Terms and Conditions

1. About the Website

(a) Welcome to www.fluted.com.au (the 'Website'). The Website offers music education services including

(i) online courses and live coaching lessons (‘Coaching Services’); and

(ii) an opportunity to browse and purchase various products that have been listed for sale through the Website (the 'Products').

(collectively, the 'Services').

(b) The Website is operated by Fluted (ABN 58 437 265 253). Access to and use of the Website, or any of its associated Services, is provided by Fluted or its licensors. Please read these terms and conditions (the 'Terms') carefully. By using, browsing and/or reading the Website, this signifies that You have read, understood and agree to be bound by the Terms. If You do not agree with the Terms, You must cease usage of the Website, or any of Services, immediately.

(c) Fluted reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Fluted updates the Terms, it will use reasonable endeavours to provide You with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before You continue, we recommend You keep a copy of the Terms for Your records.

2. Acceptance of the Terms

When we refer to “You” or “User”, we mean the entity You represent in accepting these Terms, or, if that does not apply, You individually. You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to You by Fluted in the user interface.

3. Eligibility and Account Terms

(a) Fluted Services are not intended to be accessed by minors without parental consent and supervision. You must be at least 18 years of age to enrol in any Services that are online courses and/or online coaching lessons (‘Coaching Services’), or if You are between the ages of 13 and 18, You must have Your parent or guardian’s permission to enrol in any Coaching Services. By using the Website and enrolling in or purchasing any Coaching Services, You are telling us by Your actions that You have obtained that permission (You are ‘representing’ and ‘warranting’ that You have obtained the appropriate permissions to use the Website and Coaching Services). IF YOU ARE UNDER THE AGE OF 13 YOU MAY NOT USE THE COACHING SERVICES IN ANY MANNER NOR MAY YOU REGISTER FOR AN ACCOUNT.

(b) To access or use certain features of the Coaching Services, You may be required to register for an account (‘Account’). When You register for an Account, You agree to provide true, accurate, current and complete information and to keep Your Account up to date.

(c) In order to access and/or purchase the Services, you may have to first register as a user of the Website. As part of the registration process, or as part of your continued use of the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:

(i) Email address;

(ii) Preferred username;

(iii) Mailing address;

(iv) Telephone number;

(v) Password; and

(vi) Any prior knowledge or experience in flute playing, and your lesson goals.

(d) You warrant that any information you give to Fluted in the course of completing the registration or any purchase process will always be accurate, correct and up to date.

(e) Once you have completed the registration or purchase process, you may be a registered member of the Website ('Member') and agree to be bound by the Terms.

(f) You may not use the Services and may not accept the Terms if:

(i) you are not of legal age to form a binding contract with Fluted; or

(ii) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

4. Your obligations as a User

As a User, You agree to comply with the following:

(a) You will use the Services only for purposes that are permitted by:

(i) the Terms; and

(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;

(b) You have the sole responsibility for protecting the confidentiality of Your password and/or email address associated with any Account. Use of Your password by any other person may result in the immediate cancellation of the Services;

(c) Any use of Your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Fluted of any unauthorised use of Your password or email address or any breach of security of which You have become aware;

(d) Access and use of the Website is limited, non-transferable and allows for the sole use of the Website by You for the purposes of Fluted providing the Services;

(e) You will not use the Services or the Website in connection with any commercial endeavours except those that are specifically endorsed or approved by the management of Fluted;

(f) You will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;

(g) You agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Services. Appropriate legal action will be taken by Fluted for any illegal or unauthorised use of the Website; and

(h) You acknowledge and agree that any automated use of the Website or its Services is prohibited.

(i) The Coaching Services may provide You with opportunities to post, upload or transmit content that is intended to be viewed by other uses (‘Posts’). You will not submit any Posts that include obscene language, are harassing, defamatory or otherwise illegal.

(j) By submitting Posts to the Website or any online course within the Coaching Services, You grant Fluted a perpetual, irrevocable, royalty-free, worldwide, non-exclusive right and licence, to use, reproduce and publicly display, prepare derivative works from and distribute Your Posts for the purposes of sharing testimonials regarding Fluted’s Services.

5. Payment

(a) Where the option is given to You, You may make payment for the Services (the 'Services Fee') by way of:

(i) Electronic funds transfer ('EFT') into our nominated bank account if details are provided;

(ii) Credit Card Payment ('Credit Card'); or

(iii) PayPal ('PayPal').

(b) Payment is due in full at the time of purchasing the Services, unless otherwise indicated to You personally in writing by Fluted or stipulated on an invoice from Fluted.

