Terms of use
Last Modified: June 23, 2023
Thank you for visiting Euraka Australia (here in after referred to as“we” or “our”). Please carefully read these Terms of Use (or “Agreement”) and our Privacy Policy which is incorporated into these Terms of Use by this reference.
THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES (AS DEFINED BELOW). BY USING THE SERVICES, YOU AGREE TO THESE TERMS OF USE, OUR PRIVACY POLICY AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE OUR SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS OF USE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
PLEASE READ THE DISPUTE RESOLUTION PROVISION BELOW BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH Euraka AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
The Services are not intended for the use of children under 18 and no such person is authorized to use them. By using the Services, you are representing that you are at least 18 years old. You also represent, by accessing or using the Services, that you are of legal age to enter into legal agreements.
- Definitions
“Content” means, collectively, all text, graphics, user interfaces, visual interfaces, trademarks, logos, sounds, artwork, and computer code in the Services.
“Linked Sites” means any links from the Services to other independent third-party websites.
“Products” means items that are available for purchase on the Services.
“Services” means Euraka's online applications, Euraka’s mobile applications, including without limitation Euraka’s services, and the Website.
“Submission” means any submission, user content, feedback, reviews, comments or suggestions you may provide regarding the Products and Services either directly or indirectly (for example, through the use on a third-party social media site of a company-designated hashtag).
“User” means the person or entity that enters into this Agreement and utilizes the Services.
The term “you” means Website visitors, User, and the individual accepting these Terms of Use on behalf of any legal entity.
“Website” means Euraka's websites and any other Euraka website where these Terms of Use are posted.
- Proprietary Rights
2.1 As between you and Euraka, Euraka reserves all rights, title, and interest in and to the Services, including all related intellectual property rights, subject to the limited rights expressly granted hereunder.
2.2 Euraka, the Euraka logo, and all other related names and logos are trademarks or registered trademarks of Euraka. All other names, team names, and logos on the Services are trademarks or registered trademarks of their respective owners, where applicable. Reference to any third party-owned trademarks herein is for informational purposes only and is not intended to indicate or imply any affiliation, association, sponsorship or endorsement by any owners of such third party-owned trademarks.
2.3 Unless otherwise noted, the Services and Content, including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained in the Services is owned, controlled or licensed by or to Euraka and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights. Except as expressly provided in these Terms of Use, no part of the Services and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without Euraka's express prior written consent.
2.4 You acknowledge and agree that any Submission is non-confidential and non-proprietary, shall be treated as public information, may be shared with others on other sites and platforms (including social media) and is submitted by you in compliance with these Terms of Use. Submissions that constitute feedback, comments or suggestions (collectively, “Feedback”) will be the sole and exclusive property of Euraka, and you hereby irrevocably assign to us all of your right, title and interest in and to all such Feedback, and Euraka shall have an unrestricted, irrevocable, world-wide, royalty-free right to use, communicate, reproduce, publish, display, distribute and exploit such Feedback in any manner it chooses. With respect to all other non-Feedback Submissions, you hereby grant Euraka an irrevocable, worldwide and perpetual license to use such Submissions as contemplated in these Terms of Use.
2.5 Your provision of a Submission constitutes a warranty and indemnity that you have sufficient license and/or other rights in the content to allow all desired use by Euraka and that the information is submitted to Euraka in compliance with all applicable laws.
2.6 You may not create, post, store or share any Submissions that violate these Terms (including, without limitation, the restrictions set forth in Section 4 below) or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your Submissions, and our use of such content as permitted by these Terms, will not violate any rights of, or cause injury to, any person or entity. Although we have no obligation to screen, edit or monitor Submissions, we may delete or remove Submissions at any time and for any reason with or without notice.
- Use of Services; Acceptable Use Policy
3.1 You agree to immediately notify us of any breach of security that you become aware of involving or relating to your use of the Services by emailing support_au@eureka.com. In addition, you agree to keep confidential any username(s) and password(s) associated with accounts created on our Services and with our business partners and payment processors, and to exit from your user account at the end of each session. Euraka explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section. You may not use anyone else’s account at any time.
