TERMS AND CONDITIONS

 

1 - Acceptance

(a)   This website (Site) is operated by Digital Hindsight Pty Ltd t/a Poca Designs (ABN 46 602 028 848) (we, our or us). It is available at: https://www.pocadesigns.com and may be available through other addresses or channels.

(b)   By accessing and/or using the Site you:

(1)        warrant to us that you have reviewed these Terms and Conditions including our Website Terms of Use (available on the Site) and our Privacy Policy (available on the Site) (Terms), with your parent or legal guardian (if you are under 18 years of age), and you understand them;

(2)        warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to the Terms on your behalf; and

(3)        agree to use the Site in accordance with the Terms.

Please read the Terms carefully and immediately cease using the Site if you do not agree to them.

(c)    You must not place an order for products through the Site unless you are at least 13 years of age. If you are a parent or legal guardian permitting a person who is at least 13 years of age but under 18 years of age (a Minor) to use the Site, you agree to: (i) supervise the Minor’s use of the Site; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Site; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor’s behalf.

 

2 - Registration

(a)   You may create an account to purchase products from us. You must ensure that any personal information you give to us when creating an account is accurate and up-to-date. All personal information that you give to us will be treated in accordance with our Privacy Policy.
(b)   When you create an account, we will give you certain account details (such as a username and password). It is your responsibility to keep your account details confidential. You are liable for all activity on your account, including purchases made using your account details. 

 

3 - Collection Notice

(a)   We collect personal information about you in order to enable you to access and use the Site (including to make orders for the products on the Site), to contact and communicate with you, to respond to your enquiries, to notify you of the products’ delivery status, to send you marketing information and for other purposes set out in our Privacy Policy.
(b)   We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law. If you do not provide this information we may not be able to provide our products to you.  In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
(c)    Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information or opt-out of receiving communication from us; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process. 
(d)   By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy. 

 

4 - Orders

(a)   You may order products from us as set out on the Site. Any order placed through the Site is an offer by you to purchase a particular product or products for the price notified (including the delivery and other charges and taxes) at the time you place your order.
(b)   We may, at our absolute discretion, accept or reject an order (including if we do not deliver to the nominated delivery address provided by you). We will endeavour to notify you of a rejection at the time of the order or within a reasonable time thereafter.
(c)    Each order that we accept results in a separate binding agreement between you and us for the supply of products in accordance with the Terms.
(d)   It is your responsibility to check the order details, including selected products (including their specifications) and pricing before you submit your order through the Site. You acknowledge and agree that the products are not waterproof (only water resistant) and any image depicting use, colour or quality are provided as a guide only.
(e)   When you order and pay on the Site and your payment has been validated, we may provide you with order details, which may include an order number, the delivery and billing addresses and a description of what was ordered. 

 

5 - Availability and cancellation

(a)    All purchases made through the Site are subject to availability. We do our best to keep products in stock and to keep the Site up to date with the availability of products.
(b)    If there is a considerable delay in dispatching your order, we will contact you using the details you provided when you placed your order to inform you of the delivery delay. If for any reason we cannot supply the products you order we will return any monies paid by you.
(c)     You acknowledge and agree that we may cancel any order, and return any monies paid by you, if at the time of the order, we cannot deliver to the delivery address nominated in the order. 

 

6 - Price and Payments

(a)    You must pay us the purchase price of each product you order plus any applicable delivery and insurance costs based on the delivery options selected by you as set out on the Site (the Price) in accordance with this clause. All amounts are stated in Australian dollars and are inclusive of Australian GST (where applicable). We display delivery and insurance costs on the Site and you acknowledge and agree that these are separate from and additional to the product price.  
(b)    Any payments will be made through our third party payment processor, currently [Stripe, Paypal], or by any other payment method set out on the Site. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third party payment processor [or additional fees]; please review these terms and conditions [or additional fees] before using your selected payment method.
(c)     For products which are available at the time of your order, you must pay the Price up front. Only once the Price has been paid in full will your products be dispatched to you.
(d)    You must not pay, or attempt to pay, the Price by fraudulent or unlawful means. 


7 - Promotional Discount Codes

We may from time to time issue promotional discount codes for certain products on the Site, through our social media channels or through our email newsletter. To claim the discount, you must enter the promotional discount code at the time of submitting your order through the Site. The conditions of use relating to promotional discount codes will be specified on the Site at the time they are issued.
 

8 - Delivery, title and risk

(a)   If possible we will deliver the products to the delivery address you provide when making your order. We deliver Australia wide and to the countries set out on our Site, from time to time. Please refer to the delivery information on the Site to ensure you are in our delivery area. If you are not in our delivery area please contact us to discuss delivery options.
(b)   Delivery costs are set out on the Site.
(c)    We normally dispatch products within 2 business days of receiving an order, unless otherwise noted on the Site. Any delivery periods displayed on the Site are estimates only, based on the information provided by the delivery company.
(d)   If you need to change the delivery date or delivery address, please notify us immediately in writing.
(e)   We may deliver the products using a range of delivery methods. If neither you nor an authorised representative is at the delivery address to accept delivery, our nominated deliverer will generally notify you (either by leaving a notice at the delivery address or by email or SMS) of a missed delivery attempt and/or instructions to arrange a suitable delivery time. We reserve the rights to retrieve any costs suffered or incurred by us, from you, as a result of repeated delivery attempts.
(f)    Title to the products will remain with us until you have paid us the Price in full in accordance with the Terms. Until title passes, you must not do anything which seeks to create an encumbrance, lien, charge or other interest in or over the products.
(g)   Riskin the products will pass to you as soon as they are delivered to the delivery address you provided in your order. Once risk in the products passes, you will be solely responsible for them. 


