Terms and Conditions

 

Website Terms of Use

www.milburncreekthoroughbreds.com.au

www.milburncreek.com.au

 

WARNING: YOU MAY ONLY ACCESS, BROWSE AND USE THIS WEBSITE IF YOU ACCEPT THESE TERMS OF USE. BY ACCESSING, BROWSING AND/OR USING THIS WEBSITE, YOU CONFIRM THAT YOU HAVE READ AND UNDERSTAND AND WHOLLY AND UNCONDITIONALLY AGREE TO BE LEGALLY BOUND BY THESE TERMS OF USE.  WE MAY MODIFY AND/OR REPLACE THESE TERMS OF USE FROM TIME TO TIME WITHOUT NOTICE. WE WILL UPLOAD THE LATEST VERSION TO THIS WEBPAGE. IT IS YOUR RESPONSIBILITY TO CHECK THESE TERMS OF USE EACH TIME YOU BROWSE THE WEBSITE TO ENSURE YOU HAVE READ AND UNDERSTAND THE LATEST VERSION OF THESE TERMS OF USE. IF YOU DO NOT WISH TO ACCEPT THESE TERMS OF USE, YOU MUST NOT AND CANNOT USE THIS WEBSITE AND MUST IMMEDIATELY LEAVE THIS WEBSITE.

 

TERMS AND CONDITIONS:

 1.       Definitions and Interpretation

1.1.          Definitions

In these Terms of Use, the following words have the following meanings, unless expressly agreed otherwise:

 

Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).

Business Day means Monday – Friday excluding public holidays in New South Wales.

Business Hours means 9:00am – 5:00pm on Business Days.

GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).

Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.

Licence means as set out in clause 2.1.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Non-Excludable Guarantee means a non-excludable guarantee implied into these Terms of Use by the Australian Consumer Law.

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).

Privacy Policy means Our privacy policy accessible at www.milburncreek.com.au.

Terms of Use means the terms and conditions set out on this webpage as amended by Us from time to time.

“We”, “Our” and “Us” means J L M Estates Pty Limited ABN 38 000 498 000 trading as Milburn Creek, Milburn Creek Stud and Milburn Creek Thoroughbred Stud.

 “Website” means the websites the homepages of which are accessible at www.milburncreekthoroughbreds.com.au or www.milburncreek.com.au.

“You” means you, the person who accesses this Website for any reason.

 

1.2.    Interpretation

In these Terms of Use:

(a)          Headings and underlinings are for convenience only and do not affect the construction of these Terms of Use.

(b)         A provision of these Terms of Use will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.

(c)          A reference to a statute or regulation includes amendments thereto.

(d)         A reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of these Terms of Use.

(e)          A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.

(f)           The warning above is correct and forms part of these Terms of Use.

(g)          A reference to time is to time in New South Wales.

(h)          A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.

(i)            The words “includes”, “including” and similar expressions are not words of limitation.

 

 2.       Licence to be granted

2.1.    We hereby grant You a non-exclusive, non-assignable, non-sublicensable licence to access and browse the Website (the “Licence”).

2.2.    In consideration for the grant of the Licence to You by Us, You agree to comply with these Terms of Use.

2.3.    Each time You access and/or browse Our Website You confirm that You accept the terms and conditions set out in these Terms of Use and You agree to Our Privacy Policy.

 

3.       Licence Restrictions

3.1.    You may not make any use of the Website except as permitted by the Licence and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights in the Website. Without limiting the foregoing provisions, You agree and acknowledge that You must not and shall not, and will not permit any person to:

(a)       licence, sublicence, resell, assign, transfer, distribute, or provide others with access to, the Website or any part of the Website;

(b)       “frame”, “mirror” or serve any of the Website or any part of it on any web server or other computer server over the Internet or any other network;

(c)        link to the Website or any part of it;

(d)       copy, alter, modify, create derivative works from, reproduce, resell, distribute, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Website or any part of the Website or the layout of the Website (except as expressly permitted by the Copyright Act 1968 (Cth)); or

(e)       alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the Website or any part of it.

3.2.    You must not use the Website or any part of the Website in any way which is in breach of any statute, regulation, law or legal right of any person.

