Definitions and interpretations
- In these Terms unless the subject matter or context requires otherwise, the following words and expressions shall have the meanings respectively assigned to them below:-
- “we” or “us” mean Be There Beauty Pty Ltd ACN 611 779 429;
- “you” mean the person or entity who uses the Service including your agents, representatives, heirs and permitted assigns as the case may be;
- “Application” means our device application and or website used to provide the Service.
- “Content” means information, material, content, language, imagery, links or other similar things;
- “the Contract” means the agreement formed between you and us by your use of the Service and the acceptance of the Service in accordance with these Terms;
- "CPI" means the Consumer Price Index (All Groups) for Brisbane published by the Australian Bureau of Statistics. If that index no longer exists, "CPI" means an index that we decide best reflects changes in the cost of living in Brisbane;
- “the Documentation” means the materials relating to the Service including but not limited to users' manuals, how to guides, drawings and software listings, which are designed to assist or supplement the understanding or application of the Service ;
- “fee” means all fees, charges and other costs identified in the Pricing Schedule or such increased fees, charges and other costs as may be current at the relevant time, as the case may be;
- “Force Majeure” means any circumstances beyond our or your reasonable control including but not limited to storm, tempest, fire, lightning, above average levels of rainfall, flood, other inclement weather, earthquake, volcanic eruption, acts of God or enemies, declared or undeclared war, piracy, riot, sabotage, terrorism, civil disturbance, power failure, shortage of fuel, labour dispute, strike, lock-out, other industrial disturbance, Denial of Service (“DOS”), Distributed Denial of Service (“DDOS”) attack, third party provider outages, cable cuts and material changes in the law but excludes the inability, for whatever reason, to make any payments in accordance with these Terms;
- “GST” means the goods and services tax as provided by the GST law;
- ‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999 as it stands from time to time;
- “GST law” means the GST Act and associated legislation including without limitation delegated legislation;
- “Intellectual Property Rights” mean any copyright rights, trade mark rights, design rights, patent rights, semiconductor or circuit layout rights or any proprietary rights similar to any of the aforesaid rights;
- “notice” means a written notice, consent, approval, direction, order or other communication;
- “post” and “posting” means posting, uploading, contributing, submitting, transmitting, publishing or otherwise disseminating;
- “the Pricing Schedule” means the list of our fees, charges and costs published on our website;
- “the Service” means the provision of [the connection of beauty providers to you, the customer] through our Application as set out in clause 2;
- “Service Provider” means the provider of a beauty service who has agreed to our Supplier Agreement and provides their service to you once engaged through the use of the Service and Application;
- “the Software” means our software program marketed under the name Be There Beauty or any other name which replaces that name from time to time;
- A reference to:-
- one gender includes the other genders; and
- the singular includes the plural and the plural includes the singular.
- Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
- A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision.
- Headings in these Terms are used for convenience only and are to be disregarded in the interpretation of these Terms.
- We, through our Application allows you to view, search and book Beauty Service appointments (“Booking Service”) by requesting a Service Provider to provide Beauty Services and the ability to purchase cosmetics and lifestyle products.
- The Booking Service constitutes a technology that enables users of the Service or Applications to arrange and schedule Beauty Services with the Service Providers;
License to use Software
- You acknowledge that there is no transfer of title or ownership to you of the Software or the Documentation or any modifications, updates or new releases of the Software or the Documentation.
- You may only use the Software in accordance with the normal operating procedures which we notify to you.
- Except to the extent specified to the contrary in these Terms, we will not be obliged to support the Software, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise.
- You must not copy, alter, modify or reproduce the Software except to the extent otherwise authorised by these Terms or as expressly authorised under Part III Division 4A of the Copyright Act 1968 (Cth).
- You must not copy or reproduce the Software or the Documentation by any means or in any form without our prior written consent.
- You must not merge all or any part of the Software with any other software without our prior written permission, which we may withhold in our absolute discretion.
- If you modify or alter the Software with our permission:-
- you will be solely responsible for the costs associated with the modifications or alterations and the costs arising out of the investigation of the effects of the proposed modifications or alterations; and
- you must indemnify and keep us indemnified from and against all and any losses, loss of profits, claims, damages, actions, suits, demands, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever which we may suffer or incur or be called upon to suffer or incur if such modifications or alterations infringe any Intellectual Property Rights of a third person.
