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Service Terms and Conditions 

These Service Terms and Conditions of Sale ("Terms") govern the sale and supply of products and services on https://www.fishpond.com.au (Site) by Fishpond Limited (t/as “Fishpond” and herein referred to as “Fishpond”, “we”, “us” or “our”) to you as the individual or entity acquiring the products or services ("Customer", "you" or "your"). 

These Terms were last updated on 26 September 2023 and the updates take effect from that date. Publication of amended Terms on the Site will be deemed to be notice of the amendment to the Terms. Fishpond may choose, but is not required, to directly notify you of the existence or content of any amendment to these Terms by any other means. 

Please read these conditions carefully before placing an order for products sold or services provided by Fishpond. By placing an order or using any services you agree to be bound by these Terms. Terms and conditions, if any, contained in any documentation provided by the Customer are excluded and do not apply.

1. Consumer law and warranties that apply:

  1. Nothing contained in these Terms shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy or other obligation implied by the Australian Consumer Law (“ACL”) which cannot by law be excluded, restricted or modified. 

  2. Where there are consumer protection laws or any other mandatory legislation in your jurisdiction that cannot legally be excluded, those laws take precedence, and in case of conflict, their provisions apply.

  3. Our goods and services come with consumer guarantees that cannot be excluded under the ACL. You may recover damages from Fishpond for any reasonably foreseeable loss or damage that you suffer because of any failure of a service or goods to comply with these guarantees, and:

    1. if the failure to comply with these guarantees for goods is a major failure or cannot be remedied, you are entitled to a replacement or refund. If a failure to comply with these guarantees for goods does not amount to a major failure you are entitled to request Fishpond remedy the failure within a reasonable time and if Fishpond fails to do so (by repairing the goods, replacing the goods or providing you with a refund):

      1. you may recover all reasonable costs you incur in having the failure remedied; 

      2. you may (in certain circumstances) be entitled to reject the goods and claim a replacement or refund from Fishpond; or

    2. if the failure to comply with these guarantees for a service is a major failure or cannot be remedied, you may terminate the agreement between you and Fishpond for the supply of the service or recover from Fishpond compensation for any reduction in the value of the service below the price paid or payable by you for the service. If a failure to comply with these guarantees for a service can be remedied and is not a major failure, you may request Fishpond to remedy the failure within a reasonable time, and if it cannot be so remedied you may recover from Fishpond all reasonable costs that you incur in having the failure remedied, or terminate your agreement with Fishpond for the provision of the service.

  4. Goods sold by Fishpond are only supplied with the relevant manufacturer’s warranties and must be used by you in accordance with any applicable licence terms (e.g. software). 

  5. Fishpond is not the manufacturer of the products sold on the Site and we make no representation or provide any additional, specific warranty of any kind regarding the products or services we sell, unless otherwise indicated in writing by us.

2. Information about Fishpond’s liability to you and your liability to Fishpond:  

  1. To the maximum extent permitted by law, Fishpond accepts no liability for, and the Customer agrees to release and forever hold harmless Fishpond, its directors, officers, employees, agents and affiliates from any liability to the Customer for damages, compensation or loss, whether in tort, contract under statute or at law or in equity or otherwise for:

    1. inaccuracies or misstatements about products by manufacturers or third parties;

    2. losses that were not caused by any breach on Fishpond’s part; 

    3. any business loss, loss of sales, profits, revenue, contracts, anticipated savings, data, goodwill, wasted expenditure or reputational loss; 

    4. any incidental, indirect, special or consequential losses or damages arising out of or in connection with the purchase, use, or performance of the products or services offered by Fishpond, even if Fishpond has been advised of their possibility; or 

    5. any property damage, theft or destruction;

    6. personal incapacity, injury or death;

    7. any delay or failure by Fishpond to comply with its obligations under these conditions if the delay or failure arises from any cause which is beyond its reasonable control. 

  2. Under no circumstances will Fishpond's maximum liability exceed the total cost of your original order with Fishpond. 

  3. You agree to indemnify us and our directors, officers, employees, agents and affiliates against any loss, damage, costs or expenses that we, or any of our officers, employees, agents and affiliates, may incur in connection with your breach of these Terms or any connected agreement. 

  4. While Fishpond works to ensure that product information on its Site is correct, products and any product packaging and materials may be different from that displayed on the Site.

  5. All information about the products on Fishpond’s Site are provided for information purposes only and Fishpond’s sole liability in the event any incorrect product information will be to accept a return of the product in accordance with the Fishponds Returns Policy and any statutory rights that you may have.

