This Website (referred to in these Terms of Access as the “Website”) is owned and operated by Rosemary McKenzie and Jennifer Kiely trading as Samara Magazine (“Samara”) on the World Wide Web (“WWW”).
The material on the Website is copyright © 2012 Rosemary McKenzie and Jennifer Kiely trading as Samara Magazine.
The Website is available for you to access conditional on your acceptance without alteration of the terms and conditions set out below. By continuing to access the Website you are agreeing to the terms and conditions set out below.
Use of material on the Website
1. Except for the limited use set out in para B you may not use the Website, or the material contained on it, for any purpose. This involves:
(a) the reproduction of the material in any material form;
(b) the distribution of the material in any material form;
(c) re-transmission of the material by any medium of communication;
(d) uploading and/or reposting the material to any other site on the WWW;
(e) “framing” the material on the Website with other material on any other WWW site.
The above are unlawful in any jurisdiction and are specifically prohibited by these Terms of Access.
2. Notwithstanding the above restrictions on use of the material on the Website, you may download material from the Website for your personal non-commercial use provided you do not remove any copyright and trade mark notices contained on the material.
3. You may not modify or copy:
(a) the layout of the Website; and
(b) any computer software and code contained in the Website.
4. Samara reserves all intellectual property rights, including, but not limited to, copyright in material and/or services provided by it. The material provided on the Website is provided for personal use only and may not be:
(a) re-sold and/or re-distributed in any material form;
(b) stored in any storage media; and/or
(c) re-transmitted in any media,
without the prior written consent of Samara.
Advertisements and Links to other Websites
5. The Website contains advertisements and links to sites on the WWW owned and operated by third parties and which are not under the control of Samara.
6. In relation to the advertisements and the other sites on the WWW, which are linked to the Website, Samara:
(a) provides the advertisements and the links to other sites as a convenience to you and the existence of an advertisement or link to other sites does not imply any endorsement by Samara of the linked site; and
(b) is not responsible for the material contained on those advertisements or linked sites.
7. Samara is making the Website available for the publishing of information and takes all reasonable care to ensure that information published observes ethical, moral and legal standards. Samara however is not in the business of providing professional advice and gives no warranty, guarantee or representation about the accuracy, reliability or timeliness or otherwise, of the information contained on the Website and/or linked sites on the WWW.
8. To the full extent permitted by law Samara disclaims any and all warranties, express or implied, regarding:
(a) the accuracy, reliability, timeliness or otherwise of any information contained or referred to on the Website and/or of any linked sites; and
(b) merchantability or fitness for any particular purpose for any service or product contained or referred to on the Website and/or on any linked sites.
9. Samara will not be liable under any circumstances for any loss of profits or any damages of any kind recognised by law (even if it has been advised of the possibility of such loss of profits or damages) which are the consequence of you:
(a) acting, or failing to act, on any information contained on or referred to on the Website and/or any of the linked Websites; and
(b) using or acquiring, or your inability to use or acquire, any service or product contained or referred to on the Website and/or any linked sites.
10. Samara does not warrant guarantee or make any representation that:
(a) the Website, or the server that makes the site available on the WWW are free of software viruses;
(b) the functions contained in any software contained on the Website will operate uninterrupted or are error-free; and
(c) errors and defects in the Website will be corrected.
11. Samara is not liable to you for:
(a) errors or omissions in the Website, or linked sites on the WWW;
(b) delays to, interruptions of or cessation of the services provided in the Website, or linked sites; and
(c) defamatory, offensive or illegal conduct of any user of the Website,
whether caused through negligence of Samara, its employees or independent contractors, or through any other cause.
12. You agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing the Website.
Limitation of liability
13. Disclaimer 1 and/or Disclaimer 2 may not apply to you in jurisdictions in which limitations on or exclusions of warranties or liabilities are not permitted by law. To the full extent permitted by law Samara’s liability for any implied warranty or condition is limited, at the choice of Samara, to one or more of the following:
If the breach of an implied warranty or condition relates to services:
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again.
If the breach of an implied warranty or condition relates to goods:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of such goods;
(c) the payment of the cost of replacing the goods or acquiring equivalent goods, or having the goods repaired.
