Terms and Conditions


Cool Frank Website Terms and Conditions dated 8 August 2022

These Cool Frank Website Terms and Conditions apply to use of, and access to, the domain https://coolfrank.co (“Domain”) and all associated pages, applications, and resources (“CF Website”). If you do not agree with these Cool Frank Website Terms and Conditions you must not use or access any page, application, or resource accessible through the CF Website.

By using or accessing a page, application, or resource through the Domain you accept the following terms and conditions and enter into an agreement with Cool Frank Pty Ltd ABN 37 651 121 229 (“Agreement”).

In this Agreement there are terms and conditions that apply to specific functionality with the CF Website, or apply when you interact with the CF Website in particular ways. An example of which is submitting information using the contact page. The terms and conditions relating to use of the CF Website must be read in conjunction with:

our Privacy Policy, which is available at https://coolfrank.co/pages/privacy-policy; and

each other document included by reference in these Cool Frank Website Terms and Conditions, if any.

Definitions

In this Agreement the defined terms in the following table have the corresponding meaning unless repugnant to the context.

App
A software application.
BNPL
A buy now pay later service from whom we accept payments on your behalf.
Content
Any information reduced to material form (including where such information is stored electronically), and includes without limitation any script, code, text, image, media, or content determinable through MIME and MIME type definitions, as the case requires.
Cool Frank Website Terms and Conditions
This document including any other document included by reference, if any.
Cool Frank, us, our, or we
Cool Frank Pty Ltd
Electronic Transaction
An electronic transaction conducted through the CF Website, including a payment made through any of the following methods that we offer from time to time:
Credit Card;
Debit Card;
Prepaid payment card;
BNPL; or
Any other electronic payment method agreed by Cool Frank.
Intellectual Property Rights
All industrial and intellectual property rights including, without limitation, patents, trade marks, copyrights, circuit layout rights, right to extract information from databases, design rights, trade secrets, and all forms of protection of a similar nature or having similar effect to any of them which may subsist anywhere in the world (whether or not any of them are registered and including applications and the right to make applications for registration of any of them) other than moral rights.
Party
A party to this Agreement.
Payment Expeditor
A third party service that allows you to expedite and track your purchases through participating online retailers. At the date of these Cool Frank Website Terms and Conditions this service is provided by Shop Pay.
Payment Processor
A third party payment processor that facilitates Electronic Transactions on the CF Website. At the date of these Cool Frank Website Terms and Conditions this service is provided by Stripe Inc. or its local subsidiaries
Personal Information
As defined in the Privacy Act 2001 (Cth) at the relevant time.
Privacy Policy
Our privacy policy, which is available at https://coolfrank.co/pages/privacy-policy
Product
Any goods available for sale, or sold, on the CF Website.
Services
Any service delivered by Cool Frank through the CF Website. A reference to Services includes a reference to Products, unless specifically noted otherwise.
User Profile
A user account on the CF Website with a username and password that provides additional functionality and interaction with the CF Website.
User, you, or your
The person accessing the CF Website.

Term and termination

This Agreement begins upon your acceptance of these Cool Frank Website Terms and Conditions and continues until terminated, or it otherwise ends in accordance with these Cool Frank Website Terms and Conditions.

You accept the Website Terms and Conditions upon the earliest of the following events:

You, or any device that you control, requests any Content from the CF Website;

You, or any device that you control, receives Content from the CF Website;

You access a page on, or related to, the Domain using a web browser or an App;

You request any Products or Services from us through the CF Website;

You receive any Products or Services from us through the CF Website;

You sign up for a User Profile and check the checkbox that indicates that you agree to the Cool Frank Website Terms and Conditions;

You check any other checkbox that indicates that you agree to the Cool Frank Website Terms and Conditions;

You otherwise access the CF Website, including without limitation through a third party website or application, as the case may be.

This Agreement with automatically end upon the last of each of these circumstances taking effect: you cease to access our Content; you no longer possess any of our Content; and you do not have an active User Profile.

This Agreement may be suspended or terminated in accordance with clause 16.

Conditions of use

We may vary these terms and conditions or impose new terms and conditions on your use of the Services or the CF Website at any time, by a notice published on your User Profile or on the CF Website, or otherwise in accordance with your User Profile preferences.