3.2 You represent and warrant that your use of the Services will comply with all applicable federal, state, and local laws and regulations.
3.3 The Services are for your personal use only. Users of the Services may download or print the materials on the pages of the Services for personal, non-commercial use, provided that you do not modify or alter the materials in any way or delete or change any copyright or trademark notice. None of the information on the Services may be copied, distributed or transmitted in any way for commercial use without the express written consent of Euraka. Euraka reserves full ownership of and intellectual property rights in any materials downloaded from the Services.
3.4 In connection with your use of the Services, you agree that you will not:
3.4.1 interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
3.4.2 violate any local, state, provincial, national, or other law or regulation, or any order of a court;
3.4.3 “scrape,” “crawl” or “spider” any web pages or other services contained in the Services;
3.4.4 display, mirror or frame the Services, or any individual element within the Services, Euraka's name, any Euraka trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Euraka's express written consent;
3.4.5 post, upload, publish, submit or transmit any material that: (a) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) is fraudulent, false, misleading or deceptive; (d) is defamatory, obscene, pornographic, vulgar or offensive; (e) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (f) is violent or threatening or promotes violence or actions that are threatening to any other person; or (g) promotes illegal or harmful activities or substances;
3.4.6 access, tamper with, or use non-public areas of the Services, Euraka's computer systems, or the technical delivery systems of Euraka's providers;
3.4.7 attempt to probe, scan, or test the vulnerability of any Euraka system or network or breach any security or authentication measures;
3.4.8 avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Euraka or any of Euraka's providers or any other third party (including another user) to protect the Services or any of the content on the Services;
3.4.9 attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
3.4.10 use the Services as part of any effort to compete with us or otherwise use the Services and/or the Content for any revenue-generating endeavor or commercial enterprise; or
3.4.11 advocate, encourage, or assist any third party in doing any of the foregoing.
3.5 Any conduct by a User that in our discretion restricts or inhibits any other user from using or enjoying the Services is expressly prohibited.
3.6 Euraka reserves the right, at any time, without notice: (a) to modify, suspend or terminate operation of or access to the Services, or any portion of the Services at any time; (b) to modify or change the Services, or any portion of the Services, and any applicable policies or terms; and (c) to interrupt the operation of the Services, or any portion of the Services, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
3.7 Euraka reserves the right within its discretion to reject or remove from the Services any material that does not comply with these Terms of Use, or that in Euraka's sole reasonable judgment, does not comply with any applicable law, regulation, or other judicial or administrative order.
- Copyright Policy
We do not permit copyright infringing activities or infringement of intellectual property rights on the Services and will remove any such content if properly notified that such content infringes another’s intellectual property rights. If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
- description of the copyrighted work that you claim has been infringed;
- description of the material that you claim is infringing and where it is located on the Services;
- identification of the URL or other specific location on the Services where the material that you claim is infringing is located;
- your address, telephone number, and email address;
- statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
You can contact our Copyright Agent via email at Euraka.legal@midea.com with “DMCA Notice” in the subject line or by mail at Copyright Agent, c/oMidea America Corp., 300 Kimball Drive, Parsippany, NJ 07045.
Upon receipt of such notice, we will investigate and remove material if necessary. You will be notified of the results of such investigation.
- Term; Suspension; Termination
5.1 Euraka may, in its sole discretion, without prior notice and to the extent applicable, suspend or terminate your access to the Services and/or block your future access to the Services if we determine that you have violated these Terms of Use or other agreements or guidelines which may be associated with your use of the Services. You also agree that any violation by you of these Terms of Use will cause irreparable harm to Euraka for which monetary damages would be inadequate, and you consent to Euraka obtaining any injunctive or equitable relief that Euraka deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Euraka may have at law or in equity.