- the Software as modified or altered will remain our property in all respects, whether modified by you, us or a third party and whether or not authorised pursuant to these Terms.
- Specifically, you must, if required by us, assign to us all Intellectual Property Rights arising out of any modifications to the Software made by you and you must procure the assignment to us of all Intellectual Property Rights arising out of any modifications to the Software made by any third party at your direction.
- These Terms shall apply to the Software as modified or altered.
- We will not be obliged to provide any support services in respect of the Software which has been modified by you.
- You must not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Software.
- You must ensure that the Software and the Documentation are protected at all times from theft, misuse, damage, destruction or any form of unauthorised use.
- We may from time to time update the Software for many reasons including but not limited to:-
- maintaining security compliance;
- fixing bugs or problems in previous versions of the Software; and
- enhancing functionality or features.
- We will not be liable to you for any costs arising from the effect any update may have on any code which is not provided by us and for any modifications to any such code to restore functionality.
- In addition to any other remedies available to us under these Terms or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Software will entitle us to any available equitable remedy against you.
- You must:-
- comply with any additional terms and conditions of use (apart from those contained in these Terms) which may apply to the Service and which we notify you of from time to time and also any reasonable directions which we give you from time to time regarding its use. If any such additional terms and conditions are unacceptable to you, you will be entitled to terminate the Contract.
- keep secret and secure your identification and log-in information for accessing and using the Service;
- keep confidential and not disclose to anyone any information belonging to us; and
- ensure that our remote access to your systems is not blocked or prevented in any way.
- You must not post any Content on or through your website:-
- unless you hold all necessary rights, licences and consents to do so;
- that would cause you or us to breach any law, regulation, rule, code or other legal obligation; or
- that would bring us and the Service into disrepute.
- You wil be personally and solely responsible and liable for all Bookings you make through the Software or Application and with regard to your interactions with other persons.
- During your dealing with any Service Provider you must not :-
- promote racism, hatred, bigotry, blasphemy, discrimination, encourages violence against any person or groups or any illegal or unlawful activities;
- be abusive, offensive, obscene, vulgar, harmful, threatening, harassing, sexually explicit, defamatory, fraudulent or otherwise unlawful or objectionable;
- infringe or violate another person’s legal and moral rights including but not limited rights of privacy ;
- do anything that is otherwise unlawful.
- You must specifically not use the Service in any way:-
- for any illegal or fraudulent activities including activities which may breach any legislation relating to intellectual property matters, discrimination, criminal activities, defamation or otherwise;
- to act obscene, indecent, harassing, offensive or threatening
- You agree to assume and accept all risk when using the Service.
- You may not
- remove any copyright, trademark or other proprietary notices from any portion of the Application;
- reproduce, modify, prepare, derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit Application except as expressly permitted by us;
- decompile, reverse engineer or disassemble the Application except as may be permitted by applicable law;
- cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Application or unduly burdening or hindering the operation and/or functionality of any aspect of the Application; or
- attempt to gain unauthorized access to impair any aspect of the Application or its related systems or networks.
Payment Terms and Booking functions, portal functionality
- To the full extent permitted by law, we exclude all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
- To the full extent permitted by law, we exclude all representations, warranties or terms (whether express or implied) other than those set out in these Terms.
- 11.3.1 these Terms must be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible and permitted, we limit our liability in respect of any claim, at our option:-
- in the case of goods to:-
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of having the goods repaired, and
- in the case of services to:-
- the supply of the services again; or
- the payment of the cost of having the services supplied again.
- Subject as aforesaid and otherwise to the full extent permitted by law, our liability to you for all loss or damage suffered or incurred by you from any breach by us of these Terms will be limited for each claim to the payments (excluding GST) made by you to us in respect of the Monthly Licence and Hosting Fees in the preceding period of twelve (12) months commencing on the date when your claim first arose less all amounts already paid or payable to you during that period for any other claims made by you hereunder.
- To the full extent permitted by law, you must indemnify and keep us indemnified from and against all and any losses, loss of profits, claims, damages, actions, suits, demands, costs (including reasonable legal costs and disbursements on a full indemnity basis), interest, charges and expenses of any kind whatsoever which we may suffer or incur or be called upon to suffer or incur by virtue of:-
- your use of or your inability to use the Software or the other services provided by us under these Terms, the Services or the Applications;
- any breach of or default by you of your obligations under these Terms;
- the termination of these Terms by us as a result of your default hereunder; or
- any violation by you of any applicable laws, rules or regulations.
