Terms & Conditions

Terms and Conditions for online trading between Active Creatures Pty Ltd (ABN 45 926 695 340) ("we", "our", "us" or the "Company") and the user of this website ("You/Your").

These Terms and Conditions together with the documents referred to within the Terms and Conditions govern the supply of any products ordered by you on the Site and your use of the Site. By browsing, accessing, using the Site or ordering a product, you agree to be legally bound by these Terms and Conditions.

ACCESS AND USE OF THE SITE
INFORMATION ON THIS SITE
ORDER AND FORMATION OF CONTRACT
DELIVERY
CANCELLATION
NEW ZEALAND GST, CUSTOMS CHARGES, DUTIES AND FEES
FAULTY PRODUCT RETURNS
CHANGE OF MIND RETURNS
VOUCHERS, GIFT CARDS AND STORE CREDIT
DISCLAIMER AND LIABILITY
INDEMINITY
PRIVACY POLICY
MEDIATION AND DISPUTE RESOLUTION
GENERAL
DEFINITIONS AND INTERPRETATION

1. Access & Use of the Site

1.1 You must only use the Site in accordance with these Terms and Conditions and any applicable law.

1.2 You must not (or attempt to):

(a) interfere (or attempt to interfere) or disrupt (or attempt to disrupt) the Site or the servers or networks that host the Site;
(b) use (or attempt to use) data mining, robots, screen scraping or similar data gathering and extraction tools on the Site; or
(c) interfere (or attempt to interfere) with security-related or other features of the Site.

1.3 To place Orders and access some features of the Site, you must register an Account with us. To register an Account, you must:
(a) give us accurate and current personal information including your name, address, and a valid email address.
(b) you must be at least 18 years old, and have the capacity to enter into a legally binding agreement with us.

1.4 You are solely responsible for the activity that occurs on your Account (including Orders placed using your Account), and you must keep your Account password secure. We are not responsible for any unauthorised activity on your Account if you fail to keep your Account login information secure. We may refer fraudulent or abusive or illegal activity to the relevant authorities.

1.5 You must not use another person’s Account without our, and/or the other person’s, express permission. If you suspect or become aware of any unauthorised use of your Account or that your password is no longer secure, you must notify us immediately and take immediate steps to re-secure your Account (including by changing your password).

1.6 We do not warrant that the Site will be available at all times and without disruption and we provide no warranties in relation to the content of any other website linked to or from our Site.

1.7 You must not link to our Site or any part of our Site in a way that damages or takes advantage of our reputation, including but not limited to:
(a) in a way to suggest or imply that you have any kind of association and affiliation with us, or approval and endorsement from us when there is none; or
(b) in a way that is illegal or unfair.

2. Information on this Site

2.1 The Site and the content on the Site are subject to copyright, trademarks and other intellectual property rights. These rights are owned by Active Creatures Pty Ltd.

2.2 You must not reproduce, transmit, communicate, adapt, distribute, sell, modify or publish or otherwise use any of the material on the Site, including audio and video excerpts, except as permitted by statute or with our prior written consent.

2.3 Due to photographic and screen limitations associated with the representation of products, some actual products may differ to a small extent in visual appearance (for example in colour) from the way they appear on the Site.

3. Order & Formation of Contract

3.1 When making an Order, you must follow the instructions on the Site as to how to make your Order and for making changes to your Order before you submit it.

3.2 Once you select a product that you wish to order, irrespective of any previous price you have seen or heard, you will then be shown or told (on the Site) the price you must pay including GST and any other charges, including any unless otherwise stated all charges are in Australian Dollars.

3.3 You must pay for the Order in full at the time of ordering by one of the payment methods we provide on the Site. You must be fully entitled to use the payment method or account used for purchases. The payment method or account must have sufficient funds or credit facilities to cover the purchase. We reserve the right to obtain validation of your payment details before providing you with the product and carry out security checks from time to time.

3.4 If you discover that you have made a mistake with your Order after you have submitted it to the Site, please contact Customer Service immediately at support@activecreatures.com. However, we cannot guarantee that we will be able to amend your Order in accordance with your instructions.

3.5 When you place an order, you will receive from us a Confirmation of Order by email. This email will only be an acknowledgement and will not constitute acceptance of your order. A contract between us for the purchase of the goods will not be formed until you receive a shipment confirmation email from us. We are not obliged to supply the product to you until we have accepted your Order. We may in our discretion refuse to accept an Order from you for any reason, including but not limited to:
(a) unavailability of stock or we may offer you an alternative product (in which case we may require you to re-submit your Order);
(b) we suspect that you might on sell our Products to other consumers.

