Terms & conditions

EARTHLING PTY LTD

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS WEBSITE AND/OR THE PRODUCTS.

TERMS & CONDITIONS

Welcome to www.earthling3.com

Earthling Pty Ltd (ACN 089 327 113) (EL) owns, operates and provides this Website and its related Products subject to the following terms and conditions of use of this Website.

By accessing, browsing, or using this Website and/or the Products you agree you have read, understood and agree to be bound by these Terms and Conditions and all applicable law and you acknowledge that this Website is available for your use only on the condition that you agree to be bound to these Terms and Conditions. You should read these Terms and Conditions and the EL Privacy Policy carefully before using this Website.

EL reserves the right to revise and update these Terms and Conditions by making any changes immediately without notifying you except by publishing the amended Terms and Conditions on EL’s Website. We may revise these terms from time to time. The revised terms will take effect when they are posted on the Website and your continued usage of the Website and/or the Products after any changes to these Terms and Conditions will mean you accept those changes.

In these Terms of Conditions:

EL”, “us”, “we”, and “our” means Earthling Pty Ltd (ACN 089 327 113), its director/s, employees and agents, its parent company, subsidiaries, its holding companies or subsidiaries of such holding companies,
“Website” means EL’s website www.earthling3.com
“You” and “your” refers to anyone who visits and/or uses this Website, accepts these Terms and Conditions.
“Website Materials” means all of the materials displayed on this website, including (without limitation) all information, text, graphics, names, logos, trademarks, design, software and advertisements.
“PPSR” means the Personal Property Securities Register established by the Personal Property Securities Act 2009 (Cth) and regulations made under it.
“Products” means the products available for sale by EL and/or available through the Website.

PRIVACY

We have adopted a Privacy Policy that you should refer to fully understand how we collect and use your information in accordance with the principles of the Privacy Act 1988 (Cth) and the Australian Privacy Principles. You can access the EL Privacy Policy at info@earthling3.com.au

COPYRIGHT

Images of people, places and/or Products posted on this Website are either the exclusive property of EL or are used herein with the express permission of EL. Unless otherwise noted, all content included on this Website, including (but not limited to) images, illustrations, designs, icons, photographs, video clips, written material and other materials, is the property of EL or its suppliers, partners, or affiliates and is protected by Australian and international copyright laws. The compilation of this Website is the exclusive property of EL and is protected by Australian and international copyright laws. Any unauthorised use of any content or materials on this Website is strictly prohibited and may violate copyright and trademark laws and/or the laws of privacy, publicity, and/or communications regulations and statutes. Any use of the materials or content on this Website can be made only with the prior written and express authorisation of EL. For further information on how you may obtain the authorisation to use any materials or content on this Website, please contact EL by using the contact details provided in these Terms and Conditions. Please note that EL reserves all of its rights in this regard.

TRADEMARKS

All trademarks, trade dress and service marks (whether registered or unregistered) and their respective designs and/or logos on this Website are the exclusive trademarks and/or registered trademarks of EL. The trademarks, trade dress and service marks of EL may not be copied, imitated or used, in whole or in part, without prior written permission of EL. All page headers, custom graphics, button icons, and scripts are trademarks and/or trade dress of EL, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of EL. All other trademarks, registered trademarks, product names and company names or logos used on this Website are the property of their respective owners and have been licensed by EL for the use of EL only. You may not use any trademarks, trade dress, service marks or intellectual property of EL or its related companies, nor may you place any Meta tags or any other "hidden text" utilising the name of EL or its related companies, trademarks, or product names without our clear express written consent.

LICENSE AND SITE ACCESS

We grant you a limited license to make personal use only of the Website for consideration and/or purchase of the Products. Such grant does not include, without limitation: (a) any resale or commercial use of this Website or any of the contents of this Website; (b) modification, adaptation, translation, reverse engineering, decompilation, disassembly or conversion into human readable form any of the contents of this Website not intended to be so read, including use of or directly viewing the underlying HTML or other code from this Website except as interpreted and displayed in a web browser; (c) copying, imitating, mirroring, reproducing, distributing, publishing, downloading, displaying, performing, posting or transmitting any of the contents of this Website (including any Company trademarks) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise; (d) the collection and use of any product listings or descriptions; (e) making derivative uses of the Website and any of the contents of the Website; or (f) use of any data mining, bots, spiders, automated tools or similar data gathering and extraction methods, directly or indirectly, on the contents of the Website or to collect any information from the Website or any other user of the Website.

You understand that any such violation is unlawful in many jurisdictions and that contravention of law may result in criminal prosecution. Examples of violations include: accessing data unlawfully or without consent; attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; attempting to interfere with service to any user, host or network, including without limitation, via means of overloading, “flooding”, “mail bombing” or “crashing”; forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

HYPERLINKS

Linking to our Website is prohibited.

