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Terms and Conditions

 

Please carefully read the terms and conditions set out below. They state:

(a) how you may use the Formist Publishers website (the “Site”), operated by Mark Gowing Studio Pty Ltd (ABN 93 084 639 585), trading as Formist (“Formist”); and

(b) our limitations of liability.

 

1. Terms and Conditions

1.1 These terms and conditions (the “Terms”) govern your use of the Site, including

(a) your access to and use of the Site; and

(b) your uploading and/or downloading of any materials to or from the Site.

1.2 By using our Site, you confirm that you agree to comply with the Terms. If you do not agree to be bound by these Terms, please do not use the Site.

1.3 These Terms do not apply to products and/or services purchased from, on or via the Site. Sales of such products and services are governed by separate Terms of Sale (below).

 

2. Changes to the Terms

2.1 We may update these Terms from time to time. Amendments to the Terms will be effective from the date the revised Terms are made available on this page. You are responsible for checking for each amended set of terms. To make this easier, each version will be dated with the date on which it commences.

 

3. Licence

3.1 You may view, download and/or print material from this Site for your personal use only or, (if you are in an organisation) for the purpose of assessing whether or not to purchase a product or service from us.

3.2 For clarity, the licence in clause 3.1:

(a) is non-exclusive and non-transferable; and

(b) does not extend to any use covered by Part VB or section 183 of theCopyright Act 1968 (Cth) (instead, to the extent that those provisions are available to you, you may rely on them to use material on this Site).

 

4. The Site

4.1 We retain and reserve all right, title and interest (including copyright) in the Site and in all components and elements of the Site.

4.2 We may change the Site (including by removing or adding content, links and other URLs) and make the Site inaccessible, or modify, discontinue or upgrade the Site at our discretion, without notice and without liability to you or anyone else.

4.3 The content on the Site is provided for general information only and is offered on an “as is” basis. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of the Site.

4.4 You are responsible for:

(a) making all arrangements (such as for software, hardware and internet connectivity) that may be necessary to gain access to the Site (when available) or any content on it;

(b) making all arrangement to protect your software, hardware and internet connectivity from any bug or virus by using your own virus protection software; and

(c) ensuring that all persons who access the Site through your internet connection are both aware of these Terms and comply with them.

4.5 If we enable you to post material on the Site (such as photos and/or comments):

(a) you agree only to post material which you own or control and which does not infringe the rights of others and which does not breach any laws;

(b) you grant us an exclusive, world-wide, perpetual, irrevocable, sub-licensable, transferable licence to use, reproduce, adapt, publicly perform and communicate to the public that material, including by any and all means and media (whether now known or existing in the future);

(c) you promise that you have the right to grant such a licence and you promise that our use of the material in accordance with that licence will not infringe the rights of any person;

(d) you agree that we will not be responsible or liable to any third party for the content or accuracy of any content posted by you or any other user of our Site;

(e) you agree not to take any action against us based on or in any way related to content you or some other person posting material to the Site has uploaded or otherwise made available;

(f) you acknowledge that in exercising any rights granted by you to us under this clause we are not required to attribute you as the author of material, we may attribute others as the author of it and that the material will be considered non-confidential and non-proprietary; and

(g) at our complete discretion (for any or no reason) we may delete, edit, change or deal with all or any part of that material in any manner (including for promotional purposes).

4.6 We have the right at any time to disable any user identification code or password (whether chosen by you or allocated by us) of in our reasonable opinion you have failed to comply with any of the provisions of the Terms.

4.7 Where the Site contains links to other sites and resources provided by third parties, these are provided for your information only, and you acknowledge that we have no control over the content of those sites or resources.

4.8 If you use the Site in breach of the Terms, your right to access and use the Site will immediately cease.

 

5. Further Promises and Indemnities

5.1 Except as expressly permitted by law, or as expressly authorised by us in writing, you agree not to:

(a) reproduce or communicate to the public any of the materials available on the Site other than in accordance with these Terms;

(b) modify any materials you print, copy or download from the Site;

(c)     reverse engineer, access the source code of, or otherwise deal with the Site without our express written permission;

(d)     use any device, software or routine to interfere or attempt to interfere with the proper working of the Site (including by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful);

(e)     attempt to gain unauthorised access to the Site, the server or servers on which the Site is stored or any server, computer or database connected to the Site;

(f)     attack the Site via a denial-of-service attack or distributed denial of service attack;

(g) remove any copyright notice or metadata from the Site;

(h) systematically download material from the Site in aggregate quantities to store it for uses other than permitted under clause 3.1;

(i) take any action which imposes an unreasonable or disproportionately large load on the Site or our infrastructure;

(j) use any part of the content of the Site for commercial purposes; or

(k) disclose to or share with any person or entity any password or log-in details with which we may provide you, or use your password or log-in details for any unauthorised purpose.

