TERMS AND CONDITIONS:
1. Definitions and Interpretation
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).
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).
“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.
“You” means you, the person who accesses this Website for any reason.
(c) A reference to a statute or regulation includes amendments thereto.
(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.
(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”).
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.
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
5.2. 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.
6. Responsibility for other users
6.1. We do not accept responsibility for the conduct of any users of Our Website.
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.
7.1. We do not represent, recommend or endorse any websites to which We have linked from the Website via hyperlink or otherwise.
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.
8.6. 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.
8.9. 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.
9.2. We may take down the Website or take the Website offline at any time without notice.