Terms of Service

 

These terms (“Terms of Service”) set out the terms on which Matthias Lochthofen ABN 77323671877 trading as Mary Valley Pet Cremation (the “Service Provider”, “our”, “us”, “we”) agrees to provide the Services (as defined below) to you (the “Client”). Other terms and conditions contained in the privacy policy (“Privacy Policy”) and else whereon the Website also form part of our agreement with you.

By (a) accepting these Terms of Service; or (b) providing instructions to the Service Provider with respect to the Services; or (c) paying any amount to the Service Provider in respect to the Services; or (d) accepting or proceeding with the Services, you agree to be bound by these Terms of Service.

The Service Provider reserves the right to update and change these Terms of Service from time to time without notice. Continued use of the Services by you after any such changes shall constitute your consent to such changes.

1.           Engagement of the Service Provider

1.1         The Client engages the Service Provider to provide the Client with the Services during the Term in accordance with these Terms of Service.

1.2         The Client may engage the Service Provider to provide Services through any means accepted by the Service Provider including via the Website, email, text message and verbal communication (phone or in person).

1.3         Once the Client engages the Service Provider to proceed with any Services, the Client will be committed to proceed with the requested Services and cannot cancel them unless otherwise agreed. For the avoidance of doubt, once the Client provides instructions to cremate a Pet, the Client cannot then ask the Service Provider to return the Pet.

1.4         The Service Provider may determine the means by which it performs the Services for the Client.

1.5         These Terms of Service will apply to any Services supplied by the Service Provider to the Client any time after the date that these Terms of Service become binding on the Client.

1.6         The Service Provider may cancel the provision of any Services at any time on providing the Client with notice in the event that the Service Provider considers that it is unable to provide the Services for any reason, such as due to the size of the Pet. The parties agree that the Service Provider will have no liability for any Loss suffered by the Client in the event that this occurs, and cancellation is not a breach of these Terms of Service.

2.           Provision of Services  

2.1         Overview

The Service Provider offers a collection and return pet cremation service. Full details of the Services as well as inclusions and any exclusions will be as specified on the Website at the time the Client engages the Service Provider to provide the Services.

2.2         Collection and Return Service

(a)          The Service Provider offers the Services as a collection and return service only. The Client is expressly prohibited from attending the premises of the Service Provider at all times. For the avoidance of doubt the Client must not hold a ceremony at the Service Provider’s premises or deliver and/or return the Pet or the Pet’s ashes to the Service Provider’s premises.

(b)          Unless otherwise agreed by the Service Provider:

(i)           the Service Provider will arrange for the collection of the Pet at the agreed date and pick-up location (the Service Provider only provides collection from such locations as set out on the Website from time to time, or as agreed for an additional cost); and

(ii)          the Service Provider will arrange for the Pet’sashes to be returned back to the delivery location by the Service Provider personally returning (at a cost as specified on the Website or otherwise advised by the Service Provider) or by postage by a carrier nominated by the Service Provider (cost included in fees). Postage will be insured to the cremation value (package price paid by you for the cremation), no other value can be claimed if the package is lost (including without limitation damages for distress).

(c)          The Client must:

(i)           make the Pet available for collection at the agreed date, time and pick-up location; and

(ii)          be available for delivery of the Pet’s ashes at the agreed date, time and drop-off location (if personal delivery is purchased).

(d)          If the Client fails to do so, the Service Provider reserves the right to charge a reasonable fee for re-collection and/or re-delivery and/or storage.  The Service Provider will use reasonable endeavours to collect the Pet and deliver the Pet’sashes at such dates, however any agreed dates and/or delivery times are an estimate only and will not be binding on the Service Provider. The Service Provider will not be in breach nor will it be liable for any Losses suffered by the Client, in the event it fails to collect the Pet or deliver the Pet’s ashes by such dates. Late delivery and/or collection does not entitle the Client to refuse to allow the Service Provider to collect the Pet, claim damages or terminate these Terms of Service.

