1. About the Website(a) Welcome to
www.mymarkris.com.au (the 'Website'). The Website provides youwith an opportunity to browse and purchase various products that have been listedfor sale through the Website (the 'Products'). The Website provides this serviceby way of granting you access to the content on the Website (the 'PurchaseServices').(b) The Website is operated by Markris Wholesale Foods Pty Ltd(ABN 13618086114).Access to and use of the Website, or any of its associated Products or Services, isprovided by Markris Wholesale Foods Pty Ltd. Please read these terms andconditions (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 anyof Services, immediately.(c) Markris Wholesale Foods Pty Ltd reserves the right to review and change any ofthe Terms by updating this page at its sole discretion. When Markris WholesaleFoods Pty Ltd updates the Terms, it will use reasonable endeavours to provideyou with notice of updates to the Terms. Any changes to the Terms take immediateeffect from the date of their publication. Before you continue, we recommend youkeep 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 theTerms by clicking to accept or agree to the Terms where this option is madeavailable to you by Markris Wholesale Foods 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 theWebsite. As part of the registration process, or as part of your continued use of thePurchase Services, you may be required to provide personal information aboutyourself (such as identification or contact details), including:(i) Email address(ii) Preferred username(iii) Mailing address(iv) Telephone number(v) Password(b) You warrant that any information you give to Markris Wholesale Foods Pty Ltd inthe course of completing the registration process will always be accurate, correctand up to date.(c) Once you have completed the registration process, you will be a registeredmember of the Website ('Member') and agree to be bound by the Terms. As aMember 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 Markris WholesaleFoods Pty Ltd; or(b) you are a person barred from receiving the Purchase Services under thelaws of Australia or other countries including the country in which you areresident 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 PurchaseServices only for purposes that are permitted by:(i) the Terms;(ii) any applicable law, regulation or generally accepted practices or guidelinesin the relevant jurisdictions;(iii) you have the sole responsibility for protecting the confidentiality of yourpassword and/or email address. Use of your password by any other personmay result in the immediate cancellation of the Purchase Services;(iv) any use of your registration information by any other person, or thirdparties, is strictly prohibited. You agree to immediately notify MarkrisWholesale Foods Pty Ltd of any unauthorised use of your password oremail 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 forthe sole use of the Website by you for the purposes of Markris WholesaleFoods Pty Ltd providing the Purchase Services;(vi) you will not use the Purchase Services or Website for any illegal and/orunauthorised use which includes collecting email addresses of Members byelectronic or other means for the purpose of sending unsolicited email orunauthorised framing of or linking to the Website;(vii) you agree that commercial advertisements, affiliate links, and other formsof solicitation may be removed from the Website without notice and mayresult in termination of the Purchase Services. Appropriate legal action willbe taken by Markris Wholesale Foods Pty Ltd for any illegal orunauthorised use of the Website; and(viii) you acknowledge and agree that any automated use of the Website or itsPurchase Services is prohibited.
5. Purchase of Products and Returns Policy(a) In using the Purchase Services to purchase the Product through the Website, youwill agree to the payment of the purchase price listed on the Website for theProduct (the 'Purchase Price').(b) Payment of the Purchase Price may be made through eWAY (the 'PaymentGateway Provider'). In using the Purchase Services, you warrant that you havefamiliarised yourself with, and agree to be bound by, the applicable Terms andConditions of Use, Privacy Policy and other relevant legal documentation providedby the Payment Gateway Providers.(c) Following payment of the Purchase Price being confirmed by Markris WholesaleFoods Pty Ltd, you will be issued with a receipt to confirm that the payment hasbeen received and Markris Wholesale Foods Pty Ltd may record your purchasedetails for future use.(d) Markris Wholesale Foods Pty Ltd may, at their sole discretion, provide a refund onthe return of the Products within 7 days days where the Product packaging isunopened and remains in a saleable condition. You acknowledge and agree thatyou are liable for any postage and shipping costs associated with any refundpursuant to this clause.
