- 1. YOUR AGREEMENT TO THESE TERMS
(i) These Terms set out your agreement with UNDERSTATE in relation to the use of the Website and the placement of Order for Products and related matters;
(ii) In consideration of UNDERSTATE allowing you to use the Website, and/or opening an Account for you, you agree with UNDERSTATE to be bound by these Terms.
- 2. ACCESS AND USE OF THE WEBSITE
(i) You must only use the Website in accordance with these Terms and any applicable law.
(ii) You must not (or attempt) to:
(a) interfere or disrupt the Website or the servers or networks that host the Website or any security-related or other features of the Website;
(b) use any data gathering and extraction tools on the Website; or
(c) link to any part of the Website in a way that damages or takes advantage of UNDERSTATE’S reputation, or causes UNDERSTATE to suffer Loss including but not limited to implying or suggesting that you have any association and/or affiliation with UNDERSTATE, or approval and endorsement from UNDERSTATE when there is none, or in a way that is illegal or unfair.
- 3. INFORMATION ON THIS WEBSITE
(i) You acknowledge and agree that there are intellectual property rights that are owned by or licensed to UNDERSTATE and these include rights in respect of the Website content;
(ii) Any material on the Website, in whatever form (including electronic form) must not be reproduced, transmitted, communicated, distributed or adapted, sold, modified or used except as permitted in accordance with applicable law or with UNDERSTATE’S consent;
(iii) To the extent there is material on the Website provided by third party merchants, suppliers and Product manufacturers, UNDERSTATE is not liable to you in respect of any Loss that you might suffer or incur as a result of inaccuracies or errors caused by incorrect information supplied to us or by these third parties.
- 4. ORDERS AND AGREEMENT FORMATION
(i) Before you may place an Order and access the Website for that purpose, you must register an Account with UNDERSTATE. To register an Account, you must:
(a) give UNDERSTATE accurate and current personal information including your name, address, credit card or other related payment details, and a valid email address;
(b) be at least 18 years old and have the capacity to enter into a legally binding agreement with UNDERSTATE.
(ii) You must follow the instructions on the Website as to how to make an Order and for making changes to your Order before you submit an Order.
(iii) Subject to these Terms, and cases of Error or Obvious Error, despite any previous Price you may have seen or heard, the Price or related charges (for example delivery charges) shown or told to you (on the Website) in respect of any Order, is the Price and charges communicated to you via the Order Confirmation.
(iv) Unless otherwise stated, all payments to UNDERSTATE are to be made in Australian Dollars.
(v) Payment for an Order is required to be made in full at the time of the Order being accepted by UNDERSTATE by one of the payment methods disclosed on the Website.
(vi) If you are not entitled to use the payment method or account selected for the Order, or if the payment method or account does not have sufficient funds or credit facilities to cover the Order, then the Order may not be processed.
(vii) Upon placement of an Order, UNDERSTATE will issue an Order Confirmation which will be sent to you by e-mail. This email is not an acceptance of the Order.
(viii) A binding agreement between you and UNDERSTATE for the purchase of Products is formed when you receive a shipment confirmation communication from UNDERSTATE. You agree that UNDERSTATE is not obliged to supply the Products to you until the Order has been accepted and an Agreement concluded.
(ix) UNDERSTATE may in its discretion refuse to accept an Order from you or refuse to process your Order for any reason. These reasons include but are not limited to:
(a) unavailability of Products the subject of an Order;
(b) UNDERSTATE suspects that you might be re-selling the Products;
(c) UNDERSTATE suspects that the Order is not genuine and that it is being used for a purpose other than for use of the Products is the subject of the Order by you; or
(d) where UNDERSTATE considers that the Products cannot be delivered to your nominated delivery address.
- 5. YOUR ACCOUNT AND THE ACCOUNTS OF OTHER PERSONS
(i) You are solely responsible for the activity that occurs on your Account (including Orders placed using your Account), and you must keep your Account password secure.
(ii) UNDERSTATE is not liable or any Loss suffered or incurred by you as a result of any unauthorised activity on your Account if you fail to keep your Account login information secure.
