1. About Tree Hut Village
1.1. Thank you for
visiting www.treehutvillage.com.au (the “Website”). The Website is a peer-to-peer
marketplace that provides the Members with an opportunity to facilitate
interactions between:
(a) individuals or organisations who own baby equipment (the
“Equipment”) and wish to rent it to the Borrowers (the "Owners"); and
(b) individuals who wish to rent the Equipment for short
term use (the "Borrowers").
In essence, we make it easier for Owners and Borrowers to
locate, communicate, arrange payment and rent baby goods in a fast and secure
manner (the "Services").
1.2. The Website is
operated by Treehutvillage Pty. Ltd. (ACN 603 572 738) (“THV”). Access to and
use of the Website, or any of its associated products, is provided by THV.
Please read these terms and conditions (the “Terms”) carefully. By using or
browsing the Website, 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 immediately.
1.3. THV reserves the right to review and change any of the
Terms by updating this page at its sole discretion. When THV updates the Terms,
it will use reasonable endeavours
to provide you with notice of same. Any changes to the Terms take immediate
effect from the date of their publication. Before you continue, you should print off or save a local copy of the
Terms for your records.
2. Acceptance of the Terms
2.1. You
accept the Terms by remaining on the Website. You may also accept the Terms by
clicking to accept or agree to the Terms where this option is made available to
you by THV through the Website.
3. The
Services
3.1. In order
to access the Services, you are required to provide personal information about
yourself (such as identification or contact details) as part of the
registration process, or as part of your continued use of the Services. You
will also be requested to provide THV with:
(a) an
email address;
(b) bank
account details / credit card;
(c) personal identification (i.e. passport or drivers’ license); and
(d) a
password.
3.2. If you
are accessing the Services as an Owner, you are required to provide
confirmation on whether or not you:
(a) are
registered for GST; and
(b) have
an Australian Business Number (“ABN”) or Australian Company Number (“ACN”).
3.3. You
agree that any registration information you give to THV will always be
accurate, correct and up to date.
3.4. Once you
have completed the registration process:
(a) you
will be a registered member of the services (“Member”); and
(b) THV
will send you an email verifying your email address. By completing the
registration process, you agree to be bound by the Terms.
3.5. 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 THV; 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.
4. Your
Account Obligations
4.1. As a
Member, you agree to comply with the following:
(a) not to
share your profile with any other person;
(b) use
the Services only for purposes that are permitted by:
(i) the
Terms; and
(ii) any
applicable law, regulation or generally accepted practices or guidelines in the
relevant jurisdictions;
(c) you
have sole responsibility for protecting the confidentiality of your password
and/or email address. Use of your password
by any other person may result in the immediate cancellation of the Services;
(d) any
use of your registration information by any other person, or third parties, is
strictly prohibited. You agree to immediately notify THV of any unauthorised
use of your password or email address or any breach of security of which you
have become aware;
(e) you
must not expressly or impliedly impersonate another Member or use the profile
or password of another Member at any time;
(f) you understand that THV makes no
representations or warranties as to the conduct of its Members or their
compatibility with any current or future Borrowers or Owners;
(g) you
agree that you will not broadcast, publish, transmit, up-load, post or upload
content to the Website which is false, misleading or contains sexually explicit
material, references or innuendos;
(h) you
agree not to harass, impersonate, stalk or threaten another Member of the
Website;
(i) access and use of the Website is limited, non-transferable and allows
for the sole use of the Website by you for the purposes specified in the Terms
and only for the duration of the membership;
(j) you
will not use the Services or the Website in connection with any commercial
endeavours except those that are specifically endorsed or approved by the
Terms;
(k) you
will not use the Services or Website for any illegal and/or unauthorised use
which includes collecting email addresses of other Members by electronic or
other means for the purpose of sending unsolicited communication or
unauthorised framing of or linking to the Website;
(l) you
agree that commercial advertisements, affiliate links, and other forms of
solicitation may be removed from Member profiles without notice and may result
in termination of the Services. Appropriate legal action will be taken by THV
for any illegal or unauthorised use of the Website; and
(m) you
acknowledge and agree that any automated use of the Website or the Services are
prohibited.
4.2. As a Member you
will use reasonable endeavours to comply with the “Code of Conduct” that is
available for review on the Website. THV reserves the right to change the Code
of Conduct from time to time, and any such changes will take immediate effect
from the date of their publication.
4.3. You acknowledge
that, as a Member, other Members have the opportunity to rate your use of the
Services for the purposes of providing a rating score, which will be viewable
on your Profile Page on the Website, in order to assist other Members to assess
whether you are a person who they would like to transact with (the “Rating
System”). The Rating System will be listed on your Profile Page as an average
score, calculated through the aggregate rating you have received divided by the
number of Members who have provided you with a rating (“Your Rating”).
4.4. You acknowledge
and agree that THV only facilitates the Rating System and is not responsible
for Your Rating. However, should you believe that Your Rating is incorrect or
unwarranted then please contact THV at info@treehutvillage.com.au to discuss
this in more detail.
5. Using
the Website as an Owner
5.1. As an
Owner, the Website provides you with an opportunity to post advertisements on
the Website for Equipment that you have available for rent (the “Ads”), so that
it can be viewed and ultimately rented by the Borrowers (the “Rental
Services”).
5.2. In order
to use the Services, you must:
(a) register as a member; and
(b) post
an Ad on the Website which states:
(i) the
Equipment available for rent;
(ii) a
picture of the Equipment referred to in the Ad;
(iii) the Rental Price for the Equipment
(the “Rental Price”);
(iv) the
delivery and collection method for the Equipment; and
(v) the
available rental period(s).
5.3. You
acknowledge that, in using the Website as an Owner, you are not employed by THV
in any capacity and, accordingly, you do not have any rights as an employee,
agent or independent contractor of THV. You agree that when posting the Ads,
contacting the Borrowers and providing the Rental Services, or anytime
thereafter; you will:
(a) ensure
that the Equipment listed is not more than 6 years old from the manufacturing
year;
(b) ensure
that the Equipment listed complies with any and all applicable safety
standards, information standards and other similar standards published by the
Australian regulatory authorities and any association approved by the
regulatory such as the Standards Australia International Limited;
(c) comply
with all laws and regulations which apply to the Rental Services. This
includes, but is not limited to:
(i) the
Consumer Guarantees as defined in Schedule 2 of the Competition and Consumer
Act 2010 Law with respect to the Rental Services. This includes that the Rental
Services will be; offered and completed with due care and skill; fit for a
particular purpose; and supplied within a reasonable period of time if no time
is set; and
(ii) you
not misleading or deceiving the Borrowers regarding any facet of the Ads or
Rental Services, such as the length, scope, longevity, nature, quality or
anything else which may, from a reasonable person, be misleading.
(d) warrant that the Equipment is in a suitable condition to be safely used
by Borrowers for its intended purpose; and
(e) comply
with THV’s Refund Policy when a Borrower has contacted you regarding a refund
of the Rental Price (as defined in Clause 9 of the Terms).
