Section 1: DEFINITIONS
1.1 In the terms of sale, the following words have the meanings given to them:
(a) Delivery Fee means the fee we charge you to deliver your Order which is listed in the Price other than for special promotions like a free trial in which case there is Delivery Fee notified to you separately at checkout.
(b) Order means the order you put through for one or more of our Products via our Website or complete an application for our Membership.
(c) Price means:
a. the price of the Products as listed on our Website for a one-off Order; and
b. the price of the Membership as listed on our Website.
(d) Products means the products we offer from time-to-time for you Order.
(e) Membership Service means the membership service we offer for the regular delivery of Products details of which are listed on the Website.
(f) Website means the website owned and operated by TheShade Pty Ltd 23 Milton Parade Malvern VIC 3144 at https://theshade.com.au.
Section 2: YOUR ACCEPTANCE OF GENERAL TERMS
2.1 By accessing, browsing, buying a Product or making an enquiry or using our Website in any way, you agree to the entirety of the terms and conditions in this document.
2.2 We may amend these terms and conditions from time to time. Any amendment is effective immediately.
2.3 You acknowledge and agree that although we will use all reasonable efforts to ensure that the Website is available, temporary interruptions may occur. We will not be liable for any reason if our Website is unavailable at any time or for any period.
2.4 We may also restrict access to some parts of, or the entire Website, from time to time. We reserve the right to perform unscheduled maintenance on the Website at any chosen time and will not be liable for any resulting loss.
2.5 All content and services provided on or through this site are provided “AS IS” and “SUBJECT TO AVAILABILITY” basis. The Website, its contents and third party links and advertising are provided without warranties or conditions of any kind either express or implied, including but not limited to implied warranties and conditions of merchantability, fitness for a particular purpose or non-infringement. Your use of this Website is solely at your risk.
2.6 By agreeing to these Terms, you represent that you are at least 18 years of age.
2.7 We reserve the right to refuse service to anyone for any reason at any time.
2.8 You are responsible for keeping your user name and password confidential. We are not liable if any other party other than you accesses your account.
Section 3: YOUR DETAILS
3.1 You must provide us with correct and accurate information about yourself as requested on the Website for an Order.
3.2 You must provide us with correct and accurate information about the recipient of the Order.
Section 4: ORDERING
4.1 We may, in our sole discretion, limit or cancel quantities purchased per person or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an Order, we may attempt to notify you by contacting the e mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
Section 5: MEMBERSHIP
5.1 We offer a Membership Service. The details of the Membership Service are on our Website. If you Order a Membership Service you will be periodically billed for the Price of the Membership Service.
5.2 You must ensure that your nominated payment method will allow us to debit the Price on your billing date. If your payment is dishonoured, we will suspend your Membership Service until such time as you pay all monies outstanding including any dishonour or other bank fees or any third party recovery agent fees. We are not liable to you for suspending your Membership Service.
5.3 If you wish to cancel or suspend your Membership Service you must do so at least 24 hours prior to your next billing date of your chosen Membership Service otherwise you will be debited your Price for the following period of the Membership Service.
5.4 Any changes to your membership (such as change of hair colour, or auto-ship period) must be made at least 24 hours prior to your next billing date.
5.5 All memberships which are “Active” on the billing date will be billed.
5.6 Refunds are not available if your membership was “Active” at the time of billing.
5.7 You can skip the next regularly scheduled Order or suspend your Membership Service at any time before an Order is processed. A request to skip an Order will only apply to the next regularly scheduled Order. Orders will resume their normal schedule following the Order you skipped. All changes need to be made at least 24 hours prior to the next billing date.
Section 6: COMMUNICATIONS
6.1 You must provide us with a current, up to date and valid phone number, preferable a mobile phone number and a current, up to date and valid email address to enable us to communicate with You (Valid Number and Email).