Use of information gathered
14. Samara and/or people authorised by it may gather and process the information:
(a) which you may provide when accessing the Website, such as your name, address, e-mail address and other personal information about you; and
(b) regarding the way in which you use the Website including, without limitation, information acquired through the use of “cookies” programmed during the accessing of the Website.
15. Samara may authorise others to offer you goods and services using the information acquired through (a) and (b) above.
Termination of access
17. Samara may terminate access to the Website at any time without giving any explanation or justification for the termination of access, and Samara has no liability for any costs, losses or damages of any kind arising as a consequence of terminating access to the Website.
Alteration of Terms of Access
18. Samara reserves the right to change these Terms of Access:
(a) with or without further notice to you; and
(b) without giving you any explanation or justification for such change.
19. If any part of this Agreement is found to be void, unlawful, or unenforceable then that part will be deemed to be severable from the balance of this Agreement and the severed part will not affect the validity and enforceability of any remaining provisions.
20. This Agreement will be governed by and interpreted in accordance with the law of Victoria,, Australia without giving effect to any principles of conflicts of laws.
21. You agree to the jurisdiction of the courts of Victoria, Australia to determine any dispute arising out of this Agreement.
Samara Magazine Business Directory Advertising Terms and Conditions
1. Definitions and Interpretation
Unless the context indicates the contrary:
‘Advertising Content’ means the content of advertisements submitted by You or on your behalf to the Website Owner in an Advertising Request including but not limited to all text, graphics, icons, photographs and URLs.
‘Advertising Request Form’ means the online form completed by You or on your behalf and located at the Website.
‘Agreement’ means an Agreement between You and Samara whereby Samara agrees publish the Advertising Content in exchange for payment of the fees and subject always to and incorporating these Terms and Conditions.
‘Business Directory’ means the business directory listing located on the Website.
‘Confidential Information’ means all information provided by one party to the other in connection with the Advertising Content where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding (a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of the Agreement, and (b) information developed independently by a party.
‘Fees’ means the advertising fees detailed on the Advertising Request Form.
‘Force Majeure Event’ means any event beyond the control of the relevant party.
‘GST’ has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
‘Intellectual Property Rights’ means all intellectual property rights, including all copyright, patents, trade marks, design rights, moral rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
‘Samara’ means Jennifer Kiely and Rosemary McKenzie trading as Samara Magazine of 10 Elizabeth Street, Kensington VIC 3031
‘Website’ means Samara Magazine located at http://www.samaramagazine.com.au
Unless the context requires otherwise:
(a) a reference to a person includes a corporation or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of the Agreement or otherwise affect the interpretation of the Agreement;
(d) the term “includes” (or any similar term) means “includes without limitation”; and
(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2. Business Directory Advertising
2.1 By completing and submitting the Advertising Request Form you are requesting advertising space on the Business Directory.
2.2 All information on the Advertising Request Form must be complete and accurate and must comply with all laws, regulations and relevant industry codes.
2.3 Advertising Requests must not request publication or linking to content which is illegal or may bring Samara into disrepute.
2.4 Samara may reject or cancel any Advertising Request at any time at its sole discretion.
2.5 By submitting Advertising Requests You authorise Samara to publish the Advertising Content on the Business Directory.
3. Positioning and Style
3.1 You acknowledge and agree that Samara retains complete editorial control over the Business Directory and the Website. Samara may at its sole discretion:
(a) refuse to include any Advertising Content at any time;
(b) remove any Advertising Content at any time;
(c) position Advertising Content as it sees fit;
(d) label any Advertising Content as an “advertisement” for clarification and stipulate any other conditions to ensure that it is clear that the Advertising Content is an advertisement.
4.1 You must pay Samara the Fees upon submitting the Advertising Request Form and as part of the online application process.
4.2 Samara accepts payment of the Fees via Paypal. Terms and conditions associated with process your payment using Paypal may be found on the Paypal website at http://www.paypal.com.au
4.3 The Advertising Content will not be published to the Business Directory until payment of the Fees has been processed and received in full by Samara.
