Terms + Conditions
Within Creations Website & Social Media Terms and Conditions
Welcome to the Within Creations Website (www.withincreations.com) and the Within Creations Social Media pages (@within.creations). These Terms and Conditions, which include our Privacy Policy and any other documents referred to herein (available on our Website), govern your use of our Website, Social Media and services (Terms).
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTROL THE WAY YOU CAN AND MUST NOT USE OUR WEBSITE AND SOCIAL MEDIA. THESE TERMS ALSO DESCRIBE THE PROMISES YOU MAKE TO US ABOUT YOUR USE OF OUR WEBSITE AND SOCIAL MEDIA. AMONG OTHER THINGS, THESE TERMS SET OUT LIMITATIONS OF LIABILITY AND THE WAY YOU OR WE CAN TERMINATE THIS AGREEMENT.
1 Definitions
1.1 Certain terms in these Terms start with capital letters. Unless the context provides otherwise, those words have the meaning given to them in the body of these Terms.
2 Acceptance of Terms and Conditions
2.1 The Within Creations Website and Social Media pages are owned and operated by Kayla Arabena-Byrnes trading as Within Creations ABN 67 367 540 936 (“Within Creations, we, our or us”). By accessing and/or using our Website or Social Media, you agree to bound by these Terms.
2.2 Use of our Website and Social Media is entirely at your own risk. You must only use the Website and Social Media in accordance with these Terms and any applicable law. You should immediately cease using our Website and Social Media if you do not agree to these Terms.
2.3 These Terms also govern updates, upgrades and new and amended versions of the Website and Social Media, unless such versions are accompanied by new terms for use, which will govern those versions.
3 Contact Us
3.1 You can contact us via our Website and Social Media or by contacting:
@within.creations
(www.withincreations.com)
(kayla.arabenabyrnes@gmail.com).
4 Orders and Registration
4.1 You do not need to register an account on our Website to place orders or access our products, however, you may be required to register an account to access certain features of our Website and Social Media, including but not limited to updates, promotional material and other information from us.
4.2 When you place an order with us, you will provide us with personal information such as your name, residential address, postal address, telephone number and email address. You must ensure that this information is accurate and current. We will handle all personal information we collect in accordance with our Privacy Policy.
4.3 To place an order with us, you must be:
a) at least 14 years of age;
b) possess the legal right and ability to enter into a legally binding agreement with us; and
c) agree and warrant to use the Website and Social Media in accordance with these Terms.
4.4 If you are 14 or older but under the age of 18, you represent that you have reviewed these Terms with your parent or legal guardian to make sure that you and your parent or legal guardian understand these Terms. If you are a parent or guardian permitting a person under the age of 18 (a Minor) to place an order with us, you agree to:
a) exercise supervision over the Minor's use of our Website, Social Media and any orders placed with us;
b) assume all risks associated with the Minor's use of our Website, Social Media and their orders placed with us, including the transmission of content or information to and from third parties via the internet;
c) ensure that the content and information that the Minor may encounter on our Website and Social Media are suitable for the Minor;
d) assume liabilities resulting from the Minor's use of our Website, Social Media and their orders placed with us;
e) ensure the accuracy and truthfulness of all information submitted by the Minor; and
f) provide the consents contained in these Terms on behalf of the Minor.
4.5 We may ask you to confirm that you have your parent's or guardian's permission and that they have agreed to these Terms on your behalf, and, even if we do not do this, we will assume that this is the case and will provide access to our Website, Social Media and/or accept the orders placed with us on this basis.
4.6 You must not place orders with us on behalf of another person without their express permission.
5 Collection Notice
5.1 We collect personal information about you in order to process your registration and orders, provide you with our products, respond to your enquiries, provide you with details of updates, promotional material and other information relevant to our products and services, and for purposes otherwise set out in our Privacy Policy.
5.2 We may disclose that information to third parties that help us deliver our products and services (including information technology suppliers, service providers, online payment suppliers, communication suppliers and our business partners) or as required by law. If you do not provide this information, we may not be able to provide all of our products or services to you.
