Terms of Use

This website pixelrush.com.au and its related services, products, websites (including subdomains and application-based URLs), platforms and applications (Website) is owned and operated by PixelRush Pty Ltd As Trustee for PixelRush Trust ABN 67 953 560 476 (Cosmierge).

These terms of use (Terms of Use) set out the terms on which we agree to give you access to use the Website. Other terms and conditions contained in the privacy policy (Privacy Policy) and elsewhere on our Website also form part of our agreement with you.

Please carefully read these Terms of Use. By using the Website, you agree to be bound by these Terms of Use and our Privacy Policy. If you don’t agree to be bound by these Terms of Use, you must not use the Website. These Terms of Use may be updated by us from time to time, and the updated Terms of Use will apply from the date they are published on the Website.  Each time you use our Website you should revisit these Terms of Use.

If you are agreeing to these Terms of Use on behalf of someone or entity, you represent and warrant that that you have the irrevocable authority and agreement of that person or entity to be bound by these Terms of Use.

1. Definitions & Interpretation

Definitions

In these Terms of Use unless inconsistent with the context or subject matter:

• ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
• Applicable Laws: any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you, and any User you are interacting with are located or which in any way govern or affect the use of the Services, including the laws of the State.
• Content: includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise uploaded to or stored on the Website by you, transmitted by the Website at your instigation, or supplied by you to us for uploading to, transmission by or storage on the Website.
• Intellectual Property: means without limitation our copyright, trademarks, know-how, processes and concepts, including any content that we develop or publish, the look and feel of the Website, the Website itself and any other website or platform developed by Cosmierge and the source code for those systems and all intellectual property rights related to such, whether registered or unregistered and whether developed before or after the date of these Terms of Use.
• Loss: any loss, liability, cost (including legal costs on a solicitor and own client basis), charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
• our, us and we: Cosmierge.
• Provider: any service provider who we connect you with through the Website.
• Provider Services: any services provided by a Provider from time to time.
• Privacy Policy: our privacy policy available on the Website.
• Related Parties: our related entities and related bodies corporate (as those terms are defined in the Corporations Act 2001 (Cth)), our officers, directors, agents, and employees.
• Services: any services that we provide to you, including the Website.
• State: Victoria, Australia.
• User: any person who uses the Website to search for and connect with Providers.
• you and your: a User.

Interpretation

In these Terms of Use, unless inconsistent with the context or subject matter:

• a reference to a person includes any other legal entity and vice versa;
• words importing the singular number include the plural number and vice versa;
• a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
• headings are for reference purposes only;
• where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
• references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
• unless otherwise stated, a reference to a monetary amount is a reference to an Australian dollar currency amount; and
• an obligation of two or more parties binds them jointly and each of them severally.

2. Using The Website

• The Website is provided to help us connect Users with Providers and give them the ability to arrange Provider Services. Providers are unrelated and not employed by us.
• Although we provide the Website as a tool to connect Users with Providers, we are not the supplier of any Provider Services. The actual contract for the supply of Provider Services is directly between a User and the Provider and the User and the Provider are solely responsible for fulfilment of their obligations under that contract. We merely provide a Service that connects Users with Providers.
• Our Services are available only to, and may only be used by, persons who are at least 18 years old and that can form legally binding contracts under Applicable Laws. If you do not qualify, please do not use our Services.
• Subject to you complying with these terms, we will provide our Services to you as set out in these Terms of Use.

3. Submitting a request for a PROVIDER

• To submit a request for a Provider, simply visit the Website, fill in the contact form and follow the prompts on the Website. We will then connect you with a Provider.
• Users should make their own enquiries and due diligence as to any Provider and Provider Services that we connect you with from your submission on the Website. It is the User’s sole responsibility to choose the correct Provider for their needs.

