2. Definitions and interpretation
In this Agreement:
”Agreement” has the meaning in clause 1.2;
”Business Day” means a day other than a weekend or public or bank holiday in Victoria, Australia;
”Delivery Cost” means the costs associated with delivery of Products as specified in an Order, including, without limitation, transport, freight or shipping charges, insurance costs, import and export taxes and duties;
”Draw” is the process of randomly drawing Successful Users based on the Submissions received from Users via the EQL Form and the inventory information supplied by a Retailer for a Particular Launch;
”Handling Cost” means the costs associated with handling of Products as specified in an Order, including third party charges;
”Intellectual Property” means all present and future intellectual or industrial property rights (whether or not registered) throughout the world, including, without limitation, in respect of patents, copyright, moral rights, trade names, trade marks, logos, systems, circuit layout, designs, software, plant breeder's rights, domain names, trade secrets and confidential information;
”Launch” means the launch of Products via the EQL Form in accordance with the Terms in this Agreement;
”Launch Live Period” means the period of time during which Submissions will be accepted for a Launch, as set out on the Site;
”Material” means any information, data, source codes, drawings, content, text or images in any form (whether visible or not), audio recordings, video recordings, lists, sound, video, links, layout, look and feel, control features and interfaces contained on the Site, or otherwise displayed, uploaded or published on, or via, the Site;
”Order” means an order for Products that is placed when a Successful User is selected in the Draw;
”Products” means the products, goods or items listed or advertised on the Retailer's Site for sale by the Retailer;
”Retailer” means the retailer offering Products via a Launch;
”Retailer's Site” means the website of the specific Retailer offering the Products;
”Services” means the operation of the Site and EQL Form and the facilitation of Draws;
”Site” has the meaning in clause 1.1;
”EQL Form” means an online submission form on the Site that allows Users who are interested in purchasing the Product to apply for the opportunity to purchase the Product;
”Successful User” means any User who has been randomly selected in the Draw to purchase the Product;
”Submission” means a valid submission made by a User to participate in a Draw, in accordance with the procedure set out in clause 4.4;
”Total Purchase Amount” means, in relation to a Successful User, the price charged for the Product as advertised or quoted by the Retailer (including any applicable sales tax) and applicable Delivery Costs and Handling Costs;
”User” means any person who completes the EQL Form on the Site for the opportunity to purchase a Product; and
”you” or ”your” means the person or entity accessing, using or relying upon the Site and includes, where applicable, the User and Successful User.
- Any reference in this Agreement to the singular includes the plural, to any gender includes all genders, to any act or statute includes any Act or statute which supersedes, replaces or modifies any earlier Act or statute, to persons includes all bodies and associations both corporate and incorporated and vice versa.
- Paragraph headings are for reference purposes only and all references to clauses are to clauses in this Agreement unless otherwise specified.
- Any provision of this Agreement which is void or unenforceable may be severed from this Agreement without affecting the enforceability of other provisions.
- A failure or delay by us to exercise a power or right under this Agreement does not operate as a waiver of that power or right, and the exercise of a power or right by us does not preclude our future ability to exercise that or any other power or right.
3. Our role
BY COMPLETING A SUBMISSION AND MAKING AN ORDER, YOU ARE CONTRACTING WITH THE RETAILER DIRECTLY FOR THE PURCHASE OF PRODUCTS, ON THE RETAILER'S TERMS AND CONDITIONS OF SALE.
We facilitate the transfer of payments by Successful Users for their Orders on behalf of the applicable Retailer as a limited payment agent for that Retailer and will immediately cease to act in that capacity once payment is received by the Retailer.
For the avoidance of doubt, we:
- are neither offering to sell Products nor advertising or promoting the sale of Products;
- are not responsible for repairing or replacing damaged Products;
- are not responsible for fulfilment of your Orders, including delivery;
- are not responsible for refunding any amounts paid to the Retailer – all refunds must be discussed with and facilitated by the Retailer; and
- expressly disclaim any involvement in disputes between Users and Retailers about Orders or Products.
Making Submissions and participating in Draws is free.
The Launch Live Period operates from the date, and continues for the period, indicated on the Site. Each Launch will be open for Submissions only for the Launch Live Period.
To participate in a Draw, you must complete a EQL Form on our Site by selecting the Launch you wish to participate in and providing the following details about yourself:
- first and last name;
- phone number;
- email address;
- date of birth;
- billing and shipping addresses; and
- any other details relevant to the draw, for example apparel size.
You must also provide details sufficient to process payment of your Order (including any Delivery Costs and Handling Costs) in accordance with clauses 6 and 8.