(iii) You must not use another person’s Account without UNDERSTATE’S, and/or the other person’s express written permission.
(iv) If you suspect or become aware of any unauthorised use of your Account or that your password is no longer secure, you must notify UNDERSTATE immediately and take immediate steps to re-secure your Account (including by changing your password).
(v) UNDERSTATE may refer fraudulent or abusive or illegal activity to the relevant authorities for investigation or prosecution.
- 6. CANCELLATIONS AND AMENDMENTS TO ORDERS
(i) UNDERSTATE is not obliged to accept any request by you for a cancellation or amendment of an Order;
(ii) If you discover that you have made a mistake with your Order after you have submitted it to UNDERSTATE via the Website, you may request the Order be cancelled or amended. UNDERSTATE does not guarantee that it will be able to cancel or amend the Order in those circumstances;
(iii) If you have placed an Order, and UNDERSTATE is unable to process the Order or UNDERSTATE does not accept the Order, UNDERSTATE will notify you and the Order will be cancelled;
(iv) UNDERSTATE will refund any payment already made by you to your original payment method where an order is cancelled as contemplated by this clause, and before it has been accepted by UNDERSTATE.
- 7. PRODUCT DELIVERY
(i) Products will be delivered to you at the place of delivery requested and nominated by you in the Order. UNDERSTATE may use independent contractors for the purposes of delivery and charge you a delivery fee as specified at the time of you placing an Order.
(ii) Where it is not possible for UNDERSTATE to deliver to your nominated delivery location, UNDERSTATE will inform you an attempt to make alternative delivery arrangements.
(iii) UNDERSTATE does not guarantee any firm delivery dates.
(iv) Where you grant UNDERSTATE an authority to leave the Products at your nominated delivery address when placing your Order, you agree that UNDERSTATE is given permission to leave the Products the subject of the Order unattended by the front door or at the reception or lobby or any relevant concierge (in the case of an apartment building) or, otherwise as per your instructions. In those circumstances, UNDERSTATE is not required to obtain a signature confirming delivery at the delivery location.
(v) You agree that you will take delivery of the Products without unnecessary delay and at a time reasonably specified by UNDERSTATE. If you are unable to take delivery through absence from the delivery location, UNDERSTATE may leave a card providing you with instructions on collection of the Products.
(vi) Where through your unreasonable refusal to accept delivery of the Products you do not accept delivery or collect the Products, then UNDERSTATE may:
(a) charge you with a reasonable storage fee and other costs reasonably incurred by UNDERSTATE; or
(b) remove the Products from being available for delivery or collection and notify you that any Agreement for sale of the Products has been terminated.
(i) By participating in the Competition you hereby warrant that all personal information submitted by you is true, current and complete and that the e-mail address you submit is accurate and valid.
(ii) Any entry made or attempted to be made in a manner which in the Promoter’s reasonable opinion is contrary to the spirit of these Terms and Conditions or by its nature is unfair to other entrants will be invalid and may result in your disqualification from the Competition. Examples of entries or behaviour which are not allowed include fraudulent entries, bulk entries, automated entries, cheating, hacking or deception.
(iii) The Promoter reserves the right to cancel the Competition or amend these Terms and Conditions at any time without prior notice in circumstances beyond the Promoter’s reasonable control where the Promoter reasonably considers such cancellation or amendment is unavoidable.
(iv) The winner acknowledges that all intellectual property rights belonging to the Promoter, such as but not limited to the Misha Collection and other logos, as well as the intellectual property rights of its partners and sponsors and any audio-visual material produced containing images of the Competition winners are and shall remain the Promoter’s sole and exclusive property or its partners or sponsors.
(v) The Promoter cannot accept responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission or mail delivery, communications line failure, theft, destruction, corruption, alteration of, or unauthorised access to entries, or entries lost or delayed whether or not arising during operation or transmission as a result of server functions, virus, bugs or other causes outside its control.
(vi) The Promoter shall not have any liability and does not accept any responsibility for any damage, loss, injury or disappointment suffered by any participant in this Competition or resulting from the Prizes. Nothing shall exclude the Promoter’s liability for death and personal injury as a result of its negligence.
