MICHAELS CAMERA VIDEO & DIGITAL TERMS AND CONDITIONS
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State Fair Trading legislation.
“Delivery” or “delivered” means the time when the Products are sent by Michaels to the Customer’s nominated address for delivery by whatever means.
“Intellectual Property Rights” means all intellectual property rights (whether created before, on or after the date of this Agreement and whether registered or unregistered) in respect of copyright, any patents, trademarks, logos, designs, software, domain names, business or trade name, together with marketing concepts and designs, product knowledge, training systems and materials, protection of confidential information, circuit layouts, inventions, know-how, product or business concepts, details of product development, and any other identifiable result of intellectual endeavour, whether arising under statute or otherwise or any similar industrial property right or any right to, or application for registration of, any of them.
“Website” means the website with the designated URL “www.michaels.com.au” and its associated services and/or functionality.
1. User agreement
1.1. All contracts, agreements, arrangements and dealings between Topero Nominees Pty Ltd (ACN 005 132 258) trading as Michaels Camera-Video-Digital (ABN 27 852 308 806) (“Michaels”) (and each of its subsidiaries, affiliates, associated companies, related entities, successors/parent company and assigns) and any person using the Website (“Customer” or “You”) or ordering any products (“Products”) provided and supplied by Michaels to a Customer are subject to the terms and conditions of trade set out below (“Terms”).
1.2. These Terms shall be deemed to be incorporated into all contracts for the supply of Products by Michaels to the Customer. These Terms supersede all prior understandings, arrangements and agreements relating to such supply. In the event that there is any inconsistency between these Terms and any other communication from Michaels, these Terms shall prevail unless specified otherwise in writing by Michaels.
1.3. By visiting and/or using the Web siteor by ordering or purchasing any Products throught the Website You agree to be bound by these Terms
1.4. If You do not agree to any provisions of these Terms, You must not use the Website or make any order for Products.
1.5. Michaels may amend these Terms at any time at its sole discretion. By continuing to place an order for Products, the Customer will be deemed to have accepted any revised terms published from time to time on the Website. Michaels is not obliged to notify You of any changes to these Terms. If Michaels makes any significant changes to these Terms it may at its sole discretion publish a notice on the Website stating that these Terms have been amended.
2.1. In order to make purchases and access some features of the Website, You can elect to register as a member of Michaels.
2.3. You may not use another member's account and may not cause or allow another person to use your account.
2.4. When registering to become a member and activate an account, You must provide personal information such as your name and address, and a valid email address. You agree to provide accurate and complete information and to keep this information current.
2.5. You are solely responsible for the activity that occurs on your account, and You must keep your account password secure.
2.6. If You suspect or become aware of any unauthorised use of your account or that your password is no longer secure, You agree to notify Michaels immediately.
3.1. The advertising of any Product for sale by Michaels is merely an invitation to treat and a Customer in ordering a product on this Website is making an offer to Michaels to purchase a Product from it. The agreement to sell a Product only comes into existence upon Michaels’ acceptance of a Customer’s order, which occurs when Michaels dispatches the Product ordered to the Customer.
3.2. By placing an order to purchase a Product, You acknowledge that You:
(a) are over eighteen (18) years of age;
(b) are making an offer to Michaels to purchase a Product; and
(c) the offer does not constitute a binding contract with Michaels.
3.3. An offer made by a Customer is open to acceptance by Michael’s. Acceptance by Michaels of your offer to purchase a Product will occur at the time the Product the subject of the offer is dispatched. You may cancel your order only if Michael’s has not commenced processing it.
3.4. Michaels reserves the right to accept or reject a Customer’s order for any reason, including;
(a) an incomplete Customer order;
(b) the information contained in any advertisement of a Product being incorrect; or
(c) the unavailability of the Product.
3.5. In the event that Michaels exercises its rights to reject a Customer’s order, it will refund any amount paid by the Customer in respect of the cancelled order.
3.6. Michaels also reserves the right to limit the quantity of Products ordered by a Customer, whether under one or more orders.
Should Michaels suffer any loss or damage, as a result of an order placed by a minor, it reserves the right to take legal action and seek compensation for such losses and/or damage from the parents or guardians of the minor who caused the order to be placed.