5.4. You
acknowledge that THV assists in facilitating your sale of the Rental Services
to its Borrowers. By THV offering the Services to you, you agree that:
(a) Borrowers will transfer the Rental Price to THV, who will deduct fifteen
percent (15%) of the Rental Price which is payable to THV as commission for the
provision of the Services (the “Commission Fee”);
(b) the
remaining eighty-five percent (85%) of the Rental Price (the “Owner’s Funds”)
will be held on behalf of the Owner by THV until such time as a request is made
by the Borrower to transfer the Owner’s Funds, in part or full (the “Cash
Payment”);
(c) should
the Owner, in its sole discretion, request to withdraw either part or all of
the available Owner’s Funds, THV will transfer the requested Owners’ Funds to
the Owner within five (5) business days, less any merchant banking service
and/or charges (the “Service Charges”) incurred by THV in processing the Rental
Price, Commission Fee and/or Cash Payment (the “Withdrawal”); and
(d) the
Owner is unable to make a Withdrawal of the Rental Price from the Owner’s Funds
until the conclusion of the Rental Services.
6. Using
the Website as a Borrower
6.1. As a
Borrower, the Website provides you with an opportunity to review Ads posted on
the Website by the Owners, contact the Owners through the Website and arrange
to hire the Equipment particularised in the Ad for the Rental Price.
6.2. You
acknowledge that the Rental Price must be paid to THV in full prior to an Owner
being advised to undertake the Rental Services.
6.3. You
acknowledge that THV is only a website which facilitates the Services and does
not offer the Rental Services to you. You also understand that THV receives the
Commission Fee from the Owner.
7. Payment Policy
7.1. All
payments made in the course of your use of the Services are made using Stripe
Payments Australia Pty Ltd (ACN 160 180
343) (“Stripe”). By using the Website, the Services or when making any payment
in relation to same, you warrant that you have read, understood and agree to be
bound by the terms and conditions that are available on Stripe’s website.
7.2. To
enable payments to be processed through Stripe, you agree that any information
you provide to THV will always be accurate, complete and up-to-date. You
further authorise THV to share with Stripe any of your information necessary to
facilitate the payment through Stripe and any information related to your use
of the Stripe’s services.
8.
Receipt Policy
8.1. As a
Borrower, you will be required to pay the Rental Price to THV pursuant to
Clauses 6.2 of these Terms. THV acknowledges that, on receipt of the Rental
Price, it will provide you with a summary statement, which can be viewed under
your Account, for the amount of the Rental Price inclusive of GST (where
applicable) acknowledging receipt of the same
8.2. As an
Owner, you will be offering the Rental Services to the Borrower. THV
acknowledges that they will provide you with a Recipient Created Tax Invoice on
behalf of the Borrower, which outlines:
(a) the
full amount of the Rental Price inclusive of GST in the event that you are
registered for GST and have an ABN or ACN; or
(b) the
Rental Price minus the GST component in the event that you are not registered
for GST and do not have an ABN or ACN.
9. Cancellation and Refund Policy
9.1. Where
the Borrower or the Owner cancels the booking, the following clauses apply:
(a) with
respect to the Security Deposit, if you cancel the booking at any time before
it starts, you will get a full refund of any Security Deposit that you have
paid.
(b) with
respect to the Rental Price,
(i) If
you cancel the Rental Services more than seven (7) days before the date of the
Rental Services, you will be charged a cancellation fee of 15% of the Rental
Price plus any merchant banking/transaction fees and the remaining balance will
be refunded to you;
(ii) If
you cancel the Rental Services between two (2) and seven (7) days before the
date of the Rental Services, you will be charged a cancellation fee of 50% of
the Rental Price plus any merchant banking/transaction fees and the remaining
balance will be refunded to you; and
(iii) If
you cancel the Rental Services 24 hours before the date of the Rental Services,
you will not be entitled to any refund.
9.2. You
acknowledge and agree that since THV is only a facilitator in introducing the
Borrower to the Owner and providing a system to make safe payment, THV does not
hold any liability to the Borrower directly and will not refund them any Rental
Price if, for whatever reason:
(a) the Borrower is unable to attend to
facilitate the Owner completing the Rental Services; or
(b) the
Owner is unable to complete the Rental Services due to incorrect, incomplete or
insufficient instructions provided by the Borrower as to the location,
timeframe or other information relevant to the provision of the Rental
Services.
9.3.
Notwithstanding clause 9.2 above, if a Borrower is unsatisfied with the
Rental Services provided by the Owner or believes that they may be entitled to
a refund with respect to the Rental Price, then THV requires the Borrower to:
(a) contact
the Owner directly to request a refund; and
(b) if
contacting the Owner is not successful after fourteen (14) days, contact THV by
sending an email to info@treehutvillage.com.au outlining why you believe you
are entitled to a refund of the Rental Price so we are able to determine if the
Owner should be removed from the Services.
9.4. If contacted by
a Borrower who is requesting a refund pursuant to Clause 9.3 above, the Owner
agrees that it will immediately:
(a)
complete the THV refund contact form (the “Contact Form”) provided on
the THV Website; and
(b)
provide both the contact form and the email from the Borrower requesting
the refund to THV.
9.5. If the Owner
agrees to refund the Rental Price to a Borrower, or part thereof, it is
acknowledged that the Owner will instruct THV to refund the Rental Price to the
Borrower directly, less the Service Charge.
9.6. Both the
Borrower and Owner agree that they will comply with the THV Refund Policy
contained in this Clause 9 of these Terms.
10. Security Deposit
10.1. As a
Borrower, you may be required to provide a security deposit to help cover any
incidental loss or damage to the Equipment in the course of your use of the
Rental Services (the “Security Deposit”). When using the Services as an Owner,
you can identify that the Rental Services are only available to Borrowers who
are able to provide a Security Deposit.
10.2. The Owner
may in its sole discretion decide the amount of the Security Deposit required.
Notwithstanding same, the Owner must not exercise the discretion unreasonably.
When required to provide a Security Deposit, the Borrower may transfer the
Security Deposit at any time by transferring the money to THV pursuant to
clause 7 of these Terms. The Security Deposit will be held by THV until such
time as it is:
(a)
claimed by an Owner pursuant to clause 10.3 of these Terms; or
(b)
withdrawn by the Borrower, in part or full, by providing five (5)
business days’ notice to THV.
10.3. Where an
Owner believes that they are entitled to claim the Security Deposit (the
“Claim”), then within twenty-four (24) hours of becoming aware of goods having
been lost or damaged, the Owner must send an email to THV at info@treehutvillage.com.au,
which includes the following:
(a) a
completed Security Deposit Claim Form, which is available for download on the
Website;
(b)
evidence of the goods having been lost or damaged; and
(c)
evidence of the value being claimed against the Security Deposit.
10.4. As an
Owner, you acknowledge and agree that the maximum money recoverable from the
Security Deposit is limited to the amount set in the Ad, however, nothing in
this clause 10 limits or excludes your right to claim the fair market value of
repair or replacement costs from the Borrower through alternative means.
