TERMS & CONDITIONS

Website Terms and Conditions

These Website Terms and Conditions apply to use of, and access to, the domain https://explodingfish.com and all associated pages, applications, and resources (“EF Website”).  If you do not agree with these Website Terms and Conditions you must not use or access any page, application, or resource accessible through https://explodingfish.com (“Domain”).

By using or accessing a page, application, or resource through https://explodingfish.com you accept the following terms and conditions and enter into an agreement with Exploding Fish Pty Ltd ABN 79 615 357 563 (“Agreement”).

In this Agreement there are terms and conditions that apply to specific functionality with the EF Website, or apply when you interact with the EF Website in particular ways.  An example of which is signing up for a User Profile.  All terms and conditions relating to use of the EF Website are contained in this document, but it must also be read in conjunction with:

  • our Privacy Policy, which is available at https://explodingfish.com/privacy; and
  • each other document included by reference in these Website Terms and Conditions, if any.
  1. Definitions

In this Agreement the defined terms in the following table have the corresponding meaning unless repugnant to the context.

Defined term

Meaning

App

A software application.

Exploding Fish, us, our, or we

Exploding Fish Pty Ltd

Content

Any information reduced to material form (including where such information is stored electronically), and includes without limitation any script, code, text, image, media, or content determinable through MIME and MIME type definitions, as the case requires.

Electronic Transaction

An electronic transaction conducted through the EF Website, including a payment made through any of the following methods::

  1. Credit Card;
  2. Debit Card;
  3. Prepaid payment card; or
  4. Any other electronic payment method agreed by Exploding Fish from time to time.

Intellectual Property Rights

All industrial and intellectual property rights including, without limitation, patents, trade marks, copyrights, circuit layout rights, right to extract information from databases, design rights, trade secrets, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them) other than moral rights.

Party

A party to this Agreement.

Payment Processor

A third party payment processor that facilitates Electronic Transactions on the EF Website.  At the date of these Website Terms and Conditions this service is provided by one of:

  1. Paypal; and
  2. Stripe.

Privacy Policy

Our privacy policy, which is available at https://explodingfish.com/privacy

Product

Any goods available for sale, or sold, on the EF Website.

Services

Any service delivered by Exploding Fish through the EF Website. A reference to Services includes a reference to Products, unless specifically noted otherwise.

User Profile

A user account on the EF Website with a username and password that provides additional functionality and interaction with the EF Website.

User, you, or your

The person accessing the EF Website.

Website Terms and Conditions

This document including any other document included by reference, if any.

  1. Term and termination

2.1          This Agreement begins upon your acceptance of these Website Terms and Conditions and continues until terminated, or it otherwise ends in accordance with these Website Terms and Conditions.

2.2          You accept the Website Terms and Conditions upon the earliest of the following events:

(a)           You, or any device that you control, requests any Content from the EF Website;

(b)           You, or any device that you control, receives any Content from the EF Website;

(c)           You access a page on, or related to, the Domain using a web browser or an App;

(d)           You request any Products or Services from us through the EF Website;

(e)           You receive any Products or Services from us through the EF Website;

(f)             You sign up for a User Profile and check the checkbox that indicates that you agree to the Exploding Fish Website Terms and Conditions;

(g)           You check any other checkbox that indicates that you agree to the Exploding Fish Website Terms and Conditions;

(h)           You otherwise access the EF Website, including without limitation through a third party website or application, as the case may be.

2.3          This Agreement with automatically end upon the last of each of these circumstances taking effect: you cease to access our Content; you no longer possess any of our Content; and you do not have an active User Profile.

2.4          This Agreement may be suspended or terminated in accordance with clause 13.

  1. Conditions of use

3.1          We may vary these terms and conditions or impose new terms and conditions on your use of the Services or the EF Website at any time, by a notice published on your User Profile or on the EF Website, or otherwise in accordance with your User Profile preferences.

3.2          We may add features or update the Services from time to time. You may be required to agree to additional terms or other requirements in order to use such additional features or Services.