(e)          The Client acknowledges that there is to be no return of the Pet’s ashes until all fees and other amounts owing under this Agreement have been paid to the Service Provider. If the Client fails to pay all fees and other amounts within 3 months of the due date for payment (or otherwise fails to take delivery of the Pet’s ashes) the Pet’s ashes will be considered abandoned and disposed of without notice. You have no rights, including a right to claim any damages or a refund, in the event that this occurs.

2.3         Ownership of Pets & Authority

(a)          Notwithstanding anything to the contrary express or implied in these Terms of Service, the parties agree that:

(i)      upon collection of the Pet the title to the Pet will pass to the Service Provider;and

(ii)     the Service Provider will retain full title to the Pet and title will not pass to the Client until all fees and other amounts owing under this Agreement have been paid to the Service Provider and the Services have been completed and the Pet’s ashes have been returned to the Client (and not abandoned).

(b)          By providing a request to provide the Services,the Client hereby consents and gives permission to the Service Provider:

(i)      to collect the Pet from the delivery location;

(ii)     to the Pet being in the possession of the Service Provider for such period; and

(iii)    to provide the Services requested (including the cremation of such Pet where requested) while in the possession of the Service Provider.

(c)          Even if the Service Provider retains owner ship of the Pet, all risk for the Pet passes to the Client upon the Pet’s ashes leaving the Service Provider’s premises.

2.4         General

(a)          (Engraved plaques) must be paid in full prior to the commencement of such Service and the Client is responsible for correct spelling. The Service Provider will provide no proofing services, and will not be responsible for any errors provided by the Client.

(b)          (Urns) may be exchanged provided that the Client has made such request before the delivery of the ashes.

3.           Payment for the Services
3.1         Fees

In consideration for the Service Provider performing the Services, the Client agrees to pay the Service Provider the fees and any other charges in the amounts and in the manner as specified in the invoice, pursuant to the Service Provider’s current price list at the time the request for Services is placed (or as otherwise agreed between the parties).

3.2         Payment

All fees are to be paid by credit card unless some other method is agreed by the Service Provider.Unless otherwise agreed by the Service Provider, payment of all fees is due upfront and there will be no return of the Pet’s ashes until payment is made.

The Service Provider shall invoice the Client for such fees and the Client agrees to pay each invoice in accordance with the due date as specified on the invoice.

3.3         Late Payment

If the Client fails to pay any amount when due under these Terms of Service, the Client acknowledges that the Service Provider may in its discretion:

(a)          suspend the provision of the Services and/or refuse to return the Pet’s ashes to the Client until payment of the overdue amount is received in full (including interest), and the Service Provider will not be responsible for any Loss suffered by the Client because of this;

(b)          charge the Client interest on all outstanding monies from the due date until the date of actual payment of all amounts owed at the rate of 12% per annum accruing daily; and/or

(c)          demand payment and all money due under these Terms of Service will immediately become due and payable.

3.4         General

(a)          All fees are subject to change at any time without notice. If on collection the Pet is larger than the amount agreed to,then the Client must pay the increase in fees relative to the size of the Pet. Over payment will be reimbursed.

(b)          The Client will also pay to the Service Provider, on demand, on a full indemnity basis, all amounts that the Service Provider may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Client defaulting on any of these Terms of Service.

(c)          The Client must pay the Service Provider all fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.

(d)          The Service Provider reserves the right to charge a small administrative fee in the event payments are made using a credit card (including Visa, MasterCard, American Express or Diners Club).

(e)          Unless otherwise stated, all fees are exclusive of GST.

4.           Relationship of the parties  

The parties acknowledge that:

4.1         the Service Provider is engaged by the Client as an independent contractor and nothing in these Terms of Service creates or constitutes a relationship of employer and employee, principal and agent, trustee and beneficiary or of partnership or joint venture between the parties; and

4.2         the Service Provider provides the Services to the Client on a non-exclusive basis, and is free to provide its services to third parties during the Term.