10.5. Where the
Security Deposit is insufficient to cover the fees required to rectify the
damage and that the Borrower is unable and/or unwilling to pay for the
remaining balance, THV may, at its sole discretion, decide to pay the remaining
balance on behalf of the Borrower to the Owner. THV’s discretion shall only be
exercised as a last resort to resolve the dispute. Where THV elects to exercise
its discretion, there shall be a cap of a maximum amount of $500.00.
11. Delivery
11.1. As part of
the Services, the Website will provide you with an opportunity to arrange for
either pick-up or delivery of the Equipment (the “Handover”). You acknowledge
and agree that THV only facilitates the communications between the Owners and
Borrowers when arranging the Handover and that it bears no responsibility to
either the Owners or the Borrowers in relation to same.
11.2. Notwithstanding
clause 11.1 above, THV values your safety and security, and we strongly advise
that any Handover should:
(a) take
place in a public environment;
(b) not
require the use of any access codes to secure buildings or areas; and
(c) never
include your exact address or contact details.
11.3. You agree
that you will never meet another Member in a non-public setting such as a park
or other quiet area.
11.4. You
warrant that in arranging the Rental Services, you agree to be bound by the
time agreed to for the Handover, taking into account a fifteen (15) minute
margin on either side of the nominated time. You acknowledge and agree that, in
the event that either the Owner or Borrower fails to meet at the designated
time and place of the Handover, then any prior agreement between the parties
becomes unenforceable and either party is free to arrange alternative Rental
Services without further consultation with the other party.
12. Liability Coverage and Exclusions
12.1. During
each rental period, THV’s insurer will bear the liability for any personal
injury caused by, contributed to by, resulting from, arising out of or in
connection with, the Equipment, subject to these Terms and the insurance policy
THV has with its insurers.
12.2. THV and/or
its insurers are not responsible for:
(a) any
payments or rental arrangements that are not processed through THV;
(b)
anything that occurs outside the rental periods;
(c) any
liability caused by or contributed to by or resulting from or arising out of or
in connection with any Equipment or component part that does not comply with
any applicable safety standards published by Standards Australia International
Limited or where at the time of listing the Equipment is over 7 years old from
the manufacturing year; and
(d) any
liability resulting from your breach of these Terms.
13.
Copyright and Intellectual Property
13.1. The
Website, the Services and all of the related products of THV are subject to
copyright. The material on the Website is protected by copyright under the laws
of Australia and through international treaties. Unless otherwise indicated,
all rights (including copyright) in the site content and compilation of the
Website (including but not limited to text, graphics, logos, button icons,
video images, audio clips, software, code, scripts, design elements and
interactive features) (the “Content”) are owned or controlled for these
purposes, and are reserved by THV or its contributors.
13.2. All
trademarks, service marks and trade names are owned, registered and/or licensed
by THV, who grants to you a worldwide, non-exclusive, royalty-free, revocable
license whilst you are a Member to:
(a) download and access the Website to a
computer or mobile device via a web browser;
(b) use
the Website pursuant to the Terms;
(c) copy
and store the Website and the material contained in the Website in your
computer or mobile devices cache memory; and
(d) print
pages from the Website for your own personal and non-commercial use.
THV does not grant you any other rights whatsoever in
relation to the Website or the material on the Website. All other rights are
expressly reserved by THV.
13.3. THV
retains all rights, title and interest in and to the Website and all related
content. Nothing you do on or in
relation to the Website will transfer any:
(a)
business name, trading name, domain name, trade mark, industrial design,
patent, registered design or copyright, or
(b) right
to use or exploit a business name, trading name, domain name, trade mark or
industrial design, or
(c) thing,
system or process that is the subject of a patent, registered design or
copyright (or an adaptation or modification of such a thing, system or
process),
to you.
13.4. You may
not, without the prior written permission of THV and the permission of any
other relevant rights owners: broadcast, republish, up-load to a third party,
transmit, post, distribute, show or play in public, adapt or change in any way
the Content or third party contact for any purpose. This prohibition does not
extend to materials on the Website which are freely available for re-use or are
in the public domain.
13.5. If you
broadcast, publish, upload, transmit, post or distribute any content on the
Website (“Your Content”), then you grant to THV a non-exclusive, transferrable,
perpetual, royalty-free, irrevocable, worldwide licence to broadcast,
republish, up-load to a third party, transmit, post, distribute, show or play
in public, adapt or change Your Content.
14. General Disclaimer
14.1. Nothing in
the 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.
14.2. Subject to
this Clause 14, and to the extent permitted by law:
(a) all terms, guarantees, warranties,
representations or conditions which are not expressly stated in the Terms are
excluded; and
(b) THV we
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 or these Terms (including as a result of not being able to use the
Services or the late supply of the Services), whether at common law, under
contract, tort (including negligence), in equity, pursuant to statute or
otherwise.
14.3. Use of the
Website, the Services, and any of the products of THV, is at your own
risk. Everything on the Website, the
Services, and the products of THV, are provided to you “as is” and “as
available” without warranty or condition of any kind. None of the affiliates,
directors, officers, employees, agents, contributors, third party content
providers or licensors of THV make any express or implied representation or
warranty about its Content or any products or Services (including the products
or services of THV) 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 Service,
or any of its 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 or any of the
products of THV;
(d) the
Content or operation in respect to links which are provided for the Owner’s
convenience;
(e) any
failure to complete a transaction, or any loss arising from e-commerce
transacted on the Website; or
(f) 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. THV’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
Commission Fee received by THV during the most recent Rental Services or where
THV has not received a Commission Fee, then the total liability to THV is the
resupply of Services to you.
15.2. You
expressly understand and agree that THV, 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. THV is not
responsible or liable in any manner for any content posted on the Website or in
connection with the Services, whether posted or caused by Owners of THV, by
third parties or by any of the services offered by THV.
15.4. THV does
not control and is not responsible for the behaviours and actions of its
members, their comments, posts or information that they upload. Accordingly, THV
is not responsible for any offensive, inappropriate, obscene or unlawful
content you may encounter on the Website or in connection with any of the
services provided on the Website.
16. Termination of Contract
16.1. The Terms
will continue to apply until terminated by either you or by THV as set out
below.
16.2. If you
intend to terminate the Terms, you may do so by:
(a)
notifying THV by giving two (2) weeks’ notice of your intention to
terminate the Terms with THV; and
(b)
closing your accounts for all of the services which you use, where THV
has made this option available to you. Your notice should be sent, in writing,
to THV.
16.3. THV 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) THV is
required to do so by law;
(c) the
partner with whom THV offered the Services to you has terminated its
relationship with THV or ceased to offer the Services to you;
(d) THV is
transitioning to no longer providing the Services in the country in which you
are resident or from which you use the service;
(e) the
provision of the Services to you by THV is, in the opinion of THV, no longer
commercially viable; or
(f) your
account has been inactive for a period of twenty-four (24) months.
