1.1 This agreement is between you and Where I’d Rather Be Pty Ltd ABN 139 233 391 ("Where I’d Rather Be") and represents the Terms of Service.
1.2 By visiting and/or using Where I’d Rather Be website (the "Website") and/or purchasing any goods or services from the Website you agree to be bound by the terms of this agreement ("Agreement").
1.3 If you do not agree to the terms and conditions set out in this Agreement, you must not use the Website or purchase goods and/or services from the Website (together the "Service").
1.4 Where I’d Rather Be reserves the right to amend, vary, modify and/or replace this Agreement at any time, and from time to time, and such amendment, variation, modification and/or replacement shall be effective immediately upon posting to the Website. Your continued use of the Service via the Website shall be deemed to be your acceptance of any amendments to this Agreement.
2.MEMBERSHIP AND USE OF SITE AS A NON-MEMBER CUSTOMER
2.1 In order to use the Service via the Website you will need to accept the terms of this Agreement and have the option of becoming registered as a Where I'd Rather Be member ("Member"). If you use this service you are either agreeing to become a Member, or agreeing to proceed with your order and accept the Terms and Conditions of Use and are considered a non-member customer ("Customer").
2.3 Where I’d Rather Be reserves the right to refuse the registration of any Member, and to terminate any existing Membership, at its sole discretion.
2.4 You are solely responsible for the security and activity that occurs on your Member account and for keeping your Member details, including your login and password, secure. You agree that Where I’d Rather Be will not be held liable for any unauthorised activity or use of your Member Account.
Purchase of Product
3.1 The Service allows you to purchase Where I’d Rather Be product(s) and/or service(s) via the Website ("Orders").
3.2 You understand that the Service offers online purchasing only.
3.3 Where I’d Rather Be will use best endeavours to ensure that all Orders made via the Website are dispatched within 3 business days from the date the Member or Customer receives confirmation of the Order to the Member's or Customer’s email ("Order Confirmation").
3.4 If an Order is not available and, despite the best endeavours of Where I’d Rather Be, is unable to be sourced or is out of stock ("Unavailable Stock"), the Member or Customer shall be notified immediately.
3.5 You agree and understand that Where I’d Rather Be shall not be held liable for failing to provide Unavailable Stock, and all monies paid in respect to Unavailable Stock are to be refunded to the Member or Customer or exchanged for alternative Products of equivalent price provided by Where I’d Rather Be on the Website.
Limitation of the Online Service
3.6 You understand and acknowledge that the online Service is made available on an "as is" and "as available" basis for the primary purpose of the provision of the sale of goods to Members or Customers. Whilst Where I’d Rather Be will use reasonable endeavours to provide the Service to you, you acknowledge that it may not be continuous or fault-free, and may not be available at all times. Events which are outside our reasonable control may also affect the Service, including but not limited to the unavailability of the internet. The Service may contain errors or inaccuracies that could cause failures, corruption or loss of data and/or information from your device and from peripherals (including, without limitation, servers, computers, tablets and smart phones) connected thereto. You assume all risks and all costs associated with your use of the Service, including, without limitation, any internet access fees, back-up expenses, costs incurred for the use of your devices and peripherals, and any damage to any equipment, software, information or data. In addition, Where I’d Rather Be is not obligated to, and will not provide you with any maintenance, technical or other support for the Service.
Changing or Discontinuing the Service
3.7 You agree that Where I’d Rather Be reserves the right to modify, suspend or stop the online Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. Without limiting the foregoing, Where I’d Rather Be may provide notice of any such changes to the Service by posting them on the Website. You agree that Where I’d Rather Be shall not be liable to you or any third party for any modification, suspension or cessation of the Service. You acknowledge that Where I’d Rather Be has no express or implied obligation to provide, or continue to provide, the Service to you, or any part thereof, now or in the future, and in addition, Where I’d Rather Be may at any time, upon prior notice as required by applicable law, institute reasonable charges for the Service.
4.USE OF THE SERVICE
4.1 Where I’d Rather Be may impose certain limitations on the use of the Service with or without notice to you. You agree to use the Service only for purposes as permitted under this Agreement and any applicable law or regulations. You agree to refrain from doing any prohibited acts as set out in this Clause 4.