We may not be able to accept your Submission if you do not provide accurate and complete details via the EQL Form.
You will receive a confirmation message after you have completed the EQL Form. Your entry will only be considered valid once you have verified your phone number and email address with us.
You may only make one Submission per Launch. You may enter a Submission to multiple simultaneous Launches but can only make a single Order for each model of Product across all Launches and Retailers.
We reserve the right to close the EQL Form early or restrict access to the EQL Form to certain Users if we suspect fraudulent behaviour or tampering with the Submission process or for any other reason (acting reasonably).
5. Draws and orders
Each eligible User who has completed a valid Submission in relation to a Launch during the applicable Launch Live Period, and is not in breach of this Agreement, will be included in the Draw for that Launch.
Draws will be carried out three days after closure of the Launch Live Period for the applicable Launch.
During the Draw, one or more Successful Users will receive an entry that may be randomly be selected from the pool of tickets of Users who have made a valid Submission for a given Launch. Each User entry has an equal chance to be selected as a Successful User for the first time that User participates in a Draw. Users who are unsuccessful in a Draw may be eligible for our EQLIZER promotion – which grants eligible unsuccessful Users an extra entry in the next Draw they participate in.
Following the Draw, we will contact Users to notify them of the outcome, we will also notify the Successful Users that their Order has been accepted, and automatically process your payment of the Total Purchase Amount from each Successful User on behalf of the Retailer in accordance with clause 6.
Orders and purchases are only valid for the registered email, shipping address, product, size and payment method specified at entry.
Entries cannot be sold, transferred, assigned or otherwise provided to anyone else. Evidence of such behaviour by any User will result in disqualification. Entries have no cash value and are not redeemable for cash or credit.
Your eligibility to participate in a Draw, make Orders and purchase Products is subject to and conditional on:
- your current and continued compliance with this Agreement;
- the successful transfer of funds from you to the Retailer as payment for your Order; and
- the stock availability of Products in your selected size.
We reserve the right in our sole discretion to disqualify any individual we suspect to be tampering with the Submission process or the operation of a Draw and/or purchase of Products or to be acting in violation of this Agreement or otherwise in a bad faith or disruptive manner. Any attempt by any person to undermine the legitimate operation of a Draw and/or Product purchase may violate criminal and civil law, and, should such an attempt be made, we reserve the right to seek damages from any such person to the fullest extent permitted by law.
We may conduct a redraw for any Successful Users who become ineligible or are disqualified from participating in a Draw.
You agree to pay the Total Purchase Amount (including Delivery Costs and Handling Costs) for the Order to the Retailer as they are calculated and quoted to you at the time the EQL Form is completed, or as otherwise advised.
Payment transfers will be processed approximately three days after the completion of the Draw.
All prices listed on the Site are set solely by the Retailer and are denominated in the currency indicated by the Retailer.
You may be obliged to pay additional import duties, sales tax or tariffs in relation to your Order, in accordance with the laws of your jurisdiction.
Where you provide your credit card details through the platform, we acknowledge that we are responsible for the security of this information during the process by which it collected, tokenized and transmitted to the relevant Retailer.
By making a Submission in relation to a Draw, you confirm that:
- you have read, understand and agree to:
- the terms and conditions of this Agreement;
- the Retailer's terms and conditions with respect to your Order and the Products; and
- Adyen, Stripe or any other payment provider's terms and conditions with respect to any payment processing services provided pursuant to this Agreement;
- you are submitting an Order to the applicable Retailer to purchase the Products the subject of the Draw on the condition that you are selected as a Successful User for that Draw and subject to stock availability, and consent to us facilitating the transfer of your payment of the Total Purchase Amount solely in our role as limited payment agent for the Retailer;
- you consent to us disclosing your personal information (including all information identified in clauses 3 and 12.3) to the Retailer.
In accordance with Article 6(1)(b) of The General Data Protection Regulation (EU) 2016/679 (GDPR), we confirm that our processing and use of your personal information in the ways disclosed is necessary for us to perform the Services for you in accordance with these Terms and Conditions.
8. Site use
By accessing and using the Site and Services, you warrant and represent that:
- you are at least 18 years old, or the age of majority under the laws of your jurisdiction (as applicable); and
your access to, or use of, the Site is not unlawful or prohibited by any laws which apply to you. You understand and agree that any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities.
We may, in our absolute discretion restrict your access to the Site and Services (temporarily or permanently) and disqualify you from participating in a Draw at any time.