5.3 We may also disclose your personal information to recipients that are located outside of Australia, including to our manufacturers, third-party suppliers, postal companies and other business partners.
5.4 Our Privacy Policy explains: (i) how we store and use, and how you may access and correct your personal information; (ii) how you can lodge a complaint regarding the handling of your personal information; and (iii) how we will handle any complaint. If you would like any further information about our Privacy Policy, please contact us (see the ‘Contact Us’ section above for our contact information).
5.5 By providing your personal information to us, you consent to the collection, use, storage and disclosure of that information as described in our Privacy Policy and these Terms.
5.6 Subject to our Privacy Policy, if we do not disclose your personal identity in doing so, we can collect, copy, communicate, adapt and exploit data from your use of the Website and Social Media (and, for the avoidance of doubt, associated Third Party Material) and associated devices, systems, software and peripherals, to improve our products and delivery of our services to you.
6 Accuracy, completeness and timeliness of information
6.1 The information on our Website and Social Media is not comprehensive and is intended to provide a summary of the subject matter covered. While we use all reasonable attempts to ensure the accuracy and completeness of the information on our Website and Social Media, to the extent permitted by law, including the Australian Consumer Law, we make no warranty regarding the information on our Website or Social Media. You should monitor any changes to the information contained on our Website and Social Media.
6.2 We are not liable to you or anyone else if interference with or damage to your computer systems occurs in connection with the use of our Website, Social Media or a linked website. You must take your own precautions to ensure that whatever you select for your use from our Website or Social Media is free of viruses or anything else (such as worms or Trojan horses) that may interfere with or damage the operations of your computer systems.
6.3 We may, from time to time and without notice, change or add to the Website and Social Media (including the Terms) or the information, products or services described in it. However, we do not undertake to keep the Website or Social Media updated. We are not liable to you or anyone else if errors occur in the information on the Website or Social Media or if that information is not up-to-date.
6.4 Due to photographic and screen limitations associated with the representation of products, some actual products (including in particular clothing, apparel and shoes) may differ to a small extent in visual appearance (for example, in colour) from the way they appear on the Website or Social Media. In addition, where it is suitable to do so, some depictions of products are created or chosen by use for promotional purposes and may not be an exact representation of the products received.
7 Purchases
7.1 When making an order, you must follow the instructions on the Website as to how to make your order and for making changes to your order before you submit it to us. We require payment by bank deposit.
7.2 In the event that we offer secure online payment services, including PayPal and Stripe, you acknowledge that payments made using these online payment services will be subject to the terms & conditions of the service providers and you should review their terms & conditions carefully before submitting your order.
7.3 Once you select a product that you wish to order, irrespective of any previous price you have seen or heard, you will then be shown or told (on the Website) the price you must pay including goods and services tax (GST) and any other charges.
7.4 Unless otherwise stated all charges are in Australian (AUD) dollars.
7.5 You must pay for the order in full at the time of ordering by one of the payment methods we provide on our Website or Social Media. You must be entitled to use the payment method or account used for purchases. The payment method or account must have sufficient funds or credit facilities to cover the purchase. We reserve the right to obtain validation of your payment details before providing you with the product and carry out security checks from time to time.
7.6 If you discover you have made a mistake with your order after you have submitted it to the Website, please contact customer service immediately. However, we cannot guarantee that we will be able to amend your order in accordance with your instructions.
7.7 When you place an order, you will receive a confirmation of order email from us. This email will only be an acknowledgment and will not constitute acceptance of your order until you receive a shipment confirmation email from us.
7.8 We may in our absolute discretion refuse to accept an order from you for any reason, including without limitation, due to unavailability of stock or we suspect that you may on-sell our products to other consumers.
7.9 Until the time we accept your order, we reserve the right to refuse to process your order and you have the right to cancel your order. If we or you have cancelled your order before it accepted, we will promptly refund any payment already made by you to your original payment method.