3.3          Nothing in this clause 3 is to be read as limiting our rights in administering the EF Website, or methods that we may use to control the features available to you, or our provision of Services to you, through the EF Website.

3.4          We may contact you by post, phone, sms, or email using the details that you provide to us from time to time.  Without limitation, we may contact you regarding marketing and promotions of our Products and Services (unless you request otherwise); and we may contact you in relation to any order, or in relation to your User Profile.

3.5          We maintain full editorial control of the EF Website, and you authorise us to edit, amend, delete, publish, or unpublish any Content, including any of your Content, at our sole unfettered discretion.

  1. Your obligations

                   Positive obligations

4.1          You must act in accordance with the policies or rules that we publish from time to time that relate to your use of the Services or the EF Website (such as content and publishing, data capture, sale of products and services and delivery, system communication, and merchant and payment processing). All of our rules and policies can be accessed at https://explodingfish.com/policies.

4.2          You must notify us if you believe that your User Profile has been accessed without your authority.

4.3          You must take reasonable measures to prevent any unauthorised person from accessing the EF Website, your User Profile, or any other Services we provide using your User Profile credentials.  You are responsible for any damage caused or fees incurred by any such person(s).

4.4          You must allow us to make changes to your User Profile or Content that we deem necessary.

4.5          You are responsible for the Content, integrity and conduct of your User Profile on the EF Website.

                   Negative obligations

4.6          You must not use your User Profile or the EF Website to upload, transmit, communicate, or record information about any person other than yourself, or Exploding Fish.

4.7          You must not upload or publish any Content that is unlawful, unsuitable for general viewing or consumption, obscene, defamatory, in breach of any advertising standards, or in breach of any person’s privacy or other human rights. 

4.8          You must not:

(a)           reverse engineer, reverse assemble or reverse compile the EF Website or any part of it;

(b)           combine or incorporate the EF Website in any other program or system without our prior consent in writing;

(c)           copy the EF Website, or any Content contained on it belonging to a person other than you, in whole or in part.

  1. Provision of Services through the EF Website

5.1          Our provision of any Services to you through the EF Website is subject to the terms of this Agreement.

  1. Service limitations

6.1          The EF Website is hosted by a third party service provider and we do not guarantee that your access to it will be continuous or error free.  If you have having any difficulties accessing the EF Website or  your User Profile, please check the following hosting status page: https://status.shopify.com/

6.2          The Payment Processor is a third party and we do not guarantee that this service will be continuous or error free.

6.3          We are not responsible for support, back-ups, or disaster recovery, in any way.

  1. Sale and purchase of goods

                   Stock

7.1          We only keep limited stock of our Products, and we may have your products made to order. For any product that is not in stock, the expected lead time relating to products on offer through the EF Website is 6 weeks from the date of our receipt of your payment for the order, unless specified otherwise.  If we cannot deliver your order within 6 weeks, then you may cancel your order by notice in writing and we will issue you with a refund upon receipt of your written order cancellation.

                   Items not in stock

7.2          If you order a Product that is listed as “pre-order”, “back-order” or is otherwise noted as not in stock, then we will contact you about the likely delivery date of your order, once we have updated information from our suppliers, shipping agents, and other supply chain service providers.

                   Shipping

7.3          All our products are delivered by courier or postal service (unless we offer, and you choose another option during checkout).

7.4          The costs of shipping are in addition to the purchase price of any Products or Services that you order from us. 

7.5          Shipping services offered on the EF Website are provided by third parties and do not include insurance (unless noted otherwise) and you are responsible for ordering and purchasing sufficient insurance during the checkout process.  At the time of dispatch of an item in your order, risk in that item passes to you, and we have no further responsibility for it.

7.6          In addition to clause 7.5, we are not responsible for damage to products sustained during delivery.  If you receive a parcel from us that is damaged, please ensure that you have the courier note the damage, and inspect the products before taking delivery of, or signing for them.  If you receive any products from us that are damaged, despite there being no evident damage to the packaging, please contact us immediately at the contact details provided.