4. Australian & International Sales
4.1. Michaels will ship Products worldwide. All shipping costs will be borne by the Customer.
5.1. The price for Products, delivery and other charges shown are in Australian dollars and include GST where applicable and unless specified otherwise.
5.2. The price for Products are subject to change without notice at Michaels’ sole discretion.
6.1. The payment of a purchase price of a Product must be received by Michaels in full prior to Michaels accepting the offer and dispatching the Product. Please read the Payment section of the Website for detailed payment options.
6.2. If a payment is not received in full or is declined by a Customer’s bank or credit card issuer, Michaels will not hold the Product against its order and will refund any portion of the purchase price paid (if applicable).
7. Delivery of product
7.1. Subject to these Terms, upon acceptance of an offer Michaels will supply to a Customer the Products specified in an order confirmation which will be delivered to the Customer and relate to an order which the Customer has placed with Michaels.
7.2. Michael’s may provide an estimated time for dispatch and Delivery of the Products, however are not bound by the estimate provided. Michael’s will not be liable for any loss or damage suffered by the Customer due to a failure by Michaels to meet the estimated Delivery time.
7.3. All Products will be Delivered to the Customer at the Delivery address provided by the Customer. A Customer will not be allowed to collect a Product from Michaels.
8. Risk and Title
8.1. Michaels’ retains ownership of the Products until payment is received in full from a Customer and the Product is dispatched to the Customer.
8.2 The Customer accepts upon Delivery all risk for loss or damage to the Products whether caused by the Customer or not, and the Customer indemnifies Michaels against all claims, demands, suits and actions for loss or damage caused by or arising from the handling, transport, storage, display, installation, neglect or use of the Products after the Customer has taken possession of the Products. Risk in the Products will remain with the Customer at all times after Delivery.
9.1. Customer satisfaction is Michaels’ number one priority. Returns may be accepted in Michaels’ sole discretion subject to these Terms and any other conditions stipulated in the Frequeently Asked Questions page on the Website from time to time.
10. Statutory Conditions and Warranty
10.1. Consumer Notice: Michaels’ Products and services come with guarantees that cannot be excluded under the Australian Consumer Law. Nothing in these Terms purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded.
10.2. Where any law implies a warranty into this agreement which may not be lawfully excluded then to the extent allowed by law (Warranty), any liability imposed upon Michaels in respect of a breach of warranty will at its option be limited to:
(a) in the case of Products:
i. the replacement of the Products or the supply of equivalent Products;
ii. the repair of the Products;
iii. the payment of the cost of replacing the Products or of acquiring equivalent Products;
iv. the payment of the cost of having the Products repaired; or;
v. v Products.
(b) in the case of services:
i. the resupply of services,
ii. the payment of the cost of resupply of the services; or
iii. the refund of the price paid for the services.
10.3. Warranties do not apply where the Products are acquired for rental, hire or other commercial purpose.
10.4. To the extent permitted by law, the following are not covered by Warranty unless otherwise specified in the particular warranty relevant to the Product purchased:
(a) failure or defect resulting from improper care or use;
(b) normal wear and tear;
(c) Products purchased second hand or from an unauthorised distributor;
(d) faulty or incorrect assembly of the Products by the Customer;
(e) installation of a part or accessory not compatible with the Product and not manufactured by Michaels; and
(f) any modification or alteration not conducted or authorised by Michaels.
10.5. To the extent permitted by law, Michaels shall not be liable for any indirect or consequential damage, losses or expenses suffered or incurred by the Customer, howsoever caused.
10.6. To issue a Warranty claim, the Customer will be required to:
(a) contact Michaels within 14 days of Delivery (Notification Period), by email to email@example.com;
(b) return the Product to Michaels;
(c) present the receipt as proof of purchase;
(d) identify the defect in the Product; and
(e) present Product for inspection on request.
10.7. The Notification Period may be extended by Michaels at its sole discretion upon request by a Customer. Michaels will upon receipt of a Warranty claim issue a Return Authorisation Number and advise as to how the Product can be returned.
