Terms and Conditions

Last updated on 7 December 2021
ABN 53 587 543 181
Operating under the business name Mala Says

TERMS AND CONDITIONS
FOR PURCHASING ITEMS AND JUST BROWSING

Welcome to Mala Says.
In these terms, we also refer to Mala Says as “our”, “we, or “us”. And you are you!

What are these terms about?

These terms apply when you use this website, being www.malasays.com and any other websites we operate with the same domain name and a different extension (Website).

These terms also apply when you purchase Items through this Website (Items), including photographic prints (Prints) and other items we may offer for purchase from time to time.

If you’re looking for our Privacy Policy, which we will comply with and you also agree to be bound by, you can find it here [Insert Link].

How do I read these terms?

We separated these terms into three parts, so they are easy to read and understand.

Those parts are:

  • Part A: Terms for when you purchase Items (applies when you purchase)

  • Part B: Terms for when you browse and interact with this Website (applies when you browse)

  • Part C: Liability and warranties, and interpretation provisions (applies to both purchasing and browsing)

  • Please let us know if you have any questions about these terms, and don’t continue using this Website or purchase any Items unless you have read and agree to these terms.

I’ve returned to your Website, do I need to read these terms again?

Once you place an Order, the terms accepted at the point of sale will apply to your purchase of those Items. However, please note that we may change any part of these terms at any time by updating this page of the Website, so you may find that different terms apply next time you use this Website or purchase Items. You can check the date at the top of this page to see when we last updated these terms.

A. For When You Buy Items...

1.SUBMITTING AN ORDER

(a)  By submitting an order for purchase of an Item using the Website’s functionality (Order) you represent and warrant that:

(i)  you have the legal capacity and are of sufficient age to enter into a binding contract with us; and

(ii)  you are authorised to use the debit or credit card you provide with your Order.

(b)  Submitting an Order constitutes your intention and offer to enter into Part A of these terms (including Part C which you agreed to by using this Website) where we will provide you with the Items you have ordered in exchange for your payment of the total amount listed upon checkout.

(c)  Part A of these terms is not agreed between you and us until we have approved your payment and you receive an email from us confirming that your order is being processed.

(d)  You warrant that any information you provide to us in the course of placing an Order is accurate, correct and up-to-date.

2. ITEMS

(a)  We will endeavour to ensure that the Items provided to you will be substantially the same as the Items as displayed on our Website, or as otherwise agreed with you in writing prior to you placing your Order. However, we recommend viewing the Items using a correctly calibrated monitor for the most accurate depiction of colour in each Product. Please note that due to screen display, colour, brightness and image quality, Items may not exactly match the image on our Website. We do not offer refunds and are not liable for any loss or damage suffered by you as a result of receiving an Item that does not meet your expectations for reasons set out in this clause 2(a).

(b)  We determine the sizes available in a particular Print design at our discretion. We may only offer a particular Print in certain sizes.

(c)  Our Prints are fixed in size and design, so we usually don’t offer modifications or custom printing of our Prints. Please get in contact with us if there is a particular modification you would like made and we will consider if we can accommodate your request, however make no guarantees in this regards.

(d)  As some of our Prints are limited edition:

(i) there may be a limited number of a particular size & style of a Print available for purchase; and

(ii) we may limit the number of Prints generally or Prints of a certain style that can be purchased in a single Order.

(e)  Unless otherwise specified in your Order, Prints do not include framing or other products or services. Any images of our Website of Prints in frames and/or photographed in various backdrops are for stylistic purposes only.

(f)  We will endeavour to respond to your enquiries in a timely manner, however we cannot guarantee any particular response time to enquiries.

(g)  Until the price of your Items is paid in full, title in those Items is retained by us. Risk in the Items will pass to you on delivery in accordance with clause 4. Delivery must not be refused by you.

3. PAYMENT

(a)  All prices are:
(i)  per unit (except where indicated);

(ii)  in Australian Dollars; and

(iii)  subject to change prior to you completing an Order without notice.

(b)  (Payment obligations) Unless otherwise agreed in writing, you must pay for all Items at the time of placing an Order.

(c) (GST) Unless otherwise indicated, amounts stated on the Website do not include GST. In relation to any GST payable for a taxable supply by us, you must pay the GST subject to us providing a tax invoice.

(d)  (Card surcharges) We reserve the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).

(e)  (Online payment partner) We may use third-party payment providers (Payment Providers) to collect payments for Items, currently Stripe and PayPal. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

(f)  (Pricing errors) In the event that we discover an error or inaccuracy in the price at which your order was purchased (including shipping prices), we will attempt to contact you and inform you of this as soon as possible. You will then have the option of purchasing your order at the correct price, or cancelling your order. If you choose to cancel your order and payment has already been debited, the full amount will be credited back to your original method of payment.

4. DELIVERY AND SHIPPING

(a)  (Delivery Costs) Delivery costs may apply to certain Orders. If so, such delivery costs will be added to the cart upon checkout. The prices displayed at checkout are inclusive of delivery to the address chosen by you.