(vii) In the event of any dispute, whether such dispute concerns the conduct or eligibility of participants, results or any and all other matters relating to the Competition, the decision of the Promoter shall be final and no correspondence or discussion shall be entered into.
- 9. TITLE AND RISK
(i) Unless otherwise specified by you, all title and risk passes to you upon UNDERSTATE accepting the Order and payment for the Price, and all other relevant charges in respect of the Order being paid by you.
(ii) As and from the time when risk passes to you, then UNDERSTATE will not be liable to you for Loss suffered or incurred by you in relation to the Products except as provided in the Terms.
(iii) You agree to take care when opening the Products so as not to cause damage, and not to use any sharp instruments in that process.
- 10. YOUR COMMITMENTS, AGREEMENTS AND ACKNOWLEDGEMENTS
(i) You warrant, and represent to UNDERSTATE and acknowledge that UNDERSTATE has relied on same in entering into any Agreement with you, that:
(a) all information provided by you in your Account application is complete, accurate and correct and is not misleading;
(b) UNDERSTATE may rely on that information unless and until it receives written notice of any change signed by you. Any such varied information will be covered by this warranty;
(c) you have full capacity, power and are otherwise properly authorised to enter into obligations and exercise rights pursuant to these Terms;
(d) during your dealings with UNDERSTATE, you will be in a position to meet all your commitments and obligations arising from these dealings;
(e) you will notify UNDERSTATE immediately of any errors or omissions with respect to your details or Account, in writing;
(f) you have not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by UNDERSTATE in relation to the Products or their use or application;
(g) you have not made known, either expressly or by implication, to UNDERSTATE, any purpose for which you require the Products and you have the sole responsibility of satisfying itself that the Products are suitable for your use.
(ii) You agree:
(a) to provide UNDERSTATE with accurate, true and current information about yourself and maintain that information;
(b) you are responsible for maintaining the confidentiality of your password and Account information and the activities conducted on your Account;
(c) to notify UNDERSTATE immediately of any unauthorised use of your password or any breach of security;
(d) UNDERSTATE is not responsible for, and is not liable to you in respect of any Loss suffered or incurred by you regarding the reliability, completeness or accuracy of any third-party information it provides or makes available to you;
(e) UNDERSTATE has the right to correct any trading or administrative errors including but not limited to reversing or cancelling an Order without your consent and without liability or recourse by you against UNDERSTATE;
(f) Any information provided by UNDERSTATE including information posted on its website is indicative and for information purposes only. UNDERSTATE does not warrant the accuracy of that information and you should not make your own enquires concerning that information.
- 11. YOUR INSTRUCTIONS
(i) All your instructions are subject to law, and these Terms.
(ii) It is your responsibility to ensure that all instructions given to UNDERSTATE are in accordance with the law, and these Terms.
(iii) If UNDERSTATE considers it is in its reasonable interest to do so and to the extent permitted by law, it may decline to act in relation to any particular dealings, without explanation or notice where it:
(a) believes the transaction would result in no change of beneficial ownership in the Products;
(b) believes the instructions are ambiguous, incomplete or unclear; or
(c) has suspended or cancelled your Account.
- 12. TERMINATION OF AGREEMENTS
(i) If you do not comply with any essential obligations, UNDERSTATE may terminate an Agreement by serving a notice of termination on you.
(ii) For the purposes of these Terms and any Agreement where you agree to acquire Products from UNDERSTATE:
(a) any obligations on you to pay the Price and other applicable charges in respect of any Order, or to pay any other moneys owing by you to UNDERSTATE in relation to these Terms or any Agreements, are deemed to be essential obligations; and
(b) in respect of any other obligations, those obligations are deemed to be essential obligations if they remain un-remedied for a period of seven days from the date UNDERSTATE advises you of the relevant breach and the need to remedy those defaults.
