WEBSITE TERMS AND CONDITIONS OF USE
1. About the Website
(a) Welcome to www.wundersparks.com (Website). The Website provides you with an
opportunity to browse and purchase various products that have been listed for sale through
the Website (Products). The Website provides this service by way of granting you access
to the content on the Website (Purchase Services).
(b) The Website is operated by Bluesky Playground Pty Ltd, trading as WunderSparks .
Access to and use of the Website, or any of its associated Products or Services, is
provided by WunderSparks. Please read these terms and conditions (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 Services, immediately.
c) WunderSparks reserves the right to review and change any of the Terms by updating this
page at its sole discretion. When WunderSparks 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
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 WunderSparks 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, without limitation, your credit card number, the
expiration date of your credit card and your billing address.
(b) You warrant that any information you give to WunderSparks in the course of completing the
registration process will always be accurate, correct and up to date.
c) Once you have completed the registration process, you will be a registered member of the
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 WunderSparks; 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 WunderSparks 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 WunderSparks 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
WunderSparks 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
(Purchase Price).
(b) Payment of the Purchase Price may be made through Stripe (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.
c) Following payment of the Purchase Price being confirmed by WunderSparks, you will be
issued with a receipt to confirm that the payment has been received and WunderSparks
may record your purchase details for future use.
(d) WunderSparks does usually not offer refunds due to the digital nature of the product
(meaning it cannot be returned). Refunds will be considered on a case by case basis and
granted in sole discretion of WunderSparks.
(e) WunderSparks product purchase price is billed to you on a subscription basis. You will be billed in
advance on a recurring and periodic basis. Billing cycles are set on an annual basis. At the
end of each billing cycle, your subscription will automatically renew under the same
conditions unless you cancel it or WunderSparks cancels it. You may cancel your
subscription renewal through your online account management page.
(f) WunderSparks, in its sole discretion and at any time, may modify the subscription fees for
the subscriptions. Any subscription fee change will become effective at the end of the then-
current billing cycle. WunderSparks will provide you with reasonable prior notice of any
change in subscription fees to give you an opportunity to terminate your subscription before
such changes become effective if you wish to. Your continued use of the service after the
subscription fee change has come into effect constitutes your agreement to pay the
modified subscription fee amount.
(g) Any promotions made available through the Service may be governed by rules that are
separate from these Terms. If you participate in any promotions, please review the
applicable rules as well as our Privacy Policy. If the rules for the promotion conflict with
these terms, the promotion rules will apply.
6. Copyright and Intellectual Property
(a) The Website, the Purchase Services and all of the related products of WunderSparks 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 copyright) in the site content and compilation of the website (including text,
graphics, logos, button icons, video images, audio clips and software) (Content) are
owned or controlled for these purposes, and are reserved by WunderSparks or its
contributors.
(b) 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 WunderSparks; or
(b) the right to use or exploit a business name, trading name, domain name, trade mark
or industrial design; or
c) a system or process that is the subject of a patent, registered design or copyright
(or an adaptation or modification of such a system or process).
c) You may not, without the prior written permission of WunderSparks and the 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.
7. Privacy
WunderSparks takes your privacy seriously and any information provided through your use of the
Website and/or the Purchase Services are subject to WunderSparks's Privacy Policy, which is
available on the Website.
8. General Disclaimer
(a) You acknowledge that WunderSparks does not make any terms, guarantees, warranties,
representations or conditions whatsoever regarding the Products other than provided for
pursuant to these Terms.
(b) WunderSparks 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.
c) Nothing in these Terms limits or excludes any guarantees, warranties, representations or
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) WunderSparks 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 WunderSparks , is
at your own risk. Everything on the Website, the Purchase Services, and the Products of
WunderSparks, 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 WunderSparks make any express
or implied representation or warranty about its Content or any products or Purchase
Services (including the products or Purchase Services of WunderSparks) 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.
9. Limitation of Liability
(a) WunderSparks'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 WunderSparks is the resupply of information or Purchase Services to you.
(b) You expressly understand and agree that WunderSparks, 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.
c) WunderSparks is not responsible or liable in any manner for any site content (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 WunderSparks,
by third parties or by any of the Purchase Services offered by WunderSparks.
10. Termination of Contract
(a) The Terms will continue to apply until terminated by either you or by WunderSparks as set
out below.
(b) If you want to terminate the Terms, you may do so by:
(i) notifying WunderSparks at any time; and
(ii) closing your accounts for all of the Purchase Services which you use, where
WunderSparks has made this option available to you.
c) WunderSparks 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) WunderSparks is required to do so by law;
(iii) the partner with whom WunderSparks offered the Purchase Services to you has
terminated its relationship with WunderSparks or ceased to offer the Purchase
Services to you;
(iv) WunderSparks 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 WunderSparks is, in the opinion of
WunderSparks, no longer commercially viable.
(e) Subject to local applicable laws, WunderSparks 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 WunderSparks'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 WunderSparks 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.
11. Indemnity
(a) You agree to indemnify WunderSparks, 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.
12. Dispute Resolution
12.1. 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).
12.2 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.
12.3 Resolution
On receipt of that notice (Notice) by that other party, the parties to the Terms (Parties)
must:
(i) Within 28 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, 28 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 mediation
body 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 New South Wales, Australia.
12.4 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.
12.5 Termination of Mediation
If 2 months 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.
13. Venue and Jurisdiction
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 New South Wales, Australia.
14. Governing Law
The Terms are governed by the laws of New South Wales 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 New South Wales, 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.
15. Severance
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.