Terms and Conditions

WEBSITE TERMS AND CONDITIONS OF USE

1. About the Website

(a) Welcome to www.outtheblue.com.au (the 'Website'). The Website provides you with an

opportunity to browse and purchase various products that have been listed for sale through the

Website (the 'Products'). The Website provides this service by way of granting you access to the

content on the Website (the 'Purchase Services').

(b) The Website is operated by Out The Blue Pty Ltd (ACN 652972113). Access to and use of the

Website, or any of its associated Products or Services, is provided by Out The Blue Pty Ltd. Please

read these terms and conditions (the 'Terms') carefully. By using, browsing and/or reading the

Website, this signifies that you have read, understood and agree to be bound by the Terms. If you

do not agree with the Terms, you must cease usage of the Website, or any of the Services, immediately.

updating this page at its sole discretion. When Out The Blue Pty Ltd updates the Terms, it will use

reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms

take immediate effect from the date of their publication. Before you continue, we recommend you

keep a copy of the Terms for your records.

2. Acceptance of the Terms

(a) You accept the Terms by remaining on the Website. You may also accept the Terms by

clicking to accept or agree to the Terms where this option is made available to you by Out The Blue

Pty Ltd in the user interface.

3. Registration to use the Purchase Services

(a) In order to access the Purchase Services, you must first register as a user of the

Website. As part of the registration process, or as part of your continued use of the Purchase

Services, you may be required to provide personal information about yourself (such as

identification or contact details), including:

(i) Email address

(ii) Telephone number

(iii) Password

(b) You warrant that any information you give to Out The Blue Pty Ltd in the course of

completing the registration process will always be accurate, correct and up to date.

Website ('Member') and agree to be bound by the Terms. As a Member you will be granted immediate

access to the Purchase Services.

(d) You may not use the Purchase Services and may not accept the Terms if:

(a) you are not of legal age to form a binding contract with Out The Blue Pty Ltd; or

(b) you are a person barred from receiving the Purchase Services under the laws of Australia

or other countries including the country in which you are resident or from which you use the

Purchase Services.

4. Your obligations as a Member

(a) As a Member, you agree to comply with the following: You will use the Purchase Services only for

purposes that are permitted by:

(i) the Terms;

(ii) any applicable law, regulation or generally accepted practices or guidelines in the

relevant jurisdictions;

(iii) you have the sole responsibility for protecting the confidentiality of your password

and/or email address. Use of your password by any other person may result in the immediate

cancellation of the Purchase Services;

(iv) any use of your registration information by any other person, or third parties, is

strictly prohibited. You agree to immediately notify Out The Blue Pty Ltd of any unauthorised use

of your password or email address or any breach of security of which you have become aware;

(v) access and use of the Website is limited, non-transferable and allows for the sole use

of the Website by you for the purposes of Out The Blue Pty Ltd providing the Purchase Services;

(vi) you will not use the Purchase Services or Website for any illegal and/or unauthorised

use which includes collecting email addresses of Members by electronic or other means for the

purpose of sending unsolicited email or unauthorised framing of or linking to the Website;

(vii) you agree that commercial advertisements, affiliate links, and other forms of

solicitation may be removed from the Website without notice and may result in termination of the

Purchase Services. Appropriate legal action will be taken by Out The Blue Pty Ltd for any illegal

or unauthorised use of the Website; and

(viii) you acknowledge and agree that any automated use of the Website or its Purchase

Services is prohibited.

5. Purchase of Products and Returns Policy

(a) In using the Purchase Services to purchase the Product through the Website, you will agree

to the payment of the purchase price listed on the Website for the Product (the 'Purchase Price').

(b) Payment of the Purchase Price may be made through Stripe (the 'Payment Gateway

Provider'). In using the Purchase Services, you warrant that you have familiarised yourself with,

and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other

relevant legal documentation provided by the Payment Gateway Providers.

be issued with a receipt to confirm that the payment has been received and Out The Blue Pty Ltd may

record your purchase details for future use.

