IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS OF USE & SALE (THESE “TERMS”) BEFORE ACCESSING, USING, OR SUBSCRIBING OR PLACING AN ORDER OVER WWW.OCULUMA.COM.AU.
THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES INCLUDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW. THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT.
The use of www.oculuma.com.au (the “Website”), owned and maintained by Tim Daly Enterprises Pty Ltd trading as Oculuma (“Oculuma,” “we,” “our,” “us”), are governed by these Terms. We offer the Website, including all information, tools, and services available from the Website to you, the user, conditioned upon your acceptance of all terms and conditions stated herein. By accessing, using, subscribing, or placing an order over the Website, you and your business (including any sub users you may have) agree to the terms and conditions set forth herein. If you do not agree to these Terms in their entirety, you are not authorised to use the Website in any manner or form whatsoever.
THIS IS A BINDING AGREEMENT. THESE TERMS TOGETHER WITH OUR PRIVACY STATEMENT AND DATA PROCESSING ADDENDUM FORM A LEGALLY BINDING AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND YOUR BUSINESS (“YOU”) AND OCULUMA. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE AND THE SERVICES PROVIDED BY OCULUMA, ANY ORDER YOU PLACE THROUGH THE WEBSITE, BY TELEPHONE, OR OTHER ACCEPTED METHOD OF PURCHASE AND, AS APPLICABLE, YOUR USE OR ATTEMPTED USE OF THE PRODUCTS OR SERVICES OFFERED ON OR AVAILABLE THROUGH THE WEBSITE. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
NAVIGATING THROUGH THESE TERMS
You can use the links below to navigate to areas of these Terms that apply specifically to you, or which may otherwise be of interest:
WEBSITE USER CONDUCT AND RESTRICTIONS-LICENSE TERMS
OUR PRIVACY STATEMENT AND DATA PROCESSING ADDENDUM AND YOUR PERSONAL INFORMATION
INFORMATION YOU PROVIDE; REGISTRATION; PASSWORDS; PROHIBITION AGAINST HOSTING THIRD-PARTY AGENCY ACCOUNTS
ORDER PLACEMENT AND ACCEPTANCE
TRIAL OFFER, AUTOMATIC ENROLLMENT AND PAYMENT, AND CANCELLATION
SUBSCRIPTION TERMS AND AUTOMATIC PAYMENT
PRODUCTS, SERVICES, AND PRICES AVAILABLE ON THE WEBSITE
DISCLAIMER – YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY
TESTIMONIALS, REVIEWS, AND PICTURES/VIDEOS
DISCLAIMERS OF OTHER WARRANTIES
LIMITATIONS OF LIABILITIES
DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
OCULUMA’S ADDITIONAL REMEDIES
NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT AGENT
GOVERNING LAW AND VENUE
CHANGES TO THE AGREEMENT
YOUR ADDITIONAL REPRESENTATIONS AND WARRANTIES
SECTION 1 – WEBSITE USE
The Website is intended for individuals or businesses operated by adults. If you use the Website, you are affirming that you are at least 18 years old or the legal age of majority in your state or province of residence (whichever is greater), have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to its terms.
SECTION 2 – WEBSITE USER CONDUCT AND RESTRICTIONS – LICENSE TERMS
All aspects of our Website are protected by Australian and international copyright, trademark, and other intellectual property laws, including all content, information, design elements, text material, logos, taglines, metatags, hashtags, photographic images, testimonials, personal stories, icons, video and audio clips, and downloads. No material on the Website may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever. The Oculuma logo is a proprietary mark of Oculuma, and the use of those marks is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information owned by Oculuma.
Subject to your continued strict compliance with these Terms, Oculuma provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicensable, non-transferable license to use the Website. You acknowledge and agree that you do not acquire any ownership rights in any material protected by intellectual property laws.
If you purchase a subscription to Oculuma software over the Website, Oculuma provides to you a revocable, limited, non-exclusive, non-sublicensable, non-transferable license to use the software. You acknowledge and agree that: (1) the software is copyrighted material under Australian and international copyright laws that is exclusively owned by Oculuma; (2) you do not acquire any ownership rights in the software; (3) you may not modify, publish, transmit, participate in the transfer or sale, or create derivative works from the content of the software; (4) except as otherwise expressly permitted under copyright law, you may not copy, redistribute, publish, display or commercially exploit any material from the software without the express written permission of Oculuma; and (5) in the event of any permitted copying (e.g., from the Website to your computer system), no changes in or deletion of author attribution, trademark, legend or copyright notice shall be made.