4.2 You agree that you will not use the Service to:
(a) stalk, harass, threaten, intimidate or harm another;
(b) pretend to be anyone, or any entity, you are not, you will not impersonate or misrepresent yourself as another person, entity, any Where I’d Rather Be employee, or a civic or government leader, or otherwise misrepresent your affiliation with a person or entity. Where I’d Rather Be reserves the right to reject or block any Member or Customer which could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity;
(c) engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or non-disclosure agreement or otherwise;
(d) use, distribute, reproduce or commercialise any product from the Service except as permitted by this Agreement, by law, and with prior written agreement from Where I’d Rather Be;
(e) transmit any unsolicited advertising, promotional material or other forms of solicitation in connection with your use of the Service without the prior written agreement of Where I’d Rather Be;
(f) forge any TCP-IP packet header or any part of the header information or otherwise putting Information in a header designed to mislead recipients as to the origin of any content transmitted through the Service ("spoofing";);
(g) access (or attempt to access) any part of the Website by any means other than through the interface provided by Where I’d Rather Be;
(h) engage in any activity which disrupts or interferes with the Service or the servers and networks that host the Service;
(i) interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or breach any policies, requirements or regulations of networks connected to the Service (including gaining unauthorised access to, use or monitoring of data or traffic thereon); or
(j) plan or engage in any potentially fraudulent, illegal or offensive activity.
5.WHERE I’D RATHER BE PROPRIETARY RIGHTS
You acknowledge and agree that Where I’d Rather Be own all legal right, title and interest in the Service including the Website, and any software Where I’d Rather Be makes available at any time for use with the Service (the "Where I’d Rather Be Software"), including any and all intellectual property rights, trademarks and copyright that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Website, the Service and Where I’d Rather Be Software, and any other part thereof contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
6.3 Information collected when you use the Service may include technical or diagnostic information related to your use that may be used by Where I’d Rather Be to maintain, improve and enhance the Service.
6.4 Should Where I’d Rather Be be purchased by a third party, you understand and grant Where I’d Rather Be the right to transfer any personal information that Where I’d Rather Be has in relation to you to the third party. Where I’d Rather Be will not be required to obtain your consent or notify you.
7.PRODUCT AND INTELLECTUAL PROPERTY RIGHTS
7.1 "Product" means any product including goods and services made available for purchase and/or supply by Where I’d Rather Be on the Website.
Intellectual Property Rights and Copyright
7.2 All intellectual property rights and copyright in the Website, the Service and Where I’d Rather Be Software is the property of Where I’d Rather Be. All intellectual property rights and copyright that subsist in the Product are the property Where I’d Rather Be.
7.3 Where I’d Rather Be reserves all intellectual property rights, including but not limited to, trademarks, copyright in the material, copyright and designs in the Products, content and services provided by Where I’d Rather Be on the Website
7.4 Nothing in this Agreement provides you with the right to copy, use, or otherwise exploit including but not limited to, any Product, its designs, Website content and/or artwork, trademarks, marketing material, logos, domain names, and brands.
7.5 Any trademarks, intellectual property or the like used on the Service, including on the Website which belong to third parties are used with the consent of that party and remain the property of that party.
7.6 Whilst Where I’d Rather Be does not claim ownership of any content submitted by Members or Customers, if you do correspond or otherwise communicate with Where I’d Rather Be through the Service in circumstances where it would be reasonable from the content of the communication to expect that you intend the correspondence to be accessible to other Members or Customers or users, then you automatically grant Where I’d Rather Be an irrevocable, perpetual, non-exclusive, royalty-free, world-wide licence to use, replicate, display, broadcast and distribute the content of that correspondence or communication. This may include, but is not limited to, publishing testimonials, using posts and comments, and/or developing your ideas or suggestions to improve the products or services provided by Where I’d Rather Be.
You acknowledge and agree that Where I’d Rather Be may access, use, preserve and/or disclose your Member or Customer information if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to:
(i) comply with legal process or request;
(ii) enforce this Agreement, including investigation of any potential violation thereof;
(iii) detect, prevent or otherwise address security, fraud or technical issues; or
(iv) protect the rights, property or safety of Where I’d Rather Be, its users or the public as required or permitted by law.
9.SHIPPING OF ORDERS
9.1 You understand that Where I’d Rather Be will display all current shipping prices on the Website.
9.2 Where I’d Rather Be reserves the right to waive or discount shipping rates according to promotions or sales on the Website at any time. Promotions or sales that offer full or part discount on shipping rates may cease or change at any time at the sole discretion of Where I’d Rather Be.
9.3 You understand and agree that Where I’d Rather Be may make changes to any of the following at anytime, without notice and at its sole discretion, including but not limited to;
(a) Method of delivery;
(b) Rates charged on shipping to any destination; and
(c) Carrier or shipping provider.
Shipping within the UK
9.4 Orders made on the Website to a delivery address within the UK will be dispatched via Royal Mail or a courier service provider. Orders will normally arrive within 1 to 3 business days from date of dispatch, depending on whether the address is in a metro or regional area.
