This online platform (Platform) is operated by Empath Ana [ABN 48 831 173 603] (we, our or us).  It is available at https://www.empathana.com.au/ (Website) and at any other third party application we choose to use now or in the future.

 

Acceptance

By accessing and/or using our Platform, you; each person, entity or organisation using our Platform (referred to as you or your) (i) warrant to us you have reviewed these terms and conditions, including our Privacy Policy (available on the Platform) (Terms), with your parent or legal guardian (if you are under 18 years of age); (ii) 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 Platform and they have agreed to the Terms on your behalf; and (iii) agree to use the Platform in accordance with these Terms.

 

Registration

 

You can browse and view the Platform as an unregistered user of the Platform. You may be required to register on the Platform and create an account (Account) to access some features on the Platform, such as the purchase of goods, services and any other products (Goods).

 

Our Contract

When you place an order via our website (Order), you will receive an acknowledgement e-mail confirming receipt of your order which will be an acknowledgement only and will not constitute acceptance of your Order. A contract between us will not be formed until we send you confirmation by e-mail that the goods in your Order have been dispatched to you. Only those goods listed in the confirmation e-mail sent at the time of dispatch will be included in the contract formed. If you make more than one Order a new contract will be created each time you place an Order.

 

Privacy and availability

We use our best efforts to try and ensure that all details, descriptions and prices that appear on this Website are accurate, however errors may occur. If we discover an error in the price of any Goods advertised, we will correct the error within a reasonable time. Delivery costs will be charged in addition to the purchase of Goods at our discretion and depending on your location; such additional charges are clearly displayed where applicable and included in the “Total Cost” at checkout.

 

Fees and Payments
 

If required, it is free to register an Account on the Platform. Any payments will be made through our third party payment processor or by any other payment method set out on the Platform, such as eWay. To the extent permitted by law, our service fee is non-cancellable and non-refundable. We set out a number of payment methods on the Platform. The payment method you choose may be subject to additional terms and conditions imposed by the applicable third party payment processor; please review these terms and conditions before using your selected payment method.

 

The Goods

(a)        Our Goods include:

(1)        books;
(2)        oracle cards;
(3)        crystals;
(4)        candles; and
(5)        gift boxes (including potion kits).

(b)        You acknowledge that our Goods may be varied by us without prior notice to you at our sole discretion.

 

Delivery of your Order

(a)        When delivering Goods purchased on the website we will only deliver to the individual listed on the Order, and where requested, you must provide us, or our third party couriers (where applicable), with acceptable forms of identification on delivery, such as a passport or drivers’ licence to enable us to verify your identity.

(b)        You must be present at the delivery address to accept delivery of your Order. If you are not present at the delivery address at the time we deliver your order, then you will be notified, generally by a card that we, or our delivery company, will leave at the delivery address. We may attempt to re-deliver your Order. If you provide an incorrect delivery address or you are not present to accept delivery of your Order after a number of attempts have been made to deliver your Order, we may cancel your Order and provide you with a refund.

(c)        We do not offer international orders as a standard service. If you require international shipping, please contact us before you buy anything.

(d)        All standard orders in Australia are delivered personally by our representative or sent by a postage provider of our choice without insurance but with tracking where possible. The choice of delivery method will be dependant upon your physical location and any options you select at checkout when placing your Order.

(e)        While we do everything we can to ensure your order is delivered in a timely manner, we will not be liable for any loss or damage incurred by any person as a result of delay caused by our carrier that we have no control over or by any event which is out of our reasonable control or foresight including but not limited to any delay caused by an incorrect delivery address being provided to us.

(f)         Insurance is available at an extra cost on all delivery services. We will not cover any loss of goods that are not insured.

(g)        For non-delivery of goods, please notify us by email as soon as possible.

 

Receipt of Goods

(a)        You must inspect the Goods immediately upon their arrival and if the Goods are not in accordance with the specified requirements then you must give notice to us within 24 hours of receipt of the Goods. If you fail to give such notice, the Goods must be deemed to be in all respects in accordance with the specified requirements. No claim must be recognised unless made in writing and received by us within 24 hours after receipt of the Goods by you.

(b)        This paragraph does not apply if the Goods are subject to consumer guarantees imposed under the Australian Consumer Law — where consumer guarantees apply.

 

Allergens

If you are allergic to any of our Goods or any ingredients within our Goods, please let us know in the notes at the time you place your Order as it will impact upon the cost and timing of delivery and help us ensure we best manage your needs. While we will use our reasonable commercial endeavours to accommodate you and your allergens, we cannot guarantee that your Goods will not be transported or sit alongside other Goods which contain allergens to which you may react to. Please contact us further at smile@empathana.com if you have any concerns around the management of allergens and other similar issues.  We are not liable for any adverse reaction, including any injury, death, damage or loss, that you may have as a result of coming into contact with any of our Goods.

 

Refund and Cancellation Policy

Please choose carefully. We do not give refunds if you change your mind or make the wrong decision. Excluding the Australian Consumer Law, any refund will be at our absolute discretion.

 

Collection of information

We collect personal information about you in order to enable you to access and use the Platform, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy. 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; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process. By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.

 

Intellectual Property rights

Unless otherwise indicated, we own or licence all rights, title and interest (including intellectual property rights) in our Platform and all of the Content. Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.