  6. In the event of any safety concerns, or for any other information about a product, Customers should carefully read the information provided with the product, contact the manufacturer directly, or report the concern to Fishpond by sending us an email. 

  7. For any health, pharmaceutical, fitness or other sporting related products, content on Fishpond’s Site is not intended to substitute for advice given by a medical practitioner, pharmacist, or other licensed healthcare professional. Customers should contact their professional healthcare provider.

3. Disclaimer

Product and services information, videos, photos and images supplied by Fishpond available on the Site, or otherwise contained in price lists, advertising or other printed material of Fishpond are provided ‘as is’, are approximate and for general illustration purposes only, may differ from the actual products or services offered, and do not form part of the contractual description of the products or services unless agreed to by Fishpond in writing. 

Whilst Fishpond takes reasonable care to ensure information on the Site is error-free and up-to-date, errors and omissions regarding information on the Site may occur from time-to-time. Fishpond provides no guarantee that the Site will always operate uninterrupted or error-free. To the extent permitted by law, Fishpond does not accept any liability for the use of, or inability to use the Site, or for any loss or damage which may directly or indirectly result from any opinion, information, advice, representation, or omission contained on the Site. 

Parties other than Fishpond sell products on the Site and the Site may contains links to other websites operated by third parties. Fishpond is not responsible for examining or evaluating, and does not warrant or accept any responsibility or liability for the actions or offerings of, any other party or the content of their websites. You should carefully review the privacy statements and other conditions of use concerning third party websites.

4. Order placements & cancellations: 

  1. Once a Customer places an order:

    1. they will receive an acknowledgment email that Fishpond has received the Customer’s order;

    2. and has received Fishpond’s acknowledgement email pertaining to an order, that order is not deemed to be accepted by, or binding on Fishpond until Fishpond accepts the order in whole or in part by written notice to the Customer via a separate shipment confirmation email (at which stage a contract for the purchase of the goods will be formed);

    3. that order may be cancelled or amended by a Customer at any time prior to delivery to the Customer’s designated address, however results in the Customer incurring a “Restocking Fee” (being a $5 minimum or 17% of the value paid for the returned product, for any ‘change of mind purchases’) and foregoes any shipping charges paid for the original order.

  2. Fishpond in its sole discretion may reject or cancel an order made by a Customer for any reason, including but not limited to:

    1. unavailability of stock;

    2. if Fishpond reasonably suspects that your order was not made in good faith; is fraudulent, or suspects that credit card or payment-related fraud has occurred;

    3. error in the pricing or description of the products or services on the Site, Fishpond’s other advertisements, or an error in the order; or

    4. the inadvertent inclusion of a product or service in a Fishpond related sale, promotion or advertisement on its site.  

  3. To provide the greatest range of products Fishpond does not stock all products listed on this site in a single warehouse. All items sold via the Fishpond website are subject to availability. Product availability information is provided by a number of third party suppliers. Fishpond works with these third parties to ensure stock and inventory records shown on the Site are as accurate as possible, however some errors and inaccuracies can be expected from time-to-time. 

  4. If Fishpond is unable to provide any products ordered for the time and place specified in an order made by you through the Site, Fishpond will provide reasonable notice to you to that effect via email. Upon such notice Fishpond will provide you with a full refund for the products or services and any applicable shipping fees under your particular order.

  5. Customer orders cannot be on-sold to another party or third party for re-sale and will be cancelled with refund if used by anyone else. 

  6. The internet can be an unstable, and sometimes insecure, marketplace. You acknowledge that at times the facility to place orders may not be available, your order might not be received, your order may be lost or misdirected, or your order might be delayed.

5. Prices and payment for Fishpond orders: 

  1. Prices, shipping costs, discounts and rebates are as shown on the Site at the time of purchase but may be changed at any time by Fishpond at its sole discretion.

  2. Unless otherwise agreed by Fishpond in writing:

    1. all order prices and shipping costs are in Australian dollars (inclusive of GST); and

    2. full payment is required at the time of purchase of an order.

  3. Fishpond's available payment methods will be presented on the Site at the time of purchase. 

  4. Fishpond does not accept cash for payment of products. If the Customer does mail cash, Fishpond accepts no responsibility for the theft, loss or non-delivery of such mailed cash. However, standard Australian cheques are acceptable.

  5. If the Customer credits money to the incorrect bank account number, and the correct number was provided to the Customer by Fishpond, then Fishpond will not accept any responsibility for correcting payment and goods will not be dispatched by Fishpond until Fishpond has received payment in full in cleared funds. 