4. Providers and Provider Services

• Providers are a third party unrelated to us. Provider Services are completely controlled by the Provider and not us.
• You acknowledge that any arrangement or communication entered into with a Provider is solely at your own risk. We have no control, influence or involvement in such arrangements. Our responsibilities are limited to facilitating the availability of the Services.
• When you enter into an arrangement for the supply of Provider Services, you are entering into a contract directly with that Provider. We are not a party to any contract between you and that Provider and are not responsible for ensuring that that the Provider fulfills its obligations to you or complies with these Terms of Use or any other terms published by us or any Applicable Laws. Your legal rights in connection with the Provider Services or any breach of any obligations by a Provider are against that relevant Provider and not us. For the avoidance of doubt, we have no liability or obligation to you if a Provider breaches any terms of the supply of the Provider Services.
• We do not guarantee or make any representation that any information provided about or by a Provider is correct or that they are appropriately qualified and licenced to provide the Provider Services. We give no warranty as to the suitability of the Provider. The User must satisfy itself as to the suitability of the Provider, and it is the User’s sole responsibility to research and review the Provider’s information and ensure that the Provider Services are appropriate for them.
• We do not supply, provide, manage or control any Providers that we may connect you with through the Website or any Provider Services and are not responsible for their advertising or otherwise. The relevant Provider is solely responsible for the supply of the Provider Services to you. We have no control over, and do not ensure, guarantee or provide any warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:
  • any Provider Services (including without limitation that such Provider Services will be suitable to your specific requirements or any advice or information provided by a Provider and the quality or suitability of any Provider Services);
  • any representations made or information provided by Providers (including without limitation any qualifications or knowledge that a Provider may share); or
  • the ability of Providers to undertake their respective obligations.
• Because of the foregoing, in the event that you have a dispute with one or more Providers, you release and hold us (and our Related Parties) harmless from actions, claims, demands and Losses of every kind arising out of or in any way connected with such disputes.

5. Refunds

We have no liability or obligation to you if a Provider cancels Provider Services any time after an agreement is made or if the Provider Services are faulty or non-compliant with any details contained on the Website, these Terms of Use or any other terms or any Applicable Laws. If you have rights to a refund or other remedy in respect of Provider Services under Applicable Laws, then your rights are against the relevant Provider and not us.

6. Access and Termination

• We reserve the right, at any time and without prior notice to remove or disable:
  • access to this Website or any part of it for any reason; and
  • any User that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms of Use or otherwise harmful to the Website or the interests of other Users,
  • and we will not be liable to you for any Loss that you incur in the event that we do this.
• The termination of your access to the Website is without prejudice to the rights, liabilities and obligations of the parties that arose prior to the termination unless otherwise agreed by us.

7. Intellectual Property Rights

• You acknowledge and agree that:
  • Cosmierge owns all right, title and interest in and to the Intellectual Property of the Website and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in these Terms of Use;
  • you will not copy, reproduce, alter, modify, create derivative works, or publicly display (other than on the Website in accordance with your licence) any Cosmierge Intellectual Property except with the prior written permission of Cosmierge or the appropriate third party authorised to grant such permission and when doing so you must adequately acknowledge us and, in the case of websites, include a link from your website to our Website;
  • any works, items, materials or information of whatever nature produced or developed or discovered in connection with the Website shall remain the sole and exclusive property of Cosmierge, whether such property is tangible or is in the nature of industrial and intellectual property rights (including copyright and rights of confidential information) and you will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in such additional or further property to Cosmierge;
  • you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, sublicensable, non-exclusive licence to use, reproduce, commercialise, modify, adapt and communicate any Content in order to provide our Services and to otherwise advertise and market our business and for incidental services in accordance with our Privacy Policy (and you expressly consent to such use in accordance with our Privacy Policy);
  • you warrant that any Content you provide us or otherwise transmit through the Website with will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party;
  • we are not liable or responsible for any loss that you may experience in submitting Content to us or for our use of your Content in accordance with the licence granted; and
  • you must not falsely express or imply a relationship between you and us.
• Any of the foregoing, whether merely attempted or successfully executed, is a material breach of these Terms of Use and your use of the Website will be immediately terminated without notice or compensation to you.
• Cosmierge may in its sole and absolute discretion refuse or remove any Content from the Website.