6.2 If You do not provide us with a Valid Number and Email and we need to contact you but cannot (Failed Communication), you unconditionally release us and we accept no liability whatsoever that might arise out of any Failed Communication including but not limited to anything about Your Order or anything else associated with that Failed Communication.
6.3 We will attempt to call you on a Valid Number and Email for communication once only. If we are able to leave a message, we will.
6.4 We are not obligated to follow up any communications to an email address that you do not action or reply to.
6.5 You unconditionally release us and we accept no liability arising out of a Failed Communication, where your phone number or email address were not supplied by you to us, or were invalid or incorrect.
Section 7: DELIVERY ADDRESS
7.1 You must ensure and it is your responsibility to ensure, that the delivery address for the recipient of the Order you provide us is correct and accurate. We will only deliver to the address you provide us. In some circumstances the Delivery Address you provide us may result in a delivery to reception, front office or similar type of delivery point. You unconditionally release us and we accept no liability arising out of any failed delivery or other issue because the address you provide us is not correct or inaccurate or if the Delivery Address results in a delivery to a reception, front office or similar type of delivery point. We are under no obligation to confirm your delivery address or resolve an incorrect or inaccurate delivery address with you.
7.2 If you provide us with an incorrect or inaccurate delivery address it may result in undelivered or misdelivered Order. If we decide to attempt to deliver the Order to a corrected address, we may charge you a mis-delivery or redelivery fee.
7.3 Once we deliver your Order in accordance with the instructions you have provided to us, and we receive delivery confirmation, risk of the Order transfers to you and we have no further responsibility to you in relation to the Order.
7.4 For the safety of your Order, our delivery agent may (acting reasonably) determine that the address you have provided to us is unsafe to deliver the Order. Where this occurs, the delivery agent will leave a card with details where you can collect your parcel. We reserve the right to have the delivery agent return the Order to the place of origin and if you subsequently either authorise the delivery of the Order to the address or provide us with a new address for the Order, we reserve the right to charge you a redelivery fee.
7.5 In the event that you authorise us to leave the Order at the original address we deemed to be unsafe for delivery, you unconditionally release us and indemnify us against all claims where that Order is, after delivery, not received by the recipient.
Section 8: DELIVERY FEE
8.1 We will state the Delivery Fee as part of the Price of the Product. All orders containing a Colour Kit will be shipped free of charge. All orders not containing a Colour Kit will be charged a flat-rate of $7.50 (inc. GST)
8.2 Once we receive a delivery notification from Australia Post, we agree that this is prima facie evidence of your Order having been delivered. If you require us to redeliver your Order you will be charged a redelivery fee payable to us before we will redeliver your Order
Section 9: DELIVERY TIME
9.1 We do not guarantee a specific delivery time. Delivery times are determined by various factors some of which are outside our control.
9.2 Deliveries on Sundays and public holidays are not available, except when stated otherwise.
9.3 Once an Order is despatched, we will send an Order Confirmation via email with tracking details.
9.4 We have no control over our third party delivery agents other than in their selection based on reputation. Other than as stated in our Delivery Policies, you unconditionally release us and we have no liability to you for any delay in the delivery of your Order where that delay is occasioned by a third party agent such as Australia Post or a freight/courier delivery service.
9.5 In the event the Order is dispatched with Australia Post and the recipient is not available to accept delivery of the Order and there is no safe drop-off point, the Order will be returned to the closest Post Office and a calling card will be left notifying the recipient to pick up the Order. The delivery agent (including Australia Post) has the discretion to determine whether to leave the Order at the recipient’s address or not even where you have authorised us to leave it at the recipient’s address.
9.6 When your Order arrives, it is important that you check immediately the condition and quantity. If your Order has been damaged in transit, you must contact us with 3 days so that we may dispatch a replacement quickly and minimise your inconvenience.
Section 10: CHANGES
10.1 An Order is final at the time we accept your payment for an Order. You are responsible for and must ensure that your Order is correct before making payment. In limited circumstances, we may, at our sole discretion agree to a variation of your Order.
