XMAX

1 Introduction

1.1 AustralianVaporizers.com.au (“Site”) is owned and operated by Australian Vaporizers Pty Ltd (ACN 145 860 868), which is registered in Queensland (“Company”). In these terms and conditions (“Conditions”), “us”, “we” and “our” refer to the Company and references to “you” or “your” is to you, the end user of the Site.

1.2 The Site is an online platform for users, whether they are members or non-members (“Users”), to purchase vaporizers and products associated with the process of vaporizing (“Products”) and to exchange views on the Products (“Comment Function”). Users may access the Site as a registered User or an unregistered User.

1.3 By using the Site you agree to be bound by these Conditions. If you do not agree with these Conditions, you must stop using the Site and leave it immediately.

1.4 You acknowledge and agree that the Conditions apply to any orders for Product made over the telephone or on www.ebay.com.au.

1.5 You acknowledge and agree to be bound by the Privacy Policy and any other terms and conditions on the Site.

1.6 We may change, update or amend these Conditions at our absolute discretion without notice. By continuing to use the website, you agree to be bound by those changed Conditions.

1.7 All notices, enquiries, complaints can be communicated to the Company at: hello@australianvaporizers.com.au

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2 Use of the site

2.1 You are granted a non-exclusive, limited and revocable license to use the Site and / or access the Comment Function on the condition that:

(a) you are over the age of 18 years;

(b) you are capable of forming binding contracts;

(c) you only use the Site for lawful purposes;

(d) you do not engage in any improper, indecent or offensive behaviour while using the Site;

(e) you are not breaking any local, state or federal law in your relevant jurisdiction (or the State that the Company is registered in) by accessing the Site or purchasing Products; and

(f) you treat the Site and its Users with respect and will not partake in any conduct that could be considered bullying, harassment, degradation, insulting or otherwise demeaning to the human standard of any other person (as determined by us).

3 Membership

3.1 You agree to be a member of the Site when you complete the membership registration process online or offline.

3.2 The information you provide to us during the membership registration process must be accurate and complete in all respects.

3.3 You will only represent yourself and will not create false aliases or impersonate any other person (with or without their consent) while using the Site.

3.4 You must retain access to your username and password to access the Site.

3.5 It is your responsibility to keep your username and password secure. You are solely responsible for the use of your membership account, irrespective of who is using it, even if it is used without your permission.

3.6 You agree to indemnity us against any and all liability, loss, costs and expenses arising from or incurred in connection with unauthorised access to your account.

4 User Purchase warranties

4.1 In respect of any Products that you purchase from the Site, you warrant that:

(a) you are purchasing the Products as consumer goods only and are not purchasing the Products for any medical or therapeutic purposes whatsoever;

(b) you have considered and understand the possible health risks associated with using the Products and will seek medical advice before using any Product;

(c) you will not use the Products for any unlawful or unintended purpose, including but not limited to the consumption of tobacco / nicotine products or any illegal substances.

5 Product Information and availability

5.1 All prices on the Site are shown in Australian Dollars (AUD) and include GST.

5.2 The colours of Products that you see depend on your computer display, so we cannot guarantee that your monitor will display the colours accurately.

5.3 You agree and acknowledge that there may be technical or administrative errors in the information on the Site, including but not limited to errors with respect to product description, pricing and availability.

5.4 We reserve the right to correct any errors without any notice, including after you have submitted an order or made a payment.

5.5 We reserve the right to limit quantities, including after you have submitted an order or made a payment.

5.6 Representations of Products for sale on the Site do not constitute an offer to sell but an invitation to treat. Such representations do not warrant that the Product is available.

5.7 If there is an error in any information that forms part of an offer from us to you, any agreement arising from your acceptance of that offer will be void at our absolute discretion.

6 Delivery and return of Goods

6.1 Any automated confirmation of a successful order placement and/or receipt and/or our processing of a payment for an order through the Site does not constitute acceptance of an order by us. If we decline your order after a payment for the order has been received/processed we will contact you with the details and refund the payment in full.

6.2 The Products are our absolute property at law and in equity until you have paid the full price. Until we receive full payment, if you hold a Product, you will hold the Product only as a bailee.

6.3 You agree to take on the risk for the Products, such as loss or damage, when the Products reach the delivery address.

6.4 After taking delivery of the Products, you agree to examine the Products and notify us if there is any defect in the Products within 10 Business Days of the delivery date.