8. Disclaimer

• You acknowledge and agree that your use of this Website and the Services is at your own risk. We provide our Services on an “as-is” basis and make no representations about the suitability, reliability, availability, timeliness, and accuracy of anything contained in this Website (including Provider Services and anything relating to Providers). Subject to the other terms of this clause and to the maximum extent permitted by Applicable Laws, anything contained in this Website is without warranty of any kind and we expressly exclude such warranties.
• You acknowledge and agree that:
  • Cosmierge cannot and does not confirm nor warrant or guarantee each Provider’s purported identity, biography or location.  We encourage you to vet Providers to your satisfaction;
  • no information provided by us constitutes medical, legal or financial advice, particularly in respect of your obligations to comply with any Applicable Laws. Any information is provided as a convenience to you and is to be taken as general information only. Any information contained in the Website has been considered in the context of certain conditions and subject to assumptions that cannot necessarily be applied to an individual case or particular circumstance;
  • the Website is not intended to establish a doctor-patient relationship between us and you, nor is it intended to replace the services of a health care professional. Any information or advice on the Website is provided as a general guideline only and not prescriptive or intended to be a substitute for your own doctor’s or health professional’s advice. Any information or advice should be discussed with your doctor or healthcare professional before adopting. You should not rely on any information contained in the Website or linked or referred to materials or websites in making medical, health-related or any other decisions of any kind. You should verify the accuracy of any information with a doctor/health practitioner before relying on it, who will be able to advise you about your own individual medical needs;
  • although we provide tools to assist you get connected with a Provider, any decision you make and any consequences that flow from that decision are your sole responsibility;
  • nothing on the Website is a promise or guarantee of results. We cannot and do not make any guarantees that the Website will achieve any results for you;
  • any testimonials and examples within any marketing materials are not to be taken as a guarantee that you will achieve the same or similar results;
  • we do not guarantee that the Website will be error-free or uninterrupted, or that your use of the Website will provide any specific results;
  • we do not guarantee the quality, suitability, reliability, accuracy and usefulness of any Provider and their Provider Services;
  • we do not represent or warrant that your use of the Services will meet your particular requirements, whether those requirements are disclosed to us or not.

9. Limitation of Liability

• Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms of Use to the maximum extent permitted by law.
• Without limitation to clause 1, we will not be liable for any Loss to you or any other person, due to or arising directly or indirectly from:
  • your use or inability to use this Website in any way;
  • your reliance on the Website;
  • any Provider Services;
  • any act, omission or default, whether negligent or otherwise of any Provider or third party;
  • any Loss occasioned by any Provider or third party;
  • any Content; or
  • any action taken on your account.
• Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms of Use, including any breach by us of these Terms of Use, however arising, in contract, in tort (including negligence), under any statute, custom, law or on any other basis is limited to the actual amounts paid by you under these Terms of Use to us in the 1-month period preceding the matter or event giving rise to the claim (if any).
• We exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with the Services.
• Nothing in these Terms of Use is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
• If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option the resupply of the Services or the payment of the cost of resupply.
• Where you are or may be entitled to recover from a third party (such as an insurer) any sum in respect of any matter or event that could give rise to a claim under these Terms of Use, you must:
  • use your best endeavours to recover that sum before making the claim;
  • keep us informed of the conduct of such recovery; and
  • reduce the amount of the claim to the extent that sums are recovered.
• This limitation of liability applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms of Use or your use of our Services.