(iii) UNDERSTATE may also terminate an Agreement arising from an Order if the Products are not available for any reason or due to inability of Understate to deliver the Products to your nominated delivery address;
(iv) In the case of termination of an Agreement:
(a) due to non-availability of the Products, UNDERSTATE will refund to you any money paid by you in respect of that Agreement;
(b) due to inability of Understate to deliver the Products to your nominated delivery address, Understate may, but is not obliged to refund to you any money you have paid to UNDERSTATE, however if UNDERSTATE elects to refund to you some of those monies Understate may deduct its reasonable administration charges connected with acceptance of the Order and delivery of the Products (including for attempting to deliver and then returning the Products, and any storage fees as provided for in the Terms);
(c) due to breach by you of an essential term, UNDERSTATE may hold any other money paid by you under same as security for anything recoverable in relation to these Terms and/or enforce any other rights it may have against you in relation to these Terms and/or at law or in equity.
- 13. SALES OUTSIDE OF AUSTRALIA
(i) the Website and UNDERSTATE is based in Australia;
(ii) UNDERSTATE will render all invoices and calculate prices/charges to you in Australian dollars;
(iii) the Price and related charges related to the sale of Products by UNDERSTATE to you, will, for customers located outside of Australia, be subject to the exchange rate applied by the customer's credit or debit card merchant or in the absence of same, by UNDERSTATE;
(iv) where Products are shipped to your nominated delivery address outside of Australia, there may be Overseas Tax levied by a Government Agency in the country of nominated delivery, and that you will be liable for all such Overseas Tax (even if it is charged to UNDERSTATE) and any other Loss you may suffer or incur related to the charging of Overseas Tax, and:
(a) UNDERSTATE is not responsible for, and not liable to you for any Overseas Taxes or other Loss you may suffer or incur related to charging of Overseas Tax;
(b) UNDERSTATE is not liable to reimburse you for any Overseas Taxes that may be imposed upon you or any other Loss you may suffer or incur related to charging of Overseas Tax;
(c) you agree to reimburse Understate for any Overseas Tax that may be imposed upon UNDERSTATE or any other Loss Understate may suffer or incur related to charging of Overseas Tax; and
(d) you release UNDERSTATE from all Claims you had, have or may have in relation to any Overseas Tax that may be imposed upon you or any other Loss you may suffer or incur related to charging of Overseas Tax.
1.14. PRODUCT RETURNS
(i) You agree that it is not a defect in the Product or a breach of a warranty if in UNDERSTATE’S reasonable opinion, following the sale of the Products to you, the Product has:
(a) become of unacceptable quality due to fair wear and tear,
(b) been misused, or not used in accordance with manufacturers’ instructions, or been used in an abnormal way; or
(c) not had reasonable care taken by you in respect of the Product.
(ii) You may return Product to UNDERSTATE in circumstances where you believe the Product is the subject of a defect, or there is an applicable warranty claim contemplated by these Terms.
(iii) Where the Product sold to you is confirmed to have a defect, or there is an applicable warranty claim contemplated by these Terms, UNDERSTATE will replace the Product or refund the Price of the Product to you at your request.
(iv) If the Product is found not to have a defect or there is no applicable warranty claim contemplated by these Terms, UNDERSTATE will return the Product back to you and may charge you the delivery costs of this return.
UNDERSTATE does not provide warranties of any kind on any of its products or on any information provided on the UNDERSTATE website.
Some UNDERSTATE garments are washed or dyed to give a pre-loved feel. Any irregularities in colour or texture are intentional. Please follow the care label instructions to give your garment the best possible care.
- 15. VOUCHERS, GIFT CARDS AND ONLINE STORE CREDIT
(i) Where UNDERSTATE offers, provides or sells Vouchers or Gift Cards you may use these as payment for Products on the Website.
(ii) Where UNDERSTATE emails Vouchers and Gift Cards to you, UNDERSTATE is not liable to you for any Loss suffered or incurred by you occasioned by:
(a) any errors in the email address you provided to UNDERSTATE;
(b) resulting from use of Vouchers or Gift Cards without permission; or
(c) theft or illegibility of Vouchers Gift Cards.
