1. About the Website

1.1. Welcome to www.powertex.com.au (the Website), operated by Powertex Australia (ABN 61 644 524 800) (Powertex). The Website provides you with an opportunity to browse and purchase various Products that have been listed for sale through the Website and purchase Digital Content to view and book Events to attend (the Services).

1.2. Access to and use of the Website, or any of its associated Products and/or Services, is provided by Powertex.

2. Acceptance of the Terms

2.1. Please read these terms and conditions (the Terms) carefully. By using, browsing and/or reading the Website or the Services, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of the Services, immediately.

2.2. You may also accept the Terms by clicking ‘I Accept’ or ‘I Agree’ to the Terms where this option is made available to you by Powertex in the user interface of the Website.

2.3. You acknowledge and agree that continuing to access or use the Platform when you do not agree with these Terms is treated as acceptance of these Terms.

2.4. You may not use the Services and may not accept the Terms if:

(a) you are not of legal age to form a binding contract with Powertex; or

(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

2.5. By accepting these Terms, you warrant that you have familiarised yourself with, and agree to be bound by the Privacy Policy. If you do not agree to the Privacy Policy, you must cease usage of the Website and any of its associated Digital Content or Services immediately.

2.6. Powertex reserves the right to alter, amend and update their Terms, from time to time, at its sole discretion. When Powertex updates the Terms, it will use reasonable endeavours to provide you with notice of the same. Any changes to the Terms will take effect immediately from the date of their publication. The access and use of the Website by you, after Powertex makes any changes, constitutes the acceptance of any such changes and you will be bound by those changes. If you do not agree to any changes, you must cease usage of the Website and Services immediately.

2.7. Powertex recommends that you regularly check these Terms for any material changes. Powertex recommend you keep a copy of the Terms for your records.

3. Definitions

Blog means the blog posts offered on the Website.

Digital Content means the Videos, Online Workshops, and the Blog accessible through the Website.

Events means in person events, workshops, and training sessions.

Member means any user of the Website.

Online Workshops means the pre-recorded or live online workshops and training sessions.

Product means the Imported Goods, Art Supplies, and other goods that are listed for sale on the Website.

Privacy Policy means the Privacy Policy found at Powertex.com.au/privacy-policy/

Purchase Price means the price of the Product or Digital Content set out in the Sale Listing.

Sale Listing means the listing of the Products, Events, or Digital Content on the Website available for purchase.

Videos means the pre-recorded online videos offered on the Website, or through the Facebook, Instagram, and YouTube accounts of Powertex.

You means you, the user of the Website and Services and consumer of the Products and Digital Content.

4. Registration

4.1. In order to access the Services, you are required to register with the Website by creating an account. As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself, including the following:

(a) your name;

(b) your email address;

(c) a mailing address;

(d) your telephone number;

(e) a preferred username; and

(f) a preferred password

4.2. You acknowledge and agree that:

(a) any information you provide to Powertex in the course of completing the registration process will always be accurate, correct and up to date.

(b) by supplying Powertex with your email address and phone number, you may receive regular emails, newsletters, telephone calls or SMS updates from Powertex in order to keep you informed about Powertex’s activities. If you do not wish to receive updates from Powertex, you may unsubscribe or contact Powertex at contact@powertex.com.au.

4.3. Once you have completed the registration process and created an account, you will be a registered Member of the Website and agree to be bound by the Terms. As a Member you will be granted immediate access to the Services.

5. Your Account Obligations:

5.1. As a Member, you acknowledge and agree that:

(a) you are solely responsible for the activity that occurs under your account;

(b) you have the sole responsibility for protecting the confidentiality of your password and/or email address and you will not disclose to any third party the password used to access your account. You agree to immediately notify Powertex in writing at contact@powertex.com.au of any unauthorised use of your password or email address or any breach of security of which you have become aware. Use of your password by any other person may result in the immediate cancellation of the Services;

(c) any use of your registration information by any other person, or third parties, is strictly prohibited;

(d) you will comply with the Terms;

(e) you will use the Website and the Services only for the purposes that are permitted by:

(i) the Terms;

(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;

(f) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Powertex providing the Services and only for the duration that you are a Member;

(g) you must not:

(i) expressly or impliedly impersonate another Member or use the account or password of another Member at any time;

(ii) use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;

(iii) provide false information including false names, address and contact details;

(iv) use the Website unlawfully or in a manner that violates any applicable laws, regulations or these Terms;

(v) hack into any part of the Website or attempt to circumvent Powertex’s security or network to access data not intended for you;

(vi) interfere with the servers or networks connected to the Website or the Services, or violate any of the procedures, policies or regulations of networks connected to the Website or the Services;

(vii) engage in conduct or access the Website in a way that will impose an unreasonable or large burden of traffic demands on Powertex’s infrastructure;

(viii) act in a way that is unlawful, harassing, threatening, abusive, violent, discriminatory, intimidating, or predatory, or that otherwise would disrupt others’ enjoyment of the Website.

(ix) create derivative works of the Website or an application substantially similar or a direct copy of the Website such that confusion may occur as to which Website is operated by Powertex;

(x) copy or produce a substantially similar Blog post, Online Workshop or Video to the one that was provided to you through the Services without referencing Powertex;

(xi) resell or export the software associated with the Website or any Digital Content;

(xii) resell or upload to another Website any of the Digital Content provided to you;

(xiii) purchase the Products if you are not in Australia, unless otherwise stated on the Website or Sale Listing;

(xiv) resell the Products; and/or

(xv) automate the use of the Website or the Services, and

(h) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by Powertex for any illegal or unauthorised use of the Website.You acknowledge and agree that Powertex reserves the right, at any time and without prior notice, to remove or disable a Member’s access to its account or to the Digital Content at Powertex’s sole discretion without notice and for any reason, including, but not limited to, situations where Powertex, in its reasonable opinion, determines that the Member has violated these terms, or may violate these Terms.

6. The Products

6.1. Purchasing the Product

(a) The Website provides you with the opportunity to purchase Products listed in the Sale Listing on the Website.

(b) The Products are sold only to Members in Australia, unless otherwise stated on the Website or Sale List and will not be shipped internationally, unless otherwise agreed in writing by you and Powertex. You acknowledge and agree that you must not cause or facilitate any Products to be delivered to an international address, unless otherwise agreed in writing by you and Powertex.

(c) Accessories and props shown in photographs to sell or otherwise promote the Products are not included unless otherwise stated on the Sale Listing. 6.2. Stock Availability (a) Powertex will endeavour to supply all Products listed on the Website.

(b) Products will be removed from the Website as soon as Powertex becomes aware that those items are unavailable.

(c) You acknowledge that there may be unavoidable occasions when:

(i) all or part of your order cannot be fulfilled immediately, or

(ii) all or part of your order cannot be fulfilled at all.

(d) Where part of an order cannot be fulfilled immediately, the part that can be supplied will be dispatched as soon as reasonably possible and the remainder will be sent when it becomes available.

(e) Where part of an order cannot be fulfilled at all, you will be advised as soon as reasonably possible by email or telephone.

(f) Where a Product becomes unavailable due to unexpected or high demand, and that item is ordered by you before Powertex has withdrawn that item from the website, Powertex will not be held responsible for the inability to complete that order, and any loss or damage that you may suffer as a result of the inability to complete that order.

6.3. Product Warranty

(a) Powertex Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure (the Warranty).

(b) You may make a claim under this clause (the Warranty Claim) for material defects and workmanship in the Products within fourteen (14) days from the date of purchase (the Warranty Period).

(c) In order to make a Warranty Claim during the Warranty Period, you must provide Powertex with written notice by sending an email to contact@powertex.com.au, or alternatively requesting Powertex’s postage address, that includes:

(i) proof of purchase showing the date of purchase of the Product(s),

(ii) a description of the Product(s) and the price paid for the Product(s),

(iii) the reason for your claim; and (iv) photographs of the faulty item(s).

