Terms and Conditions
1. GENERAL CONSIDERATIONS AND SCOPE
1.1 THEACTIVE PTY Limited, (ABN: 47 113 811 877) Level 12, 201 Kent Street, Sydney, NSW 2000, Australia (hereinafter “The Active”) operates on the Internet portal www.theactive.com.au, a shopping community (hereinafter “theactive.com.au”). References to “we”, “our” and “us” are references to The Active and theactive.com.au.
1.2 On theactive.com.au members of the shopping club (hereinafter referred to as “members” “member” and “you”) will be offered goods. The offering on this site is only directed at end users of legal age. By accepting these Terms and Conditions and becoming a member of our shopping club and you warrant that you are 18 years old or over and that you can form legally binding contracts under applicable law. If you do not qualify, you must not use our services.
1.3 Goods will only be sold in what The Active deems to be normal household quantities. The offers are made as part of a sales event, which means they are limited in time and quantity. These terms and conditions are applicable to all contracts entered into between The Active and members as well as to all general business relationships between The Active and its members. The Active does not accept any other terms and conditions unless explicitly stated otherwise. If periods are stated in business days, these include all weekdays except Saturday and Sunday and all statutory holidays.
1.4 The Active reserves the right to cancel orders to islands and remote areas or to request further shipping fees are paid to cover the cost.
2. MEMBERSHIP OF THEACTIVE.COM.AU
2.1 Offers on theactive.com.au are available only to members who register on theactive.com.au. Membership is free of charge and can be cancelled at any time upon the member giving written notice to The Active via email to firstname.lastname@example.org.
2.2 Every member will receive password-protected direct access to theactive.com.au. Only members have the right to access the online offers on theactive.com.au.
3. USE OF THEACTIVE.COM.AUs
3.1 When registering as a member of theactive.com.au, you will be asked to submit personal data in accordance with clause 14.1 below. You are responsible for ensuring that the data is complete and correct. After you have completed the registration process, you will receive confirmation of your registration by email and a password, which will provide you with access to the online services on theactive.com.au. You are obliged to treat this password and any other access data as confidential and protected from access by unauthorised third parties. The Active reserves the right to refuse registration without giving reasons.
3.2 You have the opportunity to publish your own content on theactive.com.au (e.g. ratings). You guarantee that your own content does not interfere with or violate the rights of third parties (such as privacy or intellectual property rights). In this regard, you fully indemnify The Active against any claim by third parties. By publishing content on theactive.com.au, you grant The Active exclusive rights of use over such content without restriction, including transfer to a third party. The Active is entitled to store or release content, and reserves the right of cancellation, reduction, modification or correction of such content.
3.3 You may not use theactive.com.au other than for its intended purpose or disrupt or manipulate any technical processes. If you do anything that is to the detriment of The Active or other members, your membership will be immediately revoked.
3.4 You are only permitted to register and use one membership account at a time. The Active will delete multiple registrations.
3.5 In the password-protected area on theactive.com.au you can access your recently shipped and/or completed orders. In this area you can also change, administer and save your own data and potential subscriptions of newsletters.
3.6 The Active reserves the right to issue a warning, to terminate your membership or to modify or delete content you have submitted if you violate any of the provisions of this clause 3. Any claims for damages by The Active remain unaffected.
4. CONTRACTUAL PARTNERS, LANGUAGE AND CONCLUSION OF CONTRACT
4.1 All contracts entered into on theactive.com.au are between you and The Active.
4.2 theactive.com.au is operated in English; theactive.com.au contracts are concluded exclusively in English.
4.3 The offer of goods on theactive.com.au is not a binding offer but merely an invitation to make an offer. By submitting an order by clicking "order" you are confirming acceptance of an offer. After submitting your order, you will receive a confirmation email from TheActive.com.au.
4.4 Whilst we work hard to fulfil your order, acceptance of your order is not a legally binding obligation for us to fulfil the order. Further, the confirmation email does not constitute acceptance of a contract, which is only deemed to be completed once goods have been confirmed as available and shipped to you. When ordering multiple items, the acceptance of the contract applies only to goods actually shipped.
4.5 In cases where prices are displayed incorrectly on theactive.com.au due to errors, to the extent permitted by law TheActive reserves the right to cancel any order in relation to incorrectly priced items even where you have been charged in relation to the order. The burden of proof regarding an error lies with TheActive. Where a payments has already been made in relation to a cancelled order will be refunded immediately.