  6. A service fee sufficient to cover Fishpond’s administration and banking costs may be added by Fishpond to the price where payment by the Customer is made by way of credit card, or where any payment is dishonoured for any reason by the relevant financial institution.

  7. Fishpond will investigate all disputed payments. If the disputed amount is found by Fishpond to be payable (in whole or in part), the Customer must pay the due amount within 7 calendar days after receiving written notice of the amount payable by the Customer (including the basis of Fishpond’s decision) from Fishpond. Invoiced amounts that are not disputed in writing within 14 calendar days after the date of the relevant invoice will be deemed to be correctly charged and accepted by the Customer and the Customer will be liable to pay those amounts in accordance with these Terms.

6. Retention of title and passage of risk 

  1. Fishpond retains title to all products purchased by you until all amounts secured by all products have been paid to Fishpond in full. 

  2. All risk in products which are ordered by you will pass to you on delivery of those products. In case of delivery delay, risk passes on the intended delivery date.

  3. Once you receive your ordered products from us, Fishpond is not liable for any kind of loss, damage, wear and tear to, change in condition to, or the destruction of the purchased products.

7. Refunds, ‘change of mind’ returns, delivery, offers and vouchers 

  1. If you change your mind or are not completely satisfied with your purchase, you may return your item to Fishpond within 30 calendar days for a full refund (less the Restocking Fee and any applicable shipping charges) from the date you receive the goods. The item must be:

    1. in saleable and undamaged condition;

    2. in its original unopened and sealed packaging; and

    3. accompanied with proof of purchase.

  2. Unless the items are faulty, damaged, or do not meet the product description on the Site, we do not accept ‘change of mind’ returns for: 

    1. opened or used perfumes, cosmetics, face or body products, CDs, DVDs, games or software, headsets, earphones or massage products;

    2. earrings, pierced jewellery, clothing, swimwear, underwear or shoes; or

    3. personal pleasure items (sex toys).

  3. You can choose to have your refund paid out by credit card refund, bank transfer or Fishpond credit for your next purchase.

  4. Customs & duties: For any orders shipped from outside of Australia, the Customer is the importer of record and will be responsible for all customs import duties and sales tax charges. These charges vary in each country and are outside of Fishpond's control. You should contact your local customs office for more information on what import duties or sales taxes may be imposed. When you make an order with Fishpond for delivery outside of Australia, you are considered the importer of record and must comply with all laws and regulations of the country in which you are receiving your products. You acknowledge that cross-border deliveries may be subject to opening, inspection and quarantine by customs and any other relevant regulatory authorities.

  5. Addressing: If a product is found to be mis-addressed or insufficiently addressed by:

    1. Fishpond, then Fishpond will be responsible for the re-delivery, replacement or refunding of the product; or

    2. the Customer, Fishpond will not refund or resend the product and all responsibility for correcting delivery will be borne by the Customer.

  6. Delivery estimates: Fishpond makes every effort to ensure that delivery timeframes provided to you are accurate. However, delivery times stated for products on our Site assume that the stock availability information provided by our suppliers is accurate and that delivery times are not adversely affected by unforeseen events. Delivery dates are based on Fishpond’s estimated time for delivery and should not be viewed as a guarantee of any kind. 

  7. Special offers: Special deals and offers on the Site are only valid for so long as they are displayed, unless expressly stated otherwise by us in writing.

  8. Fishpond credits: Coupon credits can only be used as credits towards future orders and cannot be converted into a cash payment from Fishpond to the Customer and can also be used to purchase gift vouchers.

  9. Gift vouchers and Fishpond credit expiry: Gift vouchers and Fishpond credits are valid for three years from the time they are issued, after which the voucher and credit will expire. However, if the gift vouchers are part of an employee reward, the three-year expiry does not apply. Any credit remaining after the expiry of the gift voucher or Fishpond credit is non-refundable.

8. Additional terms regarding Fishpond Premium, ‘Sell Yours’ and communications with you

  1. Fishpond communications: 

    1. When creating an account with Fishpond you will be prompted via a checkbox to either ‘opt-in’ or ‘opt-out’ of receiving electronic communications from Fishpond. 

    2. By opting ‘in’ you agree that Fishpond or third parties authorised by Fishpond may send you marketing or promotional messages, or other types of information that are relevant to your relationship with Fishpond. 