3.3.    You must not use the Website or any part of the Website in breach of these Terms of Use.

 

4.       Acceptable Use Policy

4.1.    You agree that the following act or omission, or any act or omission that causes the following, is strictly prohibited:

(a)       using the Website to violate all or any legal rights of any person or company or other entity in any jurisdiction;

(b)       using the Website in relation to crimes such as theft and fraud;

(c)        using the Website in breach of laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy and whether such violation is by way of the installation or distribution of “pirated” software or otherwise;

(d)       unauthorised copying of copyrighted material including, but not limited to, digitization and distribution of photographs from magazines, books or other copyrighted sources, copyrighted music or video and the installation of any copyrighted software for which You do not have an active license;

(e)       exporting software, technical information, encryption software or technology, in violation of domestic export control laws;

(f)         introduction of malicious programs into Our network or servers (e.g., viruses, worms, Trojan horses, e-mail bombs);

(g)       using the Website to actively engage in procuring or transmitting material that is in violation of sexual harassment or workplace relations laws;

(h)       using the Website to make fraudulent offers of goods or services;

(i)         using the Website to carry out security breaches or disruptions of network communication. Security breaches include, but are not limited to, accessing data of which You are not an intended recipient or logging into a server or account that You are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;

(j)         using the Website to execute any form of network monitoring which will intercept data not intended for You;

(k)       using the Website to circumvent user authentication or security of any of Our hosts, networks or accounts or those of Our customers or suppliers;

(l)         using the Website to interfere with or deny service to anyone;

(m)     using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any person’s use of the Website;

(n)       sending unsolicited email messages through or to users of the Website in breach of the Spam Act 2003;

(o)       using the Website to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages;

(p)       using the Website or any email address, with the intent to spam, harass or to collect replies;

(q)       using the Website to create or forward “chain letters”, “Ponzi” or other “pyramid” schemes of any type; and

(r)        use of the Website in breach of any person’s privacy (such as by way of identity theft or “phishing”).

 

5.       Intellectual Property Rights

5.1.          You agree and acknowledge that these Terms of Use do not transfer or assign any Intellectual Property Rights to You.

5.2.          As between You and Us, We own all Intellectual Property Rights in the Website, including in any content, images, text and other information appearing on any page of the Website and any source code and object code in the Website.

5.3.          You have no rights in the Website or in any part of it or in any modification or enhancement thereof, other than the rights granted to You pursuant to the Licence.

5.4.          You agree that any Intellectual Property Rights in any content which You upload or post to the Website (“User Content”) becomes Our sole and exclusive property immediately upon You uploading or posting that content, and You agree to assign all Intellectual Property Rights in all and any such content to Us effective as soon as You upload or post the content to the Website, pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity. You waive all Moral Rights that You may have to any User Content and consent to Us infringing all and any such Moral Rights in Our absolute discretion.

5.5.          You must not take any step to invalidate or prejudice Our (or Our suppliers’) Intellectual Property Rights in the Website or otherwise. Without limiting the foregoing provisions, You must not register any security interest or purchase money security interest on the Personal Property Securities Register, or otherwise encumber or charge Your rights under any licence granted by Us under these Terms of Use.

 

6.      Responsibility for other users

6.1.   We do not accept responsibility for the conduct of any users of Our Website.

6.2.   If You believe that another user of Our Website has breached these Terms of Use please contact Us.

6.3.   Any dispute You have with another user of Our Website is between You and the other user. You release Us from any claims that You may otherwise have against Us in relation to any conduct of any user of Our Website, including any dispute arising in relation to the posting or uploading to the Website by Us or any other person of any comment or photo of any horse.

 

7.       Hyperlinks

7.1.    We do not represent, recommend or endorse any websites to which We have linked from the Website via hyperlink or otherwise.

 

8.      Liability

8.1.          We do not represent that the information on this Website is accurate, correct, up-to-date or error free.

8.2.          The information on this Website is not professional advice. You agree that You will seek all appropriate financial, legal and other advice as applicable before relying on any information You obtain from this Website.

8.3.          Except in respect of any Non-Excludable Guarantee, neither party is liable to the other party for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data howsoever incurred in relation to Your use or inability to use the Website.

8.4.          Except in respect of any Non-Excludable Guarantee, to the maximum extent permitted by law (and if permitted by law), We will not have any liability to You for any loss or damage howsoever incurred in relation to Your use or inability to use the Website.