5.           Cancellations and refunds

5.1         To the extent permitted by law, if the Client has engaged the Service Provider to provide the Services there will be no cancellation of the Services in whole or part or any refund of any amount paid.

5.2         Upon acceptance of the Client’s request for Services, the Service Provider allocates resources to the Services and commits a significant amount of time to the provision of the Services. Given this, the Client acknowledges that any non-refunded amount is a genuine pre-estimate of the loss the Service Provider is likely to suffer as a result of the Client’s cancellation. The Client acknowledges that this is not a penalty.

6.           Delegation and subcontracting

6.1         The Service Provider may subcontract, delegate and/or perform the Services through any other persons in its discretion.

6.2         The Service Provider will use reasonable endeavours to ensure that such persons comply with the provisions of this Agreement, however a breach by such persons of this Agreement will not be deemed a breach by the Service Provider.

7.           Representations & warranties
7.1         The Client represents and warrants that:

(a)          it has full authority to enter into these Terms of Service and is not bound by any agreement with any third party that adversely affects these Terms of Service;

(b)          it has and will maintain throughout the Term,all necessary powers, authority and consents to enter into and fully perform its obligations under these Terms of Service.

7.2         The Client acknowledges that the Service Provider is entering into these Terms of Service in reliance of the warranties and representations contained in clause 7.1 and the Client agrees that those warranties and representations are deemed to be repeated by the Client each time Services are performed under these Terms of Service.

8.           Termination

8.1         The Service Provider may terminate these Terms of Service at any time on giving the other party written notice, such as if it is unable to provide the Services.

8.2         In addition to the rights set out under clause 8.1,either party (the non-defaulting party) may terminate these Terms of Service with immediate effect by giving written notice to the other party if the other party commits a breach of any term of these Terms of Service and fails to remedy that breach within a period of 7 days after the other party is given written notice requesting it to do so.

8.3         The rights available to a party under this clause 8 do not affect any other right or remedy otherwise available to it.

9.           Effect of termination

9.1         In the event that the Service Provider is unable to provide the Services due to reasons not caused by the Client and the Service Provider terminates these Terms of Service, then the Service Provider will provide the Client with a refund in respect of any Services not performed.

9.2         Subject to clause 9.1,on termination or expiry of these Terms of Service the Client must immediately pay to the Service Provider all amounts payable to the Service Provider(including amounts that are payable but not due), and the Service Provider may invoice the Client with respect to the Services performed up to the date of termination, for which no invoice has been submitted, and such invoice shall be payable immediately on receipt.

9.3         Termination or expiry of these Terms of Service does not affect any rights, remedies,obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these Terms of Service which existed at or before the date of termination or expiry.

10.         Indemnity& release

10.1       The Client indemnifies the Service Provider against,and releases the Service Provider from, any direct losses, liabilities, costs,charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by the Service Provider arising out of or in connection with:

(a)          the Client’s use of the Services;

(b)          any claim made against the Service Provider or the Client by a third party arising out of or in connection with the provision of the Services and/or these Terms of Service;

(c)          any breach of these Terms of Service by the Client,including any failure to pay any fees on time;

(d)          any reliance by the Client or a third party on the Services;

(e)          the enforcement of these Terms of Service; and

(f)           any negligent act, omission or wilful misconduct of the Client.

10.2       The Client must make payments under this clause 10:

(a)          in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and

(b)          in Australian dollars and in immediately available funds.

11.         Exclusion and limitation of liability

11.1       The Service Provider provides the Services on an"as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Subject to the other terms of this clause, the Service Provider excludes all rights, representations, guarantees, conditions,warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms of Service to the maximum extent permitted by law. The Client relies on the Services at its own risk.

11.2       Without limiting the generality of clause 11.1, the Service Provider expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:

(a)          the Client’s access and use of the Services;

(b)          the Client’s reliance on the Services; and

(c)          any event which is beyond the Service Provider’s control.

