I. Terms for use of FOENIX website and mobile App (the “Terms”)
1.1 Futurenet Investments Pty Ltd (“FOENIX”) owns, operates and controls the FOENIX website (www.FOENIX.co). FOENIX provides end users (“Users”) with free information relating to offers for products and services (“Offers”) supplied by third party retailers (“Retailers”) on the Site (the “Service”). 1.2 These Terms apply to all Users of the Service. 1.3 .Reference to one gender includes all genders. Reference to the singular includes the plural and vice versa. Where a term is capitalised, its other grammatical forms bear a corresponding meaning.
2.1 FOENIX provides information to Users about Offers on the Site. The information which FOENIX provides to Users (including information about Offers and links to Retailer websites) has been supplied to FOENIX by its Retailers. FOENIX and its Retailers operate their respective websites independently at all times. 2.2 FOENIX is not responsible for the websites of its Retailers or any third party websites which may be referred to (including by a link) in the Offers. FOENIX has no influence on the design or content of the linked pages and their subpages. 2.3 FOENIX reserves the right to change all or part of the Offers as they appear on the Site and to add to, delete or cease publication of them temporarily or permanently without prior notice. 2.4 The Offers presented by the Retailers are not offers from FOENIX. These Terms govern the legal relationship between the User and FOENIX in respect to the use of the Service by the User and do not constitute any terms and conditions in relation to the Offers. Agreements for the purchase of the products or services displayed in the Offers are entirely between the User and the Retailer. The User agrees that FOENIX is not supplying any goods under these Terms or otherwise. FOENIX is not responsible for the supply of goods to Users or Members. 2.5 If a User expresses an interest in an Offer via the Site, the User is redirected to the website of the Retailer submitting that Offer. Before an agreement between a User and a Retailer is concluded, the User is required to verify with the Retailer all relevant information previously provided by the Retailer to the Site, including information about the sales price at the point of sale.
3. Property rights
3.1 Subject to clause 3.2, all the data, information, designs, logos, pictures, search results and text on or generated by or appearing on the Site (“Information”) are protected by copyright under the Copyright Act 1968 as amended, and vest in FOENIX Search Pty Limited as trustee for the FOENIX Search Unit Trust. The copying, distribution and modification of the Information in part or in whole is not permitted without the prior written consent of FOENIX. Any unauthorised reproduction, distribution, modification, public access and/or public rendering constitutes copyright infringement and will be prosecuted. 3.2 For the avoidance of doubt, the Information (as defined in clause 3.1) does not include Member’s Content , as to which see clause 3 ‘Members’ Obligations’ under Part II of these Terms, and clause 3 ‘Data Protection’ under Part III of these Terms. 3.3 Users acknowledge that company names, trademarks, logos and/or product designations listed on the Retailers’ websites are also protected by law. 3.4 The Offers displayed on the Site are for information purposes only and must be used exclusively for non-commercial purposes. Users must not download any Offers to any device, such as a computer or data storage device. Any repeated or systematic downloading of minor parts of the Offers is considered to be downloading of a substantial part of an Offer. The printing of Offers is permitted only for (i) non-commercial purposes, and (ii) only to the extent required for completing the purchase of an Offer. Any use of Offers for commercial purposes is a breach of these Terms.
4.1 While FOENIX endeavours to only display sound Offers in terms of content and lawfulness, FOENIX makes no warranty as to the accuracy, lawfulness, completeness, quality, content or suitability of the Offers. 4.2 FOENIX does not warrant that the products and services displayed in the Offers can actually be purchased at the published prices from any of the Retailers. 4.3 While FOENIX tries to provide the Service free of technical errors and faults, it reserves the right to resolve technical problems as and when necessary. No warranty is given that the Service is free of interruption or that it is free of errors or viruses. 4.4 No warranty is given that the FOENIX website cannot be accessed by hackers or that any data on it is secure from any unauthorised access or unauthorised copying by third parties or otherwise. FOENIX will take reasonable steps to secure the data its website contains from unauthorised access or unauthorised copying by third parties or otherwise. 4.5 FOENIX makes no warranty as to the functional suitability and compatibility of Retailers’ websites, systems or programmes that are not part of the Site.
5. Current nature of prices
5.1 FOENIX makes reasonable efforts to ensure that the prices stated in the Offers displayed on the Site are up-to-date and that the prices on the Site are updated frequently. However, the prices are determined by the Retailers and may change after the most recent Site Update. In the event of a conflict between the price set out in an Offer and the price on a Retailer’s website, the actual price of the product or service displayed on the Retailer’s website at the time of the User’s proposed purchase will prevail. 5.2 For technical reasons, it is not possible to update the prices in real time. It is possible that the products or services displayed in an Offer cannot be purchased at the price stated on the Site or the product or service may no longer be available wholly or in a particular variation (including size and colour).