Links on our Website may direct you to third party websites, which are subject to their own terms and conditions. Your use of those websites is solely at your own risk and expense and EL accepts absolutely no responsibility and makes no claims, representations or warranties with regards to the use, quality, content, nature or reliability of any third party websites.

YOUR ACCOUNT

If you use this Website and such use requires setting up an account and/or password(s), you are solely responsible for maintaining the confidentiality of your account and password(s) and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion. If you register on the Website, you agree that any information you provide to us will be current, accurate and complete. EL will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by the EL or another party due to the unauthorised use of your account and/or password either with or without your knowledge. You agree to notify EL immediately of any unauthorised use of your account and/or password(s), or other breach of security.

ELECTRONIC COMMUNICATIONS

From time to time EL may offer a newsletter, or product or service information updates. By accepting these Terms and Conditions, you consent to EL using your email address to send you EL newsletters or product or service information updates (as applicable). EL may also use your email address to send updates to you from time to time about changes to EL’s Products.

If requested by you, EL will remove you from its mailing list in accordance with the EL Privacy Policy.

CONDITIONS OF SALE

EL will not be liable or otherwise responsible for any failure of delivery, shortage, defect or damage or related direct, indirect, special or consequential losses, damages, liabilities, costs or expenses sustained by you or any other party of any delivery issues, losses or defects in relation to the delivery of the Products to your nominated location (given all deliveries are completed through Australia Post).

In the event however that your delivery of the Products is lost or fails to be delivered, EL will use reasonable endeavors to recover the Products and (at its discretion) agree to provide you with a replacement Product. The postage fee for the delivery of any such replacement Product must still be paid by you prior to the replacement Product being delivered to you.

Ownership of and title to the Product does not pass to you until the price payable for the product, including all charges, has been paid in full by you and payment processed and confirmed.

These Conditions of Sale may change from time to time and you are required (within reason) to revisit these before placing any order to ensure that these Conditions of Sale have not changed.

EL reserves the right to accept or reject your request for the Products for any reason, including, without limitation, an error in the product description or the price posted on the Website for the Products, the availability of the Products or an error in any order for the Products.

Your contract with EL for any Website purchase of the Products will only come into existence when EL forwards you an email containing confirmation of receipt of your order, an acceptance of your order, confirmation of receipt of your payment and details of delivery and/or an invoice.

PAYMENT

Payment for any purchase of the Products from the Website must be made via upfront and absolute payment equal to the total value of the purchased Products.

EL will provide you with a tax receipt for any purchase of the Products from the Website (invoice).

Acceptable payment methods for any purchase of the Products include all major credit cards and/or PayPal unless otherwise agreed with EL.

A minimum of 48 hours’ notice of cancellation is required for any purchase of the Products and will only be accepted subject to written confirmation being received from you and responded to by EL.

EL reserves the right to levy a fee of up to 50% of the total purchase price of the cancelled sale of the Products to cover any administrative costs at its complete discretion and by notifying you in writing of its intention to do so. Any Products opened and/or used by you will not be able to be returned and/or refunded.

Payment will be made in full on completion and processing of the sale of the Products by EL.

Products purchased will not be delivered until such time as full and complete payment for the Products has been received by EL.

In the event of a default by you on the purchase of any Product, EL reserves its right to terminate the proposed sale of the Products to you and suspend and cancel and delivery of the Products to you. Default occurs where full payment for the Products is not received within fourteen (14) days of completion and processing of the sale of the Products by EL.

GST

Unless otherwise expressly stated, the price and any other sums payable for any Product is inclusive of GST.

Given GST is payable by you for any Products purchased from EL under these Terms and Conditions, you agree to pay to EL an additional amount that is equal to the amount payable by EL for the relevant supply multiplied by the prevailing GST rate. This additional amount is payable at the same as the purchase price for the relevant supply to which the additional amount rates.

In the event of a taxable supply, EL will ensure any such supply is provided for in any Invoice provided to you.

CREDIT CARD AUTHORISATION

By providing us with your credit card details, you acknowledge and accept that you will be charged by EL for the purchase of any Products you have selected. The charge will appear on your credit card statement as Earthling. If you believe that you were incorrectly charged, please contact us immediately. Please note that we will only store and hold your credit card details in accordance with our Privacy Policy. If we cannot charge your credit card, you will receive notification from us and you will need to contact us to resolve the issue. We will not attempt to recharge your credit card until the issue has been resolved.