10.2 We are unable to provide any alterations or amendments (including cancellations) for Orders that have already been prepared and/or in transit. All changes to your membership must be made at least 24 hours prior to next billing date.
10.3 We may, in our sole discretion and without having to provide you with a reason, refuse to alter or amend any Order at any time. If we do not have all of your Order in stock, we will offer you alternatives. If this happens you may:
(a) accept the alternatives we offer;
(b) cancel all or part of your Order.
Section 11: CANCELLATION OF ORDERS
11.1 We may consider and agree to a cancellation request for an Order, but this is purely at our discretion.
11.2 We cannot cancel any Order that is already prepared and/or is with our delivery agent.
Section 12: COMPLAINT POLICIES
12.1 If at any time you are dissatisfied with our service then we encourage you to communicate that to us. Please send an email to email@example.com .
12.2 You may communicate your dissatisfaction or complaint about your Order but only if we receive that complaint within 3 days of delivery of your Order. You must provide us with photos and other reasonable evidence to support a complaint about your Order. You must cooperate with us to collect your Order if we require the Order to be returned.
Section 13: REFUNDS
13.1 If your order, or any items in your order are damaged, missing or incorrect, we will send a replacement order (or item(s)) immediately via Express Post.
13.2 We follow the ACCC’s guidelines on refunds which can be found here
13.3 We will not consider a refund if you have changed your mind, don’t like the colour result, or if you forgot to pause or cancel your membership/subscription prior to your next billing date.
13.4 If you are unhappy with your hair colour result, please contact one of our colourists here who can assist you. There are many factors which can affect the hair colour result including, but not limited to the condition of your hair, the presence of previous hair colour, and application instructions not being fully adhered to. We will offer advice, and if necessary we will send you a replacement colour kit free of charge, but we will not offer a refund.
13.5 Refunds are offered at the complete discretion of Theshade Pty Ltd
Section 14: PRODUCTS
14.1 We may use models on our Website for advertising purposes. You should read the itemised Product description available on the product page of the Website carefully because it outlines the contents of each of the Products that we sell and other important information.
14.2 We have made every effort to display as accurately as possible the colours and images of our Products that appear on our Models. We cannot guarantee that your computer monitor’s display of any colour will be accurate.
14.3 We reserve the right, but are not obligated, to limit the sales of our Products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Products that we offer. All descriptions of Products or Product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any Product or service made on this site is void where prohibited.
14.4 Occasionally there may be information on our Website that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Website or on any related website is inaccurate at any time without prior notice (including after you have submitted your Order).
14.5 We undertake no obligation to update, amend or clarify information on the Website or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied on the Website or on any related website, should be taken to indicate that all information on the Website or on any related website has been modified or updated.
Section 15: INSTRUCTIONS
15.1 We provide detailed instructions with our Colour Kits, Bleach Wash Kit and pre-softening developer. We recommend that you follow them carefully to ensure that you get the best results. We are not responsible for and you release us entirely for any claim, cost or injury you or any party suffer as a result of not following the appropriate instructions.
Section 16: PRICING
16.1 Prices for our Products are subject to change without notice.
16.2 All Prices quoted, unless otherwise stated, are inclusive of GST.
16.3 All Prices, unless otherwise stated, are quoted in the currency you have chosen or if not chosen by you, in the currency of the country in which the Order has been made.
16.4 Product prices on the Website do not include Delivery Fees.
16.5 If you are not in the Commonwealth of Australia, we have no knowledge of, and no responsibility for, the laws in your country.
16.6 You are responsible for your Order which you are lawfully able to import and for the payment of import duties and taxes of any kind levied in your country.
Section 17: TRANSACTIONS
17.2 When providing your credit or debit card details you are agreeing that you are authorised to use that card and that is has sufficient available funds to cover the Order price.
17.3 If you have taken out a Membership, we will use your debit or credit card for future orders. All credit card details are encrypted within Stripe’s platform, and The Shade doesn’t have access to any credit card details. Your debit or credit card will only be used to process your recurring orders or other transactions which you have initiated.