6. Warranty(a) Markris Wholesale Foods Pty Ltd's Products come with guarantees that cannot beexcluded under the Australian Consumer Law. You are entitled to a replacement orrefund for a major failure of the Product and compensation for any otherreasonably foreseeable loss or damage. You are also entitled to have theProducts repaired or replaced if the Products fail to be of acceptable quality andthe failure does not amount to a major failure (the 'Warranty').(b) You may make a claim under this clause (the 'Warranty Claim') for materialdefects and workmanship in the Products within 24 hours from the date ofpurchase (the 'Warranty Period').(c) In order to make a Warranty Claim during the Warranty Period, you must provideproof of purchase to Markris Wholesale Foods Pty Ltd showing the date ofpurchase of the Products, provide a description of the Products and the price paidfor the Products by sending written notice to Markris Wholesale Foods Pty Ltd at81 Rene Street, Noosaville, Queensland, 4566 or by email ataccounts@markrisfoods.com.au.(d) Where the Warranty Claim is accepted then Markris Wholesale Foods Pty Ltd will,at its sole discretion, either repair or replace any defective Products or part thereofwith a new or remanufactured equivalent during the Warranty Period at no chargeto you for parts or labour. You acknowledge and agree that you will be solely liablefor any postage or shipping costs incurred in facilitating the Warranty Claim.(e) The Warranty shall be the sole and exclusive warranty granted by MarkrisWholesale Foods Pty Ltd and shall be the sole and exclusive remedy available toyou in addition to other rights and under a law in relation to the Products to whichthis warranty relates.(f) All implied warranties including the warranties of merchantability and fitness foruse are limited to the Warranty Period.(g) The Warranty does not apply to any appearance of the supplied Products nor tothe additional excluded items set forth below nor to any supplied Products wherethe exterior of which has been damaged or defaced, which has been subjected tomisuse, abnormal service or handling, or which has been altered or modified indesign or construction.
7. Copyright and Intellectual Property(a) The Website, the Purchase Services and all of the related products of MarkrisWholesale Foods Pty Ltd are subject to copyright. The material on the Website isprotected by copyright under the laws of Australia and through internationaltreaties. Unless otherwise indicated, all rights (including copyright) in the sitecontent and compilation of the website (including text, graphics, logos, buttonicons, video images, audio clips and software) (the 'Content') are owned orcontrolled for these purposes, and are reserved by Markris Wholesale Foods PtyLtd or its contributors.(b) Markris Wholesale Foods Pty Ltd retains all rights, title and interest in and to theWebsite and all related content. Nothing you do on or in relation to the Website willtransfer to you:(a) the business name, trading name, domain name, trade mark, industrialdesign, patent, registered design or copyright of Markris Wholesale FoodsPty Ltd; 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 orcopyright (or an adaptation or modification of such a system or process).(c) You may not, without the prior written permission of Markris Wholesale Foods PtyLtd 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 orchange in any way the Content or third party content for any purpose. Thisprohibition does not extend to materials on the Website, which are freely availablefor re-use or are in the public domain.
8. Privacy(a) Markris Wholesale Foods Pty Ltd takes your privacy seriously and any informationprovided through your use of the Website and/or the Purchase Services aresubject to Markris Wholesale Foods Pty Ltd's Privacy Policy, which is available onthe Website.