The first charge will occur when you place your first order. If the charging falls due on a non-business day, it will be charged from your credit card account however your order will not be dispatched until the next business day.

TERMINATION

Notwithstanding any of these terms of use, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate your license to use this Website, and to block or prevent future access to and use of this website for any reason or no reason. Upon termination, these terms of use will still apply.

MATTER YOU MAY SUBMIT TO THE COMPANY

From time to time EL may make available on this Website bulletin boards, chat rooms, comment areas, billboards, forums, news groups, postings sections or similar communications facilities. In such instances, EL welcomes your comments regarding our merchandise and Products, including our Website. However, any notes, messages, billboard postings, ideas, suggestions, or other material which you submit to EL must not harass, slander, malign, libel, defame, threaten, or otherwise violate any rights of any third-parties and must not include any profanity, obscene, indecent, pornographic, defamatory, offensive or unlawful material.

Any and all notes, messages, billboard postings, ideas, suggestions, or other material which you submit to EL will become, upon your submission, the sole and exclusive property of EL. EL shall be and is entitled to use any kind and nature of material which you submit for any type of use in perpetuity, and including in any and all media whether now known or hereafter devised. By submitting material to this Website, you are agreeing and you do agree that EL has the right to use such material in any way, including as outlined above and for promotional and advertising purposes, without compensation of any kind to you. If you choose to send material to us, you are forever assigning all rights in such original creative materials to EL. By submitting any materials of any kind to EL, you represent and warrant that you hold all necessary right, title and license to such materials and that your submission of such materials to EL does not and will not violate or infringe the rights of any third-parties.

EL has no obligation to monitor the bulletin board services, chat rooms, postings sections, news groups, forums, communities and/or other message or communication facilities. However, EL reserves the right at all times and in its sole and absolute discretion, to disclose any information deemed by EL necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part.

You acknowledge that communications to or with bulletin board services, chat areas, news groups, forums, communities and/or other message or communication facilities are not private communications, therefore others may read your communications without your knowledge. You should always use caution when providing any personal information about yourself or your children.

EL does not control or endorse the content, messages or information found in any bulletin board services, chat areas, news groups, forums, communities and/or other message or communication facilities and, specifically disclaims any liability with regard to same and any actions resulting from your participation. To the extent that there are moderators, forum managers or hosts, none are authorised company spokespersons, and their views do not necessarily reflect those of EL.

Any communication or material you transmit to the Website by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like is, and will be treated as, non-confidential and non-proprietary, except where otherwise stated in the EL Privacy Policy. Anything you transmit or post may be used by EL or its affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, EL is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the Website for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing services using such information.

CHILDREN

This Website is designed for and intended for use by adults. If you are under 18, you may use this Website and the Products only with involvement of a parent or guardian. If you are a parent or legal guardian, you must monitor and supervise the use of this Website by children, minors and others under your care. You agree to be responsible for their use of this Website. Any purchase of the Products is only available for sale to individuals who can make legally binding contracts. By placing any order for the Products you are verifying to EL that you are able to make a legally binding contract.

DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

www.earthling3.com is the generic URL for the country specific to EL.

This Website and/or Products are provided "as is" and EL excludes all warranties of any kind to the fullest extent permissible by law. EL does not guarantee the accuracy or completeness of the Products and/or Website or any information or Website content or that it is free of defects or viruses and we accept no responsibility for viruses and defects.

It may be necessary to interrupt the services provided on EL’s Website in order to upgrade or maintain them, or for other circumstances beyond EL’s control. Should EL need to interrupt the availability of Products on Website, EL will use its reasonable endeavors to minimize any interruption to the services.

Except to the extent that liability may not lawfully be excluded, EL will not be under any liability to you (or any of your officers, agents or employees) for:

any loss of profit or anticipated profit, loss of data, loss of use, damage to goodwill or loss due to delay, or any direct or indirect loss or damage (including, without limitation, consequential loss or damage) however caused (including, without limitation, due to breach of contract, negligence or breach of statute) which may be suffered or incurred by you or which may arise from or in connection with your use of this Website and/or the Products or your use of or reliance upon any of the information, Products or materials contained in the Website or provided by the Website to you; or
any cost, loss, liability or expense arising from death, personal injury or property damage resulting directly or indirectly from your use of the Website and/or the Products (unless set out below); or
any failure by EL to exercise or enforce any one or more of its rights under these Terms and Conditions will not constitute a waiver of such rights unless such waiver is granted to you in writing.

The provision of the Products is subject to those mandatory warranties required by law.

Further, where the law implies a warranty into these Terms and Conditions which may not be lawfully excluded, EL’s liability for breach of such a warranty shall be limited at its option in the case of the Products to either supplying the Products again or for an amount equal to having the Products supplied again.