4.6 In some cases a product photo displayed may reflect a suggestion of how the product could be used/displayed or be for illustration purposes only. Further, the actual product will be specified in the product description.
4.7 Due to screen resolution, the image of a product may vary slightly in colour to the actual colour of the product.
5. PRICES AND SHIPPING FEES
5.1. For orders on theactive.com.au, the prices that are listed at the time of your order on the product page apply. The prices are final prices inclusive of GST and all other price components excluding shipping costs. The shipping costs will be indicated on the product page and are determined mainly by the size and weight of the goods and shipping method you choose. When free shipping is offered, this offer may be restricted to certain areas, with a surcharge for other areas.
5.2. For orders where a one-time shipping fee is charged and 10 or more items are ordered, The Active reserves the right to contact the customer with a new shipping quote.
5.3. The estimated value of each product is shown alongside the sale price for reference and is an estimate of what the product would sell for at an Australian retail outlet. This is often provided by the supplier. As we rarely sell items at full price, the value does not represent the former price which the item was previously sold for on this website.
In some cases our products may be sourced from overseas and not available for sale elsewhere in Australia. In that case the value is estimated based on the retail value in the country of origin, the conversion rate, the import costs to bring that product into the country, and the market value of that product in Australia.
6. FAULTY PRODUCTS
6.1 The Australian Consumer Law ("Law") which forms part of the Competition and Consumer Act 2010 (Cth) implies into consumer contracts certain statutory conditions and warranties that cannot be excluded, restricted or modified. These are in addition to any voluntary warranties offered by the manufacturer or supplier. Where there is a breach of such a warranty relating to goods or services, and the breach is in terms of the Law, a "major" failure, then the remedy will be limited to a refund, repair or replacement (subject to availability) at your election.
6.2 As supplier, we provide the following express warranties subject to the following terms and conditions:
• We will refund or offer a voucher, if voucher used at purchase, for the product as the case may be (with us or you deciding and determining the action to be taken according to whether the failure is major or non-major, as stated above) in the circumstances and to the extent required under the Law if the product you receive does not match the sample or description, is substantially unfit for its intended or disclosed purpose or is not of acceptable quality (as defined in the Law), is unsafe, or if the alleged issue with the product is such that a reasonable consumer aware of the issue would not have acquired the product.
• Where a refund or voucher is to be provided under the terms of this warranty, we may, to the extent permitted under the Law, require the return of the product to us before refunding it. We will pay for, or reimburse you for, any shipping costs to return the original product to us, provided there is fault with the product.
• You must retain your proof of purchase for any manufacturer warranty claims.
• Refunds will be issued in the form of shop credit, by direct deposit or via the credit card used in original purchase at our discretion.
6.3 In order to obtain these remedies:
• You must notify us within 7 days of supply of the goods and provide images of damaged or incorrect goods to be returned. Please contact us at email@example.com. Once contacted, we will advise the next course of action. Images will be required. We will not accept products returns for no valid reason and when no prior contact has been made with us.
• Except if and to the extent the Law requires otherwise, refund and reimbursement of freight costs will not be made until the original product is received by us and your claim verified.
• We aim to process refunds within 14 days of receipt by us of the original product.
• We will not refund or replace a product where, in our reasonable opinion, the product has, following sale to you, become of unacceptable quality due to fair wear and tear, misuse, failure to use in accordance with manufacturer's instructions, using it in an abnormal way or failure to take reasonable care.
6.4 Limitation of Liability: Where any law implies a warranty into this agreement which may not be lawfully excluded then to the extent allowed by law, our liability for breach of the warranty will, at our option, be limited to:
• The replacement of the goods or the supply of equivalent goods;
• The repair of the goods;
• The payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired.
7.1 Payments may be made by credit card (Visa and MasterCard) or PayPal. The Active reserves the right to exclude a particular payment method for individual products or to require payment by one payment method only.
7.2 The Active will charge credit card payments to your credit card immediately after receipt of an order.
7.3 With the prepayment method, you receive the account data of The Active with your order confirmation.
7.4 Unless otherwise stated, charges and other expenses payable are exclusive of GST but inclusive of any other applicable taxes, duties, imposts and other similar charges payable in respect of the Product and Services.
8. CREDITS AND PROMOTIONS
8.1 The following provisions apply to all credits of The Active. The credits include specifically the credits as a result of purchase of an invited friend of theactive.com.au and credits individually assigned to individual members at theactive.com.au.