10. Indemnity

• You agree to indemnify and hold us and our Related Parties, harmless from and against any actions, claims, demands, proceedings, Losses of every kind and claims made by third parties, due to or arising out of:
  • your use or inability to use this Website in any way;
  • any Provider Services agreed to by you;
  • any Provider’s breach or negligent performance or failure or delay to provide any Provider Services or perform their obligations under a relevant arrangement;
  • your disputes with Providers;
  • any Loss, damage or claim made against us by a third party:
    • for actual or alleged infringement of a third party’s intellectual property rights arising out of the supply or use of the Website by you;
    • for death, personal injury, illness or damage to property resulting from Provider Services purchased by you; or
    • to the extent that the claim results from the breach, negligent performance or failure or delay in performance of these Terms of Use by you;
  • any breach of any of these Terms of Use or any act or omission by you; or
  • any action taken on your Account.
• Any amounts payable under this indemnity must be paid to us immediately on demand without set-off or counter claim.
• If a payment due under this clause is subject to tax (whether by way of direct assessment or withholding at its source), we will be entitled to receive from you such amounts as will ensure that the net receipt, after tax, to us in respect of the payment is the same as it would have been were the payment not subject to tax.
• Except where expressly stated to the contrary in these Terms of Use, the rights of a party under this clause are in addition to any other rights available to that party whether those rights are provided for under these Terms of Use or by law.
• It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause.
• The indemnities in this clause:
  • are continuing obligations on you, independent from your other obligations under these Terms of Use and survive termination or expiry of these Terms of Use; and
  • are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.

11. Privacy

• We reserve the right to share any information provided by you to us with Providers where you submit a request to contact a Provider or otherwise make an enquiry or offer to a Provider, and to store such conversations between you and that Provider that occurs through the Website in accordance with our Privacy Policy.

12. Reviews

• Users may be given an opportunity to review Providers on the Website.
• Reviews must be honest and accurate, and not contain unlawful or objectionable content, including but not limited to, reviews containing defamatory, libellous, abusive offensive or obscene language.
• We reserve the right not to publish reviews, to amend content of reviews at any time and to remove reviews from the Website without notice in our discretion.
• We are in no way responsible or liable for the information that is contained in any reviews published and do not make any representation or warranty as to the accuracy or reliability of any information or content that is published in the review. We are under no obligation to remove any review published by or about you, and you agree that we are not liable under any laws (including defamation and misleading and deceptive conduct) simply through the publication of reviews on the Website.

13. General provisions

No Waiver

No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms of Use unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

Assignment, Novation and Other Dealings

• Any rights of Cosmierge that arise out of or under these Terms of Use are assignable and capable of novation by that party in its discretion and without notice or your prior written consent.
• Any rights of any User that arise out of or under these Terms of Use are not assignable or capable of novation by the User without the prior written consent of Cosmierge.

Severability

• If the whole or any part of a provision of these Terms of Use is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
• Clause 3(a) does not apply if the severance of a provision of these Terms of Use in accordance with that clause would materially affect or alter the nature or effect of the parties’ obligations under these Terms of Use as determined by Cosmierge.

No Merger

On completion or termination of these Terms of Use, the rights and obligations of the parties set out in these Terms of Use will not merge and any provision that has not been fulfilled remains in force.

Survival

Any clause which by its nature is intended to survive termination or expiry of these Terms of Use will survive such termination or expiry.

Further Action

Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms of Use and the transactions contemplated by these Terms of Use.

Time of the Essence

Time is of the essence in these Terms of Use in respect of any date or time period and any obligation to pay money.

Relationship of the Parties

• Nothing in these Terms of Use gives a party authority to bind any other party in any way.
• Nothing in these Terms of Use imposes any fiduciary duties on a party in relation to any other party.

Remedies Cumulative

Except as provided in these Terms of Use and permitted by law, the rights, powers and remedies provided in these Terms of Use are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms of Use.

Entire Agreement

These Terms of Use states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

No Reliance

No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms of Use.

Governing Law and Jurisdiction

• These Terms of Use are governed by the law in force in the State.
• Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms of Use.
• Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 12(a) on the basis that:
  • any proceeding arising out of or in connection with these Terms of Use has been brought in an inconvenient forum; or
  • the courts described in clause 12(a) do not have jurisdiction.