Terms and Conditions of Use

22 November 2013

1. Introduction


1.1           Majestri.com.au (and the associated websites: majestri.com, websites with the URL pattern myclub.majestri.com.au and any URL connected to any of these URLs) (“Site”) is owned and operated by Majestri Pty Ltd (ACN 67 149 057 956), which is a company registered in Queensland, Australia (“Company”).


1.2           In these terms and conditions (“Terms”), “us”, “we” and “our” refer to the Company, and references to “you” or “your” is to you, the end user of the Site (“User”).  User also means other users of the Site apart from you.


1.3           By using the Site, you agree to be bound by these Terms and the Company’s Privacy Policy, which may be viewed at mwpPrivacyPolicy.aspx (“Privacy Policy”). 


1.4           If you do not agree with any part of these Terms or the Privacy Policy, you must stop using the Site and exit it on your device immediately.


1.5           The Site is a web application designed to facilitate social interaction and monetary transactions amongst community, sporting and other organisations and members of those organisations.


1.6           We may change these Terms at our sole discretion by providing you with a period of notice that we determine to be reasonable.  By continuing to use the Site after a change to these Terms, you agree to be bound by the Terms as changed.


1.7           All notices, enquiries and complaints can be communicated to the Company at: [inquiry email].


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2. Conditions of Use


2.1           You are granted a non-exclusive, limited and revocable license to use the Site if you:

(a)            are over the age of 18 years;


(b)            are capable of forming binding contracts;


(c)            are not breaking any law by accessing and using the Site (by reference to laws in your jurisdiction and that of the Company);


(d)            use the Site for lawful purposes only (by reference to laws in your jurisdiction and that of the Company);


(e)            use the Site only in the way that it is designed to be used;


(f)              do not engage in any improper, indecent or offensive behaviour while using the Site; and


(g)            treat other Users with respect, and do not engage in any conduct that may be considered bullying, harassment, insulting or otherwise demeaning to any person (as determined by us at our sole discretion).


2.2           For the avoidance of doubt, your licence to use the Site will be immediately revoked if you breach any of the conditions in clause 2.1.


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3. Account Registration


3.1           You are granted a non-exclusive, limited and revocable license to register a membership account with the Site (‘Account’) if you satisfy the conditions in clause 2.1, and every other applicable clause of these Terms.


3.2           You undertake to:

(a)            provide information during the Account registration process that is accurate and complete in all respects; and


(b)            represent yourself only, and not to create false aliases or impersonate any other person (with or without consent) while using the Site.


3.3           You warrant that you are the legal guardian of any minor that you create a profile for under your Account.


3.4           You must retain access to the username and password created during the Account registration process to access the Site.


3.5           It is your sole responsibility to keep your username and password secure.  You are solely responsible for the use of your Account, irrespective of who is using it, even if it is used without your permission.


3.6           You agree that we are able to send you emails to enable direct access to your Account without a password as part of our Account management processes.  You acknowledge and agree that anyone with access to the email account specified in the Account details will indirectly have access to your Account.


3.7           You agree to indemnify us against any and all liability, loss, costs and expenses arising from or incurred in connection with unauthorised access to your Account.


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4. Relationship Between Users and the Site


4.1           The Site has two categories of User:

(a)            Users that are subscribed as community, sporting and other organisations on the site (‘Organisations’); and


(b)            Users who are involved with the Organisations as members or Organisation administrators (or some other analogous relationship) (‘Members’).


4.2           Users agree and acknowledge that use of the Site does not constitute advice by us in any way.


4.3           We are not liable or responsible for the services rendered by Organisations in any way whatsoever, including but not limited to, losses and claims resulting from:

(a)            any relationships or interactions between an Organisation and its Members;


(b)            any information displayed on pages or information administered by Organisations;


(c)            the payment of any membership dues (or other analogous fees); or


(d)            the sale of goods by an Organisation to a Member.


4.4           Each Member agrees that it is his or her responsibility to ensure that the Organisation is capable of providing the services and information that are of the standard expected by that Member.


