1.2 We provide a platform where Brand Partners can connect and transact with Customers for the sale and purchase of lifestyle and luxury products (Products). Brand Partners will create listings for their Products (Brand Partner Listings) and you, as a Customer, may enter into contracts for the purchase of such Products from the Brand Partner.
1.3 The platform is available at www.arktastic.com and via other channels including our mobile application (Platform).
1.4 In these Terms, you means (as applicable) (1) the person or entity registered with us as a Customer; or (2) the individual accessing or using the Platform.
2.1 By using the Platform, you will be deemed to have accepted these Terms.
2.2 You understand and agree that we only make available the Platform and the following services (together the Arktastic Services) to:
2.3 You understand and agree that we only make available the Platform and the Arktastic Services. We are not party to any agreement entered into between you as a Customer and a Brand Partner and we have no control over the conduct of Brand Partners or any other users of the Platform.
2.4 By accessing or using the Platform you:
2.5 We may amend these Terms at any time, by providing written notice to you. By continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended terms. If you do not agree to the amendment, you may terminate these Terms in accordance with the Termination clause.
2.6 If you access or download our mobile application from (1) the Apple App Store, you agree to any Usage Rules set forth in the App Store Terms of Service or (2) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.
3.1 You may view Brand Partner Listings without creating an Account however to access the Platform’s features and transact with a Brand Partner, you must register an Account.
3.2 You must provide basic information when registering for an Account including your name, email address and delivery address. You must also choose a username and password. The username you choose must not (1) be offensive or in other ways insulting or (2) contain characteristics which belong to a third party, including names of famous persons, or personal names to which you do not own the rights.
3.3You agree to provide accurate, current and complete information during the registration process and regularly update such information to keep it accurate, current and complete.
3.4 Your Account is personal and you must not transfer it to others, except with our written permission.
3.5 You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including purchases made using your Account details. You agree to immediately notify us of any unauthorized use of your Account.
4.1 You may order Products as described on a Brand Partner Listing through the Platform (Order). When you place an Order you will receive an email acknowledgement. This email will only be an acknowledgement and will not constitute acceptance of your Order.
4.2 Once the Brand Partner has accepted your Order, you will receive an Order Confirmation email and at such a time a contract is formed between you and the relevant Brand Partner for the supply of the Product(s). A Brand Partner may, at its absolute discretion, accept or reject an Order.
4.3 Once your Order has been dispatched, you will receive a shipping confirmation email.
4.4 It is your responsibility to check the Order details, including selected Products and pricing, before you submit your Order through the Platform.
4.5 We may from time to time issue promotional discount codes for the Platform. To claim the discount as a Customer, you must enter the promotional discount code at the time you place an Order through the Platform. The conditions of use relating to promotional discount codes will be specified on the Platform at the time they are issued.
5.1 At the time you place an order, you must pay us the purchase price for each Product you order plus any applicable delivery costs in accordance with this clause (Purchase Price). All amounts are stated in Australian Dollars and are inclusive of GST (where applicable).
5.2 If, for any reason, a Brand Partner cannot accept an Order then you will be provided a refund of the Purchase Price.
5.3 We provide a number of payment methods on the Platform, including our third party payment processor, currently Stripe. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third party payment processor. By making payment through a third party payment processor, you accept the applicable terms and conditions.
5.4 We make available the Platform and process payment for orders on behalf of Brand Partners as the agent of the Brand Partner through our payment processor.
5.5 In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorized to use the debit card or credit card to make the payment, that your payment will be honored by your card issuer, and that you will maintain sufficient funds in your account to cover the payment.
6.1 The replacement or refund of any Products ordered on this Platform is strictly a matter between you and the relevant Brand Partner. The terms and conditions agreed to between the Brand Partner and the Customer, including the Brand Partner’s Refunds Policy, will be set out in the relevant Brand Partner Listing including who will be responsible for paying the delivery and redelivery costs to return the Products and to send the replacement Products.
6.2 Where a Brand Partner offers a change of mind return as set out in a Brand Partner Listing, the following applies:
6.3 Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian or New Zealand Consumer Law (Consumer Law). You have purchased the Products from a Brand Partner and in Australia or New Zealand, goods come with guarantees from Brand Partners which cannot be excluded under the applicable Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Any and all other warranties or conditions which are not guaranteed by the applicable Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms or the terms and conditions of the Brand Partner.
6.4 Where you wish to return the products to seek an Consumer Law remedy from a Brand Partner, you will need to cover any associated costs (for example delivery costs) of you returning the Products to the Brand Partner. To make an Consumer Law claim, please send us an email with your order number, a photograph of the product and a description of the issue. We will advise you of the next steps, which will include returning the products to the relevant Brand Partner. You may also contact the Brand Partner directly.
6.5 Where your claim is a valid claim under the Consumer Law, the Brand Partner will refund your return delivery costs and, depending on the failure, either dispatch a new or repaired replacement Product or refund you the Purchase Price of the relevant Product. Where there is a minor failure, the Brand Partner may choose to either repair, replace or refund the Product. Where there is a major failure, you may choose a replacement or refund of the Product.
6.6 This clause will survive the termination or expiry of these Terms.
7.1 You may review their experience with a Brand Partner on the Platform (Review). Reviews can be viewed by any user and will remain viewable until the relevant Account is removed or terminated.