(c) All online payments made in the course of Your use of the Services are made using Stripe or PayPal, or any payment gateway provided by our online course provider platform. In using the Website, the Services or when making any payment in relation to Your use of the Services, You warrant that You have read, understood and agree to be bound by the Stripe or PayPal or other such terms and conditions which are available on their respective websites.

(d) You acknowledge and agree that where a request for the payment of the Services Fee is returned or denied, for whatever reason, by Your financial institution or is unpaid by You for any other reason, then You are liable for any costs, including banking fees and charges, associated with the Services Fee.

(e) You agree and acknowledge that Fluted can vary the Services Fee at any time.

6. Refund Policy

(a) Fluted will only provide You with a refund of the Services Fee in the event:

(i) Fluted is unable to continue to provide the Services; or

(ii) Fluted’s online course provider platform guarantees a refund; or

(iii) if Fluted makes a decision, in its absolute discretion, that it is reasonable to do so under the circumstances (the 'Refund').

(b) Fluted does not under any circumstances guarantee Refunds for any live online Coaching Services that are scheduled individual coaching lessons. You agree that when arranging a scheduled live online coaching session or lesson that You will not be offered a Refund if You simply miss the scheduled time or are otherwise unhappy with the session. Fluted may in its absolute discretion offer either:

(i) to reschedule the Coaching Service; or

(ii) a Refund,

where in any rare circumstance Fluted’s coach is not able to attend the session at the scheduled time.

(c) Fluted does not offer Refunds for buyer’s remorse. Fluted may, at its sole discretion, provide a Refund on the return of the Products within 7 days where the Product packaging is unopened and remains in a saleable condition. You must contact Fluted via email at info@fluted.com.au prior to returning any products. You acknowledge and agree that you are liable for any postage and shipping costs associated with any Refund pursuant to this clause.

(d) Some of Fluted’s Products are print on demand products fulfilled by Printful, and may be eligible for a refund under Printful’s refund policy. Any claims for misprinted/damaged/defective Products must be notified to Fluted via email at info@fluted.com.au within 10 days after the product has been received. Be aware that Fluted may require a photo to be submitted with your email report to begin a refund request with Prinful.

7. Warranty

(a) Fluted's Products may come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure (the 'Warranty').

(b) You may make a claim under this clause (the 'Warranty Claim') for material defects and workmanship in the Products within 3 months from the date of purchase (the 'Warranty Period').

(c) In order to make a Warranty Claim during the Warranty Period, you must provide proof of purchase to Fluted showing the date of purchase of the Products, provide a description of the Products and the price paid for the Products by sending written notice to Fluted by email at info@fluted.com.au.

(d) Where the Warranty Claim is accepted then Fluted will, at its sole discretion, either refund your purchase price, or replace any defective Products with a new equivalent during the Warranty Period at no charge to you for. You acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in facilitating the Warranty Claim.

(e) The Warranty shall be the sole and exclusive warranty granted by Fluted and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Products to which this warranty relates.

(f) All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.

(g) The Warranty does not apply to any appearance of the supplied Products nor to the Coaching Services nor to any supplied Products where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.

8. Delivery

(a) You acknowledge that the Products offered by Fluted integrate delivery (the 'Delivery Services') through the use of third party delivery companies (the 'Delivery Service Providers').

(b) In providing the Products, Fluted may provide you with a variety of delivery and insurance options offered as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that Fluted is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.

(i) contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and

(ii) contact us by sending an email to info@fluted.com.au outlining in what way the Products were damaged in transit so we are able to determine if the Delivery Service Provider should be removed from the Purchase Services.

9. Copyright and Intellectual Property

(a) The Website, the Services and all of the related products of Fluted are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the Services and compilation of the Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, design elements and interactive features) or the Services are owned or controlled for these purposes, and are reserved by Fluted or its contributors or licensors as the case may be.

(b) All trademarks, service marks and trade names are owned, registered and/or licensed by Fluted, who grants to You a worldwide, non-exclusive, royalty-free, revocable license whilst You are a User to:

(i) use the Website pursuant to the Terms;

(ii) copy and store the Website and the material contained in the Website in Your device's cache memory; and

(iii) print pages from the Website for Your own personal and non-commercial use.

Fluted does not grant You any other rights whatsoever in relation to the Website or the Services. All other rights are expressly reserved by Fluted.

(c) Fluted retains all rights, title and interest in and to the Website and all related Services. Nothing You do on or in relation to the Website will transfer any:

(i) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright, or

(ii) a right to use or exploit a business name, trading name, domain name, trade mark or industrial design, or

(iii) a thing, system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a thing, system or process),

to You.