6.5 If we receive no notification from you within 10 Business Days of the delivery date, you agree that the Products will be deemed delivered without defect.

7 Manufacturer warranty

7.1 We are willing to facilitate a claim under the Product manufacturer’s (“Manufacturer”) warranty if you return the Product to us within the warranty period set out by the Manufacturer.

7.2 The outcome of all returns pursuant to the Manufacturer’s warranty will be at the sole discretion of the Manufacturer. You agree that we will not be responsible for the decision of a Manufacturer in respect of its warranty in any way.

7.3 If you return a Product and, in our opinion, there is evidence of:

(a) its use for unlawful purposes; or

(b) damage caused by accident, misuse, negligence or normal wear and tear; we will not facilitate a warranty claim to the Manufacturer.

8 Customs, Duties and Taxes

8.1 If you order Products from outside Australia, you agree to take responsibility for ensuring that the Products can be legally imported into the country of delivery.

8.2 You agree to pay any customs, duties or taxes with respect to the Products that we send to the address outside of Australia, including GST. With the exception of GST, these costs will be in addition to the purchase price that we quote on the Site.

9 Liability and Indemnity for products

9.1 There are inherent health risks involved in using the Products. By purchasing the Products, you acknowledge and agree that you will be using the Products at your own risk. You should consider the risks associated with the Products before you purchase and use them.

9.2 User no circumstances will we be liable for any death, injury, loss or damage of any kind whatsoever caused to you or any other person by the Products. This includes liability for any direct, incidental, consequential or indirect damages; loss of profits, economic loss, goodwill, bargain or opportunity; loss of anticipated savings or any other similar or analogous loss resulting from your use of, or inability to use, Products purchased from the Site, whether based on warranty, contract, tort, negligence, in equity or on any other legal theory, and whether or not we knew or should have known of the possibility of such damage of any type, whether in tort, contract or otherwise.

9.3 With respect to Products purchased from the Site, certain rights and remedies may be available to you under the Competition and Consumer Act 2010 (Cth), or similar legislation of other States or Territories, and may not be permitted to be excluded, restricted or modified (“Non Excludable Right”).

9.4 Where a Non Excludable Right is deemed to apply, we limit our liability for any breach to the re-supply of the Products concerned, or the payment of the cost of such re-supply, which is to be at our option.

9.5 By purchasing Products, you indemnify us (and our directors, employees and agents) (“Indemnified”) against all claims, demands, proceedings and other liability arising wholly or partially, directly or indirectly, from the Products.

9.6 Without limiting the generality of the above, you also indemnify the Indemnified against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising directly or indirectly from your breach of these Conditions and any negligent or unlawful act or omission on your part in connection with the Products.

10 Site Information

10.1 All the information on the Site is for informational purposes only, and is to be used or relied on at your own risk. We make no warranty or representations as to the accuracy of information on the Site.

11 Site Availability

11.1 By using the Site you agree that we accept no responsibility for the Site being unavailable, and we make no warranties or guarantees, implied or express, as to the ongoing availability of the Site in whole or in part.

11.2 You agree that we are not liable for any loss or damage that you or any other person incurs by not being able to access the Site or any part of it.

11.3 We may change, update or otherwise amend the Site at our absolute discretion and without notice.

12 Content and Publication

12.1 In respect of any content that you upload to the Site or submit to us, with or without the Comment Function, you warrant that it is:

(a) to the best of your knowledge, accurate;

(b) compliant with these Conditions;

(c) free of any computer virus or malicious code;

(d) not false, defamatory, misleading or otherwise deceptive in any way; and

(e) not uploaded in breach of the intellectual property rights of any third party.

12.2 You agree that you are liable for and indemnify us against any and all liability, loss, costs and expenses arising from or incurred in connection with your breach of any warranty in these Conditions.

12.3 We make no warranties as to the accuracy of any content posted by any User of the Site, and will accept no liability for errors or omissions in general.

12.4 We reserve the right, at our absolute discretion, to remove, amend, edit or in any other way change any post or upload by a User of the Site.

12.5 By posting or uploading material to the Site, you grant us a world-wide, non-exclusive, unlimited and irrevocable right to use, publish, market, advertise or otherwise promote the content you post, other than personal or medical information, which is managed in accordance with our Privacy Policy.

