1.1. This internet website ('site') is owned and operated by SMOKIN'HOT, ABN: 39 155 022 309, ('SMOKIN'HOT'). The following provisions set out the terms and conditions ('TERMS & CONDITIONS') under which any person accessing and using the site may:
A) Access and use the site, including any pages or information linked to it that are owned and operated by SMOKIN'HOT; and
B) Purchase a product or products from SMOKIN'HOT through the site.
1.2. By accessing and using the site, you agree to be bound by the terms and conditions. Please read the terms and conditions carefully before accessing and using the site. If you do not accept and agree to abide by the terms and conditions, SMOKIN'HOT asks that you do not access and use the site.
3.1. The site, its design, and all content contained on the site including but not limited to text, graphics, logos, button icons, images, audio clips, digital downloads and software (the 'works') is the exclusive property of SMOKIN'HOT or its content suppliers, and is protected by Australian and international copyright laws. The works may contain from time to time, material that is the copyright of a third party.
4.1. The mark (Smokin'Hot and the 'HEAD' logo) indicated on the site, is a registered trademark of SMOKIN'HOT in Australia and other countries. The mark may not be used, in any way, without the prior permission of SMOKIN'HOT.
5.1. SMOKIN'HOT grant you a limited, non-exclusive, revocable licence to
a) access, use and download the works contained in the site solely for non-commercial and personal purposes; and
b) access and use the site solely for non-commercial and personal purposes; and
c) If you are an internet service provider, supply the works contained in the site to your subscriber.
5.2. Any conduct with respect to any of the work contained in the site, other than that described in clause 5.1 (including and without limitation: the reproduction, modification, adaptation, transmission or communication of such works without the prior permission of SMOKIN'HOT) is strictly prohibited.
5.3. Any conduct with respect to the works that authorised in clause 5.1 must include the SMOKIN'HOT copyright notice "© 2009 SMOKIN'HOT. All rights reserved." and any other credits, trademarks or other legal notices applicable to the works.
6. USE OF THE SITE BY CHILDREN
6.1. SMOKIN'HOT.com is not directed at nor promoted to those under the age of sixteen (16) and no one under the age of sixteen (16) should register for any events or products promoted on SMOKIN'HOT.com.
7. SUBMISSION OF MATERIAL TO THE SITE
7.1. SMOKIN'HOT may invite ('invitation') you to submit material including photographs, feedback data such as questions, comments, suggestions and any other response ('material') to the site.
7.2. Upon invitation of SMOKIN'HOT, you may submit material to the site provided that such material is:
a) accurate; and
b) not defamatory, obscene, threatening, pornographic or offensive; and
c) does not violate any applicable law, including communications that would give rise to criminal or civil liability; and
d) does not advocate any illegal activity; and
e) does not infringe the intellectual property rights of any third party; and
f) does not infringe the rights of any person or entity, including a person's right of privacy; and
g) Does not consist of, or contain computer viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any other form of spam.
7.3. SMOKIN'HOT shall not be responsible for monitoring or exercising editorial control over material submitted to the site. SMOKIN'HOT nevertheless reserves the right to monitor material submitted to the site and to remove or edit any material which it finds, in its sole discretion, to be contrary to these terms and conditions.
7.4. By submitting such material, you are deemed to have provided a valid and binding electronic signature (as permitted under the Electronic Transactions Act 1999) authorising the assignment of all rights, title and interest in all such material to SMOKIN'HOT, its assigns and licensees to – use, reproduce, modify, adapt, create derivative works from, distribute and publicly display such material, for any purpose whatsoever, in any media, throughout the world in perpetuity
8. YOUR WARRANTIES AND REPRESENTATIONS
8.1. In consideration for SMOKIN'HOT granting you an opportunity to submit material to the site, you hereby warrant and represent that:
a) such material is non-confidential; and;
b) any material submitted to the site is original and will not infringe or breach any law or any person's right under any law (including any law or right relating to copyright, passing-off, defamation, contempt of court, privacy, publicity or confidence); and;
c) any material submitted to the site is free from encumbrances and you have full and unfettered power to assign all rights and interest in the material to SMOKIN'HOT, free from any claim by an person; and
d) you own all rights, title and interest (including copyright) in any material submitted to the site, or have obtained all necessary consents and releases from third parties for all and any use of the material by SMOKIN'HOT in perpetuity, without any requirement for SMOKIN'HOT to make any payment to you or such third parties and can provide any written evidence of this to SMOKIN'HOT on SMOKIN'HOT's request; and;
e) you have not assigned, licensed or otherwise granted any rights in the material or entered into any deed or agreement that would prevent or limit SMOKIN'HOT's rights to use the material; and
f) as to living people identifiable in the material, you have acquired written permissions and releases permitting the exclusive use of the said person's name, likeness and life story in connection with any use of the material and you hereby assign such rights to SMOKIN'HOT; and
g) you will enter into any formal written documentation if required by SMOKIN'HOT, to formalise your assignment of all rights in the material to SMOKIN'HOT; and;
h) You have not done or permitted to be done, any act or omission by which any of the rights in the material have been, or may in any way be, impaired or limited.