(d) Out The Blue Pty Ltd may, at their sole discretion, provide a refund on the return of the

Products within 28 days where the Product packaging is unopened and remains in a saleable

condition. You acknowledge and agree that you are liable for any postage and shipping costs

associated with any refund pursuant to this clause.

6. Warranty

NOTE: For Manta 5 products, please refer to Warranty details at www.manta5.com. The Manta 5 warranty applies to all Manta 5 products.

(a) Out The Blue Pty Ltd's Products come with guarantees that cannot be excluded under the

Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the

Product and compensation for any other reasonably foreseeable loss or damage. You are also

entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality

and the failure does not amount to a major failure (the 'Warranty').

(b) You may make a claim under this clause (the 'Warranty Claim') for material defects and

workmanship in the Products within the manufacturer's specified warranty period from the date of

purchase (the 'Warranty Period').

purchase to Out The Blue Pty Ltd showing the date of purchase of the Products, provide a

description of the Products and the price paid for the Products by sending written notice to Out

The Blue Pty Ltd at 10 Crace Road, Fulham, South Australia, 5024 or by email at hello@outtheblue.com.au.

(d) Where the Warranty Claim is accepted then Out The Blue Pty Ltd will, at its sole

discretion, either repair or replace any defective Products or part thereof with a new or

remanufactured equivalent during the Warranty Period at no charge to you for parts or labour. You

acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in

facilitating the Warranty Claim.

(e) The Warranty shall be the sole and exclusive warranty granted by Out The Blue Pty Ltd and

shall be the sole and exclusive remedy available to you in addition to other rights and under a law

in relation to the Products to which this warranty relates.

(f) All implied warranties including the warranties of merchantability and fitness for use

are limited to the Warranty Period.

(g) The Warranty does not apply to any appearance of the supplied Products nor to the

additional excluded items set forth below nor to any supplied Products where the exterior of which

has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or

which has been altered or modified in design or construction.

7. Delivery

(a) You acknowledge that the Purchase Services offered by Out The Blue Pty Ltd integrate

delivery (the Delivery Services') through the use of third party delivery companies (the

Delivery Service Providers').

(b) In providing the Purchase Services, Out The Blue Pty Ltd may provide you with a variety of

delivery and insurance options offered as part of the Delivery Services by the Delivery Service

Providers. You acknowledge and agree that Out The Blue Pty Ltd is not the provider of these

delivery and insurance options and merely facilitates your interaction with the Delivery Service

Providers in respect to providing the Delivery Services.

The Blue Pty Ltd asks that you:

(i) contact the Delivery Service Provider directly to request a refund or to claim on any

insurance options available; and

(ii) contact us by sending an email to hello@outtheblue.com.au outlining in what way the

Products were damaged in transit so we are able to determine if the Delivery Service Provider

should be removed from the Purchase Services.

8. Copyright and Intellectual Property

(a) The Website, the Purchase Services and all of the related products of Out The Blue Pty Ltd

are subject to copyright. The material on the Website is protected by copyright under the laws of

Australia and through international treaties. Unless otherwise indicated, all rights (including

button icons, video images, audio clips and software) (the 'Content') are owned or controlled for

these purposes, and are reserved by Out The Blue Pty Ltd or its contributors.

(b) Out The Blue Pty Ltd retains all rights, title and interest in and to the Website and all

related content. Nothing you do on or in relation to the Website will transfer to you:

(a) the business name, trading name, domain name, trade mark, industrial design, patent,

registered design or copyright of Out The Blue Pty Ltd; or

(b) the right to use or exploit a business name, trading name, domain name, trade mark or

industrial design; or

an adaptation or modification of such a system or process).

permission of any other relevant rights owners: broadcast, republish, up-load to a third party,

transmit, post, distribute, show or play in public, adapt or change in any way the Content or third

party content for any purpose. This prohibition does not extend to materials on the Website, which

are freely available for re-use or are in the public domain.

9. Privacy

(a) Out The Blue Pty Ltd takes your privacy seriously and any information provided through

your use of the Website and/or the Purchase Services are subject to Out The Blue Pty Ltd's Privacy

Policy, which is available on the Website.