(iii) Where there is fraud, or deception or other illegal activities in connection with the redemption of Vouchers or Gift Cards on the Website, UNDERSTATE is entitled to close your Account and/or require a different means of payment.
(a) can only be redeemed on the Website in accordance with the terms stated on them;
(b) are valid for the specified period stated on them only;
(c) may exclude various types of Products from Voucher promotions;
(d) cannot be redeemed for cash; and
(e) can only be used on the basis of one Voucher per Order.
(v) If you place an Order for Products that is less than the value attributable to the Voucher UNDERSTATE is not obliged to refund you, and no residual credit will be returned to you.
(vi) If the credit on a Voucher is insufficient for the Order you wish to make, you may make up the difference by payment through means provided for in these Terms (however you may not do this by using another Voucher or attempting to rely on any other promotional offer of UNDERSTATE).
(vii) In circumstances where multiple Products are purchased using a Voucher, and one or more Products are returned, the discount will be applied on a pro rata basis to each Product for the purpose of establishing refund values.
(viii) Gift Cards may be purchased by you for use on the Website by you or other customers nominated by you.
(ix) Gift Cards:
(a) are valid for the specified period stated on them only and any balance that remains after that expiry date will not be available for use;
(b) do not accrue interest nor can they be redeemed or refunded for cash;
(c) cannot be used to buy further Gift Cards.
(x) If you place an Order for less than the value of the Gift Card, the residual credit can be used for future purchases, however that residual credit may not be redeemed for cash.
(xi) Where there is a credit on a Gift Card and it is insufficient for the Order payment to be completed by the use only of that Gift Card, the difference can be paid for through payment by other means as contemplated by these Terms.
(xii) You may use as many Gift Cards as you wish in paying for an Order, and Gift Cards may be used in conjunction with a Voucher provided only one voucher is used per Order;
(xiii) If an Order made using a Gift Card or a Voucher is cancelled or returned, and you are entitled to a refund, the portion of the purchase attributable to the Gift Card or Voucher will be refunded as a store credit only.
(xiv) Where UNDERSTATE provides a store credit:
(a) those store credits are applied to the account registered with the same email address used to place the Order;
(b) store credits are unable to be transferred to other accounts;
(c) A store credit is valid for 12 months (or any additional period UNDERSTATE may without being obliged to do so, advise you) from the date first issued calculated on a first in first out basis;
(d) credit balances for store credits that expire after the 12 months (or any relevant extended period) will not be available for use by you.
(e) store credits do not accrue interest nor can they be redeemed or refunded for cash;
(f) if an Order made using a store credit is cancelled or returned, the portion of the purchase attributable to the store credit will be restored to your Account only.
- 16. ERRORS
(i) The Price and related charges quoted by UNDERSTATE at the time of submission of your Order is indicative only and subject to UNDERSTATE’S Order Confirmation and acceptance of the Order. Understate reserves the right to correct any errors which may be shown in any Invoice or other Agreement communications or documents, UNDERSTATE provides to you at any time upon notice to you, including without limitation the Price and related charges, and you must accept the corrections.
(ii) UNDERSTATE reserves the right to correct any errors which may be shown in or on the Website at any time upon notice to you, including without limitation the Price and any relevant applicable delivery charges or other related charges, and you must accept these corrections.
(iii) In case of Obvious Error, UNDERSTATE may rescind any Agreement with you by notice to you of that rescission. Where UNDERSTATE elects to rescind any Agreement with you, any further obligations to supply Products by UNDERSTATE to you or by you to UNDERSTATE will be at an end and UNDERSTATE will refund to you any moneys that you have paid to UNDERSTATE in respect of same.
- 17. GST
(i) The price payable by you in respect of any Agreement or the Terms where stated to be exclusive of GST (or where not stated as being GST inclusive) will be treated as GST exclusive and UNDERSTATE may recover from you, the GST payable on any supply connected with any Agreement or these Terms. This GST is an additional obligation, the amount of GST recoverable is 10% of the GST exclusive price to the intent the total consideration payable for any such supplies shall be inclusive of GST and the GST inclusive price or amount shall be the sum of the GST exclusive price or amount plus the GST applicable to the supply.
