CONDITION OF SALE
1. INFORMATION ABOUT US
Our site is operated by ESL Support Pty Ltd ("us", “our” or "we"). We are registered in Victoria, Australia under Australian Company Number 168 608 179 and with our registered office at Level 8, 20-22 Albert Road, South Melbourne, Victoria 3205. Our ABN is 81 168 608 179.
2. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US
2.1 Your order constitutes an offer to us to buy a Product. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an e-mail that confirms that the Product has been ordered (the "Order Confirmation"). The contract between us ("Contract") will only be formed when we send you the Order Confirmation.
2.2 We reserve the right to cancel orders that we believe to be fraudulent or constitute a misuse of a promotional or marketing activity or where an error has occurred including but not limited to errors relating to pricing.
3. SERVICE AVAILABILITY
We will take reasonable efforts to ensure that availability of the website will be uninterrupted and that transmissions will be error-free. However, due to the nature of the Internet, this cannot be guaranteed. Also, your access to the website may also be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services.
4. E2 Product
4.1. You must be at least 18 years of age to use our Product. Minors may only use the Product under the supervision of an adult.
4.2. Our Product and any content accessed through the Product are for your personal and non-commercial use only and may not be shared with any other individuals.
4.3. Our Product, including the content, is regularly updated. In addition, we continually test various aspects of our Product, including our websites, user interfaces and promotional features.
5. OUR STATUS
5.1 Please note that in some cases we accept orders as agents on behalf of third-party sellers. The resulting legal contract is between you and that third-party seller and is subject to the terms and conditions of that third-party seller, which they will advise you of directly. You should carefully review their terms and conditions applying to the transaction.
5.2 We may also provide links on our site to the websites of other companies, whether affiliated with us or not. We cannot give any undertaking, that products you purchase from third party sellers through our site, or from companies to whose website we have provided a link on our site, will be of satisfactory quality, and any such warranties are DISCLAIMED by us absolutely. This DISCLAIMER does not affect your statutory rights against the third-party seller. We will notify you when a third party is involved in a transaction, and we may disclose your customer information related to that transaction to the third-party seller.
6. INTELLECTUAL PROPERTY RIGHTS
The content on our site is the property of ESL Support Pty Ltd, its affiliates or its content suppliers and is protected by local and international copyright, authors rights and database right laws. The compilation of all content on this website is our exclusive property and our affiliates. Our site and its URL, our Logo, and other marks indicated on our website are our trademarks. Our trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion, or in any manner that disparages or discredits us. All other trademarks not owned by us that appear on our site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
7. AVAILABILITY AND DELIVERY
We will endeavour to deliver your Products within the delivery times as set out in the Order Confirmation or, if no delivery date is specified, then within a reasonable time of the date of the Order Confirmation, unless there are exceptional circumstances. If a Product is found to be incorrectly addressed via email or otherwise by us then we will be responsible for the re-delivery, replacement or refunding of the Product. If you are found to have given an incorrect or insufficient address or email, then we will not refund or resend the product and all responsibility for correcting the delivery information will be borne by you.
8. RISK AND TITLE
8.1 Use of the Products will be at your risk from the time of delivery.
8.2 You do not obtain or acquire any title in or ownership of the Products. Your license and right to use the Products will only arise when we receive full payment of all sums due in respect of the Products. During your access period we grant you a limited, non-exclusive, non-transferable right to access our Product and our content. Except for the foregoing, no right, title or interest shall be transferred to you. You agree not to use the Product for public performances.
9. PRICE AND PAYMENT
9.1 The price of any Products will be as quoted on our site from time to time, except in cases of obvious error.
9.2 These prices exclude the Goods and Services Tax (GST).
9.3 Prices are liable to change at any time, but changes will not affect orders in respect of which we have already sent you an Order Confirmation.
9.4 Our site contains a variety of Products and it is always possible that, despite our best efforts, some of the Products listed on our site may be incorrectly priced. If a Product's correct price is higher than the price stated on our site, we will normally, at our discretion, either contact you for instructions before delivering the Product, or reject your order and notify you of such rejection.