Section 18: DISCOUNTS
(a) apply to the Product value and exclude the Delivery Fee
(b) may not be combined with any other offers, discounts or gift vouchers
(c) must be applied prior to payment
(d) may not be redeemed for cash or transferred
(e) will not be applied to an Order after an Order has been paid.
18.2 These terms and conditions apply in conjunction with any terms and conditions, written on or associated with the discount given to you.
Section 19: THIRD PARTY RELEASE
19.1 We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
19.2 You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
19.3 Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
19.4 We may also, in the future, offer new Products and/or features through the website (including, the release of new tools and resources). Such new features and/or Products shall also be subject to these Terms.
Section 20: TRADEMARKS, COPYRIGHTS AND RESTRICTIONS
20.1 All material on Website is owned, operated, licensed or controlled by us, including but not limited to images, illustrations, audio clips, and video clips, are protected by copyrights, trademarks, and other intellectual property rights which are owned and controlled by us or by other parties that have licensed their material to us.
20.2 Material on any website owned, operated, licensed or controlled by us is solely for your personal, non-commercial use. Such material may not be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way, including by e-mail or other electronic means, without the express prior written consent of us.
20.3 Use of the materials on any other Website or networked computer environment, or use of the materials for any purpose other than personal, non-commercial use is a violation of our copyright, trademarks and proprietary rights and is prohibited.
Section 21: THIRD PARTY LINKS
21.1 Certain content, Products and services available via our Website may include materials from third-parties.
21.2 Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
21.3 We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
Section 22: USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
22.1 If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, ‘comments’), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
22.2 We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms.
22.3 You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libellous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Website or any related website. You may not use a false e mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
Section 23: YOUR USER CONTENT
23.1 You grant us an irrevocable, perpetual, unrestricted, worldwide, non-exclusive, royalty-free license to copy, use, publish, upload, distribute, transmit, publicly display and create derivative works from your content for any purpose without compensation to you, including for the purpose of promoting our Products or services.
23.2 You also acknowledge and agree that your user content is non-confidential and non-proprietary (User Content).
23.3 You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through our Website, nor any use of your User Content on or through the Website 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.
23.4 You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Website. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Section 24: PROHIBITED USES
24.1 In addition to other prohibitions as set forth in these Terms, you are prohibited from using the Website or its content:
(a) for any unlawful purpose;
(b) to solicit others to perform or participate in any unlawful acts;
(c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances;
(d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others;
(e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
(f) to submit false or misleading information;
(g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website or of any related website, other websites, or the Internet;
(h) to collect or track the personal information of others;
(i) to spam, phish, pharm, pretext, spider, crawl, or scrape;
(j) for any obscene or immoral purpose; or
(k) to interfere with or circumvent the security features of the Website or any related website, other websites, or the Internet.
24.2 We reserve the right to terminate your use of the Website or any related website for violating any of the prohibited uses.
Section 25: RESTRICTED CONTENT
25.1 In connection with the restrictions set out below, we may refuse or edit or remove a Posting which does not comply with these terms.
25.2 In addition to the restrictions set out above, a Posting must not contain:
(a) hyperlinks, other than those specifically authorised by us;
(b) keywords or words repeated, which are irrelevant to the Content Posted;
(c) the name, logo or trademark of any organisation other than yours;
(d) inaccurate, false, or misleading information.
Section 26: HOW WE HANDLE USER CONTENT
26.2 If you Post Content to any public area of our Website it becomes available in the public domain. We have no control who sees it or what anyone does with it.
26.3 Even if access to your text is behind a user registration it remains effectively in the public domain because someone has only to register and log in, to access it. You should therefore avoid posting unnecessary confidential information.
26.4 We need the freedom to be able to publicise our Services and your own use of them. You therefore now irrevocably grant us the right and licence to edit, copy, publish, distribute, translate and otherwise use any Content that you place on our Website, in public domains and in any medium. You represent and warrant that you are authorised to grant all such rights.