10.8. Michaels may at its sole discretion refuse to accept Products which are returned without a Return Authorisation Number.
10.9. Except if and to the extent the law requires otherwise, replacement of Products or refund of purchase price and reimbursement of freight costs will not be made until the original Product to which the Warranty claim relates is received by Michaels and your Warranty claim is verified. If a Warranty claim is verified, Michaels will endeavour to make the refund or replacement within 28 days of the completion of such verification.
10.10. Michaels will not refund or replace a Product where in its sole and reasonable opinion the Product has subsequent to Delivery 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.
10.11. Products that develop a defect after first use may also be covered by manufacturer warranty. You may also wish to contact the manufacturer regarding returns and repairs.
10.12. Michaels may at its discretion meet the reasonable shipping expenses incurred by the Customer in making a successful Warranty claim. Customers are liable for any transportation costs if the Product is not found to be faulty.
11. Limitation of Liability
11.1. Except as expressly set out in these Terms and the Australian Consumer Law, Michaels makes no warranties or other representations in relation to the supply of Products to the Customer. Michaels’ liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.
11.2. You acknowledge and agree that:
(a) to the maximum extent permitted by law, Michaels will not be liable to the Customer or any other person under any circumstances for any loss or damage suffered or incurred by the Customer or for any injury or death to any person, or for any indirect, incidental or consequential damages sustained or incurred by the Customer, whether such liability arises directly or indirectly as a result of:
(i) any negligent act or omission or willful misconduct Michaels or its employees or agents;
(ii) the supply, performance or use of any Products; or
(iii) any breach by Michaels of its obligations under these Terms.
(b) no other term, condition, agreement, warranty, representation or understanding (whether express or implied) in any way binding upon Michaels, other than these Terms, is made or given by or on behalf of Michaels.
(c) the Customer is solely responsible for making an assessment that any Product is reasonably fit for the Customer’s intended purpose and required use, and such purpose or required use is in accordance with all applicable laws.
11.3. Michaels will endeavour to provide Products and any services which it may provide to a Customer with due care and skill but does not warrant that any services will be provided without fault or disruption. To the extent allowed by law, Michaels excludes all liability to a Customer or anyone else for loss or damage of any kind (however caused or arising) relating in any way to the Website including, but not limited to, loss or damage a Customer might suffer as a result of:
(a) errors, mistakes or inaccuracies on the Website;
(b) a Customer acting, or failing to act, on any information contained on or referred to on the Website and/or any linked website;
(c) personal injury or property damage of any nature resulting from a Customer’s access to, and use of, the website;
(d) any unauthorised access to or use of Michaels secure servers and information of any kind stored on those servers;
(e) any interruption or cessation of transmission to or from the Website;
(f) any computer bugs, viruses, Trojan horses or other harmful code or communications which may be transmitted to or through the Website by any third party; and
(g) the merchantability or fitness for any purpose of any product or service of any website linked to or advertised on the Website. Michael’s does not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a third party through the Website or any linked website or any products or services featured in any banner or other advertising. Michaels’ will not be a party to or in any way responsible for monitoring any transaction between a Customer and a third party provider of products and services.
11.4. Michaels is not liable for any direct or indirect damages, or consequential losses suffered by a Customer due to its use of a fraudulent or unauthorised Website. The only authorised access point is http://www.michaels.com.au with no characters before or after "www.michaels.com.au".
12. Computer hardware - consequential loss
12.1. You understand and acknowledge that:
(a) Storage media (such as hard drives and memory cards) can fail without warning and if this occurs, programs, data or other information (Software) stored on the media may be at risk of corruption or irrecoverably lost.
(b) If You purchase storage media from Michaels, whether separately or as a part of a larger electronic or computing product, it is your responsibility to guard against loss or damage to Software stored on the media and to implement strategies for the safe keeping of Software.
(c) Michaels recommend that You regularly back up Software, images and data stored on the media.
(d) In the event that storage media purchased from Michaels becomes faulty, fails or otherwise detrimentally affects Software stored on it, Michaels will not be liable for any loss or damage, howsoever arising.