9.5 You understand that delivery date is solely dependent on the goods carrier and Where I’d Rather Be will not be held liable for any postal delays, loss, or damages caused by the loss or damage of the Product which have occurred after Where I’d Rather Be have dispatched your Order.
9.6 All Orders will be dispatched pursuant to the current shipping rates, and you agree and understand that such shipping rates shall be paid by you at the time of your purchase of the Order.
Shipping outside the UK
9.7 You agree and understand that Orders shipped outside the UK require a minimum of 5 business days from dispatch for delivery.
9.8 You agree and understand that our shipping providers require a physical postal address
9.9 All Orders outside of the UK will be dispatched pursuant to the current shipping rates of Where I’d Rather Be, and you agree and understand that such shipping rates shall be paid by you at the time of your purchase of the Order.
9.10 You agree that Where I’d Rather Be will not be held liable for any customs delays and that any duties or taxes which may apply to your Order are the sole responsibility of you.
10.WHERE I’D RATHER BE GIFT CARD
10.1 From time to time Where I’d Rather Be may offer the availability of a gift card ("Gift Card").
10.2 Gift Cards may be provided as either an electronic Gift Card ("e-Card") which will be emailed to you, or as a hard copy Gift Card which will be posted to the address provided by you.
10.3 You understand and agree that the Gift Card is only available for use for purchases made directly via the Website.
10.4 Where I’d Rather Be Gift Card is non–refundable and non-transferable, unless otherwise specified by Where I’d Rather Be.
10.5 You understand that the provision of the e-Card electronically will not incur any postage costs, however those Gift Cards sent to an address within the UK or outside the UK may incur postage charges.
10.6 You agree and understand that the Gift Card will be in British Pounds only.
11.PRICING AND PAYMENT
11.1 You agree and understand that all prices advertised on the Website for Product will be in British Pounds unless otherwise specified, and unless the Member or Customer has used the website currency exchange facility to change the display currency.
11.2 You agree that all Orders are inclusive of VAT and we do not offer a VAT-free shopping service.
11.3 You understand and agree that Where I’d Rather Be may at any time and in its sole discretion change the pricing for Product listed on its Website.
11.4 Where I’d Rather Be will allow cancellation of the Order only when the Order has not been packed or dispatched from the warehouse.
12.REFUNDS AND EXCHANGE POLICY
12.1 To the extent permissible by law, Where I’d Rather Be will not refund, exchange, or redeem for cash any Product purchased by you. Where I’d Rather Be will only refund or exchange a Product in circumstances where Where I’d Rather Be has made a fundamental error or mistake or the Product is faulty or damaged.
12.2 For faulty Product or Product which does not match the sample of description provided, Where I’d Rather Be will offer a 14 day replacement warranty from the date you receive your Order.
12.3 You agree that if your Order is faulty as described in Clause 12.2 above it will be replaced with an identical product. If Where I’d Rather Be is unable to replace the Order, we will offer you the option of either choosing another product of the same or equivalent price, providing you with a refund for the total price paid for the faulty product or offering a credit of the total price paid for the faulty product.
12.4 Where I’d Rather Be will provide an exchange for Product which is not faulty within 14 days after the date you receive your Order only on the following conditions:
(a) Your original tax invoice or proof of payment is provided;
(b) The returned product is in an original unopened condition;
(c) The original 'Where I’d Rather Be' tags are still attached to the product;
(d) Where I’d Rather Be Returns/Exchange Form is returned with the product;
(e) The Order was not a sale item; and
(f) Where I’d Rather Be is satisfied that the request by you is genuine.
12.5 You agree and understand that where a promotional gift or item is received in conjunction with an item for which you seek a refund it is expected that the promotional gift or item will also be returned in its original state. If Where I’d Rather Be does not receive the promotional gift or item, the retail price for that item will be deducted from the refunded amount. You agree that where a Member or Customer wishes to keep the promotional item Where I’d Rather Be will offer an online credit.