26.5 We will use that licence only for commercial purposes of the business of Our Website and will stop using it after a commercially reasonable period of time.
26.6 You agree to waive of your right to be identified as the author and your right to object to derogatory treatment of your work as provided in the Copyright Act 1968.
26.7 Posting content of any sort does not change your ownership of the copyright in it. We have no claim over it and we will not protect your rights for you.
26.8 You understand that you are personally responsible for your breach of someone else’s intellectual property rights, defamation, or any law, which may occur as a result of any Content having been Posted by you.
26.9 You accept all risk and responsibility for determining whether any Content is in the public domain and not confidential.
26.10 Please notify us of any security breach or unauthorised use of your account.
Section 27: REMOVAL OF OFFENSIVE CONTENT
27.1 For the avoidance of doubt, this paragraph is addressed to any person who comes on our Website for any purpose.
27.2 We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility to monitor or police Internet-related activities. However, we may do so without notice to you and without giving you a reason.
27.3 If you are offended by any Content, the following procedure applies:
(a) Your claim or complaint must be submitted to us via email at firstname.lastname@example.org
(b) we shall remove the offending Content as soon as we are reasonably able;
(c) after we receive notice of a claim or complaint, we shall investigate so far as we alone decide;
(d) We may re-instate the Content about which you have complained or not.
27.4 In respect of any complaint made by you or any person on your behalf, whether using our form of complaint or not, you now irrevocably grant to us a licence to publish the complaint and all ensuing correspondence and communication, without limit.
27.5 You now agree that if any complaint is made by you frivolously or vexatiously you will repay us the cost of our investigation including legal fees, if any.
Section 28: SECURITY OF OUR WEBSITE
28.1 If you violate Our Website we shall take legal action against you.
28.2 You now agree that you will not, and will not allow any other person to:
(a) modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it.
(b) link to Our Website in any way that would cause the appearance or presentation of the site to be different from what would be seen by a user who accessed the site by typing the URL into a standard browser;
(c) download any part of our Website, without our express written consent;
(d) collect or use any product listings, descriptions, or prices;
(e) collect or use any information obtained from or about Our Website or the Content except as intended by this agreement;
(f) aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of Our Website;
(g) share with a third party any login credentials to Our Website.
28.3 Despite the above terms, we now grant a licence to you to:
(a) create a hyperlink to Our Website for the purpose of promoting an interest common to both of us. You can do this without specific permission. This licence is conditional upon your not portraying us or any product or service in a false, misleading, derogatory, or otherwise offensive manner. You may not use any logo or other proprietary graphic or trademark of ours as part of the link without our express written consent.
(b) you may copy the text of any page for your personal use in connection with the purpose of Our Website.
Section 29: SMS/MMS MOBILE MESSAGING MARKETING PROGRAM
29.1 The Shade’s SMS service (the “Service”) is operated by Theshade Pty Ltd , “we”, or “us”). Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.
29.2 By consenting to The Shade’s SMS/text messaging service, you agree to receive recurring SMS/text messages with service-related messages, including promotions, specials, and other marketing offers from and on behalf of The Shade via text messages through your mobile provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialling system or other technology.
29.3 You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with The Shade. Your participation in this program is completely voluntary.
29.4 We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Standard message and data rates may apply from your mobile provider. Check your mobile plan and contact your mobile provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your mobile provider.
29.5 You may opt-out of the Service at any time. Click the unsubscribe link in any text message to cancel. You’ll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other The Shade mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Service support or assistance, email email@example.com
29.6 We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honouring requests made in such messages.
29.7 The mobile carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.
29.8 To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Notice.
Section 30: LIMITATION OF LIABILITY AND INDEMNITY
30.1 You agree that we shall not be liable for any damages suffered as a result of using the Website or an Order.
30.2 In no event shall we be liable for any indirect, punitive, special, incidental or consequential damage (including loss of business, revenue, profits, use, privacy, data, goodwill or other economic advantage) however it arises, whether for breach of contract or in tort, even if it has been previously advised of the possibility of such damage.