6.1 Subject to clauses 6.2 – 6.4 inclusive, a User is entitled to receive a commission if another user (a “Sub-User” or “Sub Affiliate”) clicks on one of more items in the User’s “Closet” (as defined within the FOENIX website), and clicks through to a Retailer and purchases that item or those items directly from that Retailer’s website. Commissions may be delayed as approval of the purchase depends on the Retailer. 6.2 FOENIX has full discretion as to whether to pay the commission to users. The Commission may not be paid to the User if the Retailer declines the sale for any reason including because of a return or requested exchange of goods, or if the sale is not recognised by the Retailer due to technical errors or otherwise. Retailers may decline a commission for other reasons out of FOENIX’s control. 6.3 FOENIX has no control over the commission rate offered to its Users. The commission rate applicable to each product or brand offered by each Retailer may differ and may change from time to time by the Retailer without notice. 6.4 Users will receive their commission via Paypal. Users will have to input their Paypal details in to the Site in order to receive the Commission. Once a Commission has become available, payments depend on Paypal’s delivery of payment.
7. Terms can change
FOENIX reserves the right to change at any time without notice, any clause, or part of a clause, of these Terms, whether in Part I or Part II or Part III.
II. Terms and conditions of use for the FOENIX Community
1. Scope, services
1.1 In addition to the Services, FOENIX provides registered Users on the Site (“Members”) free participation in the FOENIX Community (“Community”) in addition to the Services. The Community is the FOENIX database of users and sub-users on the FOENIX website or the app. 1.2 Various features (“Functionality”), some of which are interactive, are available to Members. 1.3 Members may upload their own user profile (“Profile”) and content (such as photos and text), save their own data (such as favourite shops) and store and create closets of favourite products alone or with other Members, (“to like” or “to click”). Members may make comments, recommendations for and reviews of products, brands, shops, classes and other Members, view profiles of other Members, follow other Members, contact other Members and store personal information for a personalised search and may receive personalised search results (including via email). 1.4 Members may import friend lists, for example from Facebook, Twitter or other social media platforms, and automatically synchronise their Profile with other Members. 1.5 FOENIX may suggest to Members that they share their Profile with new Members and/or trendsetters, articles, brands, categories and/or shops or that these be shared by email. The suggestions may be based on Members’ usage patterns, in particular carted products of other Members.
2. Eligibility and registration
2.1 Registration is made on the Site. 2.2 Only persons aged 18 or over or acting with the consent of their parent or guardians are eligible to register as Members and participate in the Community. FOENIX reserves the right to request proof of consent by a parent or legal guardian if the person is under 18 years of age. 2.3 During the registration process, Users will be asked to provide their forename, surname, sex, email address, username and password. 2.4 Users agree not to make false statements about themselves and not to register under a false identity. Members shall immediately notify FOENIX of changes to information required for registration. 2.5 Users can register for the Community using an existing email address or an existing Facebook account or by accessing Instagram. If a User is registering using an email address, the User will choose a password for the Member’s entry to the Community. If a User is registering using a Facebook account, the password for the Facebook account will automatically become the password for the Member’s entry to the Community. Members must keep passwords private. FOENIX will not divulge passwords to any third party and will not ask Members for their password. 2.6 As the authentication of Internet users is extremely difficult, FOENIX does not warrant that the identity of a Member is the actual identity of the User of the Member’s name.
3. Member obligations
3.1 Each member is responsible for the content of their Profile including all photos, texts, commentaries, videos, audio files, collages and other materials, which it makes available for access by the Community, even if such content is included as “embedded content” or links to third party websites which the Member makes available to the Community (collectively, “Content”). 3.2 Each member agrees that they will not include in their Content any swearing, insults, threats, obscenities, false statements of fact, disparagement, defamation, defamatory statement or any material which is sexist, homophobic, pornographic or racist, Members’ content will not include any right-wing extremist views or any illegal, political or self-promotional statements, formulations or pictures (all the material in this clause 3.2 together being referred to as (“Inappropriate Material”) or links to any Inappropriate Material. 3.3 Each members agrees that they will not include Content or links to content that (i) infringes third party rights (including without limitation patents, trademarks, copyrights, privacy rights, naming rights) and/or (ii) breaches any applicable law (including without limitation the Australian Competition and Consumer Law 2010 as amended from time to time). 3.4 Each members agrees that they will not use any names, postal addresses, email addresses, number plates or other personal information of others, which contain indicators about the identity of the third party in the Content without the prior consent of that third party. 3.5 Each members agrees that they will not upload or link to or send any content, generated by machine, including chain emails, viruses, worms, trojans or other software or elements thereof which endanger the Community or its members. FOENIX reserves the right to delete any mass mailings to a Member in order to ensure the appropriate quality of use of the Community by other Members.
4. Granting of rights
5. Responsibility for Content
5.1 The Functionality provided by FOENIX to the Community is free of charge. 5.2 The Content uploaded and submitted by Members is purely subjective fact, opinion, information and ideas and an assessment of other Members Profiles and the information contained in them. Members are solely responsible for their own content. 5.3 FOENIX does not moderate or pre-screen any Content uploaded or submitted by any Member and FOENIX is not responsible for any such Content, including the accuracy or legality of the Content. 5.4 If FOENIX becomes aware of any illegal Content and/or any Content which breaches these Terms, FOENIX may delete such Content immediately without notice to any Member.