We may add features or update the Services from time to time. You may be required to agree to additional terms or other requirements in order to use such additional features or Services.

Nothing in this clause 3 is to be read as limiting our rights in administering the CF Website, or methods that we may use to control the features available to you, or our provision of Services to you, through the CF Website.

We may contact you by post, phone, sms, or email using the details that you provide to us from time to time. Without limitation, we may contact you regarding marketing and promotions of our Products and Services (unless you request otherwise); and we may contact you in relation to any order, or in relation to your User Profile.

Your obligations

Positive obligations

You must act in accordance with the policies or rules that we publish from time to time that relate to your use of the Services or the CF Website (such as content and publishing, data capture, sale of products and services and delivery, system communication, and merchant and payment processing). All of our rules and policies can be accessed from the links in the footer of each page on the CF Website.

You must notify us if you believe that your User Profile has been accessed without your authority.

You must take reasonable measures to prevent any unauthorised person from accessing the CF Website, your User Profile, or any other Services we provide using your User Profile credentials. You are responsible for any damage caused or fees incurred by any such person(s).

You must allow us to make changes to your User Profile or Content that we deem necessary.

You are responsible for the Content, integrity and conduct of your User Profile on the CF Website.

Negative obligations

You must not use your User Profile or the CF Website to upload, transmit, communicate, or record information about any other person.

You must not upload or publish any Content that is unlawful, unsuitable for general viewing or consumption, obscene, defamatory, in breach of any advertising standards, or in breach of any person’s privacy or other human rights.

You must not:

reverse engineer, reverse assemble or reverse compile the CF Website or any part of it;

combine or incorporate the CF Website in any other program or system without our prior consent in writing;

copy the CF Website, or any Content contained on it belonging to a person other than you, in whole or in part.

Comments and reviews

If you submit a comment or review on the CF Website, then the provisions of this clause 5 apply.

Any comment or review that breaches your obligations, will either not be published, or may be edited or deleted by us at our discretion.

Any comment or review that includes the name or any third party's competitive product may be deleted by us at our discretion.

Any comment or review that includes representations that are factually incorrect, or misleading may be edited or deleted by us at our discretion.

If you breach any of the provisions of this clause 5 more than once, we may limit, suspend or terminate your User Profile, and use various means to prevent you from setting up another.

Provision of Services through the CF Website

Our provision of any Services to you through the CF Website is subject to the terms of this Agreement.

Service limitations

The CF Website is hosted by a third party service provider and we do not guarantee that your access to it will be continuous or error free. If you have having any difficulties accessing the CF Website or your User Profile, please check the following hosting status page: https://status.shopify.com/

The Payment Processor is a third party and we do not guarantee that this service will be continuous or error free.

The Payment Expeditor is a third party and we do not guarantee that this service will be continuous or error free.

We are not responsible for support, back-ups, or disaster recovery, in any way.

Sale and purchase of goods

We only keep limited stock of our Products, and we may have your products made to order. For any product that is not in stock, the expected lead time relating to products on offer through the CF Website is 30 days from the date of our receipt of your payment for the order, unless specified otherwise. However, we cannot guarantee that we will be able to deliver such items within this timeframe, and we are not responsible for delays caused by third parties.

All our products are delivered by courier (unless we offer, and you choose another option during checkout), and the costs of delivery include insurance unless noted otherwise. When we ship goods to you title passes upon the goods being collected by the courier or other carrier (as the case may be) and the goods are at your risk from that time. If your goods are lost or damaged in transit, we will take reasonable steps to assist you to make a claim with the carrier.

We are not responsible for damage to products sustained during delivery. If you receive a parcel from us that is damaged, please ensure that you have the courier note the damage, and inspect the products before taking delivery of, or signing for them. If you receive any products from us that are damaged, please contact us immediately at the contact details provided.

You are responsible for ensuring receipt of your order at your nominated address and taking all necessary steps to arrange delivery with the carrier. And for clarity, we have no responsibility for ensuring your receipt of the goods, or making any particular arrangements with the carrier, other than providing them with the address you specify in your order.