16.4. Subject to
local applicable laws, THV reserves the right to discontinue or cancel your
membership 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
impacts THV’s name or reputation or violates the rights of those of another
party.
16.5. When the
Terms come to an end, all of the legal rights, obligations and liabilities that
you and THV 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 THV, its affiliates, employees, agents, contributors, third party
content providers and licensors from and against:
(a) 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 any Content you post through the Website;
(b) any
direct or indirect consequences of you accessing, using or transacting on the
Website or attempts to do so; and/or
(c) any breach of the Terms.
18. Dispute Resolution
18.1. Compulsory
If a dispute arises out of or relates to the Terms that
involves THV, 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).
18.2. Notice
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. Depending on the nature of Dispute, the other party must
carry out the action required as set out in the table as follows. The
corresponding consequences shall apply if the other party fails to comply with
the action required.
Nature Nature of Dispute
Action required from
the other party
Failure to comply
Equipment is not as
described, faulty, or is unsafe
·
The Owner must rectify the
problem.
·
If the problem is not rectifiable, the
Owner must arrange for a suitable replacement for the rental period.
Should the Owner
fail to rectify the problem or arrange for a suitable replacement,
·
a penalty will be charged against the
Owner. The amount of the penalty shall be equivalent to the
amount required to compensate the Borrower;
o
the Rental Price will be refunded to
the Borrower;
o
the Commission Fee is charged to the
Owner; and
o
the Rating System shall reflect the
outcome of the Dispute.
Borrower fails to
collect the Equipment at Handover
·
The Owner must contact the Borrower to
enquire about the failure to collect.
·
The Borrower must collect the
Equipment from the Owner’s nominated address (for instance, the Owner’s
home).
·
Should the Borrower fail to collect
the Equipment,
·
subject to clause 9 of these Terms,
the Owner is entitled to the full amount of the Rental Price; and
·
the Rating System shall reflect the
outcome of the Dispute.
Owner fails to
deliver the Equipment at Handover
·
The Borrower must contact the Owner to
enquire about the failure to deliver.
·
The Owner must deliver the Equipment
to the Borrower’s nominated address (for instance, the Borrower’s home).
Should the Owner
fail to deliver the Equipment,
·
a penalty will be charged against the
Owner. The amount of the penalty shall be equivalent to the
amount required to compensate the Borrower;
·
the Rental Price will be refunded to
the Borrower;
·
the Commission Fee is charged to the
Owner;
·
the Rating System shall reflect the
outcome of the Dispute; and
·
the Borrower may contact THV and THV
may at its sole discretion decide to terminate the provision of its Services
to the Owner.
Equipment is
returned to the Owner with damage
·
The Owner must report the damage to
THV as soon as the Owner becomes aware of it and no later than 24 hours after
becoming aware of it.
·
The Owner must secure evidence of the
damage and cooperate with THV during the investigation.
·
Both the Owner and the Borrower agree
that THV will determine whether the damage occurred during the Rental
Services and whether the Owner is eligible for compensation. Both the
Owner and the Borrower further agree that they will be bound by the final
determination of THV.
·
Where THV determines that the damage
is minor, THV will provide 50% of the Security Deposit to the Owner and will
refund the remaining balance to the Borrower.
·
Where THV determines that the damage
is major, THV will provide 100% of the Security Deposit to the Owner and the
Borrower will not be entitled to any refund of the Security Deposit.
·
Clause 10.5 applies where the Security
Deposit is insufficient to rectify the damage.
·
Should the Owner fail to report the
damage promptly, the Owner acknowledges that THV may deny any compensation
which may be payable to the Owner.
·
Should the Owner and/or the Borrower
refuse to comply with THV’s determination, all parties must comply with
clause 18.3.
·
The Rating System shall reflect the
outcome of the Dispute.
Equipment is not
returned to the Owner
·
Where the Equipment is not returned to
the Owner, the Owner must first contact the Borrower to enquire about the
reasons for the failure to return the Equipment. The Owner must also notify
THV promptly.
·
THV will investigate and depending on
the reasons for the failure to return the Equipment, THV may release the
Security Deposit to the Owner.
If the
Equipment is not returned to the Owner, because the Borrower has stolen the
Equipment, the Borrower’s Account will be terminated immediately.
THV will also notify the police of the incident. THV will then release all
the Security Deposit to the Owner.
Equipment injures a
child
The Borrower must contact THV as soon
as possible.
The Owner must provide proof of age of
the Equipment.
·
Failure of the Borrower to notify THV
may result in the Borrower being liable to pay for any loss or liabilities
that occur in connection with the incident.
·
Failure of the Owner to provide proof
of age of the Equipment may result in the Owner being liable for the injury.
18.3. Resolution
(a) Both
the Owner and the Borrower agree that they will endeavour in good faith to
resolve the Dispute expeditiously by negotiation or such other means upon which
they may mutually agree.
(b) If for
any reason whatsoever, twenty-one (21) days after the date of the Notice, the
Dispute has not been resolved, the Owner and the Borrower must either agree
upon selection of a mediator or request that an appropriate mediator be
appointed by the President of the Law Institute of Victoria or his or her
nominee.
(c) The
Owner and the Borrower 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. The Owner and the Borrower must each
pay their own costs associated with the mediation. For the avoidance of doubt,
THV, as a facilitator of the Services, is not in any way responsible or liable
or any costs associated with the mediation.
(d) The
mediation will be held in Melbourne, Australia.
18.4.
Confidential
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.
18.5.
Termination of Mediation
If thirty (30) days 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.
18.6. Legal
Proceedings
In the event that the Dispute is not resolved at the
conclusion of the mediation, either Party may institute legal proceedings
concerning the subject matter of the Dispute thereafter.
19. GST
19.1. Unless
otherwise stated, all amounts, including out of pocket expenses, expressed and
described on or in connection with these Terms, are listed in Australian
Dollars (AUD) and are GST inclusive.
20. Venue
and Jurisdiction
20.1. The
Services offered by THV are intended to be viewed by residents of Australia. 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 Victoria, Australia.
21. Governing Law
21.1. The Terms
are governed by the laws of Victoria, 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 Victoria, 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.
22. Independent Legal Advice
22.1. 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.
23. Severance
23.1. If any part
of the 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. Assignment
24.1. THV may
transfer or assign the rights and obligations conferred by these Terms at their
sole discretion.
24.2. The rights
and obligations conferred by these Terms cannot be transferred or assigned by
you unless express written consent is provided by THV, who will not
unreasonably withhold such consent.
25. Force
majeure
25.1. If a party
is prevented from or delayed in performing an obligation by Force Majeure, and
promptly acts to mitigate or remove the Force Majeure and its effect, then the
obligation is suspended during, but for no longer than, the period the Force
Majeure continues and any further period that is reasonable in the
circumstances.
25.2. In this
clause "Force Majeure" means an event beyond the reasonable control
of the affected party, which occurs without the fault or negligence of the
affected party.
26. Contact Information
26.1. THV may be
contacted by email at info@treehutvillage.com.au.