                   Warranties

7.7          All of our Products are sold with written warranties.  Please refer to details of the relevant product listing or materials provided with our products for warranty details. To the extent that we publish any of our warranties, they will be available from https://explodingfish.com/warranties.

  1. Payment Processor

8.1          We do not receive or store any credit card information through the EF Website.  All credit card information is processed securely by the Payment Processor.

8.2          If you want to make payments on the EF Website, then you will need to have a separate agreement with the Payment Processor, which is integrated into the EF Website.

8.3          If you do not want to use the Payment Processor to pay for our goods or services through the EF Website, you may request an alternative payment method by contacting us at fishon@explodingfish.com.  Fulfilment of any such request is at our sole discretion, and, we reserve the right to charge an administration fee for any such request.

  1. Reversed transactions

9.1          If the Payment Processor reverses a transaction conducted on the EF Website, then you remain liable to pay for all fees and charges that were included in that transaction. You must also reimburse us for any additional fees and charges incurred by us relating to the reversal of any such transaction.

  1. Right to subcontract

10.1      We may appoint employees, sub-contractors, or agents to provide some or all of the Services; and such entities are bound by the same obligations as us.  It is our responsibility to ensure such entities comply with this Agreement.

  1. Intellectual property

                   Content and Third Party Intellectual Property

11.1      You (or where applicable, the third party owner) retain ownership of all Content you upload to your User Profile and such rights are not assigned or transferred under this Agreement.

11.2      You grant us a perpetual, irrevocable, royalty-free licence to use, copy, modify or adapt the Content as reasonably necessary to perform our rights and obligations under this Agreement, including the right to grant sub-licences where reasonably necessary.

11.3      You warrant that you have full right, title and interest, or the legal right and authority, to grant the licence granted in clause 11.2, and that our use or modification of the Content in accordance with this Agreement will not infringe upon any third party Intellectual Property Rights.

                   EF Website

11.4      We own, or are licensed to use, all components of the EF Website.

                   Grant of licence

11.5      Subject to your continued compliance with these Website Terms and Conditions, for the duration of this Agreement we grant you a licence to use the EF Website as contemplated by these Website Terms and Conditions and any policy published by us from time to time.

  1. Privacy

12.1      We may use your contact details to promote new Services and Product offers to you from us or our affiliates, or to notify you about important changes to the EF Website, subject to our Privacy Policy which is incorporated by reference.

12.2      Our Privacy Policy can be accessed at this link: https://explodingfish.com/privacy.

12.3      We may change the terms of the Privacy Policy form time to time in accordance with this Agreement.  If you do not agree with the changes that we make to the Privacy Policy you may end this Agreement in accordance with clause 13 of this Agreement.  The provisions of the Privacy Policy in force at the time of your written notice will continue to apply until this Agreement is terminated.

  1. Suspension and Termination

                   Suspension

13.1      We may conduct scheduled or mission critical maintenance of the EF Website during which time the Services may be interrupted.  We will give you reasonable notice of such maintenance where possible and make all reasonable efforts to keep any disruption to a minimum.

13.2      We may suspend the Services and disable access to your User Profile at any time and give you a written notice of default if:

(a)           you do not make any payment when due, or any payment is dishonoured or subject to chargeback; or

(b)           we have reason to suspect illegal or unethical activity in relation to your data or Content; or

(c)           in our reasonable opinion your Content, conduct, data, network, software or equipment may cause damage to any person or property; or

(d)           you do not comply with any of the terms and conditions contained within this Agreement, including any of your obligations.

13.3      If we suspend our Services to you, we may notify any Payment Processor in this regard, and you authorise us to receive any information from the Payment Processor about the status of your account, or any outstanding obligations, that you have with them, if any.

