WEBSITE TERMS AND CONDITIONS OF USE

1. About the Website
   1. Welcome to https://www.birthmagic.com.au (the ‘Website‘). The Website is owned and operated by Birth Magic Doula Services (ABN 21 480 742 695).
   2. The Website provides you with an opportunity to:
      1. browse and purchase our products; and/or
      2. browse and purchase our services; and/or
      3. browse and view material or information where there is no paid supply or offer for purchase (our ‘Services‘ herein to the extent applicable above)
   3. Please read the terms and conditions carefully as they govern your access to our Website (the ‘Terms’). By using our Website, you agree that you are bound by the Terms. If you do not agree with these Terms, you must not use our Website, or purchase any of our products or services.
   4. These Terms may be updated by us at any time and by continuing to use the Website, you accept these Terms as they apply from time to time. When Birth Magic Doula Services 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.
   5. Any reference to Birth Magic Doula Services, “we”, “our”, or “us” means Birth Magic Doula Services (ABN 21 480 742 695) and any reference to “you” or “your” means a user of Website or Services.
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 Birth Magic Doula Services in the user interface.
3. Registration and Subscription to use the Services
   1. In order to access our Services, you must first register for an account through the Website (the ‘Account‘).
   2. In select cases, to access our Services, you must first purchase a subscription through the Website (the ‘Subscription‘) and pay the applicable fee for the selected Subscription level (the ‘Subscription Fee‘).
   3. After you have purchased the Subscription, if you have not already done so, you will then be required to register for an account through the Website before you can access the Services (the ‘Account‘). When purchasing the Subscription, you agree that it is your sole responsibility to ensure that the Subscription you elect to purchase is suitable for your use or purpose.
   4. As part of the registration process, to access and use our Services, you may be required to provide personal information about yourself (for example, identification or contact details), including:
      1. Email address
      2. Preferred username
      3. Mailing address
      4. Telephone number
      5. Password
      6. Physical and/or Billing Address, and, any
      7. Other information as required. (‘Registration Information’)
   5. You warrant that any Registration Information you provide to Birth Magic Doula Services in the course of completing the registration process will be accurate, correct and up to date.
   6. You are solely responsible for the accuracy of the Registration Information that you submit in relation to the Registration Information. If we detect suspicious or incomplete Registration Information, we reserve the right to suspend or cancel your Account.
   7. Once you have completed the registration process, you will be a registered member of the Website (‘Member‘) and you are taken to have accepted and are bound by these Terms. As a Member, you will be granted access to our Services. In the case of Subscription Services, this access will be limited to the applicable subscription period for the level of Subscription to which you are subscribed (the ‘Subscription Period’).
   8. You may not use our Services or accept the Terms if:
      1. you are not of legal age to form a binding contract with Birth Magic Doula Services; or
      2. you are a person barred from receiving Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
4. Your obligations as a Member
   1. As a Member, you agree to comply with the following:
      1. you will use the Services only for purposes that are permitted by:
         1. the Terms; and
         2. any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
      2. 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 Services;
      3. any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Birth Magic Doula Services of any unauthorised use of your password and/or email address or any breach of security of which you have become aware;
      4. 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 accessing our Services;
      5. you will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Birth Magic Doula Services;
      6. you will not use the Services or Website for any illegal, offensive 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;
      7. 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 Services. Appropriate legal action will be taken by Birth Magic Doula Services for any illegal or unauthorised use of the Website; and
      8. you acknowledge and agree that any automated use of the Website or its Services is prohibited.
5. Payment
   1. In using the Services to obtain a supply of products or services through the Website including for a Subscription, you agree to the payment of the purchase price listed on the Website for the supply (the ‘Purchase Price‘).
   2. Payment of the Purchase Price may be made through the payment gateway made available to you on the Website, for example, Stripe or PayPal or other available payment processors (the ‘Payment Gateway Provider‘). Electronic Funds Transfer (EFT) and other payment methods may also be available upon request in the sole discretion of Birth Magic Doula Services.
   3. In using the 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.
   4. Following confirmation of payment of the Purchase Price by Birth Magic Doula Services, you will be issued with a receipt to confirm that payment has been received and you authorise Birth Magic Doula Services to record your purchase details for future use.
   5. Where the option is given to you, you may make payment for the Services (the ‘ Services Fee’) or Subscription (the ‘Subscription Fee’) (collectively referred to as the ‘ Services or Subscription Fee’) by way of through Stripe, PayPal and/or others (the ‘Payment Gateway Provider’). Electronic Funds Transfer and other payment methods also be available upon request at the sole discretion of Birth Magic Doula Services.
   6. You acknowledge and agree that where a request for a payment due is returned or rejected, for whatever reason, by your financial institution or is unpaid by you for any other reason, then you are liable for any costs or surcharges, including banking fees and charges, associated with the Services or Subscription.
   7. Any prices displayed on our Website including Subscription Fees are subject to change without notice.
   8. You agree and acknowledge that Birth Magic Doula Services can vary the Services Fee or Subscription Fee at any time. For Subscriptions, the varied Subscription Fee will come into effect following the conclusion of the existing Subscription Period.