30.3 We do not endorse the content of any third party products and expressly disclaim any and all liability in connection with them. In no event shall we be liable for any claims by a User or any third party pursuant to the Competition and Consumer Act 2010 (Cth) including, but not limited to, any misleading or deceptive statements and/or misrepresentations incorporated into content. It is your sole responsibility to ensure the accuracy of the information that you give us for the purposes of an Order.
30.4 Hair colour and hair care product differences are likely to occur for multiple reasons, including but not limited to the accuracy of your responses to The Shade’s questions and/or prompts, the specific colour settings on your monitor, the way you treat the products and the care with which you follow the instructions and cautions thereon, and your particular hair colour and hair care product application technique. The Shade does not represent or warrant that your hair colour and hair care results will be identical to that of the photos or images displayed on the site.
30.5 As a condition of your access to and use of the Site, you agree to defend, hold harmless, and indemnify us and its successors and assigns for all damages, costs, expenses and other liabilities, including but not limited to legal fees and expenses, relating to any claim arising out of or related to:
(a) your access to and use of the Website and any Order; or
(b) your breach of these Terms and any applicable law or the rights of another person or party; or
(c) any breach of contract or other claims made by a third party who is a recipient of your Order.
30.5 This indemnification section survives the delivery of your Order.
Section 31: RELEASE
31.1 You hereby release us and its affiliates, officers, directors, agents, subsidiaries, joint venturers, and employees from claims, demands, and damages whether actual or consequential of every kind and nature, known or unknown, arising out of or in connection with any dispute you have with us, whether it be at law or in equity. This includes, for example and without limitation, any disputes regarding performance, quality, functions, and quality of the Products.
31.2 Neither the release in this clause nor the indemnity in clause 16 abrogates any implied warranty by law including those implied by the consumer laws of Australia.
Section 32: NOTICE
32.1 By using the Website, you accept and consent that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Website or calling you at our election.
32.2 You acknowledge that all contracts, notices, information and other communication we may provide electronically comply with any legal requirements that such documents are in writing.
32.3 Notice will be deemed received and properly served immediately when posted on the Website or 24 hours after an email is sent. As proof of service, it is sufficient that, for emails, the email was sent to the specified email address you have given us.
Section 33: NO WAIVER
33.1 If we fail, at any time, to insist upon strict performance of your obligations under these Terms, or if we fail to exercise any of the rights and remedies we are entitled to under these Terms, this will not constitute a waiver of such rights or remedies and it will not relieve you from compliance with your obligations.
33.2 If we waive a default, it does not constitute a waiver of any subsequent defaults.
33.3 No waiver is effective unless it is expressly stated by us to be a waiver and is communicated to you.
Section 34: FORCE MAJEURE
34.1 We shall be under no liability to you in respect of anything that, if not for this provision, would or might constitute a breach of these Terms, where this arises out of circumstances beyond our control, including but not limited to:
(a) acts of god;
(b) natural disasters;
(f) shortage of supplies, equipment, and materials;
(g) strikes and lockouts;
(h) pandemic or epidemic;
(i) civil unrest;
(j) computer hacking; or
(k) malicious damage.
Section 35: SEVERABILITY
35.1 If any court decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, that term will, to that extent only, be severed from the remaining terms. The rest of these Terms will continue to be valid.
Section 36: ENTIRE AGREEMENT
36.1 These Terms and the documents expressly referred to in them, constitute the entire agreement between you and us, and supersede all previous discussions, correspondence, negotiations, previous arrangements, understanding or agreement between us and you.
36.2 We each acknowledge that, in entering into these Terms, neither of us relies on, and subsequently will have any remedies for, any representation or warranty that is not set out in these Terms.
Section 37: GOVERNING LAW
37.1 These Terms are governed by the laws of Victoria.