5.2 With respect to any termination or cancellation of this Agreement, you shall remain responsible for any fees, costs or expenses incurred prior to termination of this Agreement. Additionally, you shall be responsible for, and you agree to pay, any legal fees, court costs or expenses associated with enforcing the terms of this Agreement, whether upon termination or otherwise.
5.3 The provisions of this Agreement concerning prohibited activities, copyrights, trademarks, Submissions, disclaimers, limitation of liability, resolution of disputes, indemnity and jurisdictional issues shall survive any such termination or any other termination of this Agreement.
- Disclaimers; Limitation of Liability
6.1 Your use of our Products and Services is at your sole risk. Except as otherwise provided in writing by us, our Products and Services are provided on an “as is”, “as available”, and “with all faults” basis, without warranties or representations of any kind, either express or implied. To the fullest extent permitted by law, Euraka and its subsidiaries, affiliates, and each of its and their respective employees, directors, officers, shareholders, agents, vendors, licensors, contractors, successors and assigns (collectively, the “Euraka Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, in connection with, or otherwise related to these Terms, the Products, the Services or the Content.
6.2 Although we strive to describe our Products and Services accurately, we do not guarantee that such specifications or services are accurate, complete, reliable, current or error-free. Furthermore, while we attempt to ensure that your use of our Services is secure and safe, we cannot and do not represent that our Services or servers are free of viruses or other harmful components. You expressly assume the entire risk as to the quality and performance of the Services. Our Products may be subject to other restrictions and requirements under applicable law, and you are solely responsible for researching what legal restrictions and requirements may apply to your purchases from us.
6.3 THE Euraka PARTIES HEREBY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, TITLE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL COMPONENTS. NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY THE Euraka PARTIES OR THEIR SUPPLIERS WITH RESPECT TO A PHYSICAL PRODUCT SOLD BY THE Euraka PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW.
6.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY OF THE Euraka PARTIES BE RESPONSIBLE OR LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE, FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, UNLESS OTHERWISE SPECIFIED IN WRITING BY Euraka. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY OF THE EVENTS OR CIRCUMSTANCES GIVING RISE TO SUCH DAMAGES WERE FORESEEABLE AND EVEN IF THE Euraka PARTIES WERE ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
6.5 EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS, ANY OF THE Euraka PARTIES IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGES OR LOSSES WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED TO THESE TERMS OF USE OR YOUR USE OF THE PRODUCTS OR SERVICES, THE TOTAL AGGREGATE LIABILITY OF THE Euraka PARTIES FOR ANY AND ALL SUCH CLAIMS, REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO THE AGGREGATE AMOUNT YOU HAVE PAID, IF ANY, TO USE OUR PRODUCTS AND SERVICES HEREUNDER.
6.6 BY USING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED. ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT APPLICABLE, THAT OTHERWISE MIGHT LIMIT YOUR WAIVER OF SUCH CLAIMS.
6.7 THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THE FOREGOING SECTIONS APPLY REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR ANY OTHER LEGAL THEORY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6.8 Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so these limitations may not apply to you.
- Indemnity
To the fullest extent permitted by applicable law, you will indemnify, defend (if requested by Euraka), and hold harmless the Euraka Parties from and against any and all losses, liabilities, claims, demands, damages, judgments, investigations, fines, penalties, settlements, interest, expenses (including attorneys’ fees), or other costs (collectively, “Claims”) that directly or indirectly arise from or are related to any claim, suit, action, demand or proceeding made or brought against or incurred by any of the Euraka Parties, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (a) your access to or use of our Products and Services, or your conduct or activities in connection with the Products and Services, (b) your Submissions or other feedback; (c) your violation or alleged violation of these Terms of Use; (d) your violation or alleged violation of any laws, rules, regulations, orders, codes, statutes or ordinances of any governmental or quasi-governmental authorities in connection with your use of our Products and Services or your conduct in connection with our Products and Services; (e) information or material transmitted through you or through your account or devices, even if not submitted by you, that violates, infringes, or misappropriates the rights of another (including but not limited to intellectual property rights, publicity or privacy rights); or (f) any misrepresentation made by you. You agree to promptly notify the Euraka Parties of any third-party Claims, cooperate with the applicable Euraka Parties in defending such Claims and pay all fees, costs, and expenses associated with defending such Claims. Notwithstanding the foregoing, the Euraka Parties retain the right to assume the exclusive defense and control of any Claims and have the exclusive right to settle such Claims. You will not settle any Claims without, in each instance, the prior written consent of the relevant Euraka Party. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Euraka or the other Euraka Parties.