The Site contains links to third party websites. Any links to such websites provided on the Site are for convenience only. We do not represent that we recommend or endorse any goods, services or third party content appearing on, or via, other websites linked to this Site. We are not responsible for any loss or damage that may arise from your access to, and/or use of, third party websites, products and services. Additionally, we are not responsible for the content or privacy practices associated with linked websites. You should make your own enquiries before using and/or accessing third party websites.
You may not use the Site other than for its intended purpose. You agree that you will not engage in any activity that interferes with or disrupts the Site or the servers and networks that host the Site. You agree not to, circumvent, disable or otherwise interfere with security-related features of the Site or attempt to do so or otherwise interfere with, or restrict, any person or visitor from accessing or using the Site.
Unless otherwise expressly stipulated in this Agreement, you must not copy, adapt, distribute, display, reproduce or transmit any content displayed or published on the Site.
You must not establish a link to the Site in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link to the Site from any website that is not owned by you. This Site must not be framed on any other website, and you must not create a link to any part of this Site other than the home page. We reserve the right to withdraw linking permission at any time without written notice.
9. Intellectual property
You acknowledge that we or our licensors are the owners of all Intellectual Property Rights in the Site and in all Material published on the Site, and we retain all rights, title and interest in the Site and Material (including Intellectual Property Rights contained therein) irrespective of any licence we may grant to you to access, and use, the Site.
You may access and use the Site (including Intellectual Property Rights contained therein) and Services for your personal and non-commercial use only. You must not in any form or by any means reproduce, modify, distribute, store, transmit, publish, use or display the Material on another website or create derivative works from any part of the Site or the Material or commercialise any information obtained from any part of the Site or Material without our prior written consent.
By uploading, posting, transmitting or otherwise making available any content or material via the Site (”Your Content”), you:
- grant to us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and sub-licensable licence to use, publish, reproduce and otherwise exploit Your Content in any form for any purpose and unconditionally waive any moral rights that you might have in respect of Your Content; and
- represent and warrant that you either own the Intellectual Property Rights in Your Content or have the necessary permission to upload, post, transmit or otherwise make available Your Content via the Site.
We reserve the right to terminate any licence granted to you under the Agreement and/or remove any of Your Content from the Site, at any time, for any reason and without notice to you.
You agree that you will not modify or copy the layout or appearance of the Site nor any computer software or code contained in the Site, and that you will not decompile, disassemble, reverse engineer or otherwise attempt to discover, interfere with or access any source code related to the Site.
You agree to indemnify us and our officers, directors, employers or contractors (collectively, the ”Indemnified”) and to keep indemnified and hold harmless the Indemnified from and against any and all actions, claims, demands, losses, damages, taxes, liabilities, costs and/or expenses that may be incurred by, or sustained by, the Indemnified arising out of, or in connection with, your access to, and use of, the Materials, the Site, any breach by you of this Agreement or your or anyone else's ownership or use of the Products.
To the maximum extent permitted by law, we exclude:
- all conditions, guarantees or warranties expressed or implied by law;
- any liability to you or to any third person howsoever arising (and whether arising under statute, negligence or otherwise) in relation to your Order, the Products, any information relating to the Products and the acts or omissions of any Retailer;
- any liability to you or to any third person however arising (and whether arising under statute, negligence or otherwise) for:
- any personal injury or death to a person, or
- any special, direct, indirect or consequential loss or damage (including, but not limited to, loss of income or revenue, loss or interruption of business, loss of profits, revenue or contracts, loss of anticipated savings, loss of data, loss of use, loss of privacy or loss of goodwill), arising out of, or in connection with, access and/or use of the Material, the Site, and any Products the subject of a Launch available via the Site and this Agreement.
Without limiting the generality of the foregoing, you agree that in no event shall our maximum aggregate liability exceed the total of the sale price charged for any Product (as advertised or quoted by the Retailer) and any applicable postage fee.
You acknowledge and agree that the limitations of liability contained in this clause are a fair and reasonable allocation of the commercial risk between the parties.
”Personal information” is any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
The types of personal information we collect from you includes, without limitation, your:
- full name;
- email address;
- telephone number(s);
- date of birth;
- billing information, device ID, device type, geo-location information, computer and connection information, statistics on page views, traffic to and from the sites, ad data, IP address and standard web log information; and
- details of Products we have provided access to, that you have enquired about or entered a Draw for the opportunity to buy a Product displayed on the Site, including your clothing sizes, preferences and any additional information included in your Submission and required to facilitate the Draw, facilitate payment for your Order, and respond to your enquiries.
We may provide certain personal information from your Submission to the Retailer participating in the relevant Launch.
We may also use and disclose to third parties information that has been developed from your personal information, for the purposes of developing the Platform, our services, and additional products, provided that all such personal information will first be appropriately de-identified and anonymised.