charges, associated with the Services Fee.
(d) You agree and acknowledge that Whimsical Wildflowers can vary the Services Fee
at any time.
Refund Policy
Whimsical Wildflowers will only provide you with a refund of the Services Fee in the event
they are unable to continue to provide the Services or if the manager of Whimsical
Wildflowers makes a decision, at its absolute discretion, that it is reasonable to do so
under the circumstances (the ‘Refund’).
Copyright and Intellectual Property
(a) The Website, the Services and all of the related products of Whimsical Wildflowers
are subject to copyright. The material on the Website is protected by copyright
under the laws of Australia and through international treaties. Unless otherwise
indicated, all rights (including copyright) in the Services and compilation of the
Website (including but not limited to text, graphics, logos, button icons, video
images, audio clips, Website, code, scripts, design elements and interactive
features) or the Services are owned or controlled for these purposes, and are
reserved by Whimsical Wildflowers or its contributors.
Whimsical Wildflowers does not grant you any other rights whatsoever in relation to
the Website or the Services. All other rights are expressly reserved by Whimsical
Wildflowers.
(b) All trademarks, service marks and trade names are owned, registered and/or
licensed by Whimsical Wildflowers, who grants to you a worldwide, nonexclusive, royalty-free, revocable license whilst you are a Member to:
(i) use the Website pursuant to the Terms;
(ii) copy and store the Website and the material contained in the Website in
your device’s cache memory; and
(iii) print pages from the Website for your own personal and non-commercial
use.
(c) Whimsical Wildflowers retains all rights, title and interest in and to the Website and
all related Services. Nothing you do on or in relation to the Website will transfer
any:
(i) business name, trading name, domain name, trade mark, industrial design,
patent, registered design or copyright, or
(ii) a right to use or exploit a business name, trading name, domain name, trade
mark or industrial design, or
(iii) a thing, system or process that is the subject of a patent, registered design
or copyright (or an adaptation or modification of such a thing, system or
process), to you.
(d) You may not, without the prior written permission of Whimsical Wildflowers and the
permission of any other relevant rights owners: broadcast, republish, up-load to a
third party, transmit, post, distribute, show or play in public, adapt or change in any
way the Services or third party Services for any purpose, unless otherwise
provided by these Terms. This prohibition does not extend to materials on the
Website, which are freely available for re-use or are in the public domain.
8.
(a) Nothing in the Terms limits or excludes any guarantees, warranties, representations
or conditions implied or imposed by law, including the Australian Consumer Law (or
any liability under them) which by law may not be limited or excluded.
(b) Subject to this clause, and to the extent permitted by law:
(i) all terms, guarantees, warranties, representations or conditions which are not
expressly stated in the Terms are excluded; and
(ii) Whimsical Wildflowers will not be liable for any special, indirect or
consequential loss or damage (unless such loss or damage is reasonably
foreseeable resulting from our failure to meet an applicable Consumer
Guarantee), loss of profit or opportunity, or damage to goodwill arising out of
or in connection with the Services or these Terms (including as a result of
not being able to use the Services or the late supply of the Services),
whether at common law, under contract, tort (including negligence), in equity,
pursuant to statute or otherwise.
(c) Use of the Website and the Services is at your own risk. Everything on the Website
and the Services is provided to you “as is” and “as available” without warranty or
condition of any kind. None of the affiliates, directors, officers, employees, agents,
contributors and licensors of Whimsical Wildflowers make any express or implied
representation or warranty about the Services or any products or Services
(including the products or Services of Whimsical Wildflowers) referred to on the
Website, includes (but is not restricted to) loss or damage you might suffer as a
result of any of the following:
(i) failure of performance, error, omission, interruption, deletion, defect, failure
to correct defects, delay in operation or transmission, computer virus or other
harmful component, loss of data, communication line failure, unlawful third
party conduct, or theft, destruction, alteration or unauthorised access to
records;
(ii) the accuracy, suitability or currency of any information on the Website, the
Services, or any of its Services related products (including third party
material and advertisements on the Website);
(iii) costs incurred as a result of you using the Website, the Services or any of
the products of Whimsical Wildflowers; and
(iv) the Services or operation in respect to links which are provided for your
convenience.
Your notice should be sent, in writing, to Whimsical Wildflowers via the ‘Contact
Us’ link on our homepage.
Limitation of liability
(a) Whimsical Wildflowers total liability arising out of or in connection with the Services
or these Terms, however arising, including under contract, tort (including
negligence), in equity, under statute or otherwise, will not exceed the resupply of
the Services to you.