- Governing Law
You agree that all matters relating to your access to or use of the Services, including all disputes, will be governed by the laws of the State of New Jersey excluding: (a) its conflicts of law principles; and (b) the United Nations Convention on Contracts for the International Sale of Goods.
- Dispute Resolution
9.1 If you have any dispute, question or complaint about these Terms of Use or our services, please contact us first through our customer service centre and we will try to resolve it with you amicably.
9.2 If you are unable to resolve the dispute with us through negotiation, you can choose one of the following ways that suits you to resolve the dispute:
- a) Applying to the Australian Competition and Consumer Commission (ACCC);
- b) Applying to the consumer affairs agency in your state or territory;
- c) Bringing a legal action in an Australian court.
9.3 These Terms of Use are governed by and interpreted in accordance with Australian law. You and we agree to submit to the exclusive jurisdiction of the Australian courts.
- SMS Text Messaging
10.1 Euraka offers mobile messaging, where, if you opt-in, you agree to these Terms of Use and to receive marketing text messages from us. Participation in mobile messaging is optional and not a condition of purchase. The messages we send to you include marketing messages and may also include service-related communications. We may also use text message for multi-factor authentication. Messaging frequency may vary. You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
10.2 Regardless of the opt-in method you utilized to participate in mobile messaging, you agree that these Terms of Use apply to your participation in mobile messaging. By participating in mobile messaging, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Clients’ mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving mobile messages. Under no circumstances will we be responsible for any messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number.
10.3 SMS/MMS MOBILE MESSAGING OPT-OUT: If you do not wish to continue to receive mobile messages, please reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Client in order to opt out. You may receive an additional mobile message confirming your decision to opt out.
- Miscellaneous
11.1 The Services may contain Linked Sites, which are provided solely as a convenience to our user. Such Linked Sites are not under Euraka's control and Euraka is not responsible for and does not endorse the content of such Linked Sites, including any information, products, services or materials contained on such Linked Sites.
11.2 You may preserve these Terms of Use in written form by printing it for your records, and you waive any other requirement that these Terms of Use be evidenced by a written document.
11.3 All provisions of these Terms of Use are severable, and the unenforceability or invalidity of any of the provisions will not affect the enforceability or validity of the remaining provisions. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
11.4 These Terms of Use, together with the Privacy Policy and any other legal notices published by Euraka, constitute the entire agreement between you and Euraka with regard to your use of the Services. Euraka reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. Your continued use of the Services following the posting of changes indicates your agreement to and acceptance of the changes. If you do not agree with the modified terms, you may close your account. We last modified this Agreement on the date listed at the top of these Terms of Use.
11.5 Euraka's failure to insist on or enforce strict performance of these Terms of Uses shall not be deemed a waiver by Euraka of any provision or any right it has to enforce these Terms of Use. Any such waiver must be in writing in order to be effective. Except as expressly set forth herein, these Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.
11.6 This Agreement is binding on the parties hereto and their respective successors and permitted assigns. User may not assign this Agreement without the prior written consent of Euraka. Any assignment in violation of this section is void.
11.7 Euraka's failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, governmental restrictions, power failures, pandemics or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement.
11.8 No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement.
11.9 No joint venture, partnership, employment, or agency relationship exists between User and Euraka as a result of this Agreement or use of the Services.
Questions and Contact Information
Please contact us if you have any questions these Terms of Use. You may contact us by emailing us at support_au@eureka.com