13 Intellectual property

13.1 All content on the Site is the copyright of the Company. Without the express written permission of the Company, you shall not:

(a) replicate all or part of the site in any way; or

(b) incorporate all or part of the Site in any other webpage, site, application or other digital or non-digital format.

13.2 The Company has moral & registered rights in its trademarks and you shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

13.3 You agree that by using the site you will not copy any part of the Site or its function for your own commercial purposes. You agree and warrant that you will not solicit the Users of the Site to use another competing site or in anyway to stop using the Site in preference of using another site offering comparable services. You indemnify us for any loss or damage we suffer as a result of your breach of this warranty.

14 Site Liability and Indemnity

14.1 You agree that you use the Site and the Comment Function at your own risk.

14.2 You acknowledge and agree that we are not responsible for the conduct or activities of any User of the Site or Comment Function.

14.3 Under no circumstances will we be liable for any direct, incidental, consequential or indirect damages, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from your use of, or inability to use the Site or the Comment Function, whether based on warranty, contract, tort, negligence, in equity or on any other legal theory, and whether or not we knew or should have known of the possibility of such damage of any type, whether in tort, contract or otherwise.

14.4 With respect to your use of the Site and the Comment Function, certain rights and remedies may be available to you under the Competition and Consumer Act 2010 (Cth), or similar legislation of other States or Territories, and may not be permitted to be excluded, restricted or modified (“Non Excludable Right”).

14.5 Where a Non Excludable Right is deemed to apply, we limit our liability for any breach to the re-supply of the services to which the breach is related, or the payment of the cost of such re-supply, which is to be at our option.

14.6 By using the Site, you indemnify us (and our directors, employees and agents) (“Indemnified”) against all claims, demands, proceedings and other liability arising wholly or partially, directly or indirectly, from your use of the Site or the Comment Function.

14.7 Without limiting the generality of the above, you indemnify the Indemnified against any costs, expenses, losses, damages and liability suffered or incurred by the Indemnified arising directly or indirectly from your breach of these Conditions and any negligent or unlawful act or omission of yours in connection with the Site or the Comment Function.

15 Privacy

15.1 You acknowledge and accept the terms and conditions of the Site’s Privacy Policy.

15.2 You agree that you will not do anything that shall compromise the Company’s compliance with its Privacy Policy nor do anything contrary to the Privacy Policy insofar as your use of the Site is concerned.

15.3 We may amend the Privacy Policy from time-to-time without notice to you.

16 Complaints and Disputes

16.1 You agree to remove any contentious content immediately upon request by us.

16.2 We reserve the right to remove any content from the Site that you post which is the subject of a complaint by another User, regardless of whether that complaint is justified or reasonable.

16.3 If you have a complaint about content on the Site you should report it to us immediately. We may or may not investigate your complaint, depending on its nature.

16.4 If you have a dispute with us or another User in connection with the Site, you must report the dispute to us so that we may investigate and assist in the resolution of the dispute (where possible).

17 Termination

17.1 Either party may end the agreement arising from these Conditions immediately for any reason by giving the other party written notice. Where this agreement has been terminated you must immediately cease using the Site.

18 Notices

18.1 We will send you notices and other correspondence to the details that you submit to the Site, or that you notify us of from time-to-time. It is your responsibility to notify us of any updated contact details as they change.

18.2 Email notice from us to you is effective notice under these Conditions.

19 General

19.1 You acknowledge that you have not relied on any representation, warranty or statement made by any other party, other than as set out in these Conditions.

19.2 The relationship between you and us under any agreement arising from these Conditions does not form a joint venture or partnership.

19.3 No clause of these Conditions will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

19.4 We may assign, novate or otherwise transfer any of our rights or obligations under any contract arising from these Conditions to a third party without notice to you, or your prior consent.

19.5 Any agreement arising under these Conditions will be governed by the laws of the state set out in the definition of Company. You agree to submit to the non-exclusive jurisdiction of courts with jurisdiction there, and it shall be the sole forum for any proceedings.

19.6 Any clause of these Conditions, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of the Conditions.

19.7 Any agreement arising from these Conditions is part of an ecommerce transaction and the parties agree that the agreement shall be accepted electronically and the agreement formed & validly entered into electronically in accordance with the Electronic Transactions Act 1999 (Cth).

19.8 The termination of any agreement arising from these Conditions does not affect the parties’ rights in respect of periods before the termination of this agreement.

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