(b) You expressly understand and agree that Whimsical Wildflowers, its affiliates,
employees, agents, contributors and licensors shall not be liable to you for any
direct, indirect, incidental, special consequential or exemplary damages which may
be incurred by you, however caused and under any theory of liability. This shall
include, but is not limited to, any loss of profit (whether incurred directly or
indirectly), any loss of goodwill or business reputation and any other intangible loss.
Termination of Contract
(a) The Terms will continue to apply until terminated by either you or by Whimsical
Wildflowers as set out below.
(b) If you want to terminate the Terms, you may do so by:
(i) providing Whimsical Wildflowers with 30 days’ notice of your intention to
terminate; and
(ii) closing your accounts for all of the services which you use, where Whimsical
Wildflowers has made this option available to you.
(c) Whimsical Wildflowers may at any time, terminate the Terms with you if:
(i) you have breached any provision of the Terms or intend to breach any
provision;
(ii) Whimsical Wildflowers is required to do so by law;
(iii) the provision of the Services to you by Whimsical Wildflowers is, in the
opinion of Whimsical Wildflowers, no longer commercially viable.
(ci) Subject to local applicable laws, Whimsical Wildflowers reserves the right to
discontinue or cancel your membership at any time and may suspend or deny, in
its sole discretion, your access to all or any portion of the Website or the Services
without notice if you breach any provision of the Terms or any applicable law or if
your conduct impacts Whimsical Wildflowers name or reputation or violates the
rights of those of another party.
Indemnity
(a) You agree to indemnify Whimsical Wildflowers, its affiliates, employees, agents,
contributors, third party content providers and licensors from and against:
(i) all actions, suits, claims, demands, liabilities, costs, expenses, loss and
damage (including legal fees on a full indemnity basis) incurred, suffered or
arising out of or in connection with Your Content;
(ii) any direct or indirect consequences of you accessing, using or transacting
on the Website or attempts to do so; and/or
(iii) any breach of the Terms.
Dispute Resolution
(a) Compulsory:
If a dispute arises out of or relates to the Terms, either party may not commence
any Tribunal or Court proceedings in relation to the dispute, unless the following
clauses have been complied with (except where urgent interlocutory relief is
sought).
(b) Notice:
A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms,
must give written notice to the other party detailing the nature of the dispute, the
desired outcome and the action required to settle the Dispute.
(c) Resolution:
On receipt of that notice (‘Notice’) by that other party, the parties to the Terms
(‘Parties’) must:
(i) Within 14 days of the Notice endeavour in good faith to resolve the Dispute
expeditiously by negotiation or such other means upon which they may
mutually agree;
(ii) If for any reason whatsoever, 28 days after the date of the Notice, the
Dispute has not been resolved, the Parties must either agree upon selection
of a mediator or request that an appropriate mediator be appointed by the
President of the Small Business Commisioner dispute resolution service or
his or her nominee;
(iii) The Parties are equally liable for the fees and reasonable expenses of a
mediator and the cost of the venue of the mediation and without limiting the
foregoing undertake to pay any amounts requested by the mediator as a
pre-condition to the mediation commencing. The Parties must each pay
their own costs associated with the mediation;
(iv) The mediation will be held in Victoria, Australia.
(d) Confidential:
All communications concerning negotiations made by the Parties arising out of and
in connection with this dispute resolution clause are confidential and to the extent
possible, must be treated as “without prejudice” negotiations for the purpose of
applicable laws of evidence.
(e) Termination of Mediation:
If 14 days have elapsed after the start of a mediation of the Dispute and the Dispute
has not been resolved, either Party may ask the mediator to terminate the mediation
and the mediator must do so.
Venue and Jurisdiction
(a) The Services offered by Whimsical Wildflowers is intended to be viewed by
residents of Australia. In the event of any dispute arising out of or in relation to the
Website, you agree that the exclusive venue for resolving any dispute shall be in
the courts of Victoria, Australia.
Governing Law
(a) The Terms are governed by the laws of Victoria, Australia. Any dispute, controversy,
proceeding or claim of whatever nature arising out of or in any way relating to the
Terms and the rights created hereby shall be governed, interpreted and construed
by, under and pursuant to the laws of Victoria, Australia, without reference to conflict
of law principles, notwithstanding mandatory rules. The validity of this governing law
clause is not contested. The Terms shall be binding to the benefit of the parties
hereto and their successors and assigns.
Independent Legal Advice
(a) Both parties confirm and declare that the provisions of the Terms are fair and
reasonable and both parties having taken the opportunity to obtain independent
legal advice and declare the Terms are not against public policy on the grounds of
inequality or bargaining power or general grounds of restraint of trade.
Severance
(a) If any part of these Terms is found to be void or unenforceable by a Court of
competent jurisdiction, that part shall be severed and the rest of the Terms shall
remain in force.