    3. Fishpond communications may be sent via different channels, including by email, SMS and phone. You may opt-out of receiving these messages (either altogether or via a particular channel) by updating your contact preferences in your account via the Email Preference Centre, or by using any other unsubscribe facility we provide and any other applicable terms and conditions.

    4. Your personal details will not be made available to any third party. For more information, please see our Privacy Policy.

  2. Sell Yours: 

    1. Fishpond provides a service for which allows parties to list their own products for sale to you or other users of Fishpond known as ‘Sell Yours’. If you or a third party use this service, you are termed a ‘Seller’ for these Terms and accept the Terms applicable to a Seller when using our Sell Yours service. 

    2. All listings on the Site by Sellers as ‘Sell Yours’ products must comply with Australian law, including all regulations and product safety notices. All listings must be for items that exist, the Seller is entitled to sell, and must accurately describe the condition of the product and include all relevant information. 

    3. Fishpond is not a party to Sell Yours transactions, nor assumes any responsibility arising out of or in connection with it nor is it the Seller's agent (except for the limited purpose of acting as the Seller’s payments collection agent). 

    4. The Customer satisfies their obligations to the Seller when Fishpond receives sale proceeds. The Seller is responsible for the sale of their products or services and for dealing with any Customer claims or any other issue arising out of or in connection with the Sell Yours transaction between the Customer and Seller.

    5. The Seller agrees that Customers have the right to return any ‘Sell Yours’ item for a full refund within 30 days of the item being shipped (less any applicable shipping charges). Items may be returned after this 30-day period in compliance with the relevant consumer legislation if the item is faulty or damaged. Customers should contact the Seller directly where they are unhappy with their purchase, and where they are not satisfied with a Seller’s response they should contact Fishpond directly detailing their reason for returning the item. 

    6. Fishpond reserves the right to take appropriate action against any Seller who breaches these Terms or contravenes any information contained in our FAQs, including, without limitation, suspending accounts, removing listings and withholding disputed payments, until such time disputed payments have been fully investigated and resolved by Fishpond. 

    7. Sellers agree that their email address will be provided to the purchaser when their auction closes, and the Seller will promptly send the item to the buyer.

    8. As a Seller, you agree to indemnify us and our directors, officers, employees, agents and affiliates against any loss, damage, costs or expenses that we, or any of our officers, employees, agents and affiliates, may incur in connection with your products or service offering or sale on the Site, any claim made by a third party, or otherwise your breach of these Terms. 

  3. Fishpond Premium: 

    1. Fishpond Premium is a subscription service where subscribers can opt-in to pay the service fee and in exchange Fishpond waives standard delivery fees for 12 months after. Subscriptions recur annually until cancelled. Any subscription fee increases will be notified to Customers within 30 calendar days before renewal occurs to allow for cancellation decisions to be made if desired. 

    2. Reasonable use criteria apply to the number of orders that can be placed annually and receive free standard shipping. We may cancel any Customer's Premium subscription at our discretion.

    3. Fishpond Premium can be cancelled within 30 calendar days of the subscription starting and a refund of the subscription fee less deductions for shipping fees that were provided free of charge, up to the value of the annual subscription will be issued. If all orders placed after subscribing are cancelled and Fishpond in its discretion decides that no Restocking Fee applies, then no deductions will be applied.

    4. Cancellation requests made after 30 calendar days of the subscription start date are not eligible for a refund. Cancellations after this initial period means your Fishpond Premium memberships will not automatically renew at the expiry date. Subscription benefits will continue to apply to any orders made before your subscription ends.

    5. Further information and conditions regarding Fishpond Premium can be found in our FAQs.

9. Site access, use and security 

  1. Site access: 

    1. Fishpond hereby grants you permission to access, view and download the content appearing on the Site, for your personal, non-commercial use only. 

    2. You agree not to use any device, method or software to interfere with the proper functioning of the Site. Without the express written permission of Fishpond, you may not use any device, method or software including, but not limited to spiders, robots, avatars, agents, data mining, gathering or extraction tools and attempts to probe, scan or test or breach security and authentication measures. 

    3. Fishpond reserves the right to, at any time suspend or restrict your access to the Site if you are in material breach of these Terms, or stop or suspend the operation of the Site.

    4. In order to use the Site, you will need internet access, devices and systems which are compatible with the Site. It is your responsibility to ensure that you meet the relevant requirements (which may change from time to time). Fishpond has no obligation to make the Site available on any particular device or system, whether or not such device or system can currently, or has in the past been able to, access the Site.

  2. Copyright & Trademarks: 

    1. The Site and its contents are subject to copyright. The copyright is owned by Fishpond, or in the case of some material, third parties.