You must not, without the prior written consent of ourselves or the owner of the Content (as applicable):

(a)        copy or use, in whole or in part, any Content;

(b)        reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or

(c)        breach any intellectual property rights connected with our Platform, including (without limitation) by:

(1)        altering or modifying any of the Content;
(2)        causing any of the Content to be framed or embedded in another website; or
(3)        creating derivative works from the Content.

 

User Content

You may be permitted to post, upload, publish, submit or transmit relevant information and content, including Reviews (User Content) on our Platform.  By making available any User Content on or through our Platform, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through, or by means of our Platform.

You agree that you are solely responsible for all User Content that you make available on or through our Platform.  You represent and warrant that:

(a)        you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms; and

(b)        neither the User Content nor the posting, uploading, publication, submission or transmission of the User Content or our use of the User Content on, through or by means of our Platform will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

We do not endorse or approve and are not responsible for any User Content. We may, at any time at our sole discretion, remove any User Content.

 

Discontinuance

We may, at any time and without notice to you, discontinue our Platform, in whole or in part.  We may also exclude any person from using our Platform, at any time at our sole discretion. We are not responsible for any Liability you may suffer arising from or in connection with any such discontinuance or exclusion.

 

Consumer Guarantees

(a)        Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

(b)        Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.  

 

Limitation on Claims

(a)        We have no liability to the extent that our performance of the contract is prevented by force majeure. For these purposes, “force majeure” means any occurrence or omission as a direct or indirect result of which we are prevented from or delayed in performing any of our obligations, is beyond our reasonable control and which could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency.

(b)        We have no liability to the extent that a failure of the Goods is attributable to any act or omission on your part, including where you do not follow appropriate storage instructions for the Goods or ensure the Goods are moved from the brown paper bags in which they are packed to long term storage options at your place of residence or business.

(c)        Our liability for failure to comply with a consumer guarantee is limited to:

(i)          in the case of Goods supplied by us, the replacement of the Goods or the supply of equivalent Goods (or the payment of the cost of the replacement or supply); and
(ii)         in the case of services supplied by us, the supply of the services again or the payment of the cost to the Customer of having the services supplied again.

(d)        Subject to the prior, no attempt is made to exclude or limit liability arising under the Australian Consumer Law to the extent that there is a statutory restriction on such exclusion or limitation.

(e)        In all other respects, our total liability for loss or damage of every kind, whether:

(i)           arising pursuant to the terms of service; or
(ii)          arising in any other way out of or in relation to the supply of the goods, their sale, delivery or the way they behave, and whether in tort or contract or in any other cause of action,
is limited to an amount equivalent to the sum paid by you to us for the goods.

(f)         Except as otherwise stipulated in these terms, we do not accept liability to you in respect of any indirect or direct loss or damage which may be suffered or incurred by you in respect of goods or services supplied pursuant to these terms.

(g)        Where you have asked us to recommend a product for your use, we make such recommendations on the information provided to us by you and will not be liable if the products purchased fail to meet your requirements, particularly where we have not been made aware of the full circumstances of the intended use or your specific situation.

(h)        This clause will survive the termination or expiry of these Terms.

 

Warranty disclaimer

To the extent permitted by law, any condition or warranty that would otherwise be implied into these terms and conditions is excluded.

 

Indemnity

You agree to at all times indemnify us, and keep us indemnified from and against any loss (including legal costs on a full indemnity basis) or liability incurred or suffered by you or by us arising from any claim, demand, suit or action or proceed by any persona against you or us where you such loss or liability arose out of or in connection with your conduct or breach of these terms of use or use of this Website or Platform or any information you provide via this Website or any damage caused to this Website.

 

Disclaimer

You acknowledge and agree to the purchase of our Goods on the following basis:

(a)        our Goods are intended only for the specified use and must not be used for any other purposes;

(b)        some of our Goods are intended for children, including gift boxes and potion kits. Any Goods that are intended for children should only be used by children with adult supervision. While we do our best to flag any warnings, hazards and appropriate age-ranges, it is your responsibility to read appropriate labels and warnings to make your own assessment as to whether the Goods are appropriate for your child. We take no responsibility and have no liability for any injury, death, loss or damage that arise as a result of your purchase or use of our Goods;

(c)        our Goods (including our potion kits and gift boxes) may contain natural ingredients intended for playing and should not be consumed. We are not responsible for any injury, death, loss or damage that arises as a result of accidental or intentional consumption of any ingredients in our Goods; and

(d)        our Goods are primarily intended for play and entertainment purposes only and we do not guarantee that any specified results will occur. This includes any potion kits and gift boxes intended for children which may purport to have specific results (such as creating a protective barrier).

 

Waiver

Any waiver of any provision of the terms of service will be effective only if in writing and signed by us. Without limiting the foregoing, if you breach these conditions and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these conditions.

 

Infection control

While we use the best hygiene possible at our end, we cannot guarantee that the packaging is free of infection (including infection of the COVID-19 virus) and we recommend that you also exercise precaution by using hand washing and sanitization following when unpacking the products. We reserve the rights to rely on indemnity in this regard.

 

General

Variation: We may modify these Terms from time to time by posting the amended Terms on the Platform. By continuing to use the Platform after any such modification, you agree to the amended terms. If you do not agree to the modifications, you must terminate your Account and stop using the Platform.

Severance: The provisions of these Terms are severable and if any provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Jurisdiction: These Terms, and your Order, are governed by the laws of New South Wales. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.

 

Entire Agreement:

These terms constitute the entire agreement between you and us.

 

For any questions and notices, please contact us at:

smile@empathana.com.au

 

Last update: 11 August 2021