8.1.1 Credits are only valid for the period announced at issue for a particular sales campaign. An extension or a transfer to a different sales event is not possible.
8.1.2 Credits are non-transferable.
8.1.3 Credits cannot be deducted from shipping costs.
8.1.4 Credits can be tied to a minimum order value. For administrative reasons it is not possible to refund remaining funds.
8.1.5 Should the price of your order exceed the balance in a credit, you can compensate the difference through the payment methods available.
8.1.6 The Active reserves the right to accept only one coupon per order.
8.1.7 Credits are not paid in cash and cannot earn interest.
8.1.8 Credits will not be refunded, should you return the goods wholly or partly, or if goods can only be delivered in part.
8.1.9 The Active reserves the right to provide alternative payment methods in accordance with clause 6.1, and to refuse delivery and/or to terminate member accounts should there be a reasonable suspicion of abuse in connection with the use of credits.
9.1 Deliveries will be made only within Australia to the shipping address provided by you. It is your responsibility to ensure that it is possible to ship to the shipping address during normal business hours. If you change your address after you place your order, we cannot guarantee that your goods will be shipped to this new address and cannot cover any additional postage fees incurred. If you are not at home to accept your delivery and it gets returned to us, we will contact you and charge a re-delivery fee for the order to be sent out again. The Active uses a mix of couriers to deliver orders, and delivery to the nearest Australia Post Office cannot be guaranteed.
9.2 The Active normally ships goods a few weeks after the sales event has ended once our account has been credited with the full invoice amount. Earlier shipping is not usually possible since the shipping date depends on suppliers and manufacturers. Individual shipping times are stated on the product pages. Note that unless anything else is stated, delivery can take up to three weeks from the latest ending sale of your order.
9.3 The Active does not assume any sourcing risk especially with reference to a purchase by description. The Active is only obliged to ship from existing stock or from stock ordered from suppliers. The Active’s shipping obligations cease to exist if The Active, through no fault of its own, does not receive goods in full or on time from suppliers, as long as The Active informs you as soon as practicable.
9.4 In cases of force majeure, shipping duration may increase within reason. Force majeure shall include strike, exclusion, official intervention, energy or resource scarcity, shipping difficulties, business complications such as fire or water damage to machinery, lightning or any other unforeseeable business complications for which The Active cannot be held responsible. Starting and ending points of such shipping impediments will be communicated to you as soon as practicable by The Active.
9.5 The Active reserves the right to cancel the contract should delivery fail three times due to the fault of the member. Payments already made will be refunded, excluding shipping costs.
9.6 The Active asks you to immediately inform the deliverer and The Active about obvious transport damage. Damage reported more than 7 days from receipt of goods will not be recognised. Doing so has no influence on your warranty rights, but will help The Active to make its own claims against the supplier.
9.7 If an incorrect or incomplete address is entered into the system and your order is returned to us, a re-delivery fee will apply to ship out the order again.
10. RIGHT OF CANCELLATION - RETURNS
10.1 Right of withdrawal: You may cancel your contract in writing (e.g. by letter or email) without specific reason if the campaign is still live.
10.1.1 Notice of cancellation is to be directed to:
10.1.2 If you change your mind about a purchase, most items can be returned within 21 days of receipt. Please contact firstname.lastname@example.org to receive a return label and to book in your return. Returns must be received in the returns facility within 10 days of issuance of a returns label. Return shipping will not be reimbursed.
10.1.3 As soon as an order is received at the returns facility unused, and in its original condition and packaging, customer service will issue a credit refund (less original shipping fee).
10.1.4 Not all items are eligible for return. Please see specific product page details whilst shopping.
10.2 End of right of revocation: Your right to cancel does not apply to contracts for the delivery of goods manufactured to your specifications or clearly tailored to your personal needs, or which are not suitable for a return due to their condition or spoil quickly or whose expiration date has passed, the delivery of audio - or video recordings or software if the delivered data medium has been unsealed by you or the delivery of newspapers and magazines.
11. RETENTION OF TITLE
Ownership of the goods is transferred to the member upon full payment.
The Active is liable only for intent and gross negligence, unless there are fraudulently concealed damages, damages for loss of life, limb or health or damage arising from any infringement of essential contractual obligations. The same applies to violations by The Active’s agents.