5.2 You agree to:

(a) comply with all relevant laws relating to the use of the Site and relating to any product or service you purchase or otherwise acquire from us;

(b) promptly notify us at hello@formistpublishers.com if you know or suspect that any person not authorised by us knows any user identification code or password we have allocated to you or that you have chosen to use in relation to the Site and/or our products or services; and

(c) indemnify us against any and all liability, loss, damage, cost or expense, caused by any breach by you of any provision of these Terms.

5.3 You warrant that any account or personal information you provide is accurate.

5.4 By continuing to use the Site, you agree to us installing cookies. If you do not agree to us installing cookies, you should look to amend your browser preferences accordingly, and also expect that not all features of the Site will work optimally for you.

 

6. Our liability is limited

6.1 Unless expressly stated otherwise, we make no warranties, express or implied, in relation to the Site or the services supplied through this Site, including but not limited to warranties of accuracy, reliability, merchantability or fitness for a particular purpose.

6.2 We do not make any warranties that the Site will be available, complete, up-to-date, uninterrupted or free from errors, omissions, bugs or viruses.

6.3 To the maximum extent permitted by law and save as expressly stated in these Terms, all other express or implied terms, conditions, warranties, statements, assurances and representations in relation to the sites and/or any content on the Site arising from these Terms are expressly excluded.

6.4 If any of the exclusions or limitations set out in this clause are declared illegal or void or if there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by these Terms, then, to the extent permitted by law, our entire liability and your exclusive remedy is limited to, at our discretion, the replacement of any applicable goods or service, or the supply of equivalent goods or an equivalent service.

6.5 In no event will we (including our agents, employees or contractors) be liable for any direct, indirect or consequential loss (even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable), including, but not limited to, loss of profits, production, data, opportunity or goodwill; or business interruption, however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of our performance or non-performance of these Terms and including any such loss:

(a) caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Site or to your downloading of any content on it or on any Sites linked to them; or

(b) that may arise from your use of Sites to which our Site links (such links not to be interpreted as endorsement by us of those linked Sites or of any goods or services offered on or through them).

6.6 To the maximum extent permitted by law, our maximum cumulative liability under these Terms will not exceed an amount greater than the income we have received from you in the last 3 months.

 

7. General

7.1 Any failure by us to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.

7.2 These Terms contain the entire agreement between you and us relating to the Site and supersedes any prior agreement. The validity, construction, breach and operation of these Terms shall be governed by the laws of and shall be adjudicated in the State of New South Wales.

7.3 If any provision of these Terms is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.

7.4 In the interpretation of these Terms, unless the context otherwise requires:

(a) words and phrases defined in the Copyright Act 1968 (Commonwealth) have the corresponding meaning;

(b) clause headings shall be disregarded; and

(c) words importing the singular include the plural and vice versa.

7.5 Neither these Terms nor your use of the Site create any agency, partnership or employee/employer relationship between you and Formist Publishers.

7.6 Any notices required or able to be given by us under this Agreement may be given by email to any email address you provide to us. Any notices required or able to be given by you may be sent to hello@formist.co.


 

Terms of Sale

This page sets out the terms and conditions (Terms) on which Mark Gowing Studio Pty Ltd (ABN 93 084 639 583) trading as Formist (“Formist”) supplies products (“Products”), including through its Site.

Please read these Terms carefully and make sure you understand them before ordering Products from us. You should retain a copy of these Terms for future reference, but note that we may amend these Terms from time to time, so every time you order Products, please check the Terms.

 

1. Our Products

1.1 Images of Products on the Site are for illustrative purposes only. In particular, we cannot guarantee that your computer accurately displays colours, and the Products you order may vary slightly from those images.

1.2 All Products shown on the Site are subject to availability.

 

2. Restrictions on sales and on use of Products

2.1 By placing an order for a Product, you warrant that you are legally entitled to purchase that Product, and you acknowledge that if you are not (for example, because age restrictions apply to a particular Product), we do not authorise you to order these Products.

2.2 Any Product you purchase from us must not, by way of trade, be rented out or resold, or offered for rent or commercial resale.

 

3. Limitation of liability

3.1 To the maximum extent permitted by law and save for the express written terms in these Terms, all other express or implied terms, conditions, warranties, statements, assurances and representations in relation to the Products or arising from these Terms are expressly excluded.

3.2 If any of the exclusions or limitations set out in this clause 4 are declared illegal or void or if there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by these Terms, then, to the extent permitted by law, our entire liability and your exclusive remedy is limited to, at our discretion, the replacement of the Products or the supply of equivalent Products.

3.3 In no event will we (including our agents, employees or contractors) be liable for any: (a) direct loss; or (b) indirect or consequential loss (even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable), (including, but not limited to, loss of profits, production, data, opportunity or goodwill; or business interruption) however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of our performance or non-performance of this agreement.

3.4 To the maximum extent permitted by law, our maximum cumulative liability under these Terms shall not exceed an amount greater than the income we have received from you in the last 3 months.