- Any notice or other communication given by either you or us under these Terms:-
- must be in writing and for this purpose email will constitute writing;
- may, in addition to any other method of service by law, be sent by email to any email address of the addressee shown in any correspondence or documents between the addressee and the sender and for this purpose you and we consent to this method of communication for the purposes of any legislation governing this method of communication; and
- will be treated as given and received if sent by email before 3.00 p.m. on a day which is not a Saturday or Sunday or a holiday in the place of receipt, on the day it is sent and otherwise on the next day at the place of receipt provided that the sender requests a delivery receipt for the email and receives a mail system delivery report giving the date and time of delivery.
- Any notice sent or delivered in accordance with clause xx will be treated as validly given to and received by the addressee notwithstanding that the addressee is absent from the place to which it is sent.
- Any notice from either you or us may be given and signed by your lawyer or our lawyer, as the case may be, and any notice to you or us may be given to your lawyer or our lawyer, as the case may be, by any of the methods listed in this clause xx to the lawyer’s business address or facsimile number.
- If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
- You must at your expense and we must at our expense do everything reasonably necessary to give full effect to these Terms.
- These Terms survive the termination of the Contract to the extent permitted by law.
- These Terms will bind your and our successors in title.
- None of your or our rights under these Terms will be waived or deemed to be waived except by notice in writing signed by you or by us to the other waiving the right and any such waiver by either you or us will not prejudice either your or our rights in respect of any subsequent breach of these Terms.
- The Contract and these Terms will be governed by and construed in accordance with the laws of the State of Queensland and the Commonwealth of Australia and each party hereby agrees to submit all disputes arising between them to the Brisbane Registry of any such Queensland or Commonwealth court as is competent to hear the matter.
- Prices for Beauty Services will be quoted on the portal in Australian dollars. These prices include any applicable taxes but may exclude transportation costs (to the discretion imposed by the Service Provider). These will be added to the total amount due where applicable. Payment for Beauty Services must be made by an accepted credit or debit card or PayPal account through the Website. Please note that from time to time there may be delays with the processing of card payments and transactions; this may result in delays in sums being deducted from your bank account or charged to your credit or debit card.
Payment rejection of Cancellation
Where any payment you make is not authorised, your Booking Service will not be processed by or communicated to the relevant Service Provider. If your Booking Service is subsequently cancelled before the 24 hour cancellation policy for any other reason, we will refund the relevant amount. However, this may take between 3 to 5 business days (or longer, depending on you bank or card issuer). You acknowledge and agree that neither we nor the relevant Service Provider will be responsible or liable to you in relation to this delay by your bank or card issuer in the release of funds back into your account.
24 hour Cancellation Policy – applicable to Service Provider and one applied to Consumer
In the event the Consumer cancels a Booking Service and/or Beauty Service after you arrive at the designated location or does not provide you access to the designated location after you have waited at least 10 minutes, the Company agrees to pay you a half of the designated appointment amount, which will equal a cancellation fee. If you cancel with less than 24 hours until your service, you will be charged and the Service Provider will receive half of the payment.
- Be There Beauty Makes No Representation, Warranty, Or Guarantee Regarding The Reliability, Timeliness, Quality, Suitability Or Availability Of The Application Or Any Goods Or Services Requested Through The Use Of The Application, Or That The Beauty Services Will Be Uninterrupted Or Error Free. Be There Beauty Does Not Guarantee The Quality, Suitability, Safety Or Ability Of Service Providers. You Agree That The Entire Risk Arising Out Of Your Use Of The Application, And Any Beauty Service Requested, Remains Solely With You, To The Maximum Extent Permitted Under Applicable Law.
- We provide you with access to the Application on the basis that, to the maximum extent permitted by law, including the Australian Consumer Law, we exclude all representations, warranties, conditions, undertakings and other terms in relation to the Website and Service (including any representations, warranties, conditions, undertakings and other terms which might otherwise apply to the Website or Service, or be otherwise implied or incorporated into these Terms and Conditions, by stature, common law or otherwise).