4.5           We do not make any warranties in relation to any goods provided, services rendered or information provided by Organisations.


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5. SMS Usage


5.1           The prices in this clause are shown in Australian Dollars (AUD) and are inclusive of GST.


5.2           With the appropriate permissions in respect of their Account, some Users may send SMS messages from the Site (“Messages”), the credit for which will be purchased in advance (“Credit”).


5.3           You acknowledge and agree that any purchase of Credit is non-refundable.


5.4           When a User purchases Credit, he or she will be charged the sum of $0.099 per SMS with a minimum purchase quantity of 100.


5.5           The fees set out in clause 5.4 may change without notice at the Company’s sole discretion.


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6. Product Information and Availability


6.1           Organisations may sell products to Members through the Site (“Products”).


6.2           All prices on the Site are shown in Australian Dollars (AUD) and include GST.


6.3           The colours of Products that you see depend on your computer display, so Organisations cannot guarantee that your monitor will display the colours accurately.


6.4           You agree and acknowledge that there may be technical or administrative errors in the information provided by Organisations on the Site, including but not limited to errors with respect to product description, pricing and availability.


6.5           We, and the Organisations, reserve the right to correct any errors without any notice, including after you have submitted an order or made a payment.


6.6           The Organisations reserve the right to limit quantities of Products sold, including after you have submitted an order or made a payment.  Products are available for consumers, and unless agreed in writing with the Company, Organisations do not wholesale Products.


6.7           Representations of Products for sale on the Site by Organisations do not constitute an offer to sell but an invitation to treat.  Such representations do not warrant that the Product is available.


6.8           If there is an error in any information that forms part of an offer from us to you, any agreement arising from your acceptance of that offer will be void at our absolute discretion.


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7. Delivery and Return of Goods


7.1           Any automated confirmation of a successful order placement and/or receipt and/or our processing of a payment for an order through the Site does not constitute acceptance of an order by the Organisation.  If the Organisation declines your order after a payment for the order has been received/processed you will be contacted with the details and refund the payment in full.


7.2           The Products are the absolute property of the Organisations at law and in equity until you have paid the full price for the Product.


7.3           You agree to take on the risk for the Products, such as loss or damage, when the Products reach the delivery address.


7.4           After taking delivery of the Products, you agree to examine the Products and notify the Organisation on the details provided if you consider there is any defect in the Products within 10 days of the delivery date.


7.5           If the Organisation receives no notification from you within 10 days of the delivery date, you agree that the Products will be deemed delivered without defect.


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8. Information on the Site


8.1           All the information on the Site is for informational purposes only, and is to be used or relied on at your own risk.  We, and the Organisations, make no warranty or representations as to the accuracy of information on the Site.


8.2           You agree and acknowledge that there may be technical or administrative errors in the information on the Site.


8.3           We reserve the right to correct any errors on the Site without any notice to you.


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9. Site Availability


9.1           By using the Site you agree that we accept no responsibility for the Site or any part of it being unavailable, and we make no warranties or guarantees, implied or express, as to the ongoing availability of the Site or any part of it.


9.2           You agree that we are not liable for any loss or damage that you or any other person incurs by not being able to access the Site or any part of it.


9.3           We may change, update or otherwise amend the Site or any part of it at our sole and absolute discretion without any notice to you or any other User.  This may result in the Site being offline, for which we are not obligated to provide notice.


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10. User Content


10.1        In respect of any content that you upload to the Site (“Content”), you warrant that it is not:

(a)            uploaded in breach of the intellectual property of any third party;


(b)            uploaded in breach of any law under the Privacy Act 1988;


(c)            affected by any computer virus or malicious code;


(d)            connected with “spam” or the process of “spamming”;


(e)            false, defamatory, misleading or otherwise deceptive in any way;


(f)              financial, legal, medical or other professional advice;


(g)            adult material;


(h)            material that is likely to offend, insult or humiliate based on race, religion, ethnicity, gender, age, sexual orientation; or


(i)              in breach of any other section of these Terms.