    2. You may view this Site and its contents using your web browser and electronically copy and print hard copies of parts of this Site and its contents for personal, non-commercial use. Except as permitted under the Copyright Act 1968 (Cth) or similar statutes that apply in your location, any other use (including any adaptation, reproduction, broadcast, decompiling, disassembling, downloading, copying, storage, distribution, transmission, printing, display, publication or creation of derivative works) of any part of the Site is prohibited.

    3. Nothing contained on the Site shall be construed as granting you any licence or right to use any trade mark displayed on the Site.

  3. Notice of copyright infringement and takedown procedure: Fishpond respects the copyrights of others. If you feel that content on Fishpond’s Site infringes your intellectual property rights or is in breach of these Terms, please contact us and include the following information:

    1. your name;

    2. your address;

    3. your email address;

    4. your phone number;

    5. information to allow us to find the relevant content on the Site;

    6. a description of the item or items that you believe is in breach of your intellectual property rights or these Terms, and the reasons for this; and

    7.  where applicable, details of the owner of the content (and if you are not the owner, the capacity in which you are acting on their behalf). 

  4. Security: Fishpond uses reasonable endeavours to ensure the Site, and any transactions conducted on it, are secure. However, you acknowledge that the security of information and payments transmitted via the Internet can never be entirely secure or error-free. Fishpond will not be liable for any losses, liabilities, damages, costs, charges or inconvenience incurred, paid or suffered due to failure, delay, interception or manipulation of electronic communications by third parties on any computer programmes (for example those used for transmission of viruses, malicious computer code or other forms of interference).

10. Privacy

Fishpond collects, uses, stores and discloses personal information in accordance with its Privacy Policy, which the Customer acknowledges it has had an opportunity to read and understand. 

11. General Terms

  1. Fishpond will have no liability to the Customer in relation to any loss, damage or expense caused by Fishpond’s failure to complete an order as a result of a pandemic, fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock out, war (declared or undeclared), or any other matter beyond Fishpond’s control.

  2. The Customer is not entitled to set off against or deduct from the price of products or services sold any sums owed or claimed to be owed to the Customer by Fishpond.

  3. The Customer must not assign or subcontract any contract for the purchase of products or services, or its rights or obligations under these Terms (or a connected agreement).

  4. Fishpond may, at any time, novate, assign or transfer part or all of its rights and obligations under this document to any third party and, to the extent required, the Customer consents to the novation, assignment or transfer and agrees to enter into a novation, assignment or transfer agreement on terms specified by Fishpond.

  5. Fishpond may serve any notice or court document on the Customer by hand or by prepaid post to the address of the Customer last known to Fishpond or by email to an email address supplied by the Customer. Any such notice is taken to be duly given and received:

    1. if delivered by hand, when delivered; or

    2. if delivered by prepaid post, two Working Days after being deposited in the mail with postage prepaid; or

    3. if delivered by email, on the day of dispatch provided that no notice of non-delivery is received.

  6. This document records the entire agreement between the parties in relation to its subject matter. It supersedes all prior contracts, arrangements, understandings or negotiations by, or between, the parties in relation to the subject matter of this document.

  7. The failure, delay or omission by a party to exercise, or to partially exercise, a right, power or remedy under these Terms (or any connected agreement) does not operate as a waiver of that right, power or remedy.  A party which exercises, or partially exercises, a right, power or remedy maintains its right to further exercise the same right, power or remedy or to exercise another right, power or remedy.  A party waives a right, power or remedy only by explicitly doing so in a written notice to the other party and the waiver is strictly limited to the matters specified in the notice.

  8. The rights, powers, authorities, discretions and remedies of a party under this document do not exclude any other right, power, authority, discretion or remedy.

  9. If any provision of this document is determined by a court or other competent tribunal or authority to be illegal, invalid or unenforceable then:

    1. where the offending provision can be read down so as to give it a legal, valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; 

    2. where the offending provision cannot be read down then that provision must be severed from the document in which event, the remaining provisions of this document operate as if the severed provision had not been included; and

    3. the legality, validity or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction is not affected,

but only to the extent that is consistent with giving substantial effect to the intentions of the parties under this document.

  1. These Terms can only be amended, supplemented or replaced by another document signed by the parties or as otherwise permitted by these Terms.

  2. This document (and each connected agreement) is governed by the law of New South Wales.  Each party submits to the non-exclusive jurisdiction of the courts in New South Wales in connection with matters concerning this document and any connected agreement.