1. About Tree Hut Village
1.1. Thank you for
visiting www.treehutvillage.com.au (the “Website”). The Website is a peer-to-peer
marketplace that provides the Members with an opportunity to facilitate
interactions between:
(a) individuals or organisations who own baby equipment (the
“Equipment”) and wish to rent it to the Borrowers (the "Owners"); and
(b) individuals who wish to rent the Equipment for short
term use (the "Borrowers").
In essence, we make it easier for Owners and Borrowers to
locate, communicate, arrange payment and rent baby goods in a fast and secure
manner (the "Services").
1.2. The Website is
operated by Treehutvillage Pty. Ltd. (ACN 603 572 738) (“THV”). Access to and
use of the Website, or any of its associated products, is provided by THV.
Please read these terms and conditions (the “Terms”) carefully. By using or
browsing the Website, 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 immediately.
1.3. THV reserves the right to review and change any of the
Terms by updating this page at its sole discretion. When THV updates the Terms,
it will use reasonable endeavours
to provide you with notice of same. Any changes to the Terms take immediate
effect from the date of their publication. Before you continue, you should print off or save a local copy of the
Terms for your records.
2. Acceptance of the Terms
2.1. You
accept the Terms by remaining on the Website. You may also accept the Terms by
clicking to accept or agree to the Terms where this option is made available to
you by THV through the Website.
3. The
Services
3.1. In order
to access the Services, you are required to provide personal information about
yourself (such as identification or contact details) as part of the
registration process, or as part of your continued use of the Services. You
will also be requested to provide THV with:
(a) an
email address;
(b) bank
account details / credit card;
(c) personal identification (i.e. passport or drivers’ license); and
(d) a
password.
3.2. If you
are accessing the Services as an Owner, you are required to provide
confirmation on whether or not you:
(a) are
registered for GST; and
(b) have
an Australian Business Number (“ABN”) or Australian Company Number (“ACN”).
3.3. You
agree that any registration information you give to THV will always be
accurate, correct and up to date.
3.4. Once you
have completed the registration process:
(a) you
will be a registered member of the services (“Member”); and
(b) THV
will send you an email verifying your email address. By completing the
registration process, you agree to be bound by the Terms.
3.5. 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 THV; 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.
4. Your
Account Obligations
4.1. As a
Member, you agree to comply with the following:
(a) not to
share your profile with any other person;
(b) use
the Services only for purposes that are permitted by:
(i) the
Terms; and
(ii) any
applicable law, regulation or generally accepted practices or guidelines in the
relevant jurisdictions;
(c) you
have sole responsibility for protecting the confidentiality of your password
and/or email address. Use of your password
by any other person may result in the immediate cancellation of the Services;
(d) any
use of your registration information by any other person, or third parties, is
strictly prohibited. You agree to immediately notify THV of any unauthorised
use of your password or email address or any breach of security of which you
have become aware;
(e) you
must not expressly or impliedly impersonate another Member or use the profile
or password of another Member at any time;
(f) you understand that THV makes no
representations or warranties as to the conduct of its Members or their
compatibility with any current or future Borrowers or Owners;
(g) you
agree that you will not broadcast, publish, transmit, up-load, post or upload
content to the Website which is false, misleading or contains sexually explicit
material, references or innuendos;
(h) you
agree not to harass, impersonate, stalk or threaten another Member of the
Website;
(i) access and use of the Website is limited, non-transferable and allows
for the sole use of the Website by you for the purposes specified in the Terms
and only for the duration of the membership;
(j) you
will not use the Services or the Website in connection with any commercial
endeavours except those that are specifically endorsed or approved by the
Terms;
(k) you
will not use the Services or Website for any illegal and/or unauthorised use
which includes collecting email addresses of other Members by electronic or
other means for the purpose of sending unsolicited communication or
unauthorised framing of or linking to the Website;
(l) you
agree that commercial advertisements, affiliate links, and other forms of
solicitation may be removed from Member profiles without notice and may result
in termination of the Services. Appropriate legal action will be taken by THV
for any illegal or unauthorised use of the Website; and
(m) you
acknowledge and agree that any automated use of the Website or the Services are
prohibited.
4.2. As a Member you
will use reasonable endeavours to comply with the “Code of Conduct” that is
available for review on the Website. THV reserves the right to change the Code
of Conduct from time to time, and any such changes will take immediate effect
from the date of their publication.
4.3. You acknowledge
that, as a Member, other Members have the opportunity to rate your use of the
Services for the purposes of providing a rating score, which will be viewable
on your Profile Page on the Website, in order to assist other Members to assess
whether you are a person who they would like to transact with (the “Rating
System”). The Rating System will be listed on your Profile Page as an average
score, calculated through the aggregate rating you have received divided by the
number of Members who have provided you with a rating (“Your Rating”).
4.4. You acknowledge
and agree that THV only facilitates the Rating System and is not responsible
for Your Rating. However, should you believe that Your Rating is incorrect or
unwarranted then please contact THV at info@treehutvillage.com.au to discuss
this in more detail.
5. Using
the Website as an Owner
5.1. As an
Owner, the Website provides you with an opportunity to post advertisements on
the Website for Equipment that you have available for rent (the “Ads”), so that
it can be viewed and ultimately rented by the Borrowers (the “Rental
Services”).
5.2. In order
to use the Services, you must:
(a) register as a member; and
(b) post
an Ad on the Website which states:
(i) the
Equipment available for rent;
(ii) a
picture of the Equipment referred to in the Ad;
(iii) the Rental Price for the Equipment
(the “Rental Price”);
(iv) the
delivery and collection method for the Equipment; and
(v) the
available rental period(s).
5.3. You
acknowledge that, in using the Website as an Owner, you are not employed by THV
in any capacity and, accordingly, you do not have any rights as an employee,
agent or independent contractor of THV. You agree that when posting the Ads,
contacting the Borrowers and providing the Rental Services, or anytime
thereafter; you will:
(a) ensure
that the Equipment listed is not more than 6 years old from the manufacturing
year;
(b) ensure
that the Equipment listed complies with any and all applicable safety
standards, information standards and other similar standards published by the
Australian regulatory authorities and any association approved by the
regulatory such as the Standards Australia International Limited;
(c) comply
with all laws and regulations which apply to the Rental Services. This
includes, but is not limited to:
(i) the
Consumer Guarantees as defined in Schedule 2 of the Competition and Consumer
Act 2010 Law with respect to the Rental Services. This includes that the Rental
Services will be; offered and completed with due care and skill; fit for a
particular purpose; and supplied within a reasonable period of time if no time
is set; and
(ii) you
not misleading or deceiving the Borrowers regarding any facet of the Ads or
Rental Services, such as the length, scope, longevity, nature, quality or
anything else which may, from a reasonable person, be misleading.
(d) warrant that the Equipment is in a suitable condition to be safely used
by Borrowers for its intended purpose; and
(e) comply
with THV’s Refund Policy when a Borrower has contacted you regarding a refund
of the Rental Price (as defined in Clause 9 of the Terms).