12.6 6. If a product is proven to be faulty, Where I'd Rather Be will ship you a brand new product - we do not require the customer to return the faulty umbrella. If a you chose to return the product and not receive a new one, you will be refunded the cost of the original order, less shipping - the retrun postage charges are the responsibility of the customer
13.TERMINATION OF THE SERVICE
Termination by You
13.1 You may cancel your Where I’d Rather Be Member account and/or stop using the Service at any time.
Termination by Where I’d Rather Be
13.2 Where I’d Rather Be may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of your Where I’d Rather Be Membership and/or access to the Service at its sole discretion. Cause for such termination may include, but is not limited to:
(i) violation of this Agreement or any other policies or guidelines that are referenced herein and/or posted by Where I’d Rather Be on the Website;
(ii) a request by you to cancel or terminate your Where I’d Rather Be Account;
(iii) discontinuance or material modification to the Service or any part thereof;
(iv) a request and/or order from law enforcement, a judicial body, or other government agency;
(v) where provision of the Service to you is or may become unlawful or otherwise unauthorised;
(vi) unexpected technical or security issues or problems;
(vii) your participation in fraudulent, illegal or offensive activities;
(viii) your continued membership brings the Service into disrepute; or
(ix) a breakdown of trust between the parties.
13.3 Any such termination or suspension shall be made by Where I’d Rather Be in its sole discretion, and Where I’d Rather Be will not be responsible to you or any third party for any loss or damages that may result or arise out of such termination or suspension of your Where I’d Rather Be account and/or access to the Service.
14.1 Statutory warranties contained in Australia consumer protection law are implied into this Agreement. Nothing in this Agreement is intended to restrict these implied warranties, and this Agreement must be read subject to those relevant statutory provisions. These statutory provisions can be found at www.fairtrading.nsw.gov.au and www.accc.gov.au
14.2 Subject to Clause 14.1 above you understand and agree that Where I’d Rather Be will not be liable and does make any warranties in relation to the following:
(a) Where I’d Rather Be will not be liable for any loss or damage, including for negligence, breach of contract, or tort and including any form of consequential loss including but not limited to any third party loss, loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, economic loss, and the like, whether caused directly or indirectly in connection with your use of the Service including the Website.
(b) Where I’d Rather Be will not be liable for any loss or damage resulting from the theft, loss or unauthorised use of the Service or your Member account.
(c) Where I’d Rather Be does not make any warranties in relation to any goods and/or services, material or content supplied by any Third Party in connection with the Service or the Website.
(d) All information, content, comments, photos, files, images, sounds and the like posted on or transmitted through or linked from the Website are the sole responsibility of the person who provided same.
(e) You understand that Where I’d Rather Be will not be liable for any disruptions to the Service, including to the Website, internet service providers or telecommunications provider, and does not guarantee or warrant that the Website will run uninterrupted, secure, or without errors from time to time.
(f) You understand that Where I’d Rather Be will not be liable for any loss or damage of Orders lost or damaged in transit once such Order has been dispatched from Where I’d Rather Be warehouse.
(g) Where I’d Rather Be will not be liable should corruption or damage to your computer system, tablet, mobile phone, mobile handset or other device occur in connection with the use of the Service. You understand that it is your sole responsibility to ensure that any links or the like which you select to use from the Website are free from viruses or any other items which may interfere with, corrupt or damage or affect the operation of your computer system, tablet, mobile phone or other device.
You will at all times indemnify, and keep indemnified, Where I’d Rather Be, its directors, officers, employees, agents and related companies and bodies corporate from and against any loss (including legal costs and expenses on a full indemnity basis) or any liability incurred or suffered by you or by Where I’d Rather Be arising from any claim, demand, suit, action or proceeding by any person against yourself or Where I’d Rather Be where such liability arose out of, in connection with and/or through your use of the Service, and/or your conduct or breach of this Agreement.
16.1 Nothing in this Agreement creates a partnership, employment relationship, or agency relationship between you and Where I’d Rather Be.
16.2 You agree that Where I’d Rather Be will not be held liable for any delay in fulfilling its obligations under this Agreement if such a delay is caused by an act of God, act of terrorism, revolution, civil strife, industrial or legal action, fire, flood, storm, war, disaster, plague or epidemic, delay in transportation, internet or telecommunication availability, delay by any third party, or any other cause outside Where I’d Rather Be's control.
16.3 You agree that certain technical difficulties or maintenance, may from time to time, result in temporary interruptions. Where I’d Rather Be reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Service with or without notice.
16.4 This Agreement is governed by and must be construed in accordance with the laws of the State of New South Wales. The parties submit to the non-exclusive jurisdiction of the Courts of that State and the Commonwealth of Australia in respect of all matters or things arising out of this Agreement.
16.5 Each party represents, warrants to and covenants with the other that it has full power to enter into and perform its obligations under this Agreement and this Agreement constitutes valid and binding obligations of that party enforceable in accordance with its terms.
If any provision of this Agreement offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:
(a) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve the result; and
(b) in any other case the offending provision must be severed from this Agreement in which event the remaining provisions of the Agreement operate as if the severed provision had not been included.