(e) If You return media, whether separately or as a part of a larger electronic or computing product, to Michaels for any reason, including replacement or repair, Michaels will not be responsible for any data stored on the media. Michaels makes no representation that it will be able to repair any product or make a product exchange without risk to or loss of software.
13. Website and Account Management
13.1. Michaels aims to provide a positive experience for all Customers, users and members. Accordingly, Michaels reserves the right to change (ie alter, remove from or add functionality to) the Website at any time. Michaels does not guarantee that You will be able to access the Website in the same way in which or with the same equipment or software with which You previously accessed the Website prior to a change being made.
13.2. Michaels may cease (temporarily or permanently) providing access to the Website to You, or to Customers or members generally, at its sole discretion and without prior notice to You.
13.3. Michaels may in its sole discretion terminate a Customer’s account or restrict a Customer’s access to the Website. If this occurs in respect of your account, You may be prevented from accessing all or parts of the Website, including your account details or other content contained in your account. Michaels will not be liable to You or any third party for terminating a Customer account or restricting Customer access to the Website.
14. Use of services by you
14.1. The Website may only be used for purposes that are permitted by
(a) these Terms
(b) any applicable law or regulation; or
(c) generally accepted practice or guidelines.
14.2. You agree not to access (or attempt to access) any part of the Website by any means other than through the interface provided by Michaels.
14.3. You agree that You will not engage in any activity that interferes with or disrupts the website or the servers and networks that host the Website.
14.4. You agree not to, or attempt to, circumvent, disable or otherwise interfere with security-related features of the website or features that prevent or restrict use or copying of any content or enforce limitations on the use of the website or the content therein.
14.5. You agree not to use, copy, distribute or commercialise content except as permitted by these Terms, by law or with Michaels’ prior written consent.
14.6. You understand and agree that any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.
15. Information on this Website
15.1. Information about Products on the Website is based on materials provided by suppliers and product manufacturers. You understand and agree that Michael’s cannot be held responsible for inaccuracies or errors caused by incorrect information supplied by manufacturers or suppliers who may change product specifications without notice.
15.2. You agree to make your own enquiries to verify information provided and to assess the suitability of Products before You purchase. Michaels is not responsible for any typographical, technical, or descriptive errors of products on the Website. If Michaels becomes aware of the existence of such an error it will do all things reasonably necessary to rectify such an error. To the extent permitted by the Australian Consumer Law, Michaels will not be liable to any Customer for any loss or damage arising out of a Customer’s reliance upon any typographical, technical, or descriptive errors of products on the Website.
16. Links to third party websites
16.1. The Website may include links to other websites, content or resources. These linked websites, content or resources may be operated by third parties and Michaels may have no control over the operation of such websites. The existence of these links does not imply that Michaels endorses the linked website, content or resource. You acknowledge that Michaels has not reviewed any of these third party websites, content or resources and are not responsible for the material contained therein.
17. Intellectual Property
17.1. The Customer’s purchase of a Product does not confer on the Customer any assignment of any Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Michaels, and the Customer agrees that it will not assert any rights in, or challenge Michaels’ title to, those Intellectual Property Rights.
17.2. Michaels makes no representation or warranty to the Customer of any kind, express or implied that the Products will not infringe any intellectual property rights of a third party.
17.3. The Customer acknowledges that Michaels retains ownership of all rights, title, interest and goodwill in the Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Michaels (including user guides, instruction manuals and other documents).
17.4. Michaels grants to the Customer, and the Customer accepts, a personal non- exclusive licence to use the Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Michaels (including user guides, instruction manuals and other documents) for the purposes of these Terms.
17.5. The Customer shall not be permitted to assign, transfer or sub-licence any of the rights granted to it by Michaels to any related party or any unrelated third party without the express consent in writing of Michaels. Michaels may withhold such consent in its absolute discretion or may grant consent on such terms as it considers fit.
17.6. The Customer shall not re-publish, transfer, copy, reproduce or post on the internet any of Michaels’ materials without Michaels’ prior written consent.
17.7. In addition to any other remedies available to Michaels under these Terms or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Intellectual Property Rights will entitle Michaels to any available statutory or equitable remedy against the Customer.