9. General Disclaimer(a) You acknowledge that Markris Wholesale Foods Pty Ltd does not make any terms,guarantees, warranties, representations or conditions whatsoever regarding theProducts other than provided for pursuant to these Terms.(b) Markris Wholesale Foods Pty Ltd will make every effort to ensure a Product isaccurately depicted on the Website, however, you acknowledge that sizes, coloursand 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 AustralianConsumer Law (or any liability under them) which by law may not be limited orexcluded.(d) Subject to this clause, and to the extent permitted by law:(i) all terms, guarantees, warranties, representations or conditions which arenot expressly stated in these Terms are excluded; and(ii) Markris Wholesale Foods Pty Ltd will not be liable for any special, indirector consequential loss or damage (unless such loss or damage isreasonably foreseeable resulting from our failure to meet an applicableConsumer Guarantee), loss of profit or opportunity, or damage to goodwillarising 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 thelate supply of the Purchase Services), whether at common law, undercontract, tort (including negligence), in equity, pursuant to statute orotherwise.(e) Use of the Website, the Purchase Services, and any of the products of MarkrisWholesale Foods Pty Ltd , is at your own risk. Everything on the Website, thePurchase Services, and the Products of Markris Wholesale Foods Pty Ltd, areprovided to you on an "as is" and "as available" basis, without warranty orcondition of any kind. None of the affiliates, directors, officers, employees, agents,contributors, third party content providers or licensors of Markris Wholesale FoodsPty Ltd make any express or implied representation or warranty about its Contentor any products or Purchase Services (including the products or PurchaseServices of Markris Wholesale Foods Pty Ltd) referred to on the Website. Thisincludes (but is not restricted to) loss or damage you might suffer as a result ofany of the following:(i) failure of performance, error, omission, interruption, deletion, defect, failureto correct defects, delay in operation or transmission, computer virus orother harmful component, loss of data, communication line failure, unlawfulthird party conduct, or theft, destruction, alteration or unauthorised accessto records;(ii) the accuracy, suitability or currency of any information on the Website, thePurchase Service, or any of its Content related products (including thirdparty material and advertisements on the Website);(iii) costs incurred as a result of you using the Website, the Purchase Servicesor any of the Products;(iv) the Content or operation in respect to links which are provided for theUser's convenience;(v) any failure to complete a transaction, or any loss arising from e-commercetransacted on the Website; or(vi) any defamatory, threatening, offensive or unlawful conduct of third partiesor publication of any materials relating to or constituting such conduct.
10. Limitation of Liability(a) Markris Wholesale Foods Pty Ltd's total liability arising out of or in connection withthe Purchase Services or these Terms, however arising, including under contract,tort (including negligence), in equity, under statute or otherwise, will not exceedthe most recent Purchase Price paid by you under these Terms or where you havenot paid the Purchase Price, then the total liability of Markris Wholesale Foods PtyLtd is the resupply of information or Purchase Services to you.(b) You expressly understand and agree that Markris Wholesale Foods Pty Ltd, itsaffiliates, employees, agents, contributors, third party content providers andlicensors shall not be liable to you for any direct, indirect, incidental, specialconsequential or exemplary damages which may be incurred by you, howevercaused and under any theory of liability. This shall include, but is not limited to, anyloss of profit (whether incurred directly or indirectly), any loss of goodwill orbusiness reputation and any other intangible loss.(c) Markris Wholesale Foods Pty Ltd is not responsible or liable in any manner for anysite content (including the Content and Third Party Content) posted on theWebsite or in connection with the Purchase Services, whether posted or causedby users of the website of Markris Wholesale Foods Pty Ltd, by third parties or byany of the Purchase Services offered by Markris Wholesale Foods Pty Ltd.
11. Termination of Contract(a) The Terms will continue to apply until terminated by either you or by MarkrisWholesale Foods Pty Ltd as set out below.(b) If you want to terminate the Terms, you may do so by:(i) notifying Markris Wholesale Foods Pty Ltd at any time; and(ii) closing your accounts for all of the Purchase Services which you use,where Markris Wholesale Foods Pty Ltd has made this option available toyou.(c) Your notice should be sent, in writing, to Markris Wholesale Foods Pty Ltd via the'Contact Us' link on our homepage.(d) Markris Wholesale Foods 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 anyprovision;(ii) Markris Wholesale Foods Pty Ltd is required to do so by law;(iii) the partner with whom Markris Wholesale Foods Pty Ltd offered thePurchase Services to you has terminated its relationship with MarkrisWholesale Foods Pty Ltd or ceased to offer the Purchase Services to you;(iv) Markris Wholesale Foods Pty Ltd is transitioning to no longer providing thePurchase Services to Users in the country in which you are resident or fromwhich you use the service; or(v) the provision of the Purchase Services to you by Markris Wholesale FoodsPty Ltd is, in the opinion of Markris Wholesale Foods Pty Ltd, no longercommercially viable.(e) Subject to local applicable laws, Markris Wholesale Foods Pty Ltd reserves theright to discontinue or cancel your membership to the Website at any time andmay suspend or deny, in its sole discretion, your access to all or any portion of theWebsite or the Purchase Services without notice if you breach any provision of theTerms or any applicable law or if your conduct impacts Markris Wholesale FoodsPty 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 liabilitiesthat you and Markris Wholesale Foods Pty Ltd have benefited from, been subjectto (or which have accrued over time whilst the Terms have been in force) or whichare expressed to continue indefinitely, shall be unaffected by this cessation, andthe provisions of this clause shall continue to apply to such rights, obligations andliabilities indefinitely.