5.4. You
acknowledge that THV assists in facilitating your sale of the Rental Services
to its Borrowers. By THV offering the Services to you, you agree that:
(a) Borrowers will transfer the Rental Price to THV, who will deduct fifteen
percent (15%) of the Rental Price which is payable to THV as commission for the
provision of the Services (the “Commission Fee”);
(b) the
remaining eighty-five percent (85%) of the Rental Price (the “Owner’s Funds”)
will be held on behalf of the Owner by THV until such time as a request is made
by the Borrower to transfer the Owner’s Funds, in part or full (the “Cash
Payment”);
(c) should
the Owner, in its sole discretion, request to withdraw either part or all of
the available Owner’s Funds, THV will transfer the requested Owners’ Funds to
the Owner within five (5) business days, less any merchant banking service
and/or charges (the “Service Charges”) incurred by THV in processing the Rental
Price, Commission Fee and/or Cash Payment (the “Withdrawal”); and
(d) the
Owner is unable to make a Withdrawal of the Rental Price from the Owner’s Funds
until the conclusion of the Rental Services.
6. Using
the Website as a Borrower
6.1. As a
Borrower, the Website provides you with an opportunity to review Ads posted on
the Website by the Owners, contact the Owners through the Website and arrange
to hire the Equipment particularised in the Ad for the Rental Price.
6.2. You
acknowledge that the Rental Price must be paid to THV in full prior to an Owner
being advised to undertake the Rental Services.
6.3. You
acknowledge that THV is only a website which facilitates the Services and does
not offer the Rental Services to you. You also understand that THV receives the
Commission Fee from the Owner.
7. Payment Policy
7.1. All
payments made in the course of your use of the Services are made using Stripe
Payments Australia Pty Ltd (ACN 160 180
343) (“Stripe”). By using the Website, the Services or when making any payment
in relation to same, you warrant that you have read, understood and agree to be
bound by the terms and conditions that are available on Stripe’s website.
7.2. To
enable payments to be processed through Stripe, you agree that any information
you provide to THV will always be accurate, complete and up-to-date. You
further authorise THV to share with Stripe any of your information necessary to
facilitate the payment through Stripe and any information related to your use
of the Stripe’s services.
8. Receipt Policy
8.1. As a
Borrower, you will be required to pay the Rental Price to THV pursuant to
Clauses 6.2 of these Terms. THV acknowledges that, on receipt of the Rental
Price, it will provide you with a summary statement, which can be viewed under
your Account, for the amount of the Rental Price inclusive of GST (where
applicable) acknowledging receipt of the same
8.2. As an
Owner, you will be offering the Rental Services to the Borrower. THV
acknowledges that they will provide you with a Recipient Created Tax Invoice on
behalf of the Borrower, which outlines:
(a) the
full amount of the Rental Price inclusive of GST in the event that you are
registered for GST and have an ABN or ACN; or
(b) the
Rental Price minus the GST component in the event that you are not registered
for GST and do not have an ABN or ACN.
9. Cancellation and Refund Policy
9.1. Where
the Borrower or the Owner cancels the booking, the following clauses apply:
(a) with
respect to the Security Deposit, if you cancel the booking at any time before
it starts, you will get a full refund of any Security Deposit that you have
paid.
(b) with
respect to the Rental Price,
(i) If
you cancel the Rental Services more than seven (7) days before the date of the
Rental Services, you will be charged a cancellation fee of 15% of the Rental
Price plus any merchant banking/transaction fees and the remaining balance will
be refunded to you;
(ii) If
you cancel the Rental Services between two (2) and seven (7) days before the
date of the Rental Services, you will be charged a cancellation fee of 50% of
the Rental Price plus any merchant banking/transaction fees and the remaining
balance will be refunded to you; and
(iii) If
you cancel the Rental Services 24 hours before the date of the Rental Services,
you will not be entitled to any refund.
9.2. You
acknowledge and agree that since THV is only a facilitator in introducing the
Borrower to the Owner and providing a system to make safe payment, THV does not
hold any liability to the Borrower directly and will not refund them any Rental
Price if, for whatever reason:
(a) the Borrower is unable to attend to
facilitate the Owner completing the Rental Services; or
(b) the
Owner is unable to complete the Rental Services due to incorrect, incomplete or
insufficient instructions provided by the Borrower as to the location,
timeframe or other information relevant to the provision of the Rental
Services.
9.3.
Notwithstanding clause 9.2 above, if a Borrower is unsatisfied with the
Rental Services provided by the Owner or believes that they may be entitled to
a refund with respect to the Rental Price, then THV requires the Borrower to:
(a) contact
the Owner directly to request a refund; and
(b) if
contacting the Owner is not successful after fourteen (14) days, contact THV by
sending an email to info@treehutvillage.com.au outlining why you believe you
are entitled to a refund of the Rental Price so we are able to determine if the
Owner should be removed from the Services.
9.4. If contacted by
a Borrower who is requesting a refund pursuant to Clause 9.3 above, the Owner
agrees that it will immediately:
(a)
complete the THV refund contact form (the “Contact Form”) provided on
the THV Website; and
(b)
provide both the contact form and the email from the Borrower requesting
the refund to THV.
9.5. If the Owner
agrees to refund the Rental Price to a Borrower, or part thereof, it is
acknowledged that the Owner will instruct THV to refund the Rental Price to the
Borrower directly, less the Service Charge.
9.6. Both the
Borrower and Owner agree that they will comply with the THV Refund Policy
contained in this Clause 9 of these Terms.
10. Security Deposit
10.1. As a
Borrower, you may be required to provide a security deposit to help cover any
incidental loss or damage to the Equipment in the course of your use of the
Rental Services (the “Security Deposit”). When using the Services as an Owner,
you can identify that the Rental Services are only available to Borrowers who
are able to provide a Security Deposit.
10.2. The Owner
may in its sole discretion decide the amount of the Security Deposit required.
Notwithstanding same, the Owner must not exercise the discretion unreasonably.
When required to provide a Security Deposit, the Borrower may transfer the
Security Deposit at any time by transferring the money to THV pursuant to
clause 7 of these Terms. The Security Deposit will be held by THV until such
time as it is:
(a)
claimed by an Owner pursuant to clause 10.3 of these Terms; or
(b)
withdrawn by the Borrower, in part or full, by providing five (5)
business days’ notice to THV.
10.3. Where an
Owner believes that they are entitled to claim the Security Deposit (the
“Claim”), then within twenty-four (24) hours of becoming aware of goods having
been lost or damaged, the Owner must send an email to THV at info@treehutvillage.com.au,
which includes the following:
(a) a
completed Security Deposit Claim Form, which is available for download on the
Website;
(b)
evidence of the goods having been lost or damaged; and
(c)
evidence of the value being claimed against the Security Deposit.
10.4. As an
Owner, you acknowledge and agree that the maximum money recoverable from the
Security Deposit is limited to the amount set in the Ad, however, nothing in
this clause 10 limits or excludes your right to claim the fair market value of
repair or replacement costs from the Borrower through alternative means.