8 Commissioned Works
8.1 Where you wish to commission a custom artwork (Commissioned Work), you must contact us via the Website. We will liaise with you to confirm the details of your request (the Brief). We may ask you to pay a deposit.
8.2 We will create the Custom Work in accordance with the Brief.
8.3 During the creation stage of the Commissioned Work, we will deliver a photograph of the Commissioned Work to you via email. You must, by notice in writing:
(a) accept the Commissioned Work; or
(b) request minor changes to the Commissioned Work within seven (7) days.
8.4 You may not request a change that would cause the Commissioned Work to be substantially different from the Brief.
8.5 Where you request changes to the Commissioned Work:
(a) we will notify you, in writing, of:
(i) whether we agree to make the requested changes, or whether there are any requested changes which cannot be incorporated; and
(ii) the time it will take to make the requested changes to the Commissioned Work,
(b) we will make the changes to the Commissioned Work; and
(c) we will deliver a photograph of the changes to the Commissioned Work via email once the changes are completed, and you will notify us in writing your acceptance of the changes.
8.6 Once the Commissioned Work is accepted in writing by you, we will deliver the Commissioned Work to you.
9 Delivery
9.1 We aim to deliver products to you at the place of delivery requested by you within the time indicated by us once you place an order, however we cannot guarantee any firm delivery dates.
9.2 We will try to let you know if we expect to be unable to meet our estimated delivery dates, but, to the extent permitted by law, we will not be liable to you for any loss, liability, costs, damages, charges or expenses arising from late delivery of your order.
9.3 You must ensure that you are able to take delivery of the order without undue delay and at any time reasonably specified by us. If you are not, Australia Post or our couriers may leave a card giving you instructions on either re-delivery of collection from the carrier. If delivery or collection is delayed through your unreasonable refusal to accept delivery or if you do not accept delivery or collect the order from the carrier within the timeframe specified by Australia Post or our courier (but no later than 2 weeks from our first attempt to deliver the order to you), then we may (without affecting any other right or remedy available to us) do either or both of the following:
a) charge you for our reasonable storage fee and other costs reasonably incurred by us; or
b) no longer make the product available for delivery or collection and notify you that we are cancelling the applicable order, in which case we will refund to your original payment method any money paid to us, less our reasonable administration charges (including for attempting to deliver and then returning the order and any storage fees as provided for above).
9.4 Please be aware that it may not be possible to deliver to some locations. If this is the case, we will inform you using the contact details that you provide to us when you make your order and arrange for cancellation of the order or delivery to an alternative delivery address.
9.5 All risk in the product will pass to you upon delivery of the order. From the time when risk passes to you, we will not be liable for loss or destruction of the product.
9.6 You must take care when opening the order so as not to damage the product, particularly when using any sharp instruments. We will not take responsibility for any damage to the product made by you.
10 Shipping information
10.1 Locations: We deliver our standard and express parcels to any Australian address including PO Boxes via Australia Post.
10.2 Cost: We use Australia Post for our deliveries. The price for standard delivery is included the price of the item and express deliveries incur a fee of $10.00, unless otherwise stated at the point of sale.
10.3 Tracking: Standard and express parcels are able to be tracked via the Australia Post website. You will be sent a dispatch confirmation email including tracking number and instruction once your parcel leaves our warehouse. If your parcel hasn’t arrived, please also check with your local post office as it may be waiting for collection. Parcels are taken to the nearest post office if a signature cannot be obtained on delivery.
10.4 Conditions of delivery: We deliver our Standard and Express parcels via Australia Post. A signature is required on all deliveries and therefore someone must be present to accept the parcel. If not, Australia Post will leave a collection note and the parcel will be taken to the nearest post office for later collection by you.
11 Cancellation
11.1 We may terminate an order if the product is not available for any reason. We will notify you of this is the case and refund any payment that you have made using your original payment method.