You agree not to use or attempt to use the Website or any software provided by Oculuma, whether alone, or in conjunction with other software or hardware, in any unlawful manner or a manner harmful to Oculuma. You further agree not to commit any harmful or unlawful act or attempt to commit any harmful or unlawful act on or through the Website or through use of any software or hardware including, but not limited to, refraining from:
HARMFUL OR PROHIBITED ACTS. Any dishonest or unethical business practice; any violation of the law; infliction of harm to Oculuma’s reputation; hacking and other digital or physical attacks on the Website; scraping, crawling, downloading, screen-grabbing, or otherwise copying content on the Website and/or transmitting it in any way we haven’t specifically permitted; introducing, transmitting, or storing viruses or other malicious code; interfering with the security or operation of the Website; framing or mirroring the Website; creating, benchmarking, or gathering intelligence for a competitive offering; infringing another party’s intellectual property rights, including failing to obtain permission to upload/transfer/display works of authorship; intercepting or expropriating data; deceptive manipulation of media; and the violation of the rights of Oculuma or any third party;
“SPAMMING” AND UNSOLICITED COMMUNICATIONS. We have zero tolerance for spam and unsolicited communications. Any communications sent or authorised by you reasonably deemed “spamming,” or any other unsolicited solicitations (including without limitation postings on social media or third party blogs) will be deemed a material threat to Oculuma’ reputation and to the rights of third parties. It is your obligation, exclusively, to ensure that all business communications comply with state and local anti-spamming or analogous laws.
OFFENSIVE COMMUNICATIONS. Any communication sent, posted, or authorised by you, including without limitation postings on any website operated by you, or social media or blog, which are: sexually explicit, obscene, vulgar, or pornographic; offensive, profane, hateful, threatening, harmful, inciting, defamatory, libelous, harassing, or discriminatory; misleading, false, or misinforming; graphically violent; or solicitous of unlawful behavior.
SENSITIVE INFORMATION. You will not import, or incorporate into, any contact lists or other content you upload to any website, software, or other electronic service hosted, provided by or connected to Oculuma, any of the following information: personal IDs, credit card data, passwords, security credentials, bank account numbers, or sensitive personal, health or financial information of any kind.
ILLEGAL BUSINESS ACTIVITY. Any promotion of illegal business activity, including without limitation multi-level marketing (except in compliance with the FTC’s Business Guidance Concerning Multi-Level Marketing, promoting the sale or use of illegal drugs; or infringing or promoting the infringement of the intellectual property rights of another.
In addition to the foregoing, Oculuma requires you to follow these best practices when sending electronic communications:
You further agree to conduct yourself and all of your businesses in full compliance with all applicable laws, whether through the use of Oculuma or otherwise.
SECTION 3 – OUR PRIVACY STATEMENT AND DATA PROCESSING ADDENDUM AND YOUR PERSONAL INFORMATION
We respect your privacy and the use and protection of your non-public, personal information. Your submission of personal information through the Website is governed by our Privacy Statement. Our Privacy Statement may be viewed at https://oculuma.com.au/privacy-policy. Oculuma reserves the right to modify its Privacy Statement in its reasonable discretion from time-to-time. Our Privacy Statement is incorporated into this Agreement by reference.
SECTION 4 – INFORMATION YOU PROVIDE; REGISTRATION; PASSWORDS; PROHIBITION AGAINST HOSTING THIRD-PARTY AGENCY ACCOUNTS
As a Oculuma user, you may be required to create an account with Oculuma. You warrant that the information you provide us is truthful and accurate, and that you are not impersonating another person. You are responsible for maintaining the confidentiality of any password you may use to access your Oculuma user account, and you agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to your user account, to any third party. You are also responsible for maintaining the confidentiality of proprietary or non-public information we may share with you as a Oculuma user, such as technical information, our pricing, our business strategy, and data about other past or current Oculuma users or their customers.
So called “agency accounts,” or accounts in which you host funnels for third parties, are prohibited. Should your usage data indicate, in Oculuma’s sole and exclusive discretion, that you are operating an agency account, you will be subject to cancellation of your Oculuma user account or enhanced pricing for your Oculuma user account, at Oculuma’ sole and exclusive discretion. You are fully responsible for all transactions with, and information conveyed to, Oculuma under your user account. You agree to immediately notify Oculuma of any unauthorised use of your password or user name or any other breach of security related to your user account. You agree that Oculuma is not liable, and you will hold Oculuma harmless, for any loss or damage arising from your failure to comply with any of the foregoing obligations. Please see Section 21 below for additional information.