(d) Where the Warranty Claim is accepted then Powertex will, at its sole discretion, either repair or replace any defective Products or part thereof with a new or remanufactured equivalent during the Warranty Period at no charge to you for parts or labour. You acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in facilitating the Warranty Claim.

(e) The Warranty shall be the sole and exclusive warranty granted by Powertex and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Products to which this warranty relates.

(f) All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.

(g) The Warranty does not apply to any appearance of the supplied Products nor to the additional excluded items set forth below nor to any supplied Products where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.

6.4. Product Delivery

(a) Processing, shipment and delivery of your order is governed by the Shipping Policy, as updated from time to time. For further information on the processing of your purchase, shipment of the Product and estimated delivery times, please refer to Powertex’s Shipping Policy available at powertex.com.au/shipping-policy/ .

(b) You acknowledge that the Services offered by Powertex integrate delivery (the Delivery Services) through the use of third-party delivery companies (the Delivery Service Providers).

(c) In providing the Services, Powertex provides you with a variety of delivery options offered as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that Powertex is not the provider of these delivery options and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.

(d) In the event that an item is lost in the course of the Delivery Services, Powertex asks that you:

(i) contact the Delivery Service Provider directly to track and trace your order; and

(ii) contact us by sending an email to contact@powertex.com.au so we can assist you with tracking and retrieving your order.

(e) Powertex will take every endeavour to carefully package products, to ensure they arrive in good condition at their destination. However, due to the nature of Delivery Services you acknowledge that the outer packaging can become damaged in transit. Unless the Product(s) contained therein are damaged, faulty or unusable, the Product(s) will not be eligible for return if only the packaging is damaged. Please contact us by email contact@powertex.com.au if you have concerns with damaged packaging of Products.

(f) If you receive an incorrect, incomplete or damaged order, please contact us within three (3) days from the date of delivery or fourteen (14) days from the date of the invoice, whichever is the sooner, and we will correct the error.

7. Digital Content

7.1. To purchase a licence to the Digital Content, you are required to be a Member.

7.2. You will purchase, and all Digital Content will be provided to you as, a revocable, limited, nonexclusive, royalty free license to view the Digital Content for personal, non-commercial, purposes.

7.3. The Digital Content available for you to purchase a license will be listed on the Website.

7.4. Delivery of Digital Content

(a) Powertex hosts and delivers the Digital Content though the Website or platforms owned and controlled by third parties, other than Powertex (each a Third Party Platform).

(b) You will be required to use a Third Party Platform for Powertex to provide the Digital Content to you.

(c) Powertex is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third Party Platform, any platform accessed from a Third Party Platform or any changes or updates to such sites. Powertex makes no guarantees about the content or quality of the products or services provided by such sites. If you have availed any Third Party Services, the third party may contact you by email and/or phone with instructions on how to access your benefits and to keep you informed of their services. You may be required to accept additional terms located on the Third Party Platform.

(d) By using any product, service, or functionality originating from the Website, you are allowing Powertex to share information with any third party with whom Powertex has a pertinent contractual relationship – any information necessary to facilitate its provision of products, services, or functionality to you.

(e) By purchasing a license to the Digital Content, you understand and agree to accept any Third Party Platform’s terms and conditions an privacy policies required to use the Digital Content.

(f) Powertex may remove any Digital Content at any time.

8. Payment

8.1. When purchasing the Products or Digital Content through the Website, you agree to the payment of the Purchase Price set out on the Sale Listing on the Website for the Product or Digital Content.

8.2. All prices are quoted in Australian Dollars (including GST). Powertex reserves the right to change or alter the Purchase Price at any time, at their sole discretion, and without notice. Specials and bonus offers are available only while stocks last.

8.3. Where the option is given to you, you may make payment of the Purchase Price by way of:

(a) electronic funds transfer (EFT) into Powertex’s nominated bank account;

(b) credit card Payment;

(c) stripe;

(d) PayPal;

(e) Zip Pay;

(f) Afterpay; or

(g) cash.

8.4. Payment of the Purchase Price may be made through third party payment gateways (the Payment Gateway Provider). In using the Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Providers prior to you using the Payment Gateway Provider.