All of our products are sold with written warranties. Please refer to details of the relevant product listing or packaging and materials provided with our products for warranty details. Additionally, our warranty information will be available at https://coolfrank.co/pages/warranty-against-defects

Payment Expeditor

If you utilise the services of the Payment Expeditor, then you will need to have a separate agreement with the relevant provider, and we are not a party to such agreement.

Payment Processor

We do not receive or store any payment card information through the CF Website. All payment card information is processed securely by the Payment Processor. The provisions in this clause 10 do not apply to payments using Afterpay®.

If you do not want to use the Payment Processor to pay for our goods or services through the CF Website, you may request an alternative payment method by contacting us at hello@coolfrank.co. Fulfilment of any such request is at our sole discretion, and, we reserve the right to charge an administration fee for any such request.

Afterpay® and other buy now pay later services

We may offer for you to make payment through third parties such as Afterpay® (a "BNPL").

If you use a BNPL to pay for any purchase on the CF Website, then each of the following applies to that purchase:

Any order that you submit is not accepted by us until the BNPL remits payment to us on your behalf;

We reserve the right to cancel your order, if we have not received payment from the BNPL within 5 days of you submitting your order (for example completing the checkout process);

You authorise us to send and receive your Personal Information, to and from the BNPL in relation to any transaction you initiate, and any subsequent related transaction, on the CF Website;

We are not obliged to process your order, or to send you any goods unless we receive payment in full for those goods; and

If we send you any goods, prior to receiving payment, or a payment is subject to reversal or chargeback, then you remain liable to pay for those goods, and you must reimburse us for any additional fees and charges incurred by us relating to the reversal of any such payment, and all our costs of enforcing payment, including legal fees, court costs, and debt collection fees.

Reversed transactions

If the Payment Processor reverses a transaction conducted on the CF Website, then you remain liable to pay for all fees and charges that were included in that transaction. You must also reimburse us for any additional fees and charges incurred by us relating to the reversal of any such transaction.

Right to subcontract

We may appoint employees, sub-contractors, or agents to provide some or all of the Services; and such entities are bound by the same obligations as us. It is our responsibility to ensure such entities comply with this Agreement.

Intellectual property

Content and Third Party Intellectual Property

You (or where applicable, the third party owner) retain ownership of all Content you upload to your User Profile and such rights are not assigned or transferred under this Agreement.

You grant us a perpetual, irrevocable, royalty-free licence to use, copy, modify or adapt the Content as reasonably necessary to perform our rights and obligations under this Agreement, including the right to grant sub-licences where reasonably necessary.

You warrant that you have full right, title and interest, or the legal right and authority, to grant the licence granted in clause 14.2, and that our use or modification of the Content in accordance with this Agreement will not infringe upon any third party Intellectual Property Rights.

CF Website

We own, or are licensed to use, all components of the CF Website.

Grant of licence

Subject to your continued compliance with these Cool Frank Website Terms and Conditions, for the duration of this Agreement we grant you a licence to use the CF Website as contemplated by these Cool Frank Website Terms and Conditions and any policy published by us from time to time.

Privacy

We may use your contact details to promote new Services and Product offers to you from us or our affiliates, or to notify you about important changes to the CF Website, subject to our Privacy Policy which is incorporated by reference.

Our Privacy Policy can be accessed at this link: https://coolfrank.co/pages/privacy-policy.

We may change the terms of the Privacy Policy form time to time. If you do not agree with the changes that we make to the Privacy Policy you may end this Agreement in accordance with clause 16 of this Agreement. If you terminate this Agreement you authorise us to delete all information that we hold about you. However, we may retain certain information for our records, and to identify you as a customer or former customer.

Suspension and Termination

Suspension

We may conduct scheduled or mission critical maintenance of the CF Website during which time the Services may be interrupted. We will give you reasonable notice of such maintenance where possible and make all reasonable efforts to keep any disruption to a minimum.

We may suspend the Services and disable access to your User Profile at any time and give you a written notice of default if:

you do not make any payment when due, or any payment is dishonoured or subject to chargeback; or

we have reason to suspect illegal or unethical activity in relation to your data or Content; or

in our reasonable opinion your Content, conduct, data, network, software or equipment may cause damage to any person or property; or

you do not comply with any of the terms and conditions contained within this Agreement, including any of your obligations.