SECTION 5 – ORDER PLACEMENT AND ACCEPTANCE
If you order a service or product, payment must be received by us before your order is accepted. We may require additional information regarding your order if any required information was missing or inaccurate, and may cancel or limit an order any time after it has been placed. Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order. You must contact us immediately at firstname.lastname@example.org in order to modify or cancel your pending order. We cannot guarantee that we will be able to amend your order in accordance with your instructions.
All items are subject to availability. We will notify you if any item is not available, the expected availability date, and may offer you an alternative product or service. If the availability of any product or service is delayed and you do not wish to substitute the product or service, upon your request, we will cancel your order and if previously charged, your payment card will be fully refunded for that specific order. We reserve the right to limit the sales of our products and services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis at our sole and exclusive discretion.
Your purchase order of products and other services is conditioned on you re-affirming your acceptance of this Agreement.
All advertised prices are in, and all payments shall be in, Australian Dollars.
SECTION 6 – TRIAL OFFER, AUTOMATIC ENROLLMENT AND PAYMENT, AND CANCELLATION
Where we offer you a free trial of Oculuma, such free trial will start immediately after your registration and continue for the free trial offer period as indicated on the Website at the time you register. Free trial subscriptions are only available to new subscribers of Oculuma and for the limited periods as set out on the Website. Previous subscribers or those subscribers who have already benefited from a free trial subscription to Oculuma do not qualify for a further free trial period.
Oculuma will email a reminder that your trial is ending at least 7 days prior to you being charged. If you do not want to continue your subscription after your free trial comes to an end, you must contact us at least 24 hours before your free trial period ends by submitting a cancellation request to us via our support email address email@example.com, or by cancelling your free trial through your Account Dashboard. If you do not contact us at least 24 hours before your free trial period ends to cancel, your subscription will automatically continue and the payment card that you provided at the time of enrollment online will be charged the full Oculuma monthly membership subscription rate provided at the time of enrollment each month until you cancel. Oculuma can change the monthly membership subscription rate at any time. If the membership subscription rate changes after you subscribe, we will notify you by email and give you an opportunity to cancel.
If you wish to cancel your Oculuma subscription (including subscriptions for services) at any time after a free trial or discounted period ends, you must submit a cancellation request to us via our support email address firstname.lastname@example.org or through your Account Dashboard, as detailed here. For monthly subscriptions (including subscriptions for services), we require at least ten (10) days’ notice of cancellation by email. If you provide such notice less than ten (10) days before the first day of your next subscription month, your credit card may still be charged. You will not be entitled to prorate your last month’s use, nor will you be entitled to any refund for any payments to Oculuma. Oculuma in its sole discretion may charge a cancellation fee equal to the amount the subscription was discounted.
SECTION 7 – SUBSCRIPTION TERMS AND AUTOMATIC PAYMENT
A Oculuma user is responsible for paying all sums due to Oculuma in connection with their monthly subscription in accordance with these Terms. The first fee payable in accordance with these Terms is due when the user account is set up and payment of the monthly fee is a condition of access, or after your free trial ends and you have not canceled the automatic subscription with us. Every calendar month, your account will be charged the subscription fee plus applicable tax for the following month’s subscription, together with any other fees for the following month’s subscription plus any accumulated charges for the past period (collectively, “Fees”). Failure by the Oculuma user to use any of the services available through the service provided by Oculuma does not relieve the Oculuma user of their payment obligations under these Terms.
Potential users can pay by credit card or debit card. Payment details shall be collected by us through our secure financial data collection mechanism. You acknowledge and agree that we hold data relating to the transaction, including the last four digits and the expiration date of the card used to purchase the products or services together with details on when payment is due. You further acknowledge and agree that payments are due on a recurring basis in accordance with the payment terms for the specific service purchased (unless the subscription is cancelled in accordance with these Terms) and therefore authorise the automatic payment collection terms applicable to that specific service (e.g., on a monthly basis and for a specific amount).