10.5. Where the
Security Deposit is insufficient to cover the fees required to rectify the
damage and that the Borrower is unable and/or unwilling to pay for the
remaining balance, THV may, at its sole discretion, decide to pay the remaining
balance on behalf of the Borrower to the Owner. THV’s discretion shall only be
exercised as a last resort to resolve the dispute. Where THV elects to exercise
its discretion, there shall be a cap of a maximum amount of $500.00.
11. Delivery
11.1. As part of
the Services, the Website will provide you with an opportunity to arrange for
either pick-up or delivery of the Equipment (the “Handover”). You acknowledge
and agree that THV only facilitates the communications between the Owners and
Borrowers when arranging the Handover and that it bears no responsibility to
either the Owners or the Borrowers in relation to same.
11.2. Notwithstanding
clause 11.1 above, THV values your safety and security, and we strongly advise
that any Handover should:
(a) take
place in a public environment;
(b) not
require the use of any access codes to secure buildings or areas; and
(c) never
include your exact address or contact details.
11.3. You agree
that you will never meet another Member in a non-public setting such as a park
or other quiet area.
11.4. You
warrant that in arranging the Rental Services, you agree to be bound by the
time agreed to for the Handover, taking into account a fifteen (15) minute
margin on either side of the nominated time. You acknowledge and agree that, in
the event that either the Owner or Borrower fails to meet at the designated
time and place of the Handover, then any prior agreement between the parties
becomes unenforceable and either party is free to arrange alternative Rental
Services without further consultation with the other party.
12. Liability Coverage and Exclusions
12.1. During
each rental period, THV’s insurer will bear the liability for any personal
injury caused by, contributed to by, resulting from, arising out of or in
connection with, the Equipment, subject to these Terms and the insurance policy
THV has with its insurers.
12.2. THV and/or
its insurers are not responsible for:
(a) any
payments or rental arrangements that are not processed through THV;
(b)
anything that occurs outside the rental periods;
(c) any
liability caused by or contributed to by or resulting from or arising out of or
in connection with any Equipment or component part that does not comply with
any applicable safety standards published by Standards Australia International
Limited or where at the time of listing the Equipment is over 7 years old from
the manufacturing year; and
(d) any
liability resulting from your breach of these Terms.
13.
Copyright and Intellectual Property
13.1. The
Website, the Services and all of the related products of THV are subject to
copyright. The material on the Website is protected by copyright under the laws
of Australia and through international treaties. Unless otherwise indicated,
all rights (including copyright) in the site content and compilation of the
Website (including but not limited to text, graphics, logos, button icons,
video images, audio clips, software, code, scripts, design elements and
interactive features) (the “Content”) are owned or controlled for these
purposes, and are reserved by THV or its contributors.
13.2. All
trademarks, service marks and trade names are owned, registered and/or licensed
by THV, who grants to you a worldwide, non-exclusive, royalty-free, revocable
license whilst you are a Member to:
(a) download and access the Website to a
computer or mobile device via a web browser;
(b) use
the Website pursuant to the Terms;
(c) copy
and store the Website and the material contained in the Website in your
computer or mobile devices cache memory; and
(d) print
pages from the Website for your own personal and non-commercial use.
THV does not grant you any other rights whatsoever in
relation to the Website or the material on the Website. All other rights are
expressly reserved by THV.
13.3. THV
retains all rights, title and interest in and to the Website and all related
content. Nothing you do on or in
relation to the Website will transfer any:
(a)
business name, trading name, domain name, trade mark, industrial design,
patent, registered design or copyright, or
(b) right
to use or exploit a business name, trading name, domain name, trade mark or
industrial design, or
(c) thing,
system or process that is the subject of a patent, registered design or
copyright (or an adaptation or modification of such a thing, system or
process),
to you.
13.4. You may
not, without the prior written permission of THV and the permission of any
other relevant rights owners: broadcast, republish, up-load to a third party,
transmit, post, distribute, show or play in public, adapt or change in any way
the Content or third party contact for any purpose. This prohibition does not
extend to materials on the Website which are freely available for re-use or are
in the public domain.
13.5. If you
broadcast, publish, upload, transmit, post or distribute any content on the
Website (“Your Content”), then you grant to THV a non-exclusive, transferrable,
perpetual, royalty-free, irrevocable, worldwide licence to broadcast,
republish, up-load to a third party, transmit, post, distribute, show or play
in public, adapt or change Your Content.
14. General Disclaimer
14.1. Nothing in
the 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.
14.2. Subject to
this Clause 14, and to the extent permitted by law:
(a) all terms, guarantees, warranties,
representations or conditions which are not expressly stated in the Terms are
excluded; and
(b) THV we
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 or these Terms (including as a result of not being able to use the
Services or the late supply of the Services), whether at common law, under
contract, tort (including negligence), in equity, pursuant to statute or
otherwise.
14.3. Use of the
Website, the Services, and any of the products of THV, is at your own
risk. Everything on the Website, the
Services, and the products of THV, are provided to you “as is” and “as
available” without warranty or condition of any kind. None of the affiliates,
directors, officers, employees, agents, contributors, third party content
providers or licensors of THV make any express or implied representation or
warranty about its Content or any products or Services (including the products
or services of THV) 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 Service,
or any of its 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 or any of the
products of THV;
(d) the
Content or operation in respect to links which are provided for the Owner’s
convenience;
(e) any
failure to complete a transaction, or any loss arising from e-commerce
transacted on the Website; or
(f) 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. THV’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
Commission Fee received by THV during the most recent Rental Services or where
THV has not received a Commission Fee, then the total liability to THV is the
resupply of Services to you.
15.2. You
expressly understand and agree that THV, 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. THV is not
responsible or liable in any manner for any content posted on the Website or in
connection with the Services, whether posted or caused by Owners of THV, by
third parties or by any of the services offered by THV.
15.4. THV does
not control and is not responsible for the behaviours and actions of its
members, their comments, posts or information that they upload. Accordingly, THV
is not responsible for any offensive, inappropriate, obscene or unlawful
content you may encounter on the Website or in connection with any of the
services provided on the Website.
16. Termination of Contract
16.1. The Terms
will continue to apply until terminated by either you or by THV as set out
below.
16.2. If you
intend to terminate the Terms, you may do so by:
(a)
notifying THV by giving two (2) weeks’ notice of your intention to
terminate the Terms with THV; and
(b)
closing your accounts for all of the services which you use, where THV
has made this option available to you. Your notice should be sent, in writing,
to THV.
16.3. THV 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) THV is
required to do so by law;
(c) the
partner with whom THV offered the Services to you has terminated its
relationship with THV or ceased to offer the Services to you;
(d) THV is
transitioning to no longer providing the Services in the country in which you
are resident or from which you use the service;
(e) the
provision of the Services to you by THV is, in the opinion of THV, no longer
commercially viable; or
(f) your
account has been inactive for a period of twenty-four (24) months.
16.4. Subject to
local applicable laws, THV reserves the right to discontinue or cancel your
membership 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
impacts THV’s name or reputation or violates the rights of those of another
party.