17.8. The copyright in the Website, copy, images, logos, indicia, text, content, and unique method of showcasing products is owned by Michaels. The domain name www.michaels.com.au or any of the trademarks, logos or other material in which intellectual property rights subsist may not be used in advertising or publicity pertaining to distribution of this information without Michaels’ prior written consent.
17.9. Trade marks used on the Website which are owned by third parties are used with express permission and remain the intellectual property of the third party.
17.10. You may not modify or copy the layout or appearance of the Website nor any computer software or code contained in the Website. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Website.
17.11. If You correspond or otherwise communicate with Michaels, You grant to Michaels an irrevocable, perpetual, non-exclusive, royalty-free, world-wide licence to use, copy, display and distribute the content of your correspondence or communication and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote such content. This may include, but is not limited to, publishing testimonials on the Website and developing your ideas and suggestions for improved products or services Michaels provides.
18. Colours & Images
18.1. Michaels has endeavoured to display as accurately as possible the colours of the Products shown on the Websire. However, because the colours You see will depend on your monitor, Michaels does not guarantee that your monitor's display of any colour will be accurate.
18.2. Images contained on the Website are for illustration purposes only.
19. Transfer and Assignment
19.1. In the event that Michaels merges, sells or otherwise undergoes a change control of its business or the Website to a third-party, it reserve the right, without giving notice or seeking consent, to transfer or assign the personal information, content and rights that it has collected from You and any agreements between You and Michaels.
20. Privacy and personal information
20.1. Michaels does not collect personal information if You only browse this Website.
20.2. When Michaels does collect personal information for the purposes of considering a Customer’s order, its usual practice is to collect this information directly from the Customer. Such information will be collected via the registration process and the placement of an order for a Product.. Personal information may include a Customer’s name, postal address, telephone number and email address.
20.3. Online payments are made via Paypal. Michaels does not see or store a Customers credit card or banking details. Please check the paypal.com.au website for details of its privacy policies and security measures.
20.4. Michaels’s computer server may record details about any computer which is used to access the Website (such as the IP address, operating system and browser type), the date and time of access, and details of the information downloaded.
20.5. A Customer’s personal information will only be used for the purposes for which You provide it and for Michaels’ internal management purposes. You agree to Michaels using your email address to send You messages concerning your account, any orders You place and information about the Products. If You would prefer not to receive promotional or other material from us, please advise Michaels accordingly.
20.6. Michaels will not provide any Customer information to government agencies, organisations or anyone else unless:
(a) you have consented to Michaels providing such information;
(b) Michaels has notified You that it will be providing your information;
(c) the provision of your information is required or authorised by law;
(d) the provision of your information will prevent or obviate a serious and imminent threat to a person’s life or health; or
(e) the disclosure is reasonably necessary for law enforcement.
20.7. You may request that Michaels remove your personal information from its database by emailing Michaels or using the contact form on the Website.
20.8. Pursuant to the Privacy Act 1988 (Cth) You have a right to request access to your personal information held by Michaels. You may do this by sending an email to firstname.lastname@example.org.
21.1. You will at all times indemnify, and keep indemnified, Michaels and its directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses on a full indemnity basis) or liability incurred or suffered by You or by Michaels arising from any claim, demand, suit, action or proceeding by any person against You or against Michaels where such loss or liability arose out of, in connection with or in respect of your conduct or breach of these Terms.
22.1. If Michaels does not exercise or enforce any right or provision under this agreement, it will not constitute a waiver of such right or provision. Any waiver of any provision under this agreement will only be effective if it is in writing and signed by Michaels.
23. Force majeure
23.1. If the performance of Michaels’ obligations under these Terms is prevented, restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of Michaels, Michaels will not be liable for any loss or damage suffered by the Customer or any other person and Michaels will endeavour to give the Customer written notice if the force majeure event has continued unabated for thirty (30) days.
24. Applicable law
24.1. These Terms and any agreement between Michaels and a Customer will be governed by and interpreted in accordance with the laws of Victoria, Australia. You irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.
24.2. If any part of this agreement is found to be void, unlawful or unenforceable then that part will be deemed to be severable from the balance of these Terms or any agreement between Michaels and its Customers the severed part will not affect the validity and enforceability of any remaining provisions.