Terms and Conditions
Last Updated July 1, 2020
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE.
Pink Lotus Oceania Pty Ltd (“PLO”) operates and maintains the web pages located within the following URL on this server: https://pinklotus.com.au/powerup
The Site Does Not Provide Medical Advice
The Power Up Site is a diverse website and contains content, such as text, graphics, images, tools, information obtained from PLO’s licensors, and other material contained on the Power Up Site (the “Content”). Content provided on the Power Up Site is for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Power Up Site!
If you think you may have a medical emergency, you are advised to call your doctor or 000 immediately. PLO does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Power Up Site. Reliance on any information provided by PLO, its employees, others appearing on the Power Up Site at the invitation of PLO, or other visitors, subscribers or members to the Power Up Site, is solely at your own risk.
Content on the Power Up Site may include what could be interpreted by some as sexually explicit material. We are committed to protecting the privacy of children. You should be aware that the Power Up Site is not intended or designed to attract children under the age of 13. We do not collect personally identifiable information from any person we actually know is a child under the age of 13.
Use of Material
All material posted on the Power Up Site is protected by the copyright laws of Australia and in foreign countries. PLO authorizes you to view or download a copy of the material on the Power Up Site solely for your personal, noncommercial use if you include the copyright notice located at the end of the material, for example: “© 2020, Pink Lotus Oceania Pty Ltd. All rights reserved” and other copyright and proprietary rights notices that are contained in the Content. Any special rules for the use of certain Content and other items accessible on the Power Up Site may be included elsewhere within the Power Up Site and is incorporated into these Terms and Conditions by reference.
Title to the material remains with PLO or its licensors. Any use of the materials not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark, and other laws. Content and features are subject to change or termination without notice in the editorial discretion of PLO. All rights not expressly granted herein are reserved to PLO and its licensors.
If you violate any of these Terms and Conditions, your permission to use the material automatically terminates and you must immediately destroy any copies you have made of any portion of the material.
Intellectual Property Rights
The Pink Lotus Power Up name and logos are trademarks and service marks of PLO (collectively the “PLO Trademarks”). Other company, product, and service names and logos used and displayed via the Power Up Site may be trademarks or service marks of their respective owners, who may or may not endorse or be affiliated with or connected to PLO. Nothing in these Terms and Conditions or the Power Up site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of PLO Trademarks displayed on the Power Up Site, without our prior written permission in each instance. All goodwill generated from the use of PLO Trademarks will inure to PLO’s exclusive benefit.
The Site contains functionality (including blogs, discussion groups, comments, social network posts, user reviews of certain information, etc.) that allows users to upload content to the Site (collectively “Public Areas”). You agree that you will not upload or transmit any communications or content of any type to the Public Areas that infringe or violate any rights of any party. By submitting communications or content to the Public Areas, you agree that such submission is non-confidential for all purposes. If you make any such submission you agree that you will not send or transmit to PLO by email or electronic means (including through its ticket option) any communication or content that infringes or violates any rights of any party. If you submit any business information, idea, concept or invention to PLO, you agree that such submission is non-confidential for all purposes.
If you make any submission to a Public Area or if you submit any business information, idea, concept or invention to PO, you automatically grant-or warrant that the owner of such content or intellectual property has expressly granted PLO a royalty-free, perpetual, irrevocable, world-wide nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or content in any media or medium, or any form, format, or forum now known or hereafter developed. PLO may sublicense its rights through multiple tiers of sublicenses. If you wish to keep any business information, ideas, concepts or inventions private or proprietary, do not submit them to the Public Areas or to PLO via any other medium. We try to answer every inquiry in a timely manner, but are not always able to do so.
You agree that you are solely responsible for your interactions with any other user, member or account holder in connection with the Power Up Site and that PLO will have no liability or responsibility with respect thereto. PLO reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Power Up Site.
User Submissions of Image, Video, Audio Files
You agree to only post or upload media (such as photos, videos, audio etc) on the Power Up Site that you have taken yourself or that you have all rights to transmit and license and which do not violate trademark, copyright, privacy or any other rights of any other person. Photos or videos of celebrities and cartoon or comic images are usually copyrighted by the owner.
To protect your privacy, you agree that you will not submit any media that contains Personally Identifiable Information (like name, phone number, email address or website URL) of you or of anyone else. Uploading media like images or video of other people without their permission is strictly prohibited.
By uploading any media on the Power Up Site, you warrant that you have permission from all persons appearing in your media for you to make this contribution and grant rights described herein. Never post a picture or video of, or with someone, else unless you have their explicit permission.