10.2        You agree that you are liable for and indemnify us against any and all liability, loss, costs and expenses arising from or incurred in connection with your breach of any warranty in clause 10.1.


10.3        You agree that any comments or opinions that you express in Content will be fair, accurate and genuinely held at the time of communication.


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11. Content Management


11.1        We make no warranties as to the accuracy of any Content posted by any User of the Site, and will accept no liability for errors or omissions in general.


11.2        You agree to remove any contentious Content immediately upon request by us.


11.3        We reserve the right, at our absolute discretion, to remove, amend, edit or in any other way change any Content.


11.4        By posting or uploading Content, you grant us a world-wide, non-exclusive, perpetual, assignable, sub-licenceable, royalty fee, unlimited and irrevocable right to use the Content for any purpose, other than personal or medical information, which is managed in accordance with our Privacy Policy.


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12. Intellectual Property


12.1        All parts of the Site are the copyright of the Company, and where applicable, the Organisation.  Without the express written permission of the Company, you shall not:

(a)            replicate all or part of the Site in any way; or


(b)            incorporate all or part of the Site in any other webpage, site, application or other digital or non-digital format.


12.2        The Company has moral and registered rights in its trademarks and you shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.


12.3        You agree that you will not copy any part of the Site for your own purposes. 


12.4        You agree not to solicit Users of the Site to use another competing site or in any way to stop using the Site in preference of using another site offering comparable services. You indemnify us for any loss or damage we suffer as a result of your breach of this warranty.


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13. Data Retention


13.1        We will store your Account details and the Content (“Data”).


13.2        We make no warranties or guarantees, implied or express, in respect of the retention of or continued accessibility of any Data.


13.3        We do not give any express warranties in relation to Data.  You agree that we are not liable for any loss or damage that may occur by any loss, corruption or any other inaccessibility in respect of any Data.


13.4        We may store the Data “offsite”.  The Data storage location will not affect the laws that govern any agreement arising under these Terms.


13.5        Subject to these Terms, you own the Data you provide us, and may request its deletion at any time, unless you have shared it with others and they have not deleted it, or it was copied or stored by other Users.


13.6        The businesses that we contract with to host and operate the Site are committed to protecting the confidentiality of Data, however, you agree and acknowledge that those businesses reserve the right to access, view and review any of your Data:

(a)            if a government agency or regulatory body specifically requests them to do so;


(b)            when performing routine backup and restore operations, virus scan and virus removal, spam and content filtering; or


(c)            when such access, view or review is urgent and necessary to protect personal safety, perform troubleshooting, restore systems operation in the event of a server failure, remove illegal or offending (e.g. pornographic, violating policies, etc.) content or prevent a server failure, service outage or other damage.


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14. Complaint Resolution


14.1        If you have a complaint against the Company (not another User) (‘Complaint’), you must report it to us within 10 days of the circumstances giving rise to the Complaint first occurring.  We may or may not investigate your complaint, depending on its nature, and this decision will be at our sole discretion.


14.2        If you are not satisfied with our action under clause 14.1 of these Terms, you must formally notify us of your complaint with a written notice (‘Complaint Notice’), which includes, or is accompanied by, full and detailed particulars of the Complaint.


14.3        Within 10 days after a Complaint Notice is given, a representative of the Company will respond to the Complaint Notice in writing (‘Company Response’).


14.4        If you are unsatisfied with the Company Response, the Complaint will be submitted for mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.


14.5        If the Complaint is not settled within 30 days of the submission to mediation (unless such period is extended by agreement of the parties), it will be submitted to arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations (http://www.iama.org.au/).


14.6        When the Complaint is submitted to mediation under clause 14.4 or arbitration under clause 14.5, each party will pay its own costs for the proceedings.


14.7        In accordance with this section, you agree not to bring court proceedings against us based on any Complaint unless you first comply with the requirements of this section.