11.2 If you wish to cancel an order, please contact us (see the ‘Contact Us’ section above for our contact information). No cancellation fees will apply. Once an order has been processed it cannot be cancelled and the item must instead be returned to us in accordance with our returns policy (see below).
12 Faulty Product Returns
12.1 We aim to provide you with products of the highest standard and quality. If you have received a product with a defect, please contact us as soon as possible so we can guide you through the returns process and help resolve the problem as swiftly as possible (see the ‘Contact Us’ section above for our contact information). In order to assist the returns process, you may be required to send us images of the damage, defect or fault for preliminary assessment.
12.2 If the product is confirmed to have a defect, we will replace the product or refund you the price of the product to your original payment method at your request. If the product is found not to have a defect or deemed out of warranty, we will ship the product back to you.
12.3 It does not constitute a defect if, in our reasonable opinion, the product has, following the sale to you, become of unacceptable quality due to fair wear and tear, misuse, failure to use in accordance with the manufacturers’ instructions, using in an abnormal way or failure to take reasonable care.
13 Intellectual property rights
13.1 Unless otherwise indicated, we own or license from third parties all rights, title and interest (including copyright, designs, patents, trademarks and other intellectual property rights) in our Website and Social Media, and in all of the material (including all text, graphics, logos, audio and software) made available on our Website and Social Media (Content).
13.2 Your use of our Website and Social Media, and use of and access to any Content, does not grant or transfer any rights, title or interest to you in relation to our Website, Social Media or the Content.
13.3 However, we do grant you a licence to access the Website and Social Media and view the Content on the terms and conditions set out in these Terms and, where applicable, as expressly authorised by us and/or our third-party licensors.
13.4 Any reproduction or redistribution of our Website, Social Media pages or the Content, in whole or in part, is prohibited and may result in civil and criminal penalties. In addition, you must not copy the Content to any other server, location or support for publication, reproduction or distribution is expressly prohibited.
13.5 All other use, copying or reproduction of our Website, Social Media pages, the Content or any part of it is prohibited, except to the extent permitted by law. However, you are permitted to make one copy of Website or Social Media pages for the purpose of viewing the Content for your own personal use.
13.6 We own all rights, title and interest (including copyright) in the products you buy from us. All artworks are original works by Kayla Arabena-Byrnes. You may not make copies of or use the products in a commercial context without permission from us.
14 No commercial use
14.1 Our Website and Social Media is for your personal, non-commercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, commercially exploit, create derivative works from, transfer, or sell any Content, software, products or services contained within our Website or Social Media pages. You may not use our Website or Social Media, or any of its Content, to further any commercial purpose, including any advertising or advertising revenue generation activity on your own Website or Social Media.
15 Third Party Material
15.1 The Website and Social Media may make available Content, data, information, applications, services, websites and materials from third parties (Third Party Material). We do not make any representation about, nor do we evaluate or examine Third Party Material, whether for usefulness for purpose, accuracy, completeness, legal compliance, availability or otherwise.
15.2 You use and access Third Party Material at your own risk. We may remove, suspend access to, change or otherwise deal with Third Party Material at any time, for any period and to any extent, without notice to you and without any liability or obligation to you. The owners or controllers of Third Party Material may do the same.
16 Linked sites
16.1 Our Website or Social Media may contain links to websites or social media operated by third parties. Those links are provided for convenience and may not remain current or be maintained. Unless expressly stated otherwise, we do not endorse and are not responsible for the content on those linked websites or social media and have no control over or rights in those linked websites or social media.