3.6 Until the time when we accept your Order, we reserve the right to refuse to process your Order and you have the right to cancel your Order. If we or you have cancelled your Order before it has been accepted, we will promptly refund any payment already made by you to your original payment method.

4. Delivery

4.1 We aim to deliver products to you at the place of delivery requested by you within the time indicated by us at the time of your Order, but we cannot guarantee any firm delivery dates.

4.2 We will try to let you know if we expect to be unable to meet our estimated delivery date, but, to the extent permitted by law, we will not be liable to you for any losses, liabilities, costs, damages, charges or expenses arising out of late delivery.

4.3 We will aim to leave the Order at the address advised by you at the time of purchase. If the delivery driver deems the area unsafe your Order will be redirected to a collection point, and where available re-delivered in the next delivery run or returned back to our Warehouse.

4.4 You must ensure that you are able to take delivery of the product without undue delay and at any time reasonably specified by us. If you are not, the couriers may leave a card giving you instructions on either re-delivery or collection from the carrier. If delivery or collection is delayed through your unreasonable refusal to accept delivery or if you do not (within two weeks of our first attempt to deliver the product to you) accept delivery or collect the product from the carrier, then we may (without affecting any other right or remedy available to us) do either or both of the following:

(a) charge you for our reasonable storage fee and other costs reasonably incurred by us; or

(b) no longer make the product available for delivery or collection and notify you that we are cancelling the applicable Contract, in which case we will refund to you or your credit or debit card company as applicable any money paid to us, less our reasonable administration charges (including for attempting to deliver and then returning the product, and any storage fees as provided for above).

4.5 Please note that it might not be possible for us to deliver to some locations. If this is the case, we will inform you using the contact details that you provide to us when you make your Order and arrange for cancellation of the Order or delivery to an alternative delivery address.

4.6 Unless otherwise specified by you, all risk in the product shall pass to you upon delivery. If delivery is delayed, risk shall pass at the date when delivery would have occurred. From the time when risk passes to you, we will not be liable for loss or destruction of the product.

4.7 You must take care when opening the product so as not to damage it, particularly when using any sharp instruments.

5. Cancellation

5.1 We may terminate a Contract if the product is not available for any reason. We will notify you if this is the case and return any payment that you have made. We will usually refund any money received from you using the same method originally used by you to pay for the product.

5.2 If you wish to cancel your order, please contact our Customer Service team via support@activecreatures.com. No cancellation fees will apply. Once an order has been processed it cannot be cancelled and the item must instead be returned to us in accordance with the Returns Policy.

6. New Zealand GST, Customs Charges, Duties & Fees

As we are based in Australia and you are buying from an Australian company, we charge you for your order in Australian dollars. The actual price charged to New Zealand customers will be subject to the exchange rate applied by the credit or debit card company. Please note orders which are more than the equivalent of NZ$190 and shipped to New Zealand may incur GST, customs charges and duties charged by the NZ Customs Service once the parcel reaches its destination port and must be paid by the recipient directly to the NZ Customs Service or its authorised service provider. Additionally your financial services provider may charge currency conversion and administration fees on purchases and any refunds we provide. We are not responsible for and will not reimburse any of these GST, charges, duties or fees. You can find out more information at:

https://www.customs.govt.nz/personal/duty-and-gst/faqs/

7. Faulty Product Returns

7.1 We aim to provide you with Products of the highest standard and quality. If you have received a Product with a defect, please contact us via support@activecreatures.com as soon as possible so we can guide you through the returns process and help resolve the problem as quickly as possible. In order to assist the return process, you may be required to send us images of the damage, defect or fault for preliminary assessment.

7.2 If the Product is confirmed to have a defect, we will replace the Product or refund the Price of the Product to your original payment method at your request. If the Product is found not to have a defect or deemed out of warranty, we will ship the Product back to you.

7.3 It does not constitute a defect, if in our reasonable opinion, the Product has, following the sale to you, become of unacceptable quality due to fair wear and tear, misuse, failure to use in accordance with manufacturers’ instructions, using it in an abnormal way or failure to take reasonable care.

8. Change of Mind Returns

8.1 In addition to your rights in relation to faulty Products in clause 7, you can return any Product:
(a) within 30 days of purchase;
(b) unworn and unused with the original tags still attached; and
(c) in the original packaging, which must be in the original condition

8.2 To ensure the returns are assessed and processed quickly, you must follow the instructions set out under “Shipping & Returns” at https://www.activecreatures.com/pages/shipping-returns

8.3 Upon receiving and inspection of your return, we will contact you about next steps. Once determined the return is in compliance with clause 8.1, we will, at your request,
(a) refund the Price of the Product returned to your original payment method;
(b) provide you with a store credit to the same value of the Price of the Product returned; or
(c) exchange the Product for another size.