8.5. Following payment of the Purchase Price being confirmed by Powertex, you will be issued with a receipt to confirm that the payment has been received and Powertex may record your purchase details for future use.

8.6. In the event that you elect to pay the Purchase Price by way of direct debit and/or credit card and there is a chargeback by your credit provider, Powertex may suspend or terminate the Services immediately. You will be charged Powertex’s then current administration fee, available on the Website, plus GST (the Administration Fee), and you agree to pay 2% plus the Cash Rate Target set by the Reserve Bank of Australia (the Interest) on amounts which remain unpaid after thirty (30) days from the date of the tax invoice. Upon payment of the Administration Fee and Interest in accordance with the Terms, Powertex may reinstate the Services to you.

8.7. You acknowledge and agree that where a request for the payment of the Purchase Price is returned or denied, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs, including banking fees and charges, associated with the Purchase Price.

9. Events

9.1. Purchasing admission to Events

(d) The Website provides you with the opportunity to purchase admission to Events listed in the Sale Listing on the Website.

(e) You agree that the purchase of admission to any Event will be on the Event Terms, available at Powertex.com.au/workshop-terms/.

10. Refunds

10.1. Products

(a) Refunds of the Products are at Powertex’s sole discretion.

(b) For Powertex to determine whether you are eligible for an exchange or refund, please email Powertex at contact@powertex.com.au with:

(i) photos of the Product(s);

(ii) your name;

(iii) order confirmation, packing slip or invoice number; and

(iv) and the reason for your return.

(c) Powertex may, at their sole discretion, provide a refund on the return of the Products if the product is returned within three (3) days of the date of delivery and where the Product packaging is unopened and remains in a saleable condition. You acknowledge and agree that you are liable for any postage and shipping costs associated with any return pursuant to this clause.

10.2. Digital Content

(a) Refunds of the Products and Digital Content are at Powertex’s sole discretion.

(b) For Powertex to consider whether you are eligible for a credit or refund, please contact Powertex at contact@powertex.com.au outlining why you believe you are entitled to a refund of any Purchase Price paid for access to Digital Content so that Powertex is able to determine whether a refund should occur.

(c) If the refund is in relation to a live Online Workshop, when a refund is necessary, or a withdrawal is approved, the resulting credit can be transferred for the access to another Online Workshop. If the participant fails to attend the subsequent Online Workshop to which they have transferred, or a 12 month credit expires, they will forfeit all fee.

11. Services

11.1. By Powertex offering its Services to you, you acknowledge and agree that:

(a) unless otherwise stated, all amounts are listed in Australian Dollars (AUD) and are inclusive of GST;

(b) Powertex may receive a commission, benefit, or fee from third parties in relation to the provision of the Services to you;

(c) Powertex does not, at any time, provide any guarantees whatsoever, whether express or implied, with respect to the success of the Service;

(d) you shall remain solely responsible for assessing the implications and risks of using the Services; and

(e) these Terms do not create a relationship of employment, trust, joint venture, agency, partnership or other relationship of a fiduciary nature between the parties.

11.2. You acknowledge and agree that Powertex has entered into these Terms in reliance on the acknowledgements, representations and warranties given by you in these Terms.

12. Copyright and Intellectual Property

12.1. The Website, the Services, the Digital Content, and all of the related products of Powertex are subject to copyright under the laws of Australia and by International Treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips, software, and Digital Content) (the Material) are owned or controlled for these purposes, and are reserved by Powertex or its contributors.

12.2. Powertex retains all rights, title and interest in and to the Website, Services, Products, Digital Content and all related Material therein. Nothing you do on or in relation to the Website will transfer to you:

(a) the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of Powertex; or

(b) the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or

(c) a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process); or

(d) the right or licence to use, copy, re-upload, re-sell or create substantially similar derivative works of the Product or Digital Content.

12.3. Powertex and each Member retains all rights, title and interest (including copyrights, patents and trade marks) in its Digital Content uploaded to the Website (the Uploaded Content). During the duration of these Terms with Powertex, the Member grants to Powertex a non-exclusive, transferable, royalty-free licence to your Uploaded Content. Powertex will own any results, methodologies, data or meta data, including any analyses, index results, or reports, which is either contained within, gleaned through, derived from, captured by, or generated by your use of the Services or the Uploaded Content (Derivative Materials).