11.3       Subject to the other terms of this clause, the Service Provider's maximum aggregate liability to the Client in arising out of or in connection with the supply of goods or services under these Terms of Service,including any breach by the Service Provider of these Terms of Service however arising, under any indemnity, in tort (including negligence), \statute, custom,law or on any other basis, is limited to the actual charges paid by the Client for the relevant Services to which the liability relates.

11.4       Nothing in these Terms of Service is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision or any liability of the Service Provider in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.

11.5       If the Service Provider is liable to the Client in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Service Provider's total liability to the Client for that failure is limited to, at the option of the Service Provider to the resupply of the Services or the payment of the cost of resupply.

11.6       Subject to the other terms of this clause, the Service Provider excludes any liability to the Client, whether in contract, tort(including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms of Service, including any loss of profits, loss of sales or business, loss of production, loss of agreements, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill or reputation or loss of use or corruption of data or information.

11.7       This clause applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms of Service.

11.8       In this clause “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).

12.         Notices

12.1       A notice or other communication to a party under these Terms of Service (Notice) must be:

(a)          in writing and in English;

(b)          signed by the sender or a person authorised to sign on behalf of the sender;

(c)          addressed to that party’s nominated address (or any alternative details given in writing to the sending party).

12.2       A Notice must be given by email to the nominated email address and will be regarded as given and received five hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.

13.         General provisions
13.1      Governing law

(a)          These Terms of Service are governed by the laws of Queensland and the Commonwealth of Australia which are in force in Queensland.

(b)          The parties submit to the jurisdiction of the Courts of Queensland,relevant Federal Courts and Courts competent to hear appeals from them.

13.2       Binding on successors

These Terms of Service shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.

13.3      Assignment

The Client may not transfer, assign or otherwise dispose of their interest in these Terms of Service without the prior written consent of the Service Provider, which consent may be unreasonably withheld. For the avoidance of doubt, the Service Provider may transfer, assign or otherwise dispose of their interest in these Terms of Service without the prior written consent of the Client.

13.4      Attorneys

Where these Terms of Service are executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

13.5      Variation and Waiver

These Terms of Service may be varied by agreement in writing by both parties. No waiver by a party of a provision of these Terms of Service is binding unless made in writing.

13.6       Severance

If a provision of these Terms of Service is void or unenforceable it must be severed from or read down to the extent necessary from these Terms of Service and the provisions that are not void or unenforceable are unaffected bythe severance.

13.7      Time of the essence

Time is in all cases and in every respect of the essence of these Terms of Service.

13.8      Further assurances

The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under these Terms of Service.

13.9      Entire understanding

(a)          These Terms of Service contain the entire understanding and agreement between the parties as to the subject matter of these Terms of Service.

(b)          All previous negotiations, understandings,representations, warranties, memoranda or commitments about the subject matter of these Terms of Service are merged in these Terms of Service and are of no further effect.

(c)          No oral explanation or information provided by a party to another affects the meaning or interpretation of these Terms of Service or constitutes any collateral agreement, warranty or understanding.

13.10     No adverse contraction

The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

13.11     Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of these Terms of Service.

13.12    Cumulative rights

The rights and remedies of a party to these Terms of Service are in addition to the rights or remedies conferred on the party at law or in equity.

14.         Definitions and interpretations
14.1       Definitions

In these Terms of Service,unless inconsistent with the context or subject matter:

(a)          Applicable Laws means all acts,legislation and all orders, by-laws and regulations made thereunder in any way governing or affecting the exercise of the parties' rights or the performance of their obligations under these Terms of Service;

(b)          Commencement Date means the date the Client agrees to these terms or such other date as agreed in writing by the parties;

(c)          Loss means any loss,liability, cost, charge, expense, tax or damage of any nature whatsoever,including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence); 

(d)          Pet means the Client’s pet’s body the subject of the Services (to be cremated if requested);

(e)          Services means any services provided by the Service Provider to the Client, including collection, cremation and delivery of a Pet;

(f)           Term means the period of these Terms of Service commencing on the Commencement Date and continuing until termination; and

(g)          Website means the website address of the Service Provider being maryvalleypetcremation.com.au and as amended from time to time.