If we suspend our Services to you, we may notify any Payment Processor in this regard, and you authorise us to receive any information from the Payment Processor about the status of your account, or any outstanding obligations, that you have with them, if any.

Termination

We may terminate this agreement with 30 days written notice.

Consequences of termination

Upon termination of this Agreement for any reason, in addition to any other rights or remedies:

we may immediately disable your access to the CF Website and take your User Profile offline;

your licence to use the CF Website immediately ends;

we may, but need not, keep all data and Content uploaded by you to the CF Website for our records;

we may destroy any data and Content uploaded by you to the CF Website;

we may continue to send you information about our Services, and other marketing information; and

a Party not in default may pursue any other rights or remedies available at law against a defaulting Party subject to clause 18.

Indemnity & limitation of liability

Indemnity

You agree to release and hold Cool Frank Pty Ltd harmless against any action, proceeding, claim, demand or prosecution relating to any downtime, interruption, loss of data, or consequential loss of any kind whatsoever, whether directly or indirectly arising in connection with the Services.

You release and indemnify, and agree to keep Cool Frank Pty Ltd indemnified against any action proceeding, claim, demand, or prosecution relating to:

any breach of your warranties under this Agreement; and

any loss or damage to persons or property (including data), caused by your Content.

Limitation of liability

Subject to clauses 18.4 and 18.5, any liability of Cool Frank Pty Ltd for any loss or damage, however caused (including, without limitation, by the negligence of Cool Frank Pty Ltd), suffered by you in connection with this Agreement is limited to the amounts paid by you to Cool Frank Pty Ltd in relation to the Products and Services.

Except as contemplated by clause 18.5, nothing in this Agreement is intended to limit any rights you have under the Competition and Consumer Act 2010 (Cth).

If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in relation to any good or service supplied by Cool Frank Pty Ltd in connection with this Agreement and Cool Frank Pty Ltd’s liability for failing to comply with that guarantee cannot be excluded but may be limited, then clause 18.3 does not apply to that liability and instead Cool Frank Pty Ltd’s liability for such failure is limited to (at Cool Frank Pty Ltd’s election):

in the case of a supply of goods, CF Website replacing the goods or supplying equivalent goods, repairing the goods, paying the cost of replacing the goods or of acquiring equivalent goods, or paying the cost of having the goods repaired; or

in the case of a supply of services, Cool Frank Pty Ltd supplying the services again or paying the cost of having the services supplied again.

In this clause 18 a reference to consequential losses means any indirect, special, economic, or consequential loss including loss of revenue, profits, goodwill, bargain or opportunities that you suffer in any way, even if we knew or should have known about the possibility of such loss.

General

Costs

You are responsible for all duties, charges and legal fees (on a solicitor and own client basis) incurred in enforcing this Agreement.

Currency and Taxation

Unless otherwise stated, all monetary amounts are expressed in Australian dollars inclusive of GST.

Enduring Clauses

The Parties’ obligations under Clauses 14, 15, 15 17, 18, and 18 shall survive the termination of this Agreement for whatever reason.

Entire agreement

This Agreement contains the entire agreement between the Parties and supersedes all previous negotiations or agreements in relation to the Services.

Force majeure

Neither Party is liable for any delay or failure to perform its obligations under this Agreement to the extent that such failure is caused by a Force Majeure Event. Nothing in this clause excuses payment of money due.

Jurisdiction

The laws of the State of Queensland apply to this Agreement; and the parties submit exclusively to the courts of that jurisdiction.

Relationship between the Parties

Nothing in this Agreement constitutes a partnership or contract of employment. It is the express intention of the parties to deny any such relationship.

Representatives, Successors and Assigns

You must not assign or novate this Agreement in whole or in part.

We may assign or novate this Agreement in whole or part at our sole discretion.

Severability

If any provision of this Agreement is ruled by a court to be illegal, invalid, unenforceable or in conflict with any law, it will not affect the validity and enforceability of the remaining provisions.

Waiver

Any delay or failure to enforce any rights in relation to a breach by the other Party will not be construed as a waiver of those rights.