(ii) If the rate of GST so imposed on UNDERSTATE increases to an amount higher than 10%, the GST recoverable shall be such higher percentage of the GST exclusive price or amount from the date of the increased rate coming into force. The GST may be recovered from you at the same time as payment is due for any applicable supply in accordance with these Terms.
- 18. LIABILITY AND NON EXCLUDABLE TERMS
(i) Except to the extent all or part of this clause, contains a Non Excludable Term which, cannot be excluded, restricted or modified or be applied in such a way as having the effect of excluding, restricting or modifying the application of any legislation applicable to the sale of goods or supply of services:
(a) these Terms and any Agreement do not include by implication or otherwise any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Products or any contractual remedy for their failure and UNDERSTATE disclaims all or any such conditions and warranties, express or implied;
(b) any information provided by UNDERSTATE including information posted on its Website is indicative and for information purposes only. Understate does not warrant the accuracy of that information and you should not rely on that information;
(c) UNDERSTATE does not warrant that the Website will be available at all times and without disruption and provides no warranties in relation to the content of any other website linked to or from the Website;
(d) UNDERSTATE is not be liable for any Loss suffered or incurred by you relating to any dealing or transaction with UNDERSTATE (except as so provided by these Terms);
(e) you release UNDERSTATE, and their respective directors, employees, contractors and agents from any Claims you had, have, or may have with respect to any Loss, that you suffer or incur in connection with your dealings with UNDERSTATE, and if, but only if, UNDERSTATE cannot by statute limit such Loss in this way, UNDERSTATE’S liability for breach of any statutory condition or warranty will be limited to supplying the Products again, payment of the cost of having the Products supplied again, repairing the Products or any other remedy prescribed by any relevant law;
(f) if neither of the preceding sub clauses applies, UNDERSTATE’S total liability for any and all Losses in respect of all Claims in connection with an Agreement or your use of the Website, or these Terms, will be limited to the purchase price of the Products, and UNDERSTATE will not be liable for incidental, consequential, exemplary or punitive damages resulting from any such cause (including, without limitation, loss of profit, loss of revenue or loss of opportunity);
(g) if you use up or transform the Products in the course of trade, then UNDERSTATE will not be liable to you or anyone else for any Loss suffered or incurred by you or them arising under or in connection with the sale, use of, storage or any other dealings with the goods or Products by you or any third party;
(h) UNDERSTATE is not liable to you for any Loss suffered or incurred by you in any way arising under or in connection with the sale, use of, storage or any other dealings with the Products by you or any third party;
(i) UNDERSTATE shall not be liable for any Loss suffered or incurred by you arising in connection with the operation (including delays and errors) breakdowns, disruption to or malfunction of any system, device or service;
(j) You are liable for all Loss you suffer or incur, arising out of the use, possession of or dealings with any Products sold to you by UNDERSTATE, (including changes in your financial situation);
(k) UNDERSTATE will not be liable for any Loss suffered by you or any third party for failure to meet any estimated date;
(ii) Where any part of these Terms (including but not limited to the preceding sub clauses of this clause) are Non-Excludable Terms, then any such provision of these Terms:
(a) shall having regard to the application of those provisions, to the extent it is possible to do so, be read down and applied as relevantly modified so that those provisions do not contain any relevant Non-Excludable Terms with respect to any such application of those provisions;
(b) shall continue to apply, and have operative effect to the extent it is possible to do so, by some other application of those provisions and they will then continue to remain enforceable; and
(c) to the extent it is possible to do so, those provisions if replaceable, shall be replaced by such provision that in its commercial and legal context is most similar to the provision held void, unenforceable or illegal and UNDERSTATE may by relying upon its rights to modify or vary this Agreement, so vary those terms or provisions to give the necessary binding effect (including to the extent it is possible to do so, with retrospective operation).
- 19. INDEMNITY
(i) takes effect as and from the date UNDERSTATE notifies you of its making a Claim against you under this indemnity (the Indemnity Claim Notice); and
(ii) applies and may be enforced by UNDERSTATE in relation to any Loss that arose prior to or after the date of the Indemnity Claim Notice, or any relevant Claim made against UNDERSTATE prior to or after the date of the Indemnity Claim Notice.