IF YOU ARE AN Oculuma USER WITH A MONTHLY SUBSCRIPTION AND YOU HAVE PROVIDED US WITH A VALID CREDIT OR DEBIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF YOUR DESIGNATED PAYMENT DATE (MONTHLY) AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR ENROLLMENT. IF YOU WISH TO CANCEL YOUR SUBSCRIPTION TO OCULUMA, YOU MAY DO SO THROUGH YOUR ACCOUNT DASHBOARD OR BY EMAILING email@example.com AT LEAST TEN (10) DAYS BEFORE THE FIRST DAY OF YOUR NEXT SUBSCRIPTION MONTH.
Oculuma reserves the right to immediately terminate a user’s account and/or service for any unpaid (in whole or part) period of the subscription (with or without notice). Termination of service in no way relieves or excuses the user from any obligation to pay outstanding charges or expenses. In the event Oculuma starts collection processes of any type, you will be liable for all collection costs, including legal fees and expenses, as provided in Section 20 below.
In addition to any Fees, Oculuma may also charge applicable value added or other tax.
SECTION 8 – PRODUCTS, SERVICES, AND PRICES AVAILABLE ON THE WEBSITE
Products, services, and prices are generally posted at the following URL, but are subject to change: https://www.oculuma.com.au. At times, Oculuma may also offer services which will be described when offered but nonetheless governed by this Agreement. Oculuma may also offer additional products and services through other sites to which it owns or controls; such sites are also governed by the terms herein. Oculuma reserves the right, without notice, to discontinue products or services or modify specifications and prices on products and services without incurring any obligation to you. Except as otherwise expressly provided for in these Terms, any price changes to your subscription or purchase of product(s) or services will take effect following email notice to you.
Price changes are effective on the first day of the month after the price change is posted. By accessing, using, subscribing or placing an order over the Website, you authorise Oculuma to charge your account in the amount indicated for the value of the services you select, including any future price changes. If you request a downgrade in services, the downgrade (and corresponding price reduction) will become effective on the first day of the month following your requested downgrade. By your continued use of Oculuma services, and unless you terminate your subscription as provided herein, you agree that Oculuma may charge your credit card monthly for the products and services you have selected, and you consent to any price changes for such services after email notice has been provided to you.
Oculuma takes reasonable steps in an effort to ensure that the prices set forth on the Website are correct, and to accurately describe and display the items available on the Website. If the correct price of our product is higher than its stated price, we will, at our discretion, either contact you for instructions or cancel your order and notify you of such cancellation.
When ordering products or services, please note that Oculuma does not warrant that product or service descriptions are accurate, complete, current, or error-free. All sales are deemed final. Oculuma’s descriptions of, or references to, products or services not owned by Oculuma are not intended to imply endorsement of that product or service, or constitute a warranty by Oculuma.
SECTION 9 – DISCLAIMER – YOUR INDIVIDUAL RESULTS WILL VARY
Every online business is different, employing different strategic approaches and organisational structures, and offering different products and services. Therefore, individual results will vary from user to user.
Oculuma does not promise, guarantee, or warrant your business’ success, income, or sales.
SECTION 10 – TESTIMONIALS, REVIEWS, AND PICTURES/VIDEOS
Oculuma is pleased to hear from users and customers and welcomes your comments regarding our services and products. Oculuma may use testimonials and/or product reviews in whole or in part together with the name, city, and state of the person submitting it. Testimonials may be used for any form of activity relating to Oculuma’ services or products, in printed and online media, as Oculuma determines in its sole and exclusive discretion. Testimonials represent the unique experience of the participants and customers submitting the testimonial, and do not necessarily reflect the experience that you and your business may have using our services or products. Note that testimonials, photographs, and other information that you provide to us will be treated as non-confidential and nonproprietary, and, by providing them, you grant Oculuma a royalty-free, worldwide, perpetual, non-exclusive and irrevocable license to use them.
Additionally, Oculuma reserves the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use. Oculuma shall be under no obligation to use any, or any part of, any testimonial or product review submitted.
SECTION 11 – DISCLAIMERS OF OTHER WARRANTIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW:
THE WEBSITE AND ALL CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, AND/OR COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF THE WEBSITE OR ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE WEBSITE, SOFTWARE, OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (F) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
SECTION 12 – LIMITATIONS OF LIABILITIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL OCULUMA OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT INCLUDING THE PRIVACY STATEMENT, THE SERVICES OR PRODUCTS, YOUR OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY SOFTWARE, SERVICE, OR PRODUCT, REGARDLESS OF WHETHER OCULUMA HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.