6. Warranty
   1. The supply of Birth Magic Doula Services’s products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure (the ‘Warranty‘).
   2. You can make a claim under this clause (the ‘Warranty Claim‘) for material defects and workmanship in the Products within the specified warranty period supplied with the product or listed on the product page from the date of purchase (the ‘Warranty Period‘).
   3. In order to make a Warranty Claim during the Warranty Period, you must provide proof of purchase to Birth Magic Doula Services showing the date of purchase of the Products, provide a description of the Products and the price paid for the Products by sending written notice to Birth Magic Doula Services at PO Box 1368, Coolum Beach, Qld, 4573 or by email at debbie@birthmagic.com.au.
   4. Where the Warranty Claim is accepted then Birth Magic Doula Services will, at its sole discretion, either repair or replace any defective Products or part thereof with a new or remanufactured equivalent during the Warranty Period at no charge to you for parts or labour. You acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in facilitating the Warranty Claim.
   5. The Warranty shall be the sole and exclusive warranty granted by Birth Magic Doula Services in addition to any other rights and under a law in relation to the Products to which this warranty relates.
   6. All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.
   7. The Warranty does not apply to any appearance of the supplied Products nor to the additional excluded items set forth below nor to any supplied Products where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.
7. Delivery of Products
   1. You acknowledge that the Services offered by Birth Magic Doula Services integrate delivery of products (the ‘Delivery Services‘) through the use of third-party delivery companies (the ‘Delivery Service Providers‘).
   2. In providing the Services, Birth Magic Doula Services may provide you with a variety of delivery and insurance options offered as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that Birth Magic Doula Services is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.
   3. In the event that an item is lost or damaged in the course of the Delivery Services, Birth Magic Doula Services asks that you:
      1. contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and
      2. contact us by sending an email to debbie@birthmagic.com.au outlining in what way the Products were damaged in transit so we are able to determine if the Delivery Service Provider should be removed from the Services.
8. Services and Subscriptions Refund Policy
   1. Birth Magic Doula Services will only provide you with a refund (the ‘Refund’) of the Purchase Price or Subscription Fee in the event Birth Magic Doula Services is unable to continue to provide the Services or the Subscription or if the manager of Birth Magic Doula Services makes a decision, at its absolute discretion, that it is reasonable to do so under the circumstances.
   2. For Subscription Fees, the Refund will be in the proportional amount of the Subscription Fee that remains unused by Member.
   3. Birth Magic Doula Services may, at their sole discretion, provide a Refund on the return of the Products within 30 days where the Product packaging is unopened and remains in a saleable condition. You acknowledge and agree that you are liable for any postage and shipping costs associated with any refund pursuant to this clause.
9. No Reliance on Information and Documentation
   1. All information provided by us on this Website pursuant to these Terms is provided in good faith. You accept that any information provided by us is general information only. We derive our information from sources which we believe to be accurate and up to date as at the date of publication.
   2. The supply of our services and products may include hard or electronic material containing information, content instructions, a methodology, a process, training or training materials, spreadsheets, plans, guides, charts or other materials (‘Documentation‘). Client acknowledges and agrees that Birth Magic Doula Services makes no guarantee, warranty or promises, express or implied that any of the Documentation of Birth Magic Doula Services will achieve specific results including any financial results.
   3. It is your sole responsibility to determine that any of our products and services meet your needs or the needs of your business or is otherwise suitable for the purposes for which it is used. All our information on our Website and through the supply of our products and services is intended to assist you and does not in any way, nor is it intended to substitute professional, financial or legal advice. Results are not guaranteed and depend on your particular circumstances. Birth Magic Doula Services takes no responsibility for your actions, choices or decisions.
   4. By using any of our Documentations, products or services, you agree that Birth Magic Doula Services is not to be held liable for any decisions you make based on our supply of products or services including any guidance we may supply. Any consequences, as a result, are your own and under no circumstances can you hold Birth Magic Doula Services liable for any actions you take nor can you hold us or any of our officers or employees liable for any loss or costs incurred by you as a result of any guidance, advice, coaching, materials, Documentation techniques or know-how used or provided by Birth Magic Doula Services.
10. Copyright and Intellectual Property
    1. The Website, the Services and all of the related products and services of Birth Magic Doula Services are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties.
    2. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements, interactive features and software) (the ‘Content’) or the Services are owned or controlled for these purposes, and are reserved by Birth Magic Doula Services or its contributors.
    3. All trademarks, service marks and trade names are owned, registered and/or licensed by Birth Magic Doula Services, who grants to you a worldwide, non-exclusive, royalty-free, revocable license whilst you are a Member to:
       1. use the Website pursuant to the Terms;
       2. copy and store the Website and the material contained in the Website in your device’s cache memory; and
       3. print pages from the Website for your own personal and non-commercial use.
    4. Birth Magic Doula Services does not grant you any other rights whatsoever in relation to the Website or the supply of products and services by Birth Magic Doula Services. All other rights are expressly reserved by Birth Magic Doula Services.