- We may make changes to the content on the Application described on it, at any time without notice. The legal contract for the offer and purchase of Beauty Services is between you and the Service Provider once you have confirmed the Booking Service. We have no control over the actions or omissions of any Service Providers. Without limiting the generality of the foregoing, you acknowledge and accept the following by using the Application:
- Service Providers have the discretion to reject Booking Services at any time because they are too busy, due to weather conditions or for any other reason. We encourage all our Service Providers to accept all Booking Services and to communicate any rejection promptly, and we will notify you as soon as reasonably practicable if a Service Provider rejects your Booking Service.
- The foregoing disclaimers do not affect your statutory rights against any Service Provider.
- You and any personnel you assign, engage or appoint to perform the Personal Services under this Agreement are expressly prohibited from being under the influence of alcohol, drugs or other illicit substances at any time during the performance of any Personal Services under this Agreement, or interacting with a Client at any time. You acknowledge and agree that failure to comply with this clause will constitute a material breach of this Agreement.
Governing Law; Arbitration; Infringement
Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the applicable laws of the state and/or territory whereby the services are conducted.
You are permitted to use the Application and print and download extracts from the Application for your own personal non-commercial use on the following basis:
- Unless otherwise stated, the copyright and other intellectual property rights on the Application and in material published on it (including without limitation photographs and graphical images) are owned by us or by our licensors. These works are protected by copyright laws and treaties around the world and all rights are reserved. For the purposes of these Terms any use of extracts from the Application is prohibited.
- You must ensure that our status as the author of the material on the Website is always acknowledged.
- You are not allowed to use any of the materials on the Application for commercial purposes without obtaining a licence from us to do so.
Application may not be used, and no part of the Application may be reproduced or stored in any other website or included in any public or private electronic retrieval system or service, without our prior written permission.
Events Outside of our Control
- Confidentiality of Agreement
Payments and Subscription
If you do not pay your subscription by the due date:
- Your membership rights are liable to be terminated; and
- The membership services will be suspended until payment in full is received.
Be There Beauty does not refund or reimburse any portion of a subscription. The membership is not transferable from one consumer to another.
The range of membership services current at the date of this application is set out at www.betherebeauty.com.au
Be There Beauty may suspend, vary or withdraw any of these services without notice
Membership / Cessation / Resignation / Termination
Consumers can cease their membership through the portal. Access to consumer entitlements and benefits will cease upon the cancellation of the membership. You can cancel your won membership and start it again all through the portal if you contact us though we can do it for you.
Please note that the information you provide on this portal is “personal information” pursuant to the Privacy Act 1988 (“the Act”). This information is being collected for the purposes of processing your membership, to provide you with membership services. The intended recipient of this information will be Be There Beauty. Please note that the provision of this information by you is voluntary. However, if you do not provide the information requested, Be There Beauty may be unable to process your application or provide all agreed services. You have the right of access to, and alteration of, personal information concerning yourself held by Be There Beauty in accordance with the Act. The information is being collected by the Be There Beauty and will be held by Be There Beauty in Australia. Anything relating to payment is stored within Stripe payment processing.
- Membership is activated when you join payment is successful through Stripe.
- Membership is for what your choose on the portal out of the three options and the date commences once our purchase or once thw portal is live on 1st March 2018
- Unless accessing monthly, quarterly or other direct debit facilities, all membership fees must be paid annually in advance.
- There is no refund of any membership fees should you cancel your membership at any stage during your membership.
- Changes to membership fees will only be made at the time of renewal of your membership.
- We reserve the right to change, from time to time, the services available to members.
- Any variations made to these Terms & Conditions may be made by the Be There Beauty without express written notice to existing members and will be effective fourteen (14) days after the posting on the Be There Beauty website.
Consumer Cancellation Policy
- If you cancel with less than 24 hours until the service you will be charged the full amount and the beauty professional will receive half of the payment.
- If you cancel with more than 24 hours until the service you will not be charged and no credits will be deducted from your membership.
Beauty Professional Cancellation Policy
- If you cancel with less than 24 hours until the service the consumer will not be charged and you will receive no payment.
- If you cancel with more than 24 hours until the service the consumer will not be charged and you will not receive any payment.
- We of course understand that things happen, however if you can continue to cancel on consumers repeatedly this can lead to a disabled account.