12. Indemnity(a) You agree to indemnify Markris Wholesale Foods 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 anddamage (including legal fees on a full indemnity basis) incurred, suffered orarising out of or in connection with any Content you post through theWebsite;(ii) any direct or indirect consequences of you accessing, using or transactingon the Website or attempts to do so and any breach by you or your agentsof these Terms; and/or(iii) any breach of the Terms.
13. Dispute Resolution(a) Compulsory:If a dispute arises out of or relates to the Terms, either party may not commenceany Tribunal or Court proceedings in relation to the dispute, unless the followingclauses have been complied with (except where urgent interlocutory relief issought).(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, thedesired outcome and the action required to settle the Dispute.(c) Resolution:On receipt of that notice ('Notice') by that other party, the parties to the Terms('Parties') must:(i) Within 7 days days of the Notice endeavour in good faith to resolve theDispute expeditiously by negotiation or such other means upon which theymay mutually agree;(ii) If for any reason whatsoever, 7 days days after the date of the Notice, theDispute has not been resolved, the Parties must either agree uponselection of a mediator or request that an appropriate mediator beappointed by the President of the Conflict Resolution Service or his or hernominee;(iii) The Parties are equally liable for the fees and reasonable expenses of amediator and the cost of the venue of the mediation and without limiting theforegoing undertake to pay any amounts requested by the mediator as apre-condition to the mediation commencing. The Parties must each paytheir own costs associated with the mediation;(iv) The mediation will be held in Brisbane, Australia.(d) Confidential:All communications concerning negotiations made by the Parties arising out of andin connection with this dispute resolution clause are confidential and to the extentpossible, must be treated as "without prejudice" negotiations for the purpose ofapplicable laws of evidence.(e) Termination of Mediation:If 14 days have elapsed after the start of a mediation of the Dispute and theDispute has not been resolved, either Party may ask the mediator to terminate themediation and the mediator must do so.
14. Venue and Jurisdiction(a) The Purchase Services offered by Markris Wholesale Foods Pty Ltd is intended tobe viewed by residents of Australia. In the event of any dispute arising out of or inrelation to the Website, you agree that the exclusive venue for resolving anydispute shall be in the courts of Queensland, Australia.
15. Governing Law(a) The Terms are governed by the laws of Queensland, Australia. Any dispute,controversy, proceeding or claim of whatever nature arising out of or in any wayrelating to the Terms and the rights created hereby shall be governed, interpretedand construed by, under and pursuant to the laws of Queensland Australia, withoutreference to conflict of law principles, notwithstanding mandatory rules. Thevalidity of this governing law clause is not contested. The Terms shall be binding tothe benefit of the parties hereto and their successors and assigns.
16. Independent Legal Advice(a) Both parties confirm and declare that the provisions of the Terms are fair andreasonable and both parties having taken the opportunity to obtain independentlegal advice and declare the Terms are not against public policy on the grounds ofinequality or bargaining power or general grounds of restraint of trade.
17. Severance(a) If any part of these Terms is found to be void or unenforceable by a Court ofcompetent jurisdiction, that part shall be severed and the rest of the Terms shallremain in force.