- 20. PRIVACY
(i) To the extent UNDERSTATE is required by law to do so, it may collect Your Information and verify your identity before UNDERSTATE can trade with you.
(ii) By using the Website, or opening an Account with UNDERSTATE you agree to be bound by the following terms:
(a) UNDERSTATE will collect Your Information only by lawful and fair means;
(b) UNDERSTATE may also be necessary to collect Your Information from third parties, including credit reporting agencies, law enforcement agencies and other government entities, and identify verification providers;
(c) UNDERSTATE collect and hold, use and disclose Your Information for purposes including the following:
- allow you to open an Account;
- to provide Products and related services to you;
- to enable UNDERSTATE to perform its obligations to you and to ensure that you perform your obligations to UNDERSTATE;
- for communicating with you, including sending you information about Products and services;
- to maintain a credit information file on you and to carry out a credit assessment on you;
- to establish your bona fides;
- for the investigation of suspected unlawful, fraudulent or other improper activity connected with the use of our Products and services; and
- to comply with our legal and statutory obligations, including our obligations relating to identity verification and reporting under the Anti-Money Laundering and Counter Terrorism Act 2006 (Cth), our licensing obligations under other applicable laws.
(iii) By opening an Account and providing Your Information you consent to Your Information being used by UNDERSTATE.
(iv) UNDERSTATE may disclose Your Information to third parties as follows:
(a) to a credit reporting agency;
(b) to UNDERSTATE’S contractors and external service providers associated with the operation of our business;
(c) to law enforcement agencies to assist in the prevention of criminal activities;
(d) to government and regulatory authorities and other organisations as required or authorised by law or otherwise permitted under the Privacy Act 1988 Cth;
(v) UNDERSTATE may disclose Your Information to a credit reporting agency for the purpose of obtaining an assessment of whether that personal information so disclosed matches (in whole or in part) the personal information held by the credit reporting agency. This process assists UNDERSTATE in verifying your identity as required by the Anti-Money Laundering and Counter Terrorism Act 2006.
(vi) The credit reporting agency may prepare and provide UNDERSTATE with such an assessment and may use Your Information as contained in any credit information file relating to you and other individuals for the purposes of preparing that assessment.
(vii) UNDERSTATE will take reasonable steps to protect Your Information it collects and ensure that it is accurate, complete and up-to-date.
- 21. VARIATION
UNDERSTATE may vary these Terms and any variation of these Terms shall apply to all dealings between you and Understate from the day on which the variation takes effect. Continued use of the Website by you will be deemed to constitute acceptance of the variation to these Terms.
- 22. NOTICE
Any notice, request, demand or other communication may be sent to your postal or electronic address last notified to Understate and the notice, request, demand or other communication shall be taken to have been received by you if sent by prepaid letter on the Business Day following posting and if sent by facsimile or other electronic means when sent.
- 23. ASSIGNMENT
You must not assign your rights under any Agreement or these Terms without prior written consent of UNDERSTATE.
- 24. OTHER
(i) These Terms are governed by the laws of Western Australia and the Courts of Western Australia have jurisdiction in relation to any disputes to which these Terms apply.
(ii) If more than one person constitutes the Account Holder, then they are jointly and severally bound by these Terms and UNDERSTATE is entitled to act upon the instructions of any one of those persons unless specified otherwise on the Account application form;
(iii) The failure of UNDERSTATE at any time to insist upon strict performance of the provisions of these Terms will not be deemed a waiver of its rights at any time thereafter to insist on strict performance.
(iv) No provision of these Terms that grant rights to UNDERSTATE, merges by virtue of any supply of Products being made or any amount due being paid by you, or any Agreement being completed, or terminated, or otherwise.