9.5 We are under no obligation to provide the Product to you at an incorrect (lower) price, even after we have sent you an Order Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mis-pricing.
9.6 Payment for all Products must be by credit card. We accept payment with Visa or MasterCard or any credit or debit card we deem acceptable at the time of payment. We will not charge your credit or debit card until we despatch your order. In exceptional circumstances where credit or debit card payments are not possible, payments may be made via regular banking channels. Where our Products are made available to you on a subscription basis we will debit your card in advance of delivering or making our Products available to you.
10. OUR REFUND POLICY
10.1 To the extent permitted by the applicable law, as the Products constitute digital products, including videos, digital content, and opened software or Products, payments are non-refundable and we do not provide refunds or credits for any purchases.
10.2 If applicable, we will usually refund any money received from you using the same method originally used by you to pay for your purchase.
11. OUR LIABILITY
11.1 To the maximum extent permitted by law and save for the express written terms in this Agreement, all other express or implied terms, conditions, warranties, statements, assurances and representations in relation to the Goods or arising from this Agreement are expressly excluded. If any of the exclusions or limitations set out in this clause are declared illegal or void or if there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by this Agreement, then, to the extent permitted by law, our entire liability and your exclusive remedy is limited to, at our discretion, the replacement of the goods or the supply of equivalent goods.
11.2 To the maximum extent permitted by law our liability for losses you suffer as a result of us breaking this agreement is strictly limited to the purchase price of the Product you purchased including any losses which are a foreseeable consequence of us breaking the agreement. Losses are foreseeable where they could be contemplated by you and us at the time your order is accepted by us.
11.3 We are not responsible for indirect losses (even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable) however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of our performance or non-performance of this Agreement, such indirect losses including but not limited to:
- loss of income or revenue
- loss of business or business interruption
- loss of profits or contracts
- loss of anticipated savings
- loss of data
- loss of data, or
- waste of management or office time however arising
- or any form of consequential loss, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable,; provided that this clause 12.3 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of clause 12.1 or clause 12.2 or any other claims for direct financial loss that are not excluded by any of categories (a) to (h) above.
11.4 Where you buy any Product from a third-party seller through our site, the seller's individual liability will be set out in the seller's terms and conditions.
12. WRITTEN COMMUNICATIONS
Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
All notices given by you to us must be given to ESL Support Pty Ltd at Level 8, 20-22 Albert Road, South Melbourne, Victoria 3205. We may give notice to you at either the e-mail or postal address you provide to us when placing an order, or in any of the ways specified in clause 13 above. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee. For contractual purposes, you consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
14. TRANSFER OF RIGHTS AND OBLIGATIONS
14.1 The contract between you and us is binding on you and us and on our respective successors and assigns.
14.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent.
14.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.
15. EVENTS OUTSIDE OUR CONTROL
15.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).
15.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
- Strikes, lock-outs or other industrial action.
- Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war.
- Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster.
- Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
- Impossibility of the use of public or private telecommunications networks.
- The acts, decrees, legislation, regulations or restrictions of any government.
15.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
16.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
16.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
16.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of these terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
18. ENTIRE AGREEMENT
18.1 These terms and conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
18.2 We each acknowledge that, in entering into a Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these terms and conditions.
18.3 We intend to rely upon these terms and conditions and any document expressly referred to in them in relation to the subject matter of any Contract. While we accept responsibility for statements and representations made by our duly authorised agents, please make sure you ask for any variations from these terms and conditions to be confirmed in writing.
19. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS
19.1 We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities.
19.2 You will be subject to the policies and terms and conditions in force at the time that you order products from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Order Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven working days of receipt by you of the Products).
20. LAW AND JURISDICTION
Contracts for the purchase of Products through our site and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by the law of the State of Victoria. Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) shall be subject to the non-exclusive jurisdiction of the courts of Victoria.