5.1 All amounts payable under this Agreement are expressed inclusive of GST.
5.2 In respect of any taxable supply, You must pay to Samara an amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by You of a valid tax invoice.
6.1 A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by Samara or required to do so by law or any regulatory authority.
6.2 A party may:
(a) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this transaction and the Agreement; and
(b) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related the Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
6.3 Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.
6.4 Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of Samara’s request or on termination of the Business Directory Advertisement for any reason.
7.1 You represent and warrant that:
(a) You are fully authorised to publish, and to authorise Samara to publish, all Advertising Content;
(b) the Advertising Content and the publication of the Advertising Content on the Business Directory does not and will not, at any time, infringe any Intellectual Property Right, any right of confidence or other right of any person;
(c) all Advertising Content will comply with all applicable laws, regulations and relevant industry codes;
(d) all advertised products and services will match the advertised description and be available in the manner, at the price and for the time period advertised;
(e) each website located at any URL shown or embedded in any Advertising Content is controlled and operated by You or on your behalf, is functional and accessible and at all times operates in compliance with all applicable laws, regulations and relevant industry codes.
8.1 To the full extent permitted by law, Samara excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
8.2 To the full extent permitted by law, Samara excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in these Terms and Conditions.
8.3 Samara’s total aggregate liability for all claims relating to the Agreement is limited to the Fees payable pursuant to the Agreement.
8.4 Either party’s liability for any claim relating to advertising on the Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
8.5 These Terms and Conditions are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, Samara limits its liability in respect of any claim to, at Samara’s option:
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of having the goods repaired, and
(b) in the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
9.1 You indemnify and hold Samara its agents, affiliates, subsidiaries, directors, officers, employees, consultants and contractors (collectively “Indemnified Persons”) harmless from and against any and all costs, claims, losses, damages, liability and expense (including all reasonable legal fees) which may be made or brought against or suffered or incurred, directly or indirectly by the Indemnified Persons in connection with:
(a) any breach of the Agreement by You;
(b) any act of fraud or wilful misconduct by You or on your behalf; or
(c) the publication of, or any act or omission in relation to, the Advertising Content or any website represented by a URL included or embedded in the Advertising Content.
10.1 A party may terminate the Business Directory Advertising by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of the Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice;
(b) an insolvency event occurs, other than an internal reconstruction with notice to the other party.
11. Consequences of Termination
11.1 If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) the parties are immediately released from their obligations under the Agreement except those obligations in clauses 6 to 9 and any other obligations that, by their nature, survive termination;
(b) each party retains the rights and claims it has against the other;
(c) You must immediately pay all outstanding Fees.
12.1 The parties’ contact details for notices under the Agreement are as follows, or as otherwise notified by one party to the other from time to time:
Website Owner: Jennifer Kiely and Rosemary McKenzie trading as Samara Magazine
Address: 10 Elizabeth Street, Kensington Vic 3031
You: the name, address and contact details provided via the online Advertising Request Form.
12.2 All notices must be in writing and can be given by:
(a) hand delivery during normal business hours;
(b) registered post; or
(c) facsimile followed within 2 business days by one of the means listed above.
12.3 A notice is deemed to be given and received:
(a) if delivered in accordance with clause 12.2(a) on the next business day after the day of delivery;
(b) if sent in accordance with clause 12.2(b) within 5 clear business days after the day of posting;
(c) if sent in accordance with clause 12.2(c) on the next business day after transmission.
13.1 You must not assign or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of Samara.
13.2 Nothing contained in the Agreement creates any relationship of partnership or agency between the parties.
13.3 If a provision of the Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
13.4 Each party must at its own expense do everything reasonably necessary to give full effect to the Agreement and the events contemplated by it.
13.5 This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.
13.6 This Agreement may be amended only by a document signed by all parties.
13.7 A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.
13.8 This Agreement may be executed in counterparts which will be taken together to constitute one document.
13.9 A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
13.10 Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party’s performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.
13.11 All stamp duties and other government charges in relation to this Agreement must be paid by You.
13.12 This Agreement is governed by the laws of Victoria and each party submits to the jurisdiction of the courts of Victoria.