 

4. Buying on behalf of an organisation

4.1 You confirm that you have authority to bind any business or other organisation on whose behalf you purchase Products.

 

5. How the contract is formed between you and us

5.1 After you place an order, you will receive an e-mail from us acknowledging your order (“Confirmation”). The agreement between us will not be formed until we send you the Confirmation.

5.2 If we cannot supply you with a Product – for example because that Product is not in stock or is no longer available or because of an error in the price on the Site – we will inform you of this by e-mail and will not process your order. If you have already paid for the Products, we will refund you the full amount as soon as possible.

 

6. Your right of return and refund

6.1 Subject to your rights under the Australian Consumer Law and related State and Territory legislation, once we have accepted your order by sending you the Confirmation, you may not cancel that order or ask for a refund.

6.2 If you believe you are entitled to return a Product or to request a refund, please email us at hello@formist.co.

6.3 Any refund will be made on the credit card or debit card used by you to pay for your order.

 

7. Delivery and title

7.1 Delivery will be complete when we deliver your order to the address you give us during the ordering process.

7.2 We will not be responsible for any loss, damage or injury you may directly or indirectly suffer as a result of or in connection with any delay or failure to deliver an order within any indicated time-frames.

7.3 You are responsible for providing us with a sufficient delivery address. If a Product is found to have been misaddressed by us, we will be responsible for re-delivery, replacement or a refund but if you have given an incorrect or insufficient address, we will not refund or resend the Product and you will bear all responsibility for correcting delivery.

7.4 Any Products will be your responsibility once they are delivered to you but you will only own Products delivered to you once we have received payment in full, including all applicable delivery charges.

 

8. Prices

8.1 The prices of Products are as quoted on the Site from time to time.

8.2 We take all reasonable care to ensure the prices of Products are correctly displayed, but it is always possible that, despite our best efforts, some Products may be incorrectly priced. We will normally check prices as part of our despatch procedures so that:

(a) where the Product’s correct price is less than the price stated on the Site, we will charge the lower amount when despatching Products to you; and

(b) if the Product’s correct price is higher than the price stated on the Site, we will:

(i) contact you in writing as soon as possible to inform you of this error; and

(ii) give you the option of continuing to purchase the Product at the correct price or cancelling your order; but

(iii) not process your order until we have your instructions (and if we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing).

8.3 Prices for our Products may change from time to time, but changes will not affect any order confirmed with a Confirmation.

8.4 Any special deals or offers will only be valid for as long as they are displayed on the Site, unless stated otherwise.

8.5 The price of a Product includes GST (where applicable) at the applicable rate chargeable in Australia for the time being. However, if the rate of GST changes between the date of your order and the date of delivery, we will adjust the GST you pay, unless you have already paid for the Products in full before the change in GST takes effect.

 

9. Postage and handling

9.1 Postage and handling costs are in addition to the cost stated for Products and will be stated on checkout before you place an order.

9.2 If you order Products for international delivery, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and cannot predict their amount. You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your order.

9.3 You must comply with all applicable laws and regulations of the country for which the Products are destined.  We will not be liable or responsible if you break any such law.

 

10. How to pay

10.1 You may only pay for Products through Visa Card, Master Card, American Express or PayPal (including by using Visa, MasterCard, Amex and Discover credit cards). All payment processing is performed by Shopify or PayPal.

10.2 Payment for Products and all applicable delivery charges is in advance.

 

11. Events outside our control

11.1 To the maximum extent permitted by law, we will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations caused by any act or event beyond our reasonable control (including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war – whether declared or not – or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport).

11.2 If an event covered by clause 11.1 takes place that affects the performance of our obligations to you:

(a) we will contact you as soon as reasonably possible;

(b) our obligations will be suspended and the time for performance of our obligations will be extended for the duration of the event; and (where the event affects our delivery of Products to you)

(c) we will arrange for delivery after the event is over.

11.3 We use reasonable endeavours to ensure that the Site and any transactions conducted on them are secure. However, you acknowledge that the security of information and payments transmitted via the internet can never be entirely secure or error free, and that (to the maximum extent permitted by law) we will not be liable for any damage suffered due to failure, delay, interception or manipulation of electronic communications by any third party on any computer program (including those used to transmit viruses).

 

12. Other important terms

12.1 We may transfer our rights and obligations to you to another organisation, but this will not affect your rights or our obligations under these Terms.

12.2 You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.

12.3 Each of the paragraphs of these Terms operates separately. If any are found to be unlawful or unenforceable, those paragraphs will be severed and the remaining paragraphs will remain in full force and effect.

12.4 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

12.5 These Terms are governed by the law in force in New South Wales, and any dispute or claim arising out of or in connection with them or a Product will be governed by New South Wales law. You and we both agree to that the courts of New South Wales will have jurisdiction over any such dispute or claim.