(b)  (Delivery Time) We may take up to 4 weeks to process your Order and confirm that your Order is on its way for delivery to you. We recommend that you place your Order at least 4 weeks in advance of your desired delivery date.

(c)  (Delivery Details) We may charge you for delivery at any time (notwithstanding that it may not have previously done so). Where prices are stated as inclusive of delivery:

(i)  delivery is to the delivery point specifically accepted by us; and

(ii)  we will deliver the Items to you in accordance with the shipping information displayed on our Website.

(d)  (Delivery Issues) Third party courier terms apply to the delivery of the Items to you. Any problems with delivery should be directed to us to troubleshoot the issue. We will endeavour to assist you to ensure your delivery arrives. All delivery times provided to you are estimates only and are subject to postal delays and reasons beyond our control. We do not warrant or make any representation that your order will be delivered within the times indicated. We will not be liable for any loss or damage suffered as a result of or in connection with late deliveries.

(e)  (International Orders) We reserve the right to refuse international orders. Approved international orders may be subject to customs and import duties upon reaching its country of destination. You will be responsible for paying all customs and import duties and acknowledge that failure to pay may result in your order being held at customs. We will not be liable for any costs you may incur in having your order released from customs, including reimbursing you for any customs or import duties you may pay.

5. CHANGES TO YOUR ORDER

5.1.  CANCELLATION BY US

We reserve the right to cancel your order for any reason, and will notify you of this as soon as possible. Where payment has already been debited, the full amount will be credited back to your original method of payment.

5.2.  CANCELLATION BY YOU

You may cancel your Order up to the time that we confirm your Order in writing to you. Once we confirm your Order, your Order is binding and cannot be changed by you.

5.3. RETURNS AND EXCHANGES

(a)  We do not offer change of mind returns or exchanges.

(b)  We will provide a full refund of the price paid for an Item if we determine that:

(i)  an Item you have ordered was not received by you solely due to failure by us; or

(ii)  an Item is faulty, in accordance with clause 5.3(c).

(c)  (Faulty Items) The following process applies to any Item you believe to be faulty.

(i)  If you believe your Item is faulty, please contact us using the details provided on our Website with a full description of the fault (including images).

(ii)  If we determine that your Item may be faulty, we will request that you send the Item back to us at your cost for further inspection, including any documentation or other products shipped with the Item. We reserve the right to further inspection before deeming an Item faulty.

(iii)  If we determine in our reasonable opinion that the Item is not faulty, or is faulty due to misuse or your failure to take reasonable care, we will refuse your return and send the Item back to you at your cost.

(iv)  If we determine that the Item is faulty, you will be credited the full amount paid (including shipping costs) and you may request a replacement, refund or store credit. All refunds will be credited back to your original method of payment unless you request otherwise and we approve this request.

(v)  If you fail to comply with the provisions of this clause 5 in respect of a faulty Item, we may, in our absolute discretion, issue only a partial refund or no refund in respect of the faulty Item.

(vi)  Nothing in this clause 5 is intended to limit or otherwise affect the operation of any manufacturers’ warranties which you may be entitled to or any of your rights which cannot be excluded under applicable law.

6. INTELLECTUAL PROPERTY

(a)  We retain all intellectual property rights in the design of the Items (including the labelling and packaging), or those rights are owned by a third party. You must not attempt to copy, reproduce, manufacture or otherwise commercialise the Items.

(b)  In this clause, “intellectual property rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms both in Australia and throughout the world.

7. THIRD PARTY SUPPLIERS

(a)  We may do any of the following:

(i)  outsource any part of performing any services related to providing the Items, including delivery or printing of your Items; or

(ii)  procure materials from third party suppliers, without further notice to or permission from you.

(b)  To the maximum extent permitted under applicable law, we will not be liable for any acts or omissions of those third parties, including where such third parties cause delay or damage to any part of your Order, or are negligent in providing services or goods.

B. For When You Browse This Website...

8. ACCESS AND USE OF THE WEBSITE

You must only use the Website in accordance with these terms and any applicable laws, and must ensure that your employees, sub-contractors and any other agents who use or access the Website comply with these terms and any applicable laws.

9. YOUR OBLIGATIONS

You must not:

(a)  copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile any part or aspect of the Website without our express consent;

(b)  use the Website for any purpose other than the purposes of browsing, selecting or purchasing Items;

(c)  use, or attempt to use, the Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;

(d)  use, or attempt to use, the Website in a manner that may interfere with, disrupt or create undue burden on the Website or the servers or networks that host the Website;

(e)  use the Website with the assistance of any automated scripting tool or software;

(f)  act in a way that may diminish or adversely impact our reputation, including by linking to the Website on any other website; and

(g)  attempt to breach the security of the Website, or otherwise interfere with the normal functions of the Website, including by:

(i)  gaining unauthorised access to Website accounts or data;

(ii)  scanning, probing or testing the Website for security vulnerabilities;

(iii)  overloading, flooding, mailbombing, crashing or submitting a virus to the Website; or

(iv)  instigate or participate in a denial-of-service attack against the Website.