(d) You may not, without the prior written permission of Fluted and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Services or third party Services for any purpose, unless otherwise provided by these Terms. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.

10. Privacy

Fluted takes Your privacy seriously and any information provided through Your use of the Website and/or Services are subject to Fluted's Privacy Policy, which is available on the Website.

11. General Disclaimer

(a) You acknowledge that Fluted does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.

(b) Fluted will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.

(c) Nothing in the Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

(d) Subject to this clause, and to the extent permitted by law:

(i) all terms, guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded; and

(ii) Fluted will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

(e) Use of the Website and the Services, and any of the Products of Fluted (including the Delivery Services), is at Your own risk. Everything on the Website and the Services is provided to You "as is" and "as available" without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors and licensors of Fluted make any express or implied representation or warranty about the Services or any Products (including the Products or Services of Fluted) referred to on the Website. This includes (but is not restricted to) loss or damage You might suffer as a result of any of the following:

(i) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;

(ii) the accuracy, suitability or currency of any information on the Website, the Services, or any of its Services related products (including third party material and advertisements on the Website);

(iii) costs incurred as a result of You using the Website, the Services or any of the products of Fluted;

(iv) the Services or operation in respect to links which are provided for Your convenience;

(v) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or

(vi) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.

12. Education Services

(a) By using our Services, You agree that Fluted is not to be held liable for any decisions You make based on any of our services or guidance and any consequences, as a result, are Your own. Under no circumstances can You hold Fluted liable for any actions You take nor can You hold us or any of our employees liable for any loss or costs incurred by You as a result of any guidance, advice, coaching, materials or techniques used or provided by Fluted.

(b) All our information on both the Website and in consultations or Coaching Services is intended to assist You and does not in any way, nor is it intended to substitute professional, financial or legal advice. Results are not guaranteed and Fluted takes no responsibility for Your actions, choices or decisions.

(i) are not guaranteed to deliver any particular result, and You will need to apply Yourself and undertake a regular practice regime in order to achieve progress; and

(ii) do not grant or confer on You any formal educational qualification.

13. Limitation of liability

(a) Fluted's total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Services Fee paid by you under these Terms, or where you have not paid the Services Fee, then the total liability of Fluted is the resupply of information or Services to you.

(b) You expressly understand and agree that Fluted, its affiliates, employees, agents, contributors and licensors shall not be liable to You for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by You, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

(c) Fluted is not responsible or liable in any manner for any site content (including any third party content or your Posts) posted on the Website or in connection with the Services, whether posted or caused by users of the website of Fluted, by third parties or by any of the Services offered by Fluted.

(d) You acknowledge that Fluted does not provide the Delivery Services to you and you agree that Fluted will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.

14. Termination of Contract

(a) The Terms will continue to apply until terminated by either You or by Fluted as set out below.

(b) If You want to terminate the Terms, You may do so by:

(i) providing Fluted with 14 days' notice of Your intention to terminate if You have secured live Coaching Services; and

(ii) closing Your Accounts for all of the Services which You use, where Fluted has made this option available to You.

Your notice should be sent, in writing, to Fluted via the 'Contact Us' link on our homepage.

(i) You have breached any provision of the Terms or intend to breach any provision;

(ii) Fluted is required to do so by law;

(iii) the provision of the Services to You by Fluted is, in the opinion of Fluted, no longer commercially viable, or if Fluted’s course provider platform ceases to operate.

(d) Subject to local applicable laws, Fluted reserves the right to discontinue or cancel Your Account at any time and may suspend or deny, in its sole discretion, Your access to all or any portion of the Website or the Services without notice if You breach any provision of the Terms or any applicable law or if Your conduct impacts Fluted's name or reputation or violates the rights of those of another party.

(e) When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Fluted have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.

15. Indemnity

You agree to indemnify Fluted, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:

(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your Content;

(b) any direct or indirect consequences of You accessing, using or transacting on the Website or attempts to do so; and/or

16. Dispute Resolution

(a) Compulsory:

If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

(b) Notice:

A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.

On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties ') must:

(i) Within 21 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;

(ii) If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;

(iii) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;

(iv) The mediation will be held in Toowoomba, Australia.

(d) Confidential:

All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.

(e) Termination of Mediation:

If 2 weeks have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

17. Venue and Jurisdiction

The Services offered by Fluted are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, You agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.

18. Governing Law

The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

19. Independent Legal Advice

Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

20. Severance

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

Last updated 16 September 2022