12.4. You acknowledge and agree that Powertex exclusively and unconditionally owns the Moral Rights in all the Derivative Materials, Materials and documents relating to the Products, Services, or Digital Content. You acknowledge and agree that to the extent that you have Moral Rights in any of the Content, Derivative Materials, Materials and documents relating to the Terms, you will provide a Moral Rights Consent to Powertex.

12.5. You may read and copy the Material to the extent necessary to use the Services and receive the Digital Content or Products, but you may not publish, resell or sub-licence it. Powertex makes no guarantees, representations or warranties about the accuracy or correctness of any of the information on Powertex.

12.6. For purposes of these Terms, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified in the media or promotional guidelines (if any).

12.7. Subject to these Terms, you hereby grant to Powertex and its affiliates for no consideration, a limited, non-exclusive and non-transferable license to use your Marks, on a royalty-free basis, for the sole purpose of performing the promotional activities as set forth in media or promotional guidelines (if any). All goodwill related to the use of any Marks shall inure to the benefit of the owner of such Marks. Each Mark licensor reserves the right to revoke the licensee’s permission to use the licensor’s Marks should the use be noncompliant with the media or promotional guidelines, or negatively impacts, or disparages the Mark.

12.8. You may not, without the prior written permission of Powertex and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Material, the Digital Content or third party content for any purpose.

13. Privacy

Powertex takes your privacy seriously and any information provided through your use of the Website and/or the Services are subject to Privacy Policy.

14. General Disclaimer

14.1. You acknowledge that Powertex does not make any guarantees, warranties, representations or conditions whatsoever regarding the Services, Products or Digital Content other than provided for pursuant to these Terms.

14.2. Powertex will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.

14.3. Whilst due care has been taken to ensure that the products and descriptions on the Powertex website are accurate, Powertex do not warrant or represent that the Products are free from error or omission and Powertex reserves the right to make any necessary corrections.

14.4. Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

14.5. Subject to this clause, and to the extent permitted by law:

(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and

(b) Powertex will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services, Products, or Digital Content or these Terms (including as a result of not being able to use the Services or the late supply of the Purchase Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

14.6. Use of the Website, the Services, any of the Products of Powertex (including the Delivery Services) and viewing the Digital Content on Third Party Platforms, is at your own risk. The Website, the Services, and the Products and the Digital Content of Powertex, are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Powertex (including any third party where the Delivery Services are made available to you) make any express or implied representation or warranty about its Material, Digital Content or any Products or Services (including the Products or Services of Powertex) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;

(b) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Digital Content related products (including third party material and advertisements on the Website);

(c) costs incurred as a result of you using the Website, the Services, any of the Products or Digital Content;

(d) the Material or operation in respect to links which are provided for the User’s convenience;

(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.

15. Limitation of Liability

15.1. Powertex’s total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase Price, then the total liability of Powertex is the resupply of information or Services to you.

15.2. You acknowledge and agree that Powertex, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

15.3. Powertex is not responsible or liable in any manner for any site content (including the Material, Digital Content and third party content) posted on the Website or in connection with the Services, whether posted or caused by users of the Website, by third parties or by any of the Services offered by Powertex.

15.4. You acknowledge that Powertex does not provide the Delivery Services to you and you agree that Powertex will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services. 15.5. You acknowledge that Powertex does not provide the Third Party Platform to you and you agree that Powertex will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Third Party Platform.

15.6. Powertex does not control and is not responsible for the behaviours and actions of Members. Accordingly, Powertex is not responsible for any offensive, inappropriate, obscene or unlawful content or actions that you may encounter when viewing of the Digital Content and participating in live Online Workshops, or in connection with your use of the Services.