8.4 However, we will not be able to refund any delivery fees that you have paid at purchase to have the Product shipped to you. If the return, in our reasonable opinion, is not in compliance with clause 8.1, we will contact you to ship the Product back to you and you will be liable for the shipping costs both to and from us.

8.5 Nothing in this clause is intended to exclude any rights in clause 6 or any of your statutory rights as a consumer under Australian Consumer Law.

9. Vouchers & Gift Cards

9.1 You may use vouchers or gift cards as payment for certain Products on the Site. We may email vouchers and electronic gift cards to you. We accept no Liability for errors in the email address provided to us. We assume no Liability for the loss, theft or illegibility of vouchers. In the event of fraud, an attempt at deception or in the event of the suspicion of other illegal activities in connection with the redemption of vouchers or gift cards on the Site, we are entitled to close your Account and/or require a different means of payment.

9.2 Conditions for the redemption of vouchers
(a) From time to time we may release vouchers that may be used on the Site. Vouchers can only be redeemed on the Site in accordance with the special terms and conditions stated on them.
(b) Vouchers are valid for the specified period stated on them only. Certain Products may be excluded from voucher promotions.
(c) Vouchers cannot be redeemed for cash. If you place an Order for a Product less than the value of a voucher, residual credit in the form of a voucher will only be returned to you if explicitly stated on the voucher. If the credit of a voucher is insufficient for the Order you wish to make, you may make up the difference through payment by other means (but not by using another voucher or attempting to rely on any other offer). Please note that only one voucher can be used per Order.
(d) Vouchers are applied to invoices as a whole. Accordingly, in circumstances where multiple Products are purchased using a voucher, and one or more Products are returned, the discount is applied on a pro rata basis to each Product for the purpose of establishing refund values.

(e) We actively monitor misuse of vouchers and reserve the right to block any person that is not using a voucher in accordance to its terms and conditions.

9.3 Conditions for the redemption of gift cards
(a) You may purchase gift cards for use on the Site by you or other customers. You are responsible for the use and safety of your gift cards. We are not responsible for any loss or damage resulting from gift cards used without permission.
(b) Gift card purchases may be subject to security checks from time to time, resulting in a longer processing time.

(c) Gift cards are valid for 36 months. Any balance that remains after the 36 months will not be available for use.
(d) The credit of a gift card does not accrue interest nor can it be redeemed or refunded for cash. Gift cards cannot be used to buy further gift cards. To use a gift card, please follow the instructions at https://www.activecreatures.com/collections/gift-cards
(e) If you place an Order less than the value of the gift card, the residual credit can be used for future purchases, but the residual credit cannot be redeemed for cash. If the credit of a gift card is insufficient for the Order you wish to make, you may make up the difference through payment by other means. You may use as many gift cards as you wish in paying for an Order, and gift cards may be used in conjunction with one voucher per Order.
(f) If an Order made using a gift card is cancelled or returned, the portion of the purchase attributable to the gift card will be refunded as a store credit only. Gift cards are applied on a pro rata basis to each Product in an Order for the purpose of establishing refund values.

10. Disclaimer & Liability

10.1 This clause prevails over all other clauses, and, to the extent permitted by law, states our entire Liability, and your sole and exclusive remedies, for:
(a) the performance, non-performance, purported performance or delay in performance of these Terms and Conditions or a Contract or the Site (or any part of it or them); or
(b) otherwise in relation to these Terms and Conditions or the entering into or performance of these Terms and Conditions.

10.2 Nothing in these Terms and Conditions excludes or limits your statutory rights as a consumer or our Liability for:
(a) fraud;
(b) death or personal injury caused by our Breach of Duty;
(c) any breach of the obligations implied by law; or
(d) any other Liability which cannot be excluded or limited by applicable law.

10.3 In performing any obligation under these Terms and Conditions, our only duty is to exercise reasonable care and skill.

10.4 Subject to clause 10.3:
(a) To the extent permitted by law, we do not warrant and we exclude all Liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Site;
(b) We exclude all Liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature;
(c) You should not rely on any information accessed using the Site to make a purchasing decision – you should make your own enquiries before forming your own opinion and taking any action based on any such information.
(d) It is your responsibility to ensure that the products are sufficient and suitable for your purposes and meet your individual requirements. We do not warrant that the products will meet your individual requirements. You acknowledge that the products are standard and not made bespoke to fit any particular requirements that you may have.
(e) We do not accept and hereby exclude any Liability for Breach of Duty other than any such Liability arising pursuant to the provisions of these Terms and Conditions.
(f) To the extent permitted by law in no event shall we, or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with the Site, our services or these Terms and Conditions.
(g) Our total Liability under any Contract shall in no circumstances exceed,
(i) in the case of Products, the replacement of the Products or the supply of equivalent Products, the repair of the Products, the payment of the cost of replacing the Products or of acquiring equivalent Products, or the payment of the cost of having the Products repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

11. Indemnity

You indemnify and hold us and our related agents, and employees, harmless from and against any and all claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including reasonable legal fees, made by any third party due to or arising out of your breach of these Terms and Conditions or your breach of any law or the rights of a third party.