7.2 You agree to provide true, fair and accurate information in your Review. If we consider that the Review is untrue, unfair, inaccurate, offensive or inappropriate, we may delete the Review or ban you from posting the Review. We do not undertake to review each Review. To the maximum extent permitted by law, we are not responsible for the content of any Reviews.
7.3 You can write a Review about a Brand Partner if you have had an experience with that Brand Partner, which means that (1) you have engaged the Brand Partner through the Platform; or (2) you can otherwise document your interaction with the Brand Partner in relation to the Platform, including via correspondence (collectively referred to as a Customer Experience).
7.4 You may not write a review about a Brand Partner you have previously owned, currently own, or which an immediate family member currently owns, or if you are an executive or employee of that Brand Partner, or work for the Brand Partner. Similarly, you may not write a Review about a direct competitor to the Brand Partner you own, are employed by or work for.
7.5 Your Customer Experience must have occurred in the 12 months prior to you writing a Review.
7.6 You may only write about your own Customer Experience. You are not permitted to write a Review about somebody else’s Customer Experience such as that of a family member or friend.
8.1 We may allow you to (1) post, upload, publish, send or receive relevant content and information, including Reviews (User Content) on or through our Platform; and/or (2) access and view User Content and the content and information we make available on the Platform (Arktastic Content and together with User Content, Content).
8.2 Unless otherwise indicated, we own or license all rights, title and interest (including Intellectual Property Rights) in our Platform and all of the Content. Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.
8.3 You must not, without the prior written consent of ourselves or the owner of the Content (as applicable) or except as expressly permitted by these Terms, (1) copy or use, in whole or in part, any Content; (2) reproduce, reverse engineer, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content any third party; or (3) breach any Intellectual Property Rights connected with our Platform, including by altering or modifying any of the Content, causing any of the Content to be framed or embedded in another website, or creating derivative works from the Content.
8.4 Subject to your compliance with these Terms, we grant you a personal, non-exclusive, royalty-free, revocable, worldwide, non-transferable license to use our Platform on your personal devices and access and view any Content in accordance with these Terms. All other uses are prohibited without our prior written consent.
8.5 You grant us a non-exclusive, perpetual, irrevocable, worldwide, royalty free, sublicensable and transferable right and license to use, view, distribute, communicate, copy, store, modify and exploit in any manner the User Content to provide the Platform and promote the Platform in any media or promotional material.
8.6 You agree that you are solely responsible for all User Content that you make available on or through our Platform.
8.7 You represent and warrant that:
8.8 Despite anything to the contrary, to the maximum extent permitted by law, you agree to indemnify us and hold us harmless in respect of any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with the User Content you make available on or through the Platform, including as a result of an Intellectual Property Breach.
8.9 The Content is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, to the extent permitted by law, we make no representation or warranty regarding the Content. The Content is subject to change without notice. We do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.
9.1 You represent, warrant and agree that:
10.1 Despite anything to the contrary, to the maximum extent permitted by law:
10.2 Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:
10.3 This clause will survive the termination or expiry of these Terms.
11.1 YYour Account and these Terms may be terminated by you at any time, using the ‘cancel Account’ functionality (or similar) in your Account page section of your Account settings.
11.2 We may suspend your Account or terminate these Terms immediately upon written notice to you, if:
11.3 These Terms will terminate immediately upon written notice by you, if we are in breach of a material term of these Terms, and that breach has not been remedied within 10 business days of being notified by you; or are unable to pay our debts as they fall due.
11.4 Upon expiry or termination of these Terms:
11.5 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
11.6 This clause will survive the termination or expiry of these Terms.
12.1 To the extent that you are using or accessing our Platform on an iOS device, you further acknowledge and agree to the terms of this clause. You acknowledge that these Terms are between you and us only, not with Apple Inc. (Apple), and Apple is not responsible for the Platform and any content available on the Platform.
12.2 Apple has no obligation to furnish you with any maintenance and support services with respect to our Platform.
12.3 If our mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the mobile application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the mobile application and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility.
12.4 Apple is not responsible for addressing any claims by you or any third party relating to our mobile application or your use of our mobile application, including but not limited to (1) product liability claims; (2) any claim that our mobile application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
12.5 Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that our mobile application infringes that third party’s intellectual property rights.
12.6 You agree to comply with any applicable third-party terms when using our mobile application, including any Usage Rules set forth in the Apple App Store Agreement of Service.
12.7 Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms.
12.8 You hereby represent and warrant that (1) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
13.2 We may disclose that information to Brand Partners, third party service providers who help us deliver our services (including Australia Post, inventory management software, information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information we may not be able to provide our products to you. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
14.1 Assignment : YYou must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.
14.2 Disputes : In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between the Parties, a Party may not commence court proceedings relating to a Dispute without first meeting with the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause will survive termination or expiry of this Agreement.
14.3 Force Majeure :We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
14.4 Governing law :
14.5 Notices : Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to you at the address in your Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
14.6 Relationship of Parties : These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
14.7 Severance : If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
15.1 Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or confidential information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
15.2 Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
15.3 Intellectual Property Breach means any breach by you or any of your Personnel of any of our Intellectual Property Rights (or any breaches of third party rights including any Intellectual Property Rights of third parties).
15.4 Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.