15.7. Powertex will not be liable for any failure or delay due to matters beyond our control.

16. Termination of Contract

16.1. The Terms will continue to apply until terminated by either you or by Powertex as set out below.

16.2. If you want to terminate the Terms, you may do so by:

(a) providing Powertex with a written notice at any time of your intention to terminate by writing to Powertex via the ‘Contact Us’ link on the Website’s homepage; and

(b) closing your accounts for all of the Services which you use where Powertex has made this option available to you.

16.3. Your elected termination will be effective upon receipt of the notice of your intention to terminate by Powertex. 16.4. Powertex may at any time, terminate the Terms with you if:

(a) you have breached any provision of the Terms or intend to breach any provision;

(b) Powertex is required to do so by law;

(c) the partner with whom Powertex offered the Services to you has terminated its relationship with Powertex or ceased to offer the Services to you;

(d) Powertex is transitioning to no longer providing the Services to Members in the country in which you are resident or from which you use the service; or

(e) the provision of the Services to you by Powertex is, in the opinion of Powertex, no longer commercially viable.

16.5. Subject to local applicable laws, Powertex reserves the right to discontinue or cancel your membership to the Website at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct negatively impacts Powertex’s name or reputation or violates the rights of those of another party.

16.6. When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Powertex have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

17. Indemnity

17.1. You agree to indemnify Powertex, its affiliates, employees, agents, contributors, third party content providers and licensors from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your use of the Website and/or Services, including, but not limited to:

(a) any misuse of the Website or Services by you, including and without limitation, any dishonest, inaccurate, incomplete, fraudulent, negligent, wrongful, unlawful, or criminal act or omission by you;

(b) your breach of the Terms, including any misuse of the Materials; or

(c) any activity which you engage in on the Website or through Powertex, including uploading or posting information. 17.2. This indemnity will survive termination of the Terms.

18. Dispute Resolution

18.1. If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought):

(a) A party to the Terms claiming a dispute (Dispute) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

(b) On receipt of that notice (Notice) by that other party, the parties to the Terms (the Dispute Parties) must within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.

(c) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee.

(d) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing.

(e) It is agreed that the mediation will be held in Perth, Western Australia.

(f) For the avoidance of doubt, the Dispute Parties need not attend the mediation or other means of resolution in person. The Dispute Parties may attempt to resolve the matter via any means of electronic communications.

(g) All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

(h) If thirty (30) have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

(i) In the event that the Dispute is not resolved at the conclusion of the mediation, either pay may institute legal proceedings concerning the subject matter of the Dispute thereafter.

18.2. Arbitration

(a) This arbitration clause applies only if you are not based in Australia or New Zealand.

(b) In the event that the Dispute is not resolved at the conclusion of the mediation, both parties are prohibited from instituting legal proceedings concerning the subject matter of the Dispute and the Dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including any question regarding its existence, validity or termination, will be resolved by arbitration in accordance with the ICC Rules of Arbitration (or any rules which supersede these rules). The seat of arbitration shall be Perth, Australia. The language of the arbitration shall be English. The number of arbitrators shall be one.

(c) This clause 18.2 may be used as a bar to legal proceedings issued in any Court in any country which has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

19. Venue and Jurisdiction

In accordance with clause 18, in the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Western Australia, Australia.

20. Governing Law

The Terms are governed by the laws of Western Australia, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Western Australia, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

21. Independent Legal Advice

Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

22. Entire Agreement

These Terms constitute the entire agreement between the parties concerning the subject matter of the agreement and supersede all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties.

23. Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed, and the rest of the Terms shall remain in force.

24. Waiver

24.1. A waiver of any right, power or remedy under these Terms must be in writing signed by the party granting it.

24.2. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

24.3. The fact that a party fails to do, or delays in doing, something the party is entitled to do under these Terms does not amount to a waiver.

25. Assignment

25.1. You may not assign your rights or delegate your duties under these Terms or any additional terms without our prior written consent.

25.2. A purported assignment without written consent will be deemed to be void and convey no rights.

25.3. Powertex may assign its rights or delegate its duties under these Terms or any additional terms without our prior written consent.

26. Contact

If you wish to notify us about anything relating to these Terms, please contact us at contact@powertex.com.au

© Powertex Australia

Last Update: June 2020