9 - Defects

(a)    If, within [24 hours] after the delivery or collection of the products, you notify us in writing of any fault, defect or error in the products, which is caused by a breach of these Terms by us (Defect), along with a photo and description of the relevant Defect, we will, at our own cost:
(1)     repair or remedy the Defect; or
(2)     if we are unable to repair or remedy the Defect, offer you a choice of a credit or a refund with respect to that part of the Price applicable to the Defect.
(b)    If requested by us, you must make available or return to us the products the subject of a notice under clause 9(a), together with all packaging, parts, accessories, documentation and proof of purchase which were handed over by us with the products. You must adequately package any products you are returning to us to ensure they are not damaged during return delivery to us. We agree to cover the costs of returning Defective products to us by sending you a pre-paid return envelope.
(c)     Despite anything to the contrary, to the maximum extent permitted by law, our aggregate liability for any fault, defect, error, omission or lack of functionality or suitability with respect to the products will be limited to, and must not exceed, the costs we incur in complying with clause 9(a)(1)or 9(a)(2)(as applicable). 

 

10 - Returns

(a)    We do not accept returns for change of mind or other circumstances (including where you selected the wrong product). Any returns accepted by us for reasons that are not the result of a Defect in the product in accordance with clause 9 will be in our absolute discretion. If any return is accepted by us, in accordance with this clause 10, you are responsible for the cost of returning the products to us. 

 

11 - Limitations

(a)    Despite anything to the contrary, to the maximum extent permitted by law:
(1)     our maximum aggregate liability arising from or in connection with the Terms (including the products and/or the subject matter of the Terms) will be limited to, and must not exceed, the portion of the Price paid by you to us for the products the subject of the relevant claim; and
(2)     we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
(b)    Despite anything to the contrary, to the maximum extent permitted by law, we will have no liability, and you release and discharge us from all liability, arising from or in connection with any: 
(1)     loss of, or damage to, the products ordered by you or any other products (including camera equipment), or any injury or loss to any person;
(2)     failure or delay in providing the products ordered by you; or
(3)     breach of the Terms or any law,
where caused or contributed to by any:
(4)     event or circumstance beyond our reasonable control; or
(5)     act or omission of you or your related parties,
and, in any event, any defect, error, omission or lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the products. 

(c)     Nothing in the Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law. In Australia, our goods come with guarantees which cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and 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. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms. 

 

12 - Intellectual property

(a)    All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with the Terms and the products) will at all times vest, or remain vested, in us.
(b)    You must not, without our prior written consent:
(1)     copy or use, in whole or in part, any of our intellectual property;
(2)     reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or
(3)     breach any intellectual property rights connected with the Site or the products, including (without limitation) altering or modifying any of our intellectual property; causing any of any of our intellectual property to be framed or embedded in another website; or creating derivative works from any of our intellectual property. 

 

13 - Termination

(a)    We may immediately suspend, terminate or limit your access to and use of the Site and (where applicable) your account) if you breach the Terms and the breach cannot be remedied or is not remedied within 5 business days of us notifying you of the breach.
(b)    You may stop using the Site at any time for any reason.
(c)     We may stop making the Site (or any part of it) available without prior notice. If we do this, any order that we have accepted will not be affected, subject to the Terms. 

 

14 - General

(a)    Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this clause).
(b)   Notices: Any notice given under these Terms must be in writing and addressed to us at the details set out below or to you at the details provided when setting up your account or submitting your order. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email.
(c)    Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.
(d)   Relationship of parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.
(e)   Photographs: If you provide us with photographs of the products, you consent to us publishing such photographs and details (including but not limited to your name, location and date) for our marketing purposes including on the Site and social media. If any photographs you provide to us contain images of people, you warrant that those people have also consented to us publishing such photographs and details.
(f)    Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.
(g)   Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent.
(h)   Entire agreement: The Terms contain the entire understanding and agreement between you and us in respect of their subject matter.
(i)    Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. Prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any order that has been accepted by us, the terms and conditions that apply will be the ones that were in effect (and which you agreed to) when you placed your order.
(j)    Governing law: These Terms are governed by the laws of New South Wales. The Site may be accessed in Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with these laws in the place you access the Site.
 
For any questions and notices, please contact us at:
Digital Hindsight Pty Ltd t/a Poca Designs (ABN 46 602 028 848)
6 Cooleena Road, Elanora Heights, NSW 2101
Email: hello@pocadesigns.com
Last update: 2 July 2018