9. PURCHASE OF PRODUCTS
9.1. On the site, SMOKIN'HOT advertised certain products for sale ('product' or 'products') and lists the price for each product ('purchase price').
9.2. You can make an offer ('offer') to purchase a product or products from SMOKIN'HOT at the relevant purchase price by:
a) accessing the shop; and;
b) selecting the products or products with respect to which you wish to make an offer, and then clicking the 'add to my cart' button; and;
c) inserting the quantity of the product or products you wish to purchase and clicking the 'checkout' button; and;
d) selecting the 'shipping destination' that you require and clicking the 'next' button; and;
e) selecting the 'shipping method' that you would prefer and clicking the 'next' button; and;
f) Providing your 'payment details' at the XXXXXXXXX bank card services section of the site and clicking the continue button.
9.3. SMOKIN'HOT is deemed to have accepted ('acceptance') the offer when XXXXXX bank card services sends an email message to you, confirming that payment of the purchase price ('payment') has been processed.
9.4. Payment will be processed by PayPal bank card services simultaneously to the acceptance. Payment must only be made by credit card. (Bank Deposit, Visa, MasterCard and American Express)
9.5. Upon acceptance, an agreement exists between you and SMOKIN'HOT for you to purchase from SMOKIN'HOT the product or products with respect to which you made the offer.
9.6. The entire agreement consists of:
a) The offer;
b) The acceptance; and;
c) These terms and conditions.
9.7. Each separate offer and acceptance, together with the terms and conditions, forms a separate agreement.
10.1. SMOKIN'HOT will deliver the product or products to you in the following way:
a) at the address for delivery ('delivery address') provided by you in the 'Customer Details Form in the offer;
b) by way of the shipping method selected by you in the offer;
c) at the price that corresponds with the shipping method selected by you in the offer; and;
d) Within a time that is, at the discretion of SMOKIN'HOT, feasible.
10.2. Anyone at the delivery address who receives the product or products is deemed to be authorised to receive the product or products.
10.3. Property and risk in the product or products passes to you upon delivery to the delivery address.
10.4. If you are not satisfied with the quality of the product or products you have purchased pursuant to an agreement, SMOKIN'HOT will exchange or issue a refund to you for the product or products provided:
a) You return the product or products in new condition with the tags attached;
b) With all the information SMOKIN'HOT will need (including invoice number, name, address, and your requirements) in order to correctly exchange the product or products or refund payment to you;
c) Goods must be returned to the address described in clause 19;
d) Within sixty (60) days from the date the agreement is made if the delivery address is outside Australia; or
e) Within fourteen (14) from the date the agreement is made is the delivery address is within Australia.
10.5. The shipping price is not refundable.
10.6. There will be no shipping price for any initial exchange with respect to an agreement.
10.7. A replacement product or products with respect to an exchange will be delivered to you by way of:
a) Registered post, if the delivery address is inside Australia; or;
b) Airmail, if the delivery address is outside Australia; or;
c) Courier, if requested by you (but will incur an extra charge for shipping, being the difference between the cost for shipping by courier and the cost for shipping by air mail).
11. RESTRICTIONS ON YOU
11.1. You must not engage in the business of re-selling, distributing and/or supplying to any third party, whether through a web site or any other means, any product or products that you have purchased from SMOKIN'HOT pursuant to an agreement.
11.2. You must not represent yourself as SMOKIN'HOT or as an agent or sub-contractor of SMOKIN'HOT by making any unauthorised use of any trade mark and/or copyrights owned by SMOKIN'HOT or by any other means.