10. General Disclaimer

(a) You acknowledge that Out The Blue Pty Ltd does not make any terms, guarantees, warranties,

representations or conditions whatsoever regarding the Products other than provided for pursuant to

these Terms.

(b) Out The Blue Pty Ltd will make every effort to ensure a Product is accurately depicted on

the Website, however, you acknowledge that sizes, colours and packaging may differ from what is

displayed on the Website.

conditions implied or imposed by law, including the Australian Consumer Law (or any liability

under them) which by law may not be limited or excluded.

(d) Subject to this clause, and to the extent permitted by law:

(i) all terms, guarantees, warranties, representations or conditions which are not

expressly stated in these Terms are excluded; and

(ii) Out The Blue Pty Ltd will not be liable for any special, indirect or consequential loss

or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet

an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out

of or in connection with the Purchase Services or these Terms (including as a result of not being

able to use the Purchase Services or the late supply of the Purchase Services), whether at common

law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

(e) Use of the Website, the Purchase Services, and any of the products of Out The Blue Pty Ltd

(including the Delivery Services), is at your own risk. Everything on the Website, the Purchase

Services, and the Products of Out The Blue Pty Ltd, are provided to you on an "as is" and "as

available" basis, without warranty or condition of any kind. None of the affiliates, directors,

officers, employees, agents, contributors, third party content providers or licensors of Out The

Blue Pty Ltd including any third party where the Delivery Services are made available to you make

any express or implied representation or warranty about its Content or any products or Purchase

Services (including the products or Purchase Services of Out The Blue Pty Ltd) referred to on the

Website. This includes (but is not restricted to) loss or damage you might suffer as a result of

any of the following:

(i) failure of performance, error, omission, interruption, deletion, defect, failure to

correct defects, delay in operation or transmission, computer virus or other harmful component,

loss of data, communication line failure, unlawful third party conduct, or theft, destruction,

alteration or unauthorised access to records;

(ii) the accuracy, suitability or currency of any information on the Website, the Purchase

Service, or any of its Content related products (including third party material and advertisements

on the Website);

(iii) costs incurred as a result of you using the Website, the Purchase Services or any of

the Products;

(iv) the Content or operation in respect to links which are provided for the User's

convenience;

(v) any failure to complete a transaction, or any loss arising from e-commerce transacted

on the Website; or

(vi) any defamatory, threatening, offensive or unlawful conduct of third parties or

publication of any materials relating to or constituting such conduct.

11. Limitation of Liability

(a) Out The Blue Pty Ltd's total liability arising out of or in connection with the Purchase

Services or these Terms, however arising, including under contract, tort (including negligence),

in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you

under these Terms or where you have not paid the Purchase Price, then the total liability of Out

The Blue Pty Ltd is the resupply of information or Purchase Services to you.

(b) You expressly understand and agree that Out The Blue Pty Ltd, its affiliates, employees,

agents, contributors, third party content providers and licensors shall not be liable to you for

any direct, indirect, incidental, special consequential or exemplary damages which may be incurred

by you, however caused and under any theory of liability. This shall include, but is not limited

to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business

reputation and any other intangible loss.

(including the Content and Third Party Content) posted on the Website or in connection with the

Purchase Services, whether posted or caused by users of the website of Out The Blue Pty Ltd, by

third parties or by any of the Purchase Services offered by Out The Blue Pty Ltd.

(d) You acknowledge that Out The Blue Pty Ltd does not provide the Delivery Services to you

and you agree that Out The Blue Pty Ltd will not be liable to you for any special, indirect or

consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of

or in connection with the Delivery Services.

12. Termination of Contract

(a) The Terms will continue to apply until terminated by either you or by Out The Blue Pty Ltd

as set out below.

(b) If you want to terminate the Terms, you may do so by:

(i) notifying Out The Blue Pty Ltd at any time; and

(ii) closing your accounts for all of the Purchase Services which you use, where Out The Blue Pty Ltd has made this option available to you.

on our homepage.