17 Unacceptable activity
17.1 You must not do or attempt to do any act that we would deem to be inappropriate, is unlawful or is prohibited by any laws applicable to our Website or Social Media, including but not limited to:
a) any act that would constitute a breach of either the privacy (including uploading private or personal information without an individual's consent) or any other of the legal rights of individuals;
b) using our Website or Social Media to defame or libel us, our employees, agents, contractors or other individuals;
c) linking to our Website or Social Media in a way that damages or takes advantage of our reputation, including in a way to suggest or imply that you have any kind of association or affiliation with us, or approval and endorsement from us when there is none, or in a way that is illegal or unfair;
d) uploading files that consist of malicious computer program, including programs that include viruses, Trojan horses, worms or any other computer programming that may damage, modify, delete, detrimentally interfere with, access without authority or expropriate any system, data or personal information; that may cause damage to our property or the property of other individuals (Malicious Computer Program);
e) interfering with security-related or other features of our Website or Social Media;
f) interfering or disrupting our Website or Social Media or the servers or networks that host our Website or Social Media;
g) using data mining, robots, screen scraping or similar data gathering and extraction tools on our Website or Social Media;
h) posting or transmitting to our Website or Social Media any non-authorised material including, but not limited to, material that is, in our opinion, likely to cause annoyance, or which is defamatory, racist, obscene, threatening, pornographic or otherwise or which is detrimental to or in violation of our systems or a third party's systems or network security;
17.2 If we allow you to post any information to our Website or Social Media, we have the right to take down this information at our sole discretion and without notice.
18 Warranties and disclaimers
18.1 The Website, Social Media and Content is provided ‘as is’ and to the maximum extent permitted by law, including the Australian Consumer Law, we make no express or implied warranties or representations, and disclaim all responsibility, that:
a) the Website, Social Media or the Content will be complete, accurate or up-to-date;
b) the Website, Social Media or the Content are of a merchantable quality or fit for a particular purpose;
c) access to the Website, Social Media or the Content will be uninterrupted or error-free or free from Malicious Computer Program; or
d) the Website, Social Media or the Content will be secure.
18.2 We do not warrant that the products will meet your individual requirements and you acknowledge that the products are standard and not made bespoke to fit any particular requirements of yours.
18.3 We reserve the right to restrict, suspend or terminate without notice your access to the Website, Social Media or any Content, or any feature of the Website or Social Media, at any time without notice and we will not be responsible for any loss, cost, damage or liability that may arise as a result.
19 Limitation of Liability
IN AUSTRALIA, OUR GOODS AND SERVICES COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. NOTHING IN THESE TERMS AND CONDITIONS PURPORTS TO MODIFY OR EXCLUDE THE CONDITIONS, WARRANTIES AND UNDERTAKINGS, AND OTHER LEGAL RIGHTS, UNDER THE AUSTRALIAN COMPETITION AND CONSUMER ACT AND OTHER LAWS. ANY AND ALL OTHER WARRANTIES OR CONDITIONS WHICH ARE NOT GUARANTEED BY THE AUSTRALIAN CONSUMER LAW OR THE COMPETITION AND CONSUMER REGULATION 2010 ARE EXPRESSLY EXCLUDED WHERE PERMITTED, INCLUDING LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION.
19.1 To the maximum extent permitted by law, including the Australian Consumer Law, in no event will we (including us, our affiliates, our third-party suppliers, or any officer, director, employee, sub-contractor, agent, body corporate or successor) be liable for any direct or indirect loss, liability, costs, damages, charges or expenses – irrespective of the manner in which it occurs – which may be suffered as a result of:
a) your use of our Website, Social Media, Content and/or any other information or materials contained on the Website or Social Media;
b) the unavailability, inaccessibility or interruption of usage of the Website or Social Media;
c) Content, information or materials contained on the Website or Social Media being incorrect, incomplete or not up-to-date;
d) Content, information or materials provided to you free-of-charge;
e) any delay or failure in performance beyond the reasonable control of us;
f) loss of data; or
g) products not being sufficient for your purposes or not meeting your individual requirements.
19.2 To the maximum extent permitted by law, we are not responsible for any indirect, special or consequential liability to a customer or user (including legal fees) arising out of or from Content or use of the Website and Social Media.