(v) If the performance of UNDERSTATE’S performance of its obligations under these Terms is prevented, restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of UNDERSTATE, then UNDERSTATE will give notice of such cause to you and after 7 days from the receipt by you of such notice, UNDERSTATE may terminate or rescind in its discretion, any relevant Agreement with you, without being obligated to you in any way for any Loss that may have been otherwise suffered or incurred by you.
(vi) If the whole or any part of a provision of any Agreement or these Terms is or shall become void, unenforceable or illegal, the remainder of any Agreement or these terms shall have full force and effect. The provision held void unenforceable or illegal if replaceable, shall be replaced by such provision that in its commercial and legal context is most similar to the provision held void, unenforceable or illegal.
(vii) These Terms replace any agreement, arrangement or understanding (arrangements) that may have existed between you and UNDERSTATE and the obligations entered into under those prior arrangements will be treated as if they were entered into pursuant to these Terms.
(viii) You authorise UNDERSTATE to record any telephone conversation(s) between you and Understate, with or without an audible tone warning device.
(ix) You authorise UNDERSTATE to appropriate any credits, payments and other receipts from you or from your Account in such manner and order as it think fit against any amounts due or owing by you to UNDERSTATE.
By accessing and using the UNDERSTATE website, you are consenting to the terms and conditions of this site and the collection of information. UNDERSTATE endeavours to keep the information on the UNDERSTATE website up to date however it may contain errors and inaccuracies and may not be current at time of viewing.
- 25. DEFINITIONS AND INTERPRETATION
(i) In these Terms:
Account means an account issued by UNDERSTATE to you for the purpose of facilitating any transaction relating to the sale of Products or related services.
Agreement means, as the context permits, an agreement for the sale of Products and related services to you by UNDERSTATE arising from the acceptance of an Order by UNDERSTATE.
Account Holder means the person or entity who has been granted an Account by UNDERSTATE.
Business Day means a day in which banks are open for business in Western Australia (WA), Australia.
Claim means any claim, action, proceeding or demand made, however arising and whether present or future, fixed or un-ascertained, actual or contingent;
Government Agency means any entity, body or person or government agency or authority with the authority to administer of any law;
Loss means a damage, loss, cost, expense or liability incurred or suffered, however arising and whether present or future, fixed or un-ascertained, actual or contingent.
Non-Excludable Term means in relation to any part of these Terms, that by the application of any legislation applicable to the sale of goods or supply of services, may not:
(i) be excluded, restricted or modified; or
(ii) otherwise applied in a way that has the effect of causing them to be excluded, restricted or modified.
Obvious Error means any matter, fact or thing which is obviously wrong, incorrect and of such a nature that no reasonable person in the position of UNDERSTATE would have proceeded with any transaction on the basis of same.
Order means the order submitted by you to UNDERSTATE via the Website to purchase Products from UNDERSTATE.
Order Confirmation means the advice to you whereby UNDERSTATE acknowledges to you, it has accepted an Order by you.
Overseas Tax means means any present or future tax, levy, impost, deduction, charge, excise, duty, compulsory loan or withholding of whatever kind and whether direct or indirect, including but not limited to any related interest, penalty, fine or expense in connection with any of them levied or imposed by any Government Agency (other than an Australian Government agency) in connection with any law (other than an Australian law);
Product and Products means any products or goods sold to you by UNDERSTATE, from time to time and as contemplated by any Order made by you in respect of the same.
Your Information means relevant information and other personal information about you, including but not limited to your full name, date of birth, residential address, and your interactions with UNDERSTATE (such as Agreements), your credit card and related banking payment details, copies of personal identification documents that prove your identity or information about you that is publicly available, for example from public registers or social media.
You and Your means the Account Holder.
we, our, or us means UNDERSTATE.
Website and the Website means the website that is operated and maintained by UNDERSTATE in respect of the sale of Products to consumers and in respect of which Accounts are opened by you and/or Orders are facilitated and transacted.
(ii) In these Terms:
(a) Headings are for ease of reference only and shall not affect the interpretation or construction of these Terms;
(b) Words imparting the singular shall include the plural and vice versa;
(c) Words imparting a gender shall include every gender;
(d) Words referring to persons includes natural persons, corporations and any other entity recognised by law.