(d) Out The Blue Pty Ltd may at any time, terminate the Terms with you if:

(i) you have breached any provision of the Terms or intend to breach any provision;

(ii) Out The Blue Pty Ltd is required to do so by law;

(iii) the partner with whom Out The Blue Pty Ltd offered the Purchase Services to you has

terminated its relationship with Out The Blue Pty Ltd or ceased to offer the Purchase Services to

you;

(iv) Out The Blue Pty Ltd is transitioning to no longer providing the Purchase Services to

Users in the country in which you are resident or from which you use the service; or

(v) the provision of the Purchase Services to you by Out The Blue Pty Ltd is, in the opinion

of Out The Blue Pty Ltd, no longer commercially viable.

(e) Subject to local applicable laws, Out The Blue Pty Ltd reserves the right to discontinue

or cancel your membership to the Website at any time and may suspend or deny, in its sole

discretion, your access to all or any portion of the Website or the Purchase Services without

notice if you breach any provision of the Terms or any applicable law or if your conduct impacts

Out The Blue Pty Ltd's name or reputation or violates the rights of those of another party.

(f) When the Terms come to an end, all of the legal rights, obligations and liabilities that

you and Out The Blue Pty Ltd have benefited from, been subject to (or which have accrued over time

whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be

unaffected by this cessation, and the provisions of this clause shall continue to apply to such

rights, obligations and liabilities indefinitely.

13. Indemnity

(a) You agree to indemnify Out The Blue Pty Ltd, its affiliates, employees, agents,

contributors, third party content providers and licensors from and against:

(i) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage

(including legal fees on a full indemnity basis) incurred, suffered or arising out of or in

connection with any Content you post through the Website;

(ii) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so and any breach by you or your agents of these Terms; and/or

(iii) any breach of the Terms.

14. Dispute Resolution

(a) Compulsory:

If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or

Court proceedings in relation to the dispute, unless the following clauses have been complied with

(except where urgent interlocutory relief is sought).

(b) Notice:

A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written

notice to the other party detailing the nature of the dispute, the desired outcome and the action

required to settle the Dispute.

On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties')

must:

(i) Within 30 days of the Notice endeavour in good faith to resolve the Dispute

expeditiously by negotiation or such other means upon which they may mutually agree;

(ii) If for any reason whatsoever, 30 days after the date of the Notice, the Dispute has not

been resolved, the Parties must either agree upon selection of a mediator or request that an

appropriate mediator be appointed by the President of the Australian Mediation Association or his

or her nominee;

(iii) The Parties are equally liable for the fees and reasonable expenses of a mediator and

the cost of the venue of the mediation and without limiting the foregoing undertake to pay any

amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must

each pay their own costs associated with the mediation;

(iv) The mediation will be held in Adelaide, Australia.

(d) Confidential:

All communications concerning negotiations made by the Parties arising out of and in connection

with this dispute resolution clause are confidential and to the extent possible, must be treated as

"without prejudice" negotiations for the purpose of applicable laws of evidence.

(e) Termination of Mediation:

If 30 have elapsed after the start of a mediation of the Dispute and the Dispute has not been

resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

15. Venue and Jurisdiction

(a) The Purchase Services offered by Out The Blue Pty Ltd is intended to be viewed by

residents of Australia. In the event of any dispute arising out of or in relation to the Website,

you agree that the exclusive venue for resolving any dispute shall be in the courts of South

Australia , Australia.

16. Governing Law

(a) The Terms are governed by the laws of South Australia , Australia. Any dispute,

controversy, proceeding or claim of whatever nature arising out of or in any way relating to the

Terms and the rights created hereby shall be governed, interpreted and construed by, under and

pursuant to the laws of South Australia Australia, without reference to conflict of law principles,

notwithstanding mandatory rules. The validity of this governing law clause is not contested. The

Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

17. Independent Legal Advice

(a) Both parties confirm and declare that the provisions of the Terms are fair and reasonable

and both parties having taken the opportunity to obtain independent legal advice and declare the

Terms are not against public policy on the grounds of inequality or bargaining power or general

grounds of restraint of trade.

18. Severance

(a) If any part of these Terms is found to be void or unenforceable by a Court of competent

jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

Terms and Conditions

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