                   Termination

13.4      We may terminate this agreement with 30 days written notice.

  1. Consequences of termination

14.1      Upon termination of this Agreement for any reason, in addition to any other rights or remedies:

(a)           we may immediately disable your access to the EF Website and take your User Profile offline;

(b)           your licence to use the EF Website immediately ends;

(c)           we may, but need not, keep all data and Content uploaded by you to the EF Website for our records;

(d)           we may destroy any data and Content uploaded by you to the EF Website;

(e)           we may continue to send you information about our Services, and other marketing information; and

(f)             a Party not in default may pursue any other rights or remedies available at law against a defaulting Party subject to clause 15.

  1. Indemnity & limitation of liability

                   Indemnity

15.1      You agree to release and hold Exploding Fish Pty Ltd  harmless against any action, proceeding, claim, demand or prosecution relating to any downtime, interruption, loss of data, or consequential loss of any kind whatsoever, whether directly or indirectly arising in connection with the Services.

15.2      You release and indemnify, and agree to keep Exploding Fish Pty Ltd indemnified against any action proceeding, claim, demand, or prosecution relating to:

(a)           any breach of your warranties under this Agreement; and

(b)           any loss or damage to persons or property (including data), caused by your Content.

                   Limitation of liability

15.3      Subject to clauses 15.4 and 15.5, any liability of Exploding Fish Pty Ltd for any loss or damage, however caused (including, without limitation, by the negligence of Exploding Fish Pty Ltd), suffered by you in connection with this Agreement is limited to the amounts paid by you to Exploding Fish Pty Ltd in relation to the Products and Services.

15.4      Except as contemplated by clause 15.5, nothing in this Agreement is intended to limit any rights you have under the Competition and Consumer Act 2010 (Cth).

15.5      If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by Exploding Fish Pty Ltd in connection with this Agreement and Exploding Fish Pty Ltd’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clause 15.3 does not apply to that liability and instead Exploding Fish Pty Ltd’s liability for such failure is limited to (at Exploding Fish Pty Ltd’s election):

(a)           in the case of a supply of goods, EF Website replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or

(b)           in the case of a supply of services, Exploding Fish Pty Ltd supplying the services again or paying the cost of having the services supplied again.

15.6      In this clause 15 a reference to consequential losses means any indirect, special, economic, or consequential loss including loss of revenue, profits, goodwill, bargain or opportunities that you suffer in any way, even if we knew or should have known about the possibility of such loss.

  1. General

                   Costs

16.1      You are responsible for all duties, charges and legal fees (on a solicitor and own client basis) incurred in enforcing this Agreement.

                   Currency and Taxation

16.2      Unless otherwise stated, all monetary amounts are expressed in United States of America dollars.

16.3      To the extent that GST applies to any transaction, unless indicated otherwise in the shopping cart, the transaction amount is inclusive of GST.

                   Enduring Clauses

16.4      The Parties’ obligations under Clauses 11, 12, 14, and 15 shall survive the termination of this Agreement for whatever reason.

                   Entire agreement

16.5      This Agreement contains the entire agreement between the Parties and supersedes all previous negotiations or agreements in relation to the Services.

                   Force majeure

16.6      Neither Party is liable for any delay or failure to perform its obligations under this Agreement to the extent that such failure is caused by a Force Majeure Event.  Nothing in this clause excuses payment of money due.

                   Jurisdiction

16.7      The laws of the State of Queensland apply to this Agreement; and the parties submit exclusively to the courts of that jurisdiction.

                   Relationship between the Parties

16.8      Nothing in this Agreement constitutes a partnership or contract of employment. It is the express intention of the parties to deny any such relationship.

                   Representatives, Successors and Assigns

16.9      You must not assign or novate this Agreement in whole or in part.

16.10  We may assign or novate this Agreement in whole or part at our sole discretion.

                   Severability

16.11  If any provision of this Agreement is ruled by a court to be illegal, invalid, unenforceable or in conflict with any law, it will not affect the validity and enforceability of the remaining provisions.

                   Waiver

16.12  Any delay or failure to enforce any rights in relation to a breach by the other Party will not be construed as a waiver of those rights.

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