IN NO EVENT SHALL OCULUMA’S LIABILITY TO YOU OR YOUR BUSINESS EXCEED THE AMOUNT OF THREE (3) TIMES THE PAYMENTS PAID BY YOU TO OCULUMA FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST OCULUMA OCCURRED OR TWO HUNDRED DOLLARS ($200), WHICHEVER IS GREATER.
SECTION 13 – DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR AND YOUR BUSINESS’ RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AND YOUR BUSINESS AGREE THAT ANY CLAIM THAT YOU OR YOUR BUSINESS MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND YOUR BUSINESS ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU AND YOUR BUSINESS WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU AND YOUR BUSINESS MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
If you have a complaint, dispute, or controversy, you agree to first contact us at firstname.lastname@example.org to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to the use of the Website, any product, service, or software, these Terms, the Privacy Statement, or your relationship with us that cannot be resolved through such informal process or through negotiation within one hundred and twenty (120) days shall be resolved by binding, confidential arbitration administered by a suitable arbitrator, and judgment on the award rendered may be entered in any court having jurisdiction thereof. We agree that any claim we may have against you or your business will also be subject to this arbitration provision, except as provided in Sections 14 and 15 below. The arbitration will be conducted by a single neutral arbitrator in the English language in Lismore, New South Wales, unless we both agree to conduct the arbitration by telephone or written submissions. The arbitrator shall be selected by agreement of the parties. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms, the Privacy Statement, this arbitration provision, and any other terms incorporated by reference into these Terms. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Oculuma.
Payment of all filing, administration, and arbitrator fees will be governed by the arbitrator. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
The arbitrator shall follow the substantive law of the State of New South Wales without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
You and Oculuma agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. You and Oculuma expressly waive any right to pursue any class or other representative action against each other.
Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except that all claims must be brought within 1 year after the claim arises (the 1 year period includes the one hundred and twenty (120) day informal resolution procedures described above).
This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration.
This provision survives termination of your account or relationship with Oculuma, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
YOU UNDERSTAND THAT YOU AND YOUR BUSINESS WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS ARBITRATION PROVISION.
SECTION 14 – OCULUMA’S ADDITIONAL REMEDIES
In order to prevent or limit irreparable injury to Oculuma, in the event of any breach or threatened breach by you of the provisions of this Agreement or any infringement or threatened infringement by you of the intellectual property of Oculuma or a third-party, Oculuma shall be entitled to seek a temporary restraining order and preliminary and permanent injunctions or other equitable relief from a court of competent jurisdiction located in Lismore, New outh Wales restraining such breach, threatened breach, infringement, or threatened infringement. Nothing in this Agreement shall be construed as prohibiting Oculuma from pursuing in court any other remedies available to it for such breach, threatened breach, infringement, or threatened infringement, including the recovery of monetary damages from you and your business. You and your business hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, the courts of Lismore, New South Wales for all such claims, and forever waive any challenge to said courts’ exclusive jurisdiction or venue.
SECTION 15 – INDEMNIFICATION
To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Oculuma, its directors, officers, employees, shareholders, licensors, independent contractors, subcontractors, suppliers, affiliates, parent companies, subsidiaries, and agents from and against any and all claims, actions, loss, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to solicitors’ fees and costs of any litigation or other dispute resolution, arising out of, resulting from, or in any way connected with or related to (1) your use, misuse, or attempt to use the Website, software, products, or services, (2) information you submit or transmit through the Website, (3) your breach of these Terms, the documents they incorporate by reference, the Agreement, or the representations and warranties provided by you in this Agreement, or (4) your violation of any law or the rights of a third-party.
SECTION 16 – NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT ACT
If you believe that materials or content available on the Website infringes any copyright you own, you or your agent may send Oculuma a notice requesting that Oculuma remove the materials or content from the Website. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send Oculuma a counter-notice. Notices and counter-notices should be sent by e-mail to email@example.com.
SECTION 17 – THIRD-PARTY LINKS
The Website may contain links to other websites. Oculuma assumes no responsibility for the content or functionality of any non-Oculuma website to which we provide a link. Please see our Privacy Statement for more details.
SECTION 18 – TERMINATION
This Agreement will take effect (or shall re-take effect) at the time you click “ACTIVATE MY ACCOUNT NOW,” “PAY NOW,” “ORDER NOW”, “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE” or similar links or buttons, otherwise submit information through the Website, respond to a request for information, begin installing, accessing, or using the Website, complete a purchase, select a method of payment, and/or enter in payment method information, whichever is earliest. If, in our sole discretion, you fail, or we suspect that you have failed, to comply with any term or provision of the Agreement or violated any law, whether in connection with your use of Oculuma or otherwise, we may terminate the Agreement or suspend your access to the Website at any time without notice to you. Sections 9, 10 to 15, and 18 through 27 of this Agreement, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with Oculuma. Upon termination, you remain responsible for any outstanding payments to Oculuma.