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15. Disputes with Other Users


15.1        In the event of a dispute with another User, you agree to work in good faith to resolve the dispute.  We accept no liability for disputes between Users, and you agree and acknowledge that any such dispute is to be resolved by Users amongst themselves directly, without the involvement of the Company in any way whatsoever.


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16. Privacy


16.1        You acknowledge and accept the terms and conditions of the Privacy Policy.


16.2        You consent to other Users posting images of you and minors who you are the guardian of to the Site.


16.3        You agree that you will not do anything that shall compromise the Company’s compliance with its Privacy Policy nor do anything contrary to the Privacy Policy insofar as your use of the Site is concerned.


16.4        We may amend the Privacy Policy at our sole discretion by providing you with a period of notice that we determine to be reasonable.  By continuing to use the Site after an amendment to the Privacy Policy, you agree to be bound by the Privacy Policy as amended


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17. Exclusion of Liability


17.1        You acknowledge and agree that:

(a)            you use the Site at your own risk; and


(b)            we are not responsible for the conduct, activities, products or services rendered by any other User of the Site.


17.2        You agree that all implied conditions and warranties are excluded from these Terms, except any condition or warranty (such as conditions and warranties implied by the Competition and Consumer Act 2010 (Cth) and equivalent State acts), which cannot by law be excluded (‘Non-Excludable Condition’).


17.3        Subject to the application of any Non-Excludable Condition, all other liability to you for any costs, expenses, losses and damages suffered or incurred directly or indirectly by you in connection with these Terms or the Site, whether that liability arises in contract, tort (including by our negligence) or under statute, is excluded.  Without limitation, we will not, under any circumstances, be liable to you for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity.


17.4        Where a Non-Excludable Condition is deemed to apply, you agree that our liability for any breach is limited to the cost of:

(a)            the services or the cost of the re-supply of the services; or


(b)            the Products or the cost of the re-supply of the Products.


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18. Indemnity


18.1        By using the Site, you agree to indemnify us and our directors, employees and agents against all claims, demands, proceedings and other liability arising wholly or partially, directly or indirectly, from your use of the Site.


18.2        Without limiting the generality of the above, you agree to indemnify us and our officers, employees, contractors and agents (the ‘Indemnified’) against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising directly or indirectly from your breach of these Terms and any negligent or unlawful act or omission by you in connection with the Site.


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19. Termination


19.1        Either party may end the agreement arising from these Terms immediately for any reason by giving the other party written notice.  


19.2        Where the agreement arising from these terms has been terminated you must immediately cease to use the Site.


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20. Notices


20.1        We will send you notices and other correspondence to the details provided during your Account registration, or that you notify us of from time-to-time.  It is your responsibility to notify us of any updated contact details as they change.


20.2        Email notice from you or us is effective notice under these Terms.


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21. General


21.1        You acknowledge that you have not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms.


21.2        The relationship between you and us under any agreement arising from these Terms does not form a joint venture, partnership or agency relationship.


21.3        No clause of these Terms will be deemed waived and no breach excused unless such waiver or consent is provided in writing.


21.4        You cannot assign, novate or otherwise transfer any of your rights or obligations under any contract arising from these Terms without our prior written consent.


21.5        We may assign, novate or otherwise transfer any of our rights or obligations under the agreement arising pursuant to these Terms to a third party without notice to you, or your prior consent.  If we require it, you will sign any documents to give effect to an assignment, novation or transfer by us under this clause.


21.6        The agreement arising under these Terms will be governed by the laws of the state set out in the definition of the Company.  You agree to submit to the non-exclusive jurisdiction of courts with jurisdiction there, and it shall be the sole forum for any proceedings.


21.7        Any clause of these Terms, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms.


21.8        Any agreement arising from these Terms is part of an ecommerce transaction and the parties agree that the agreement shall be accepted electronically and the agreement formed & validly entered into electronically in accordance with the Electronic Transactions Act 1999 (Cth).


21.9        The termination of any agreement arising from these Terms does not affect the parties’ rights in respect of periods before the termination of this agreement.

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© Majestri Pty Ltd, Brisbane, Australia.