10. INFORMATION ON THE WEBSITE

(a)  While we make every effort to ensure that the information on the Website is as up-to-date and accurate as possible, you acknowledge and agree that we do not (to the maximum extent permitted by law) guarantee that:

(i)  the Website will be free from errors or defects (or both, as the case may be);

(ii)  the Website will be accessible at all times;

(iii)  messages sent through the Website will be delivered promptly, or delivered at all; (iv)  information you receive or supply through the Website will be secure or confidential; and

(v)  any information provided through the Website is accurate or true.

(b)  We reserve the right to change any information or functionality on the Website by updating the Website at any time without notice, including Item descriptions, prices and other Website Content (as defined in clause 11 below).

11. INTELLECTUAL PROPERTY

(a)  We retain ownership of the Website and all materials on the Website (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Website Content) and reserves all rights in any intellectual property rights owned or licensed by us not expressly granted to you.

(b)  You may make a temporary electronic copy of all or part of the Website for the sole purpose of viewing it. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Website or any Website Content without prior written consent from Mala Says or as permitted by law.

(c) In this clause, “intellectual property rights” means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms both in Australia and throughout the world.

12. THIRD PARTY TERMS AND CONDITIONS

(a)  You acknowledge and agree that third party terms & conditions (Third Party Terms) may apply.

(b)  You agree to any Third Party Terms applicable to any third party goods and services, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.

13. LINKS TO OTHER WEBSITES

(a)  The Website may contain links to other websites that are not our responsibility. We have no control over the content of any linked websites, and we are not responsible for that content.

(b)  Inclusion of any linked website on the Website does not imply our approval or endorsement of the linked website.

14. THIRD PARTY PLATFORM

(a)  This Website is powered by a third party platform, currently Squarespace, and the terms and conditions of that third party may apply to your use of this Website to the extent applicable to you. You can access Squarespace’s terms of service here: https:// www.squarespace.com/terms-of-service.

(b)  To the maximum extent permitted under applicable law and our agreement with our third party platform provider, we will not be liable for any acts or omissions of that third party, including in relation to any fault or error of the Website or any issues experienced in placing Orders.

15. SECURITY

We do not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with use of the Website. You should take your own precautions to ensure that the process that you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference.

16. REPORTING MISUSE

If you become aware of misuse of the Website by any person, any errors in the material on the Website or any difficulty in accessing or using the Website, please contact us immediately using the contact details or form provided on our Website.

C. Liability And Other Legal Terms...

17. LIABILITY

(a)  To the maximum extent permitted by applicable law, we limit all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this Website, these terms or any Items or services provided by us, is limited to $100AUD.

(b)  Claims for loss of or damage to Items in transit must be made against the carrier.

(c)  All other express or implied representations and warranties in relation to Items and the associated services performed by us are, to the maximum extent permitted by applicable law, excluded.

(d)  Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.

(e)  (Indemnity) You indemnify us and our employees and agents in respect of all liability for loss, damage or injury which is or may be suffered by any person arising from your or your representatives’:

  1. (i)  breach of any of these terms;

    (ii)  use of the Website; or

    (iii)  use of any goods or services provided by us.

(f)  (Consequential loss) To the maximum extent permitted by law, under no circumstances will we be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Website, these terms or any Items or services provided by us (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).

18. GENERAL

18.1.  GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with these terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

18.2.  WAIVER

No party to these terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

18.3.  SEVERANCE

Any term of these terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of these terms is not limited or otherwise affected.

18.4.  JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

18.5.  ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under these terms without the prior written consent of the other party.

18.6.  COSTS

Except as otherwise provided in these terms, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing these terms.

18.7.  ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these terms.

18.8.  INTERPRETATION

  1. (a)  (singular and plural) words in the singular includes the plural (and vice versa);

  2. (b)  (currency) a reference to $, or “dollar”, is to Australian currency;

  3. (c)  (gender) words indicating a gender includes the corresponding words of any other gender;

  4. (d)  (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

  5. (e)  (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

  6. (f)  (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

  7. (g)  (these terms) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of these terms, and a reference to these terms includes all schedules, exhibits, attachments and annexures to it;

  8. (h)  (document) a reference to a document (including these terms) is to that document as varied, novated, ratified or replaced from time to time;

  9. (i)  (headings) headings and words in bold type are for convenience only and do not affect interpretation;

  10. (j)  (includes) the word “includes” and similar words in any form is not a word of limitation; and

  11. (k)  (adverse interpretation) no provision of these terms will be interpreted adversely to a party because that party was responsible for the preparation of these terms or that provision.

19. NOTICES

(a)  A notice or other communication to a party under this agreement must be:

(i)  in writing and in English; and

(ii)  delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.

(b)  Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:

(i)  24 hours after the email was sent, unless that falls on a Saturday, Sunday or a public holiday in the state or territory whose laws govern this agreement, in which case the notice will be taken to be given on the next occurring business day in that state or territory; or

(ii)  when replied to by the other party, whichever is earlier.