14.2       Interpretation

In these Terms of Service,unless inconsistent with the context or subject matter:

(a)          a reference to a person includes any other legal entity and vice versa;

(b)          words importing the singular number include the plural number and vice versa;

(c)          a reference to a party includes the party's heirs,executors, successors and permitted assigns;

(d)          headings are for reference purposes only and must not be used in interpretation;

(e)          a reference to a statute includes all regulations and subordinate legislation and amendments;

(f)           a reference to a monetary amount is a reference to an Australian currency amount unless otherwise nominated by the Client;

(g)          an obligation of two or more parties binds them jointly and each of them severally;

(h)          an obligation incurred in favour of two or more parties is enforceable by them severally;

(i)           references to time are to local time in Queensland;

(j)           a reference to a business day means a day that is not a Saturday, Sunday or public holiday in Queensland;

(k)          if any time period specified in these Terms of Service expires on a day which is not a business day, the period shall expire at the end of the next business day.

Website Terms and Conditions

This website and all content,trade marks and its related services, products, websites, platforms and applications ("Website") is owned and operated by Matthias Lochthofen ABN 77323671877 trading as Mary Valley Pet Cremation ("our", “us”,“we”). By accessing and using our Website you agree to comply with the following Terms and Conditions. We may update our Terms and Conditions from time to time without notice to you. Each time you use our Website you should revisit these Terms and Conditions and your continued use of the Website constitutes your acceptance of them.
1.           Using our website

We provide our Website to help us connect with you as well as to provide general information and relevant content that you may be interested in. You must not use the Website for any purpose other than its intended purpose, and you must not harm our Website in any way. When using the Website you must not act fraudulently, or provide us with false, inaccurate, infringing or misleading information. Parts of our Website may allow you to comment or submit your content, and in doing so you must not post anything that is inflammatory, racist, abusive, harassing, obscene,sexually explicit or that violates any Australian law or the rights of any person.

Content on our Website is provided solely for your reference purposes. We include information for your convenience as a general summary of matters current at the time of posting that may interest you. The contents do not constitute financial and/or legal professional advice and are not intended to be a substitute for professional advice and should not be relied upon as such. We make no warranties that the information published by us is correct. You should seek professional advice in relation to any matters that you have.

Due to the nature of our services, some of the content on our website may be graphic or sensitive. We are in no way responsible for any loss suffered in connection with such sensitive content on the website.

The information you provide us and your use of the Website must not:

·        create liability for us;

·        infringe any third party’s privacy rights;

·        infringe any third party's copyright, patent, trademark, trade secret,intellectual property or other proprietary rights or rights of publicity or privacy;

·        violate any applicable laws (including those governing privacy,consumer protection, unfair competition, criminal law, anti discrimination or trade practices law); and

·        be defamatory, trade libellous, unlawfully discriminatory, threatening or harassing.

Your use of this Website is by personal, non-exclusive licence granted by us strictly in accordance with these Terms and Conditions. This Website is only available to, and may only be used by, persons who can form legally binding contracts under applicable laws. If you do not qualify, you must not use the Website.

2.           Intellectual property

We remain the owner of the Website and all intellectual property rights associated with the Website (including its content, videos, logos, images and source code). We ask that you do not copy,reproduce or modify any of our Website for any purpose except where we give you our prior written consent or sharing is otherwise permitted (as noted below).

When you provide us with information you agree to allow us to distribute or use that information as we consider necessary and in accordance with our Privacy Policy accessible on the Website.

We are not responsible for any loss that may occur from you submitting your information to us.