12.DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
12.1. SMOKIN'HOT reserves the right to modify or adapt any part of the works (including information about a product or products) without notifying current or prospective customer or users.
12.2. SMOKIN'HOT is not responsible for any errors or defects (including but not limited to computer viruses, typographic errors or other inaccuracies) in any works contained in the site. SMOKIN'HOT intends any information contained as part of the works to be accurate and reliable. However, errors may occasionally occur. Therefore, all works are provided 'as is' without any warranty of any kind.
12.3. The liability of SMOKIN'HOT for any breach of any implied condition or warranty conferred by the Trade Practices Act 1974 (Cth), or any similar state or territory legislation in Australia, which cannot be excluded, is limited to any one or more of the following, determined by SMOKIN'HOT in its sole discretion:
a) In the case of a product or products;
1)1. The replacement or repair of the product or products, or the supply of an equivalent product or products; or
1)2. The payment of the cost of replacing the product or products or acquiring an equivalent product or products or repairing the product or products; and;
b) In the case of services;
2)1. supply of the services again; or
2)2. The payment of the cost of having the services supplied again.
12.5. To the full extent permitted by the law, SMOKIN'HOT, its principal, employees and/or agents will not be liable for any loss, claims, damages or costs (including legal costs) arising out of, or in connection with, your use of or inability to use the site including but not limited to – direct, indirect, special, exemplary and all consequential damages or losses of profits or opportunity to any person – including those losses or damages that were reasonably foreseeable.
12.6. If clause 12.4 is unenforceable in whole or in part in any jurisdiction, due to relevant laws in that jurisdiction, then in no event will the liability of SMOKIN'HOT to you for any – damages, losses, claims or otherwise – exceed the amount paid by you, if any, with respect to your purchase of a product or products from SMOKIN'HOT, pursuant to an agreement, through the site.
13.1. You agree to indemnify SMOKIN'HOT and hold SMOKIN'HOT indemnified from and against any and all - actions, liabilities, claims, costs and expenses (including reasonable legal costs and expenses) – arising out of your use of the site or any breach of the terms and conditions by you, including but not limited to, your warranties and representations with respect to the material.
14. LINKS TO THIRD PARTY SITES
14.1. SMOKIN'HOT makes no representations whatsoever about any other web sites which you may access from this site ('third party site'). A link from this site to a third party site does not mean that SMOKIN'HOT endorses or accepts any responsibility for the content or use of the third party site. Third party sites are accessible from SMOKIN'HOT only for the convenience of the user.
15. ELECTRONIC COMMUNICATIONS
15.1. You consent to receiving communications from SMOKIN'HOT electronically, including electronic mail or notices posted on the site.
15.2. You acknowledge that all agreements, notices, disclosures and other communications that SMOKIN'HOT provides to you and that you provide to SMOKIN'HOT electronically, satisfy any legal requirement that such communications be in writing.
16.1. SMOKIN'HOT may add to, delete or otherwise change any of the terms and conditions by giving you notice. Such notice may be by:
a) Electronic mail; or
b) Ordinary post to your address contained in the customer details; or
c) Posting on the site.
17.1. The terms and conditions constitute the entire agreement between SMOKIN'HOT and you regarding your access and use of the site, and your grant of all rights in any material submitted to the site.
17.2. The terms and conditions also constitute part of an agreement for you to purchase goods from SMOKIN'HOT through the site as provided for in clause 9.6.
17.3. The terms and conditions supersede all previous written and oral agreements between you and SMOKIN'HOT.
17.4. No waiver of any breach of the terms and conditions shall be deemed to be a waiver of any preceding or succeeding breach of the same or any other term.
17.5. If any provision of the terms and conditions is held to be – unlawful, invalid, unenforceable, or in conflict with any law in Australia – then any such provision will, to the necessary extent, be read down or severed from the terms and conditions, as applicable, and the remaining provisions will not be affected.
17.6. Your indemnity and assignment of all rights in any material submitted to SMOKIN'HOT and the site survive any change to or termination of, the terms and conditions.
18. APPLICABLE LAW
18.1. The terms and conditions shall be governed by, and construed according to, the laws of New South Wales, Australia.
18.2. Any dispute under the terms and conditions shall be subject to the non-exclusive jurisdiction of the courts of New South Wales and, by using this site, you hereby submit to that jurisdiction.
PO Box 3078
WOLLONGBAR NSW 2477