16.5. When the
Terms come to an end, all of the legal rights, obligations and liabilities that
you and THV 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 THV, its affiliates, employees, agents, contributors, third party
content providers and licensors from and against:
(a) 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 any Content you post through the Website;
(b) any
direct or indirect consequences of you accessing, using or transacting on the
Website or attempts to do so; and/or
(c) any breach of the Terms.
18. Dispute Resolution
18.1. Compulsory
If a dispute arises out of or relates to the Terms that
involves THV, 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).
18.2. Notice
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. Depending on the nature of Dispute, the other party must
carry out the action required as set out in the table as follows. The
corresponding consequences shall apply if the other party fails to comply with
the action required.
|
Nature Nature of Dispute |
Action required from
the other party |
Failure to comply |
|
Equipment is not as
described, faulty, or is unsafe |
·
The Owner must rectify the
problem. ·
If the problem is not rectifiable, the
Owner must arrange for a suitable replacement for the rental period. |
Should the Owner
fail to rectify the problem or arrange for a suitable replacement, ·
a penalty will be charged against the
Owner. The amount of the penalty shall be equivalent to the
amount required to compensate the Borrower; o
the Rental Price will be refunded to
the Borrower; o
the Commission Fee is charged to the
Owner; and o
the Rating System shall reflect the
outcome of the Dispute. |
|
Borrower fails to
collect the Equipment at Handover |
·
The Owner must contact the Borrower to
enquire about the failure to collect. ·
The Borrower must collect the
Equipment from the Owner’s nominated address (for instance, the Owner’s
home). |
·
Should the Borrower fail to collect
the Equipment, ·
subject to clause 9 of these Terms,
the Owner is entitled to the full amount of the Rental Price; and ·
the Rating System shall reflect the
outcome of the Dispute. |
|
Owner fails to
deliver the Equipment at Handover |
·
The Borrower must contact the Owner to
enquire about the failure to deliver. ·
The Owner must deliver the Equipment
to the Borrower’s nominated address (for instance, the Borrower’s home). |
Should the Owner
fail to deliver the Equipment, ·
a penalty will be charged against the
Owner. The amount of the penalty shall be equivalent to the
amount required to compensate the Borrower; ·
the Rental Price will be refunded to
the Borrower; ·
the Commission Fee is charged to the
Owner; ·
the Rating System shall reflect the
outcome of the Dispute; and ·
the Borrower may contact THV and THV
may at its sole discretion decide to terminate the provision of its Services
to the Owner. |
|
Equipment is
returned to the Owner with damage |
·
The Owner must report the damage to
THV as soon as the Owner becomes aware of it and no later than 24 hours after
becoming aware of it. ·
The Owner must secure evidence of the
damage and cooperate with THV during the investigation. ·
Both the Owner and the Borrower agree
that THV will determine whether the damage occurred during the Rental
Services and whether the Owner is eligible for compensation. Both the
Owner and the Borrower further agree that they will be bound by the final
determination of THV. ·
Where THV determines that the damage
is minor, THV will provide 50% of the Security Deposit to the Owner and will
refund the remaining balance to the Borrower. ·
Where THV determines that the damage
is major, THV will provide 100% of the Security Deposit to the Owner and the
Borrower will not be entitled to any refund of the Security Deposit. ·
Clause 10.5 applies where the Security
Deposit is insufficient to rectify the damage. |
·
Should the Owner fail to report the
damage promptly, the Owner acknowledges that THV may deny any compensation
which may be payable to the Owner. ·
Should the Owner and/or the Borrower
refuse to comply with THV’s determination, all parties must comply with
clause 18.3. ·
The Rating System shall reflect the
outcome of the Dispute. |
|
Equipment is not
returned to the Owner |
·
Where the Equipment is not returned to
the Owner, the Owner must first contact the Borrower to enquire about the
reasons for the failure to return the Equipment. The Owner must also notify
THV promptly. ·
THV will investigate and depending on
the reasons for the failure to return the Equipment, THV may release the
Security Deposit to the Owner. |
If the
Equipment is not returned to the Owner, because the Borrower has stolen the
Equipment, the Borrower’s Account will be terminated immediately.
THV will also notify the police of the incident. THV will then release all
the Security Deposit to the Owner. |
|
Equipment injures a
child |
The Borrower must contact THV as soon
as possible. The Owner must provide proof of age of
the Equipment. |
·
Failure of the Borrower to notify THV
may result in the Borrower being liable to pay for any loss or liabilities
that occur in connection with the incident. ·
Failure of the Owner to provide proof
of age of the Equipment may result in the Owner being liable for the injury. |
18.3. Resolution
(a) Both
the Owner and the Borrower agree that they will endeavour in good faith to
resolve the Dispute expeditiously by negotiation or such other means upon which
they may mutually agree.
(b) If for
any reason whatsoever, twenty-one (21) days after the date of the Notice, the
Dispute has not been resolved, the Owner and the Borrower must either agree
upon selection of a mediator or request that an appropriate mediator be
appointed by the President of the Law Institute of Victoria or his or her
nominee.
(c) The
Owner and the Borrower 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. The Owner and the Borrower must each
pay their own costs associated with the mediation. For the avoidance of doubt,
THV, as a facilitator of the Services, is not in any way responsible or liable
or any costs associated with the mediation.
(d) The
mediation will be held in Melbourne, Australia.
18.4.
Confidential
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.
18.5.
Termination of Mediation
If thirty (30) days 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.
18.6. Legal
Proceedings
In the event that the Dispute is not resolved at the
conclusion of the mediation, either Party may institute legal proceedings
concerning the subject matter of the Dispute thereafter.
19. GST
19.1. Unless
otherwise stated, all amounts, including out of pocket expenses, expressed and
described on or in connection with these Terms, are listed in Australian
Dollars (AUD) and are GST inclusive.
20. Venue
and Jurisdiction
20.1. The
Services offered by THV are intended to be viewed by residents of Australia. 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 Victoria, Australia.
21. Governing Law
21.1. The Terms
are governed by the laws of Victoria, 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 Victoria, 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.
22. Independent Legal Advice
22.1. 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.
23. Severance
23.1. If any part
of the 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. Assignment
24.1. THV may
transfer or assign the rights and obligations conferred by these Terms at their
sole discretion.
24.2. The rights
and obligations conferred by these Terms cannot be transferred or assigned by
you unless express written consent is provided by THV, who will not
unreasonably withhold such consent.
25. Force
majeure
25.1. If a party
is prevented from or delayed in performing an obligation by Force Majeure, and
promptly acts to mitigate or remove the Force Majeure and its effect, then the
obligation is suspended during, but for no longer than, the period the Force
Majeure continues and any further period that is reasonable in the
circumstances.
25.2. In this
clause "Force Majeure" means an event beyond the reasonable control
of the affected party, which occurs without the fault or negligence of the
affected party.
26. Contact Information
26.1. THV may be
contacted by email at info@treehutvillage.com.au.