You agree that this Website is provided free of charge. EL shall not be liable to you or any person for any loss or damage of any kind which may arise from the use of this Website. EL may from time to time, publish links to other third party websites on this Website. Contents, hyperlinks or information held on other sites is not the responsibility of EL. EL shall not be held liable for any information held on websites which may have links to or from this Website and which are not maintained and controlled by EL. EL does not endorse any material on those websites and do not provide any warranty, or assume any responsibility regarding the quality, accuracy, source, merchantability, fitness for purpose or any other aspect of material on those websites, nor does EL warrant that material on other websites does not infringe the intellectual property rights of any other person.

www.earthling3.com is intended for use within Australia only unless otherwise specified. EL makes no representation that any product or service referred to on this Website is appropriate for use, or available, outside of Australia. Those who choose to access this site outside of Australia are responsible for compliance with local laws to the extent that local laws are applicable.

By using this Website, you consent to the Terms and Conditions and disclaimers, as defined by EL. EL reserves the right to change these conditions from time to time without giving you prior notice.

EL’s aggregate liability to you for any losses resulting from use of this Website and/or the Products is limited to the nominal amount of $1.00 AUD.

Your use of any materials or information provided on this Website and/or the Products is entirely at your own risk. We assume no duty of care to you with respect to this Website and/or the use of the Products.

Time estimates for provision of the Products are strictly estimates, not a contractual term. EL will use reasonable endeavors to meet such time frames but it is not obliged to comply with them.

The fitness advice and Products presented by EL or any of its employees, agents, directors and other associated third parties are in no way intended as a substitute for medical consultation. Fitness is a matter that varies from person to person. You should consult your medical professional or specialist before commencing any fitness program.

All information provided on the EL website is for promotional or educational purposes only. The information provided is not provided as personal advice, nor is the information specific to your own personal situation. If you use the Products or follow any advice shown by EL you agree that you do so at your own risk, are voluntarily participating in these activities, assume all risk of injury to yourself, and agree to release and discharge us, our agents, directors and any third party associated with EL from any and all claims or causes of action, known or unknown from any claim whatsoever including (but not limited to) death, injury and/or property damage.

EL reserves its right to register its interest in any Products supplied on the PPSR (until such time as full payment has been received).

INDEMNITY

You (and your related parties) agree to defend, indemnify and hold harmless EL, our officers, directors, employees, agents, subcontractors, licensors, and suppliers, from and against all claims, actions, demands, liabilities and settlements, arising in connection with your use of the Website and/or Products or your breach of any of these terms and conditions.

APPLICABLE LAW

By accessing, browsing or using this Website and/or using the Products, you agree that the laws of Australia, without regard to principles of conflict of laws, will govern these terms of use and any dispute of any sort that might arise between you and EL or its related companies. Regardless of where you access this Website, you agree that any action at law or in equity arising out of or relating to these terms of use shall be filed and adjudicated only in the federal or state courts located in Australia, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding between you and EL or any of its related companies.

ENTIRE AGREEMENT

These terms of use constitute the entire agreement between you and EL with respect to this Website and the Products and the Warranty and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to this Website. A printed version of these terms of use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these terms of use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved. The rights provided in these terms of use are cumulative and not exclusive of any other rights available in any other instrument or at law. These terms of use are in addition to and are not prejudiced by or merged in any right a party now has or may have. If any of these terms of use are illegal, void or unenforceable, they will be ineffective to the extent of the illegality, voidability or unenforceability, but without invalidating the remaining terms of use. Failure to exercise or delay in exercising, any right, power or remedy does not impair or operate as a waiver of any right, power or remedy. No single or partial exercise of any right, power or remedy precludes its further exercise or the exercise of any other rights, powers or remedies. Any waiver is effective only to the extent that it is in writing.

VARIATION

These Terms and Conditions can only be amended or varied by EL at its own discretion and may not be amended or varied in any other manner.

ASSIGNMENT

EL may assign or transfer its rights or obligations under these Terms and Conditions at its own discretion.

You are unable to assign any of your rights in any purchase of the Products without the prior written permission of EL.

SEVERANCE

If any part of these Terms and Conditions is prohibited, invalid, unenforceable in any jurisdiction, that provision will, as to that jurisdiction, be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of these Terms and Conditions or effecting the validity or enforceability of that provision in any other jurisdiction.

CONTACT US

If you have any questions or suggestions regarding these Terms and Conditions, please contact us at:

Name: Earthling Pty Ltd (ACN 089 327 113)

Place of Registration: Australia

Registered Office Address: 104 Frome st, Adelaide SA 5000
Email: info@earthling3.com.au