19.3 To the extent we cannot exclude liability and to the fullest extent permitted by law, our aggregate liability for negligence, breach of contract or under any legislation is limited, at our discretion, to:
a) in the case of goods, any one or more of the following:
i. replacement of the goods or supply of equivalent goods;
ii. repair of the goods;
iii. payment of costs of replacing the goods or acquiring equivalent goods; or
iv. payment of costs of repairing goods; and
b) in the case of services:
i. supply of the services again; or
ii. payment of the cost of supplying the services again.
19.4 Nothing in these Terms will exclude or limit your statutory rights as a consumer or our liability for:
a) fraud;
b) death or personal injury caused by our negligence;
c) any breach of the obligations implied by law; or
d) any other liability which cannot be excluded or limited by applicable law.
20 Indemnity
20.1 You agree to indemnify and hold us, our affiliates, third-party suppliers, and any officer, director, employee, sub-contractor, agent, body corporate or successor, harmless from and against any and all claims, demands, proceedings, losses and damages (actual, special or consequential) of every kind and nature, known and unknown, including reasonable legal fees, due to or arising out of:
a) your breach of these Website & Social Media Terms and Conditions; or
b) your breach of any law or the rights of a third party.
21 Cookies Policy
21.1 You agree that:
a) we may store cookies on your devices; and
b) we may issue and request cookies from your device to collect both personal and non-personal information.
21.2 You may disable cookies on your browser if you do not agree to this cookies policy.
21.3 We use cookies for the following reasons, including but not limited to:
a) improve our performance by reporting any errors that occur;
b) provide statistics about how the Website and Social Media is used;
c) remember settings that you use for our Website and Social Media;
d) identify and show that you are logged into the Website and Social Media;
e) link to social networks like Facebook and Twitter;
f) provide more suitable ads tailored to you.
22 Breach if these Terms
22.1 If you breach any of these Terms, we may take appropriate actions, including but not limited to:
a) issuing a warning notice;
b) suspending your access to the Website and Social Media;
c) prohibiting your access to the Website and Social Media.
23 Termination
23.1 These Terms automatically terminate if we cease to operate the Website and Social Media.
24 Dispute resolution
24.1 In the event of any dispute under these Terms, the parties agree to negotiate in good faith to resolve the dispute prior to bringing any court proceedings. Any dispute or difference whatsoever arising out of or in connection with these Terms which cannot be resolved by the parties will be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediation Australia mediation and conciliation rules.
25 General
25.1 Entire Agreement: these Terms embody the whole agreement of the parties relating to the subject matter of these Terms and supersedes all previous agreements in respect of your usage of our Website and Social Media.
25.2 Amendment: We reserve the right to make changes to the Website and Social Media and these Terms at any time without notice. All amendments will be posted on our Website. Continued use of the Website and Social Media will be deemed to constitute acceptance of the new Terms.
25.3 Assignment: You may not assign or delegate or otherwise deal with all or any of your rights or obligations under these Terms. We have the right to assign or otherwise delegate all or any of our rights or obligations under these Terms to any third-party.
25.4 No waiver: No waiver by us of any default of yours under these Terms will operate or be construed as a waiver by us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by us to you will in any way release, discharge or otherwise affect your liability under these Terms.
25.5 Notices: Unless otherwise stated within these Terms, notices to be given to either party will be in writing and delivered by electronic mail at the email address you supplied to us or to use at our office.
25.6 Third party rights: All provisions of these Terms apply equally to and are for the benefit of us, our affiliates, third-party suppliers, and our and their officers, directors, employees, sub-contractors, agents, body corporates or successors, and each will have the right to asset and enforce such provisions directly or on its own behalf (save that these Terms may be varied or rescinded without the consent of those parties).
25.7 Severability: If any provision of these Terms is held to be unlawful, invalid or unenforceable, that provision will be deemed severed and where capable the validity and enforceability of the remaining provisions of these Terms will not be affected.
25.8 Governing law: Your use of the Website and Social Media and these Terms are governed by the law of Queensland, Australia and you submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Queensland.