SECTION 19 – NO WAIVER
No failure or delay on the part of Oculuma in exercising any right, power or remedy under this Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power, or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power, or remedy under this Agreement. A waiver of any right or obligation under this Agreement shall only be effective if in writing and signed by Oculuma.
SECTION 20 – GOVERNING LAW AND VENUE
This Agreement and any issue or dispute arising out of or otherwise related to this Agreement or your access to or use of the Website, our Privacy Statement, or any matter concerning Oculuma, including your purchase and use or attempted use of any service or product, shall be governed exclusively by the laws of New South Wales without regard to its conflicts of laws principles. To the extent that any claim or dispute is found by the arbitrator or (if proper) a court of competent jurisdiction to be excluded from the arbitration agreement in Section 13 above, the parties agree any such claim or dispute shall be exclusively brought in and decided by the state or federal courts located in Lismore, New South Wales, and you hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, such courts, and forever waive any challenge to said courts’ exclusive jurisdiction or venue. All such claims must be brought on an individual and non-class, non-representative basis, and you forever waive any right to bring such claims on a class wide or representative basis.
SECTION 21 – FORCE MAJEURE
Oculuma will not be responsible to you for any delay, damage, or failure caused or occasioned by any act of nature or other causes beyond our reasonable control.
SECTION 22 – ASSIGNMENT
Oculuma may assign its rights under this Agreement at any time, without notice to you. Your rights arising under this Agreement cannot be assigned without Oculuma’s (or its assigns’) express written consent.
SECTION 23 – ELECTRONIC SIGNATURE
All information communicated on the Website is considered an electronic communication. When you communicate with Oculuma through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
SECTION 24 – CHANGES TO THE AGREEMENT
You can review the most current version of the Terms at any time at https://oculuma.com.au/terms. We reserve the right, at our sole discretion, to update, change or replace any part of the Agreement, including the Privacy Statement by posting updates and changes to our Website. It is your responsibility to check our Website periodically for changes. Your continued use of or access to our Website following the posting of any changes to the Agreement constitutes acceptance of those changes.
SECTION 25 – YOUR ADDITIONAL REPRESENTATIONS AND WARRANTIES
You hereby further represent and warrant: (1) that you are at least eighteen (18) years of age, or the legal age of majority in your jurisdiction, whichever is greater; (2) that you own, operate, and/or have the right to bind any business for which you are using the Website; (3) have read this Agreement and thoroughly understand and agree to the terms contained in this Agreement; and (4) that you will not resell, re-distribute, or export any product or service that you order from the Website. You further represent that Oculuma has the right to rely upon all information provided to Oculuma by you, and Oculuma may contact you, your business, and any subaccounts you create by email, telephone, or postal mail for any purpose, including but not limited to (i) follow-up calls, (ii) satisfaction surveys, and (iii) inquiries about any orders you placed, or considered placing, on or through the Website.
SECTION 26 – SEVERABILITY
If any provision of this Agreement is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect and such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable and consistent with the remainder of the Agreement.
SECTION 27 – ENTIRE AGREEMENT
These Terms, the Privacy Statement, and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and your business and Oculuma and governs your access to and use of the Website and your ordering, purchasing, and use and/or attempted use of any service or product, and supersedes and replaces any prior or contemporaneous agreements, representations, communications, and proposals, whether oral or written, between you and Oculuma. We may also, in the future, offer new services and/or features through the Website. Such new features and/or services shall also be subject to this Agreement, and any policies or operating rules posted by us on the Website. Any ambiguities in the interpretation of these Terms or the Agreement shall not be construed against the drafting party.
SECTION 28 – CONTACTING US
We encourage our customers to contact us with questions or comments about our products and services. Please feel free to do so by sending an email to firstname.lastname@example.org.
If you have any questions or inquiries concerning these Terms, you may contact Oculuma by email at email@example.com, or by regular mail at 23 Hilltop Close Goonellabah NSW 2480 Australia.
Notices to you may be made by posting a notice (or a link to a notice) on https://www.oculuma.com.au, by email, or by regular mail, at Oculuma’s discretion.