3.           Your account

We may require you to set up an account with a username and password to gain access to restricted parts of the Website. If we do, you will be responsible for keeping the combination oft hese details confidential and any actions that occur through your account(whether directly or indirectly) you are responsible for.

If we permit you to connect to the Website using a third-party service (e.g. Facebook or Google+), you grant us permission to access, store, and use the information from that service as permitted by that service.

4.           Access and termination

We reserve the right, at any time and without prior notice, to remove or disable your access to the Website or any part of it, including your Account, for any reason and you agree that we are not liable for any loss suffered by you or any third party as a result of the removal or disablement of the Website.

These Terms and Conditions will continue to apply until terminated or superseded by us. You can terminate your agreement with us by discontinuing your use of the Website at any time. You do not need to inform us if you choose to discontinue use of the Website.

5.           Sharing

We may make content available for you to share on the Website. Where such content is made available, you must ensure that such sharing is properly credited to us including a link back to us, and comply with any other instructions we may specify. Your licence to share such content is by revocable and limited right. Where you share our content, you do so at your own risk. We will not be liable in any respects for any content that you share.

6.           Links

Our Website may contain links to or from other third-party websites which we have no control over. We are not responsible for the content or use of these other websites (including any virus,or disturbing or harmful content) and you access them at your own risk.

7.           Liability and indemnity

Although our content has been drafted with due care and diligence, our Website and our content is provided“as is” and we make no representations and give no warranties or guarantees as to the suitability, accuracy or quality of the Website. We do not guarantee that the Website will be free from errors or defects, or that the Website will be accessible at all times.

Your use of the Website is at your own risk and to the extent permitted by law, we exclude all liability of any kind, however arising, including any lost profit, lost opportunity, lost revenue, lost data,losses resulting from security failure, or any indirect or consequential loss resulting from your use of the Website. Our total liability is limited to $1,however where we cannot limit our liability to $1 by law then our liability will be limited to the cost of re-supply of the relevant services (being the provision of the Website to you), or refunding the amount paid by you to us in connection with the services (if any).

You agree to indemnify and release us and our related entities from and against all losses (as before mentioned) which we may incur in respect of any negligence, misuse of the Website, other act or omission, or any breach of these Terms and Conditions by you.

8.           Security &access

You are solely responsible for any information that you transmit to us. Whilst we use our best endeavours to maintain the security of the Website to Australian standards (including the use of SSL and PayPal), we do not guarantee the security of the Website, our records, or any information you submit to us. We disclaim all liability for any computer virus or technological problems or other loss that you may suffer as a result of the browsing or downloading of any files from our Website, or from any data breach, compromise or misuse of your data that is provided to us in connection with the Website.

In order to use the Website, you need to connect to the internet and you are solely responsible for your connection and all fees associated with such connection/access.

9.           Privacy

By using this Website you acknowledge and agree that internet transmissions are never completely private or secure and understand that any message or information you send to the Website may be read or intercepted by others. You authorise us to use,store or otherwise process any information including personal information which relates to and/or identifies you, to the extent reasonably necessary for the provision of any goods and services requested by you, and for any other purposes we consider reasonable. Such use will be compliant with the terms of our Privacy Policy (accessible on the Website).

10.         Groups

Where access is granted to social media pages or groups run by us, such pages will only be used to advertise our products and services and to facilitate community interaction. Such terms found herein as they relate to providing information will apply to your use of our social media pages or groups.

11.         Applicable law

These Terms and Conditions, and your use of our Website are governed by the laws of Queensland,Australia and you agree to submit to the jurisdiction of the Courts of the State of Queensland and Courts competent to hear appeals.

12.         Definitions

Unless the context requires otherwise, the following words and phrases in these Terms and Conditions shall have the following meanings:

Website means maryvalleypetcremation.com.au including all content, trade marks, and related services, products, websites,tools and applications;

you means the person or entity that accesses the Website and ‘your’ has a corresponding meaning.