12. Privacy Policy

Please see our privacy policy https://www.activecreatures.com/pages/privacy-policy

13. Mediation & Dispute Resolution

In the event of any dispute under these Terms and Conditions the parties agree to negotiate in good faith to resolve the dispute. Any dispute or difference whatsoever arising out of or in connection with these Terms and Conditions which cannot be resolved by the parties shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.

14. General

14.1 Entire agreement: These Terms and Conditions contain all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to these Terms and Conditions except as expressly stated in these Terms and Conditions. However, the service and products are provided to you under our operating rules, policies, and procedures as published from time to time on the Site.

14.2 Assignment: You may not assign or delegate or otherwise deal with all or any of your rights or obligations under these Terms and Conditions We shall have the right to assign or otherwise delegate all or any of our rights or obligations under these Terms and Conditions to any person.

14.3 Force majeure: We shall not be liable for any breach of our obligations under these Terms and Conditions where we are hindered or prevented from carrying out our obligations by any cause outside our reasonable control, including by lightning, fire, flood, extremely severe weather, strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage, failure of any telecommunications or computer system, compliance with any law, accident (or by any damage caused by any of such events).

14.4 No waiver: No waiver by us of any default of yours under these Terms and Conditions shall operate or be construed as a waiver by us of any future defaults, whether of a like or different character. No granting of time or other forbearance or indulgence by us to you shall in any way release, discharge or otherwise affect your liability under these Terms and Conditions.

14.5 Notices: Unless otherwise stated within these Terms and Conditions, notices to be given to either party shall be in writing and shall be delivered by electronic mail at the email address you supplied to us or to us at our registered office.

14.6 Third party rights: All provisions of these Terms and Conditions apply equally to and are for the benefit of Active Creatures and its (or their) third party content providers and each shall have the right to assert and enforce such provisions directly or on its own behalf (save that these Terms and Conditions may be varied or rescinded without the consent of those parties).

14.7 Survival: The provisions of clauses that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such.

14.8 Severability: If any provision of these Terms and Conditions is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of these Terms and Conditions shall not be affected.

14.9 Governing law: These Terms and Conditions (and all non-contractual relationships between you and us) shall be governed by and construed in accordance with the law of Victoria and both parties hereby submit to the jurisdiction of the courts of Victoria.

14.10 Change of the Terms and Conditions: We reserve the right to amend these Terms and Conditions at any time. All amendments to these Terms and Conditions will be posted online. However, continued use of the Site will be deemed to constitute acceptance of the new Terms and Conditions.

15. Definitions & Interpretations

15.1 Definitions
In these Terms and Conditions unless the contrary intention appears:

Account means the account that you will need to register for on the Site if you would like to submit an Order on the Site in accordance with clauses 1 and 3 of these Terms and Conditions;

Breach of Duty means the breach of any
(a) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or
(b) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);

Business Day means a day which is not a Saturday, Sunday or a public holiday in Melbourne, Australia;

Company means Active Creatures Pty Ltd (ABN 45 926 695 340) and its representatives, related parties, officers, directors, employees, agents, partners, and independent contractors;

Confirmation of Order means our email to you, in which we accept your Order;

Contract means the sale of goods agreement between you and us for the supply of products you have ordered in accordance with this Terms and Conditions;

Delivery means the process in clause 4 of these Terms and Conditions;

Delivery Fee means any charges you are liable to have the products delivered to the address provided by you;
GST means the Goods and Services Tax;

Liability means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with these Terms and Conditions, including, without limitation, liability expressly provided for under these Terms and Conditions or arising by reason of the invalidity or unenforceability of any term of these Terms and Conditions (and for the purposes of this definition, all references to these Terms and Conditions shall be deemed to include any collateral contract);

Order means the order submitted by you to the Site to purchase products from us.

15.2 Interpretation
(a) Headings are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.

(b) Words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership.

(c) Words denoting persons includes natural persons, partnerships, limited liability partnerships, bodies corporate and unincorporated associations of persons.

(d) References to includes or including or like words or expressions shall mean without limitation.

These Terms and Conditions were last updated on 21 September 2018.