13. SERVICE AND COMPLAINTS
The satisfaction of our members is close to our hearts. Therefore we endeavour to deal with your concerns as quickly as possible and always provide you with our feedback after receiving your input. For service inquiries, please contact our customer service department:
Level 12, 201 Kent Street,
NSW, Sydney, 2000
14. DISCLAIMER FOR HYPERTEXT LINKS
The website theactive.com.au includes hyperlinks to other Internet sites. The Active has no control over the content of these sites, nor does it endorse them or take responsibility for their content. Once The Active becomes aware of illegal content, The Active will remove the corresponding links from theactive.com.au.
15. DATA SECURITY
16. IMAGE RIGHTS AND INTELLECTUAL PROPERTY
16.1 All rights to use imagery on theactive.com.au lie with The Active or our partners. The use of the material - in whatever form - is prohibited unless explicit permission from The Active has been granted.
16.2 You acknowledge and agree that all material and information (such as data files, written text, computer software, music, audio files or other sounds, designs, photographs, drawings, videos or other images (hereafter referred to as the “Content”) that you may have access to on theactive.com.au is owned or controlled by The Active, except where stated otherwise.
16.3 You may not modify, adapt, rent, lease, loan, sell, distribute, or create derivative works based on the Content (either in whole or part) unless you have the express written consent of The Active. You should be aware that, in addition to the Content, other content on theactive.com.au, including sponsored content or advertising content, may be protected by intellectual property rights which are owned or controlled by the people or corporations who provided that content to The Active for inclusion on theactive.com.au (the “Supplier Content”). You may not modify, adapt, rent, lease, loan, sell, distribute, or create derivative works based on the Supplier Content (either in whole or part) unless you have the expressed written consent of The Active or by the owners of the Supplier Content, either in these Terms and Conditions or otherwise.
17. PURCHASE OF KNIVES
17.1 1 By law, we cannot sell or deliver any cutting implements such as knives to anyone under the age of 16 in NSW and ACT, and under the age of 18 in Victoria. When you order these products online, you are confirming that you're of the legal age and that the information you have provided us is true and accurate.
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18. GENERAL PROVISIONS
18.1 Should any provision of this agreement be legally void, this does not invalidate the whole contract. Instead, the invalid provision shall be replaced with an effective provision with the same economic purpose. The same applies to possible gaps in this contract.
18.2 The Active reserves the right to amend these terms and conditions for future business. Excluded from this are unreasonable changes, especially pertaining to essential contract elements, such as the main benefits owed, which would be subject of a contract modification. The Active will publish any amended Terms and Conditions in a timely fashion on theactive.com.au.
18.2.1 In this clause 18.3:
220.127.116.11 The following expressions have the meanings given in the GST Act: “adjustment note”, “consideration”, “GST”, “supply”, “tax invoice”, "supplier", “recipient” and “taxable supply”; and
18.104.22.168 For the avoidance of doubt, “GST” excludes any penalties or additional tax imposed in relation to the GST.
18.2.2 If GST is imposed on any supply made under this Deed by one party (“the supplier”) to another party (“the recipient”) and the consideration payable or to be provided for the supply under any other clause in this Deed is not expressed to be inclusive of GST the receiving party must pay, in addition to and at the same time as any GST exclusive consideration is payable or to be provided for the supply, an additional amount calculated by multiplying the value of that GST exclusive consideration (without deduction or set off) by the prevailing GST rate.
18.2.3 The recipient is not required to pay any amount of GST to the supplying party unless the supplier has made demand for payment by means of a tax invoice.
18.2.4 If the amount of GST recovered by the supplier from the recipient differs from the amount of GST payable at law by the supplier in respect of the supply, the amount payable by the recipient to the supplier will be adjusted accordingly.
18.2.5 Where one party (“the payer”) is liable to reimburse another party (“the payee”) for any expenditure incurred by the payee (“expenditure”), the amount reimbursed by the payer will be the GST exclusive expenditure plus any GST payable by the payer to the payee pursuant to clause 16.3.
18.3 This Deed is governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and any courts, which have jurisdiction to hear appeals from any of those courts in respect of any proceedings in connection with this Deed.
18.4 No provision of this Deed merges on execution, completion or termination.
18.5 These terms and conditions embody the entire agreement between the parties with respect to their subject matter and supersede any prior negotiations, arrangement, understanding or agreement with respect to the subject matter or any term of these terms and conditions.