6. Infringement, exclusion and withdrawal from the Community
6.1 If any Member breaches any part of these Terms, then FOENIX may in its sole discretion, and without prejudice to any other rights, exclude the Member from the Community and block that Member’s profile and/or delete the Content posted by that Member, temporarily or permanently. 6.2 If a Member believes that any Content infringes the rights of a third party, or applicable laws or these Terms, then that Member must provide to FOENIX as soon as possible a detailed description of the infringement by e-mail to: info@FOENIX.co 6.3 If a Member deletes their Content and leaves the Community, FOENIX will immediately delete that Member’s Content uploaded by that Member. For the avoidance of doubt, this provision does not extend to Content sent, exported or otherwise transferred to third parties or other social media platforms by FOENIX or another Member during their membership of the Community. Members agree that FOENIX may retain and use their Content but only for marketing purposes after they leave the Community.
7. Consent to receive newsletters and User of the Week
7.1 Each Member consents to receiving the FOENIX newsletter with articles about Retailers at their profile and/or designated email address. 7.2 Each Member consents to receiving a personalised newsletter from FOENIX based on and the Content of their profile either on their profile or designated email address. Each Member agrees that they may appear in the newsletter as “User of the Week” with their Profile photo and with references to aspects of their activities in the Community, such as the number of “liked” articles, or a selection of the “liked” articles. 7.3 Each Member expressly consents to being featured in the Community as a “User of the Week” with their profile photo and aspects of its activities in the Community. 7.4 The Member consents to being featured in the editorial content of the Community in which fashion trends or current products are described, and which includes featuring their profile and stating their user name, for example if the Member has “liked” the article in the editorial.
III. General Provisions
1.1 FOENIX warrants that it shall supply the Services with all due care and skill. 1.2 FOENIX gives no warranty that the Service, the Functionality or the Community are available or accessible without interruption or that they are virus free. 1.3 To the maximum extent permitted by law, FOENIX is not liable for any loss or damage whether direct or indirect or consequential caused by or contributed to by: (i) Technical transmission delays, interruptions, errors, failures of the Service, the Functionality or the Community whether resulting in any User or Member, losing data, and whether or not the causes are beyond the control of FOENIX. (ii) Any unauthorised acquisition of personal information of any user or Member by any third party, including by a hacker. (iii) The content of, or any inaccuracies within the content of or the effectiveness of third party websites that are referred to in the Service or by the Community, 1.4 FOENIX has no liability under any claim beyond that provided in these Terms- regardless of the legal nature of the claim. 1.5 To the extent permitted by law and except as expressly provided to the contrary in these terms, FOENIX shall not be under any liability (contractual, tortious, or otherwise) to any User or Member in respect of any loss or damage (including, without limitation, consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to these Terms. 1.6 To the extent permitted by law and except as expressly provided to the contrary in these terms, all warranties and guarantees whether express, implied, statutory, or otherwise, relating in any way to the subject matter of these Terms are excluded. Where legislation implies into these Terms any condition, guarantee or warranty that cannot be excluded such condition, guarantee or warranty shall be deemed to be included in these Terms. However, the liability of FOENIX for any breach of such term shall be limited, at the option of FOENIX, to the supplying of the Services again or the payment of the cost of having the Services supplied again. 1.7 Where permitted by law, the total liability to the Member or any User for any claim or demand under these Terms shall not in any circumstances (including whether in respect of breach of contract, implied guarantees or negligence) exceed $100.
2. Final provisions
2.1 These Terms and the legal relationship between the User and FOENIX are governed by the laws of New South Wales Australia, and the parties consent to the exclusive jurisdiction of the Courts in that State. 2.2 If any provision of these Terms is or becomes invalid, then this does not affect the validity of the other provisions of these Terms, and the invalid provision shall be deemed to be severed from these Terms. 2.3 By visiting FOENIX’s Site, third parties may place cookies on User’s browsers for targeted advertising purposes. 2.4 The type of data that is collected for targeted advertising includes for example, IP addresses, cookie identifiers and website activity. 2.5 This data may be used by third parties to target advertising on other sites based on the User’s online activity. 2.6 To opt out of receiving targeted advertising click on the following link www.aboutads.info or the NAI opt-out site at networkadvertising.org/choices, or for those in Europe, the EDAA opt out site at youronlinechoices.eu
3. Data Protection
3.1 FOENIX acknowledges that each Member’s Content includes intellectual property which is the property of or licensed to that Member. 3.2 FOENIX will only store, copy or use Members’ Content to the extent necessary to perform its obligation under these Terms. Subject to these Terms, FOENIX will not modify adapt, change, alter, delete or otherwise deal with Members’ Content. 3.3 FOENIX will not disclose Members’ Content to any third party except as authorised by these Terms, except where required to do so by a regulator or by law. Except as authorised by these Terms, FOENIX shall not use Members’ Content to solicit any business for any of FOENIX’s products or Services and shall not disclose them to any of its customers or to any third party, except as authorised by these terms.