8.5.          No goods or services are supplied under these Terms of Use.  Any transaction between Us and You will be effected by separate written agreement.

8.6.         Notwithstanding the provisions of clause 8.5, to the extent that the publication of this website on the Internet is deemed to constitute the provision by Us of any goods or services to You, or to the extent that We otherwise supply goods or services to You, those goods or services may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depend on whether You are a ‘consumer’ of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where You are a ‘consumer’ for the purposes of the Australian Consumer Law, We are required to provide the following mandatory statement to You: “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”

8.7.          If any goods or services supplied by Us to You are supplied to You in Your capacity as a ‘consumer’ of goods or services within the meaning of that term in the Australian Consumer Law as amended you will have the benefit of certain non-excludable rights and remedies in respect of the goods or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, guarantee, right or remedy which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable condition, warranty, guarantee, right or remedy implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, We limit our liability for breach of any such non-excludable warranty, guarantee, right or remedy implied by the Australian Consumer Law or expressly given by Us to You, in respect of each of the goods and services, where it is fair and reasonable to do so, at Our option, to one or more of the following:

(a)       if the breach relates to goods:

(i)       the replacement of the goods or the supply of equivalent goods;

(ii)     the repair of such goods;

(iii)    the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv)   the payment of the cost of having the goods repaired; and

(b)       if the breach relates to services:

(i)       the supplying of the services again; or

(ii)     the payment of the cost of having the services supplied again.

8.8.         In order for You to claim against Us under a non-excludable warranty, guarantee, right or remedy provided by the Australian Consumer Law, or under an express warranty given in respect of the goods or services provided under these Terms of Use, You must provide written notice to Us with documentary evidence substantiating the claim, for Our review, and, in respect of the Website, must continue to use it only in accordance with the provisions of these Terms of Use.

8.9.         Upon receipt of a valid claim from You under an implied warranty, guarantee, right or remedy provided by the Australian Consumer Law, We will contact you to arrange a suitable remedy. You may claim reasonable expenses incurred in making a valid claim under such a warranty, guarantee, right or remedy by providing documentary evidence of the expenses to Us. You will be responsible for any expenses incurred in relation to an invalid claim.

8.10.      Any warranty against defects provided by Us to you in your capacity as a ‘consumer’ under the Australian Consumer Law is in addition to your other rights and remedies under a law in relation to the goods or services to which the warranty relates.

8.11.      Except with respect to any Non-Excludable Guarantees, all conditions, warranties and guarantees implied in these Terms of Use are excluded, to the extent possible by law.

 

9.      Termination

9.1.          We may terminate these Terms of Use and Your access to the Website at any time without notice.

9.2.          We may take down the Website or take the Website offline at any time without notice.

9.3.          Termination of these Terms of Use does not affect any accrued rights of either party.

 

 10.   General

10.1.       Other rights: All rights not expressly granted to Us in these Terms of Use are expressly reserved by Us.

10.2.       Assignment: You may not assign, transfer, licence or novate Your rights or obligations under these Terms of Use without Our prior written consent. We may assign, transfer, licence or novate Our rights or obligations under these Terms of Use at any time, subject to Our Privacy Policy.

10.3.       Severability: If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the remainder of these Terms of Use shall remain enforceable.

10.4.       Relationship: The parties are independent of each other and these Terms of Use do not create any relationship of partnership, joint venture, or employer and employee or otherwise.

10.5.       Exclusions of liability: The exclusions and limitations of liability set out in these Terms of Use shall apply to the fullest extent permissible at law, but the parties do not exclude or limit liability which may not be excluded or limited by law. Without limiting the foregoing provisions, We do not exclude liability under the Australian Consumer Law which is prohibited from being excluded. The parties acknowledge and agree that the limitations and exclusions of liability contained in these Terms of Use constitute an allocation of risks that form part of the negotiated commercial terms of these Terms of Use.

10.6.      Entire Agreement: These Terms of Use constitute the entire agreement between the parties and to the extent possible by law, supersedes all prior understandings, representations, arrangements and agreements between the parties regarding its subject matter.

10.7.       Jurisdiction: These Terms of Use will be interpreted in accordance with the laws in force in New South Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts situated in New South Wales.

 

 

 

Contact: Milburn Creek Stud - 540 Myra Vale Rd, Wildes Meadow NSW 2577, Australia. Telephone 02 4886 4024