    5. Birth Magic Doula Services retains all rights, title and interest in and to the Website and all related content or Services. Nothing you do on or in relation to the Website will transfer to you:
       1. the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of Birth Magic Doula Services; or
       2. the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
       3. a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process).
    6. You may not, without the prior written permission of Birth Magic Doula Services 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, Services, third party content, or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
    7. As a Member, you agree that you will use the Content and our Services only for purposes that are permitted by these Terms and in accordance with any applicable law, regulations or generally accepted practices or guidelines in the relevant jurisdictions.
11. Privacy
    1. Birth Magic Doula Services takes your privacy seriously and any information provided through your use of the Website, Content and/or the Services are subject to Birth Magic Doula Services’s Privacy Policy, which is available on the Website.
12. General Disclaimer
    1. With regards to the Services, you acknowledge that Birth Magic Doula Services does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding supply of its products or services other than provided for pursuant to these Terms.
    2. Birth Magic Doula Services will make every effort to ensure the supply of any products is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.
    3. Nothing in the 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.
    4. Subject to this clause, and to the extent permitted by law:
       1. all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and
       2. Birth Magic Doula Services 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 Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
    5. Use of the Website, Content and the Services, and any of the products or services of Birth Magic Doula Services (including the Delivery Services), is at your own risk. Everything on the Website, the Services, and the products and services of Birth Magic Doula Services, 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 Birth Magic Doula Services (including any third party where the Delivery Services are made available to you) make any express or implied representation or warranty about the Content or any products or services of Birth Magic Doula Services 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:
       1. 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;
       2. the accuracy, suitability or currency of any information on the Website, the Services, or any of its Content related products and services (including third party material and advertisements on the Website);
       3. costs incurred as a result of you using the Website, Content, Services or any of our products and services;
       4. the Content, Services or operation in respect to links on the Website which are provided for your convenience;
       5. any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
       6. any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
13. Limitation of Liability
    1. Birth Magic Doula Services’s total liability arising out of or in connection with the Content, 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 or Subscription Fee paid by you under these Terms or where you have not paid the Purchase Price or Subscription Fee, then the total liability of Birth Magic Doula Services is limited to the resupply of information, products or services to you.
    2. You expressly understand and agree that Birth Magic Doula Services, 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.
    3. Birth Magic Doula Services is not responsible or liable in any manner for any Content on the Website (including Third Party content) posted on the Website or in connection with the Services, whether posted or caused by users of the Website of Birth Magic Doula Services, by third parties or through the offer of Services by Birth Magic Doula Services.
    4. You acknowledge that Birth Magic Doula Services does not provide the Delivery Services to you and you agree that Birth Magic Doula Services will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.
14. Termination of Contract
    1. The Terms will continue to apply until terminated by either you or by Birth Magic Doula Services as set out below.
    2. If you want to terminate the Terms, you may do so by:
       1. not renewing a Subscription prior to the end of the Subscription Period;
       2. providing Birth Magic Doula Services with 30 days’ notice of your intention to terminate the Subscription;
       3. For Services, notifying Birth Magic Doula Services at any time;
       4. closing your accounts for any Services which you use, where Birth Magic Doula Services has made this option available to you. Your notice should be sent, in writing, to Birth Magic Doula Services via the ‘Contact Us’ link on our homepage.
    3. Birth Magic Doula Services may at any time, terminate the Terms with you if:
       1. you do not renew the Subscription at the end of the Subscription Period;
       2. you have breached any provision of the Terms or intend to breach any provision;
       3. Birth Magic Doula Services is required to do so by law;
       4. the partner with whom Birth Magic Doula Services offered the Services to you has terminated its relationship with Birth Magic Doula Services or ceased to offer the Services to you;
       5. Birth Magic Doula Services is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or
       6. the provision of the Services to you by Birth Magic Doula Services is, in the opinion of Birth Magic Doula Services, no longer commercially viable.
    4. Subject to local applicable laws, Birth Magic Doula Services 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 Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Birth Magic Doula Services’s name or reputation or violates the rights of those of another party.
    5. When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Birth Magic Doula Services 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.
15. Indemnity
    1. You agree to indemnify Birth Magic Doula Services, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
       1. 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;
       2. 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
       3. any breach of the Terms.
16. Dispute Resolution
    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).
    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.
    3. Resolution: On receipt of that notice (‘Notice‘) by that other party, the parties to the Terms (‘Parties‘) must:
       1. Within 14 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;
       2. If for any reason whatsoever, 14 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 Australian Mediation Association or his or her nominee;
       3. 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;
       4. The mediation will be held in Coolum Beach, Australia.
    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.
    5. Termination of Mediation: If 30 days 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.
17. Venue and Jurisdiction
    • The Content and Services offered by Birth Magic Doula Services is intended to be viewed by residents of Australia. 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 Qld, Australia.
18. Governing Law
    • The Terms are governed by the laws of Qld, 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 Qld, 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.
19. Independent Legal Advice
    • Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
20. 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.

Last Updated: 15/09/2021

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