You agree that you will not upload any material that contains software viruses, malware or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or the Power Up Site.
By uploading any media on the Power Up Site like a photo or video, (a) you grant to PLO a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in the media; (b) you certify that any person pictured in the submitted media (or, if a minor, his/her parent/legal guardian) authorizes PLO to use, copy, print, display, reproduce, modify, publish, post, transmit and distribute the media and any material included in such media; and (c) you agree to indemnify PLO and its affiliates, parent, shareholders, directors, officers and employees and hold them harmless from any and all claims and expenses, including attorneys’ fees, arising from the media and/or your failure to comply with these the terms described in this Agreement. PLO reserves the right to review all media prior to submission to the Power Up Site and to remove any media for any reason, at any time, without prior notice, at our sole discretion.
The Power Up Site provides several tools that allow you to record and store information. You are responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your Power Up Site passwords or accounts. It is your sole responsibility to (1) control the dissemination and use of sign-in name, screen name and passwords; (2) authorize, monitor, and control access to and use of your Power Up Site account and password; (3) promptly inform PLO if you believe your account or password has been compromised or if there is any other reason you need to deactivate a password. To send us a message, use the “Get in. Touch“ link located at the bottom of every page of our site. You grant PLO and all other persons or entities involved in the management, maintenance and operation of the Power Up Site the right to transmit, monitor, retrieve, store, and use your information in connection with the operation of the Power Up Site. PLO cannot and does not assume any responsibility or liability for any information you submit, or your or third parties’ use or misuse of information transmitted or received using the Power Up Site.
If you use Public Areas, such as PLO’s social network, discussion groups, blogs or other programs, you are solely responsible for your own communications, the consequences of posting those communications, and your reliance on any communications found in the Public Areas. PLO is not responsible for the consequences of any communications in the Public Areas. In cases where you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately. If you think you may have a medical emergency, call your doctor or 911 immediately.
In consideration of being allowed to use the Public Areas on the Power Up Site, you agree that the following actions shall constitute a material breach of these Terms and Conditions:
- Using a Public Area for any purpose in violation of local, state, national, or international laws;
- Posting material that infringes on the intellectual property rights of others or on the privacy or publicity rights of others;
- Posting material that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity as determined by PLO in its sole discretion;
- Posting advertisements or solicitations of business; except as posted on our Breast List community board;
- After receiving a warning, continuing to disrupt the normal flow of dialogue, or posting comments that are not related to the topic being discussed (unless it is clear the discussion is free-form);
- Posting chain letters or pyramid schemes;
- Impersonating another person;
- Distributing viruses, malware or other harmful computer code;
- Harvesting, scraping or otherwise collecting information about others, including email addresses, without their identification for posting or viewing comments;
- Allowing any other person or entity to use your identification for posting or viewing comments;
- Posting the same note more than once or “spamming”; or
- Engaging in any other conduct that restricts or inhibits any other person from using or enjoying the Public Area or the Power Up Site, or which, in the judgment of PLO, exposes PLO or any of its members or suppliers to any liability or detriment of any type.
Reservation of Rights
PLO Reserves the right (but is not obligated) to do any or all of the following:
- Record the dialogue in any of the Public Areas;
- Investigate an allegation that a communication(s) do(es) not conform to the terms of this section and determine in its sole discretion to remove or request the removal of the communication(s);
- Remove communications which are abusive, illegal, or disruptive, or that otherwise fail to conform with these Terms and Conditions;
- Terminate a user’s access to any or all Public Areas and/or the Power Up Site upon any breach of these Terms and Conditions;
- Monitor, edit, or disclose any communication in the Public Areas;
- Edit or delete any communication(s) posted on the Power Up Site, regardless of whether such communication(s) violate these standards;
PLO has no liability or responsibility to users of the Power Up Site or any other person or entity for performance or nonperformance of the aforementioned activities.
Advertisements, Searches, and Links to Other Sites
PLO may provide links to third-party web sites, including third parties that may be an affiliate of PLO and also operate their website under the domain name pinklotus.com.au. PLO also may select certain sites as priority responses to search terms you enter and PLO may agree to allow advertisers to respond to certain search terms with advertisements or sponsored content. PLO does not recommend and does not endorse the content on any third-party websites, including those maintained under the pinklotus.com.au domain name. PLO is not responsible for the content of linked third-party sites, sites framed within the Power Up Site, third-party sites provided as search results, or third-party advertisements, and does not make any representations regarding their content or accuracy. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such sites. PLO does not endorse any product, service, or treatment advertised on the Power Up Site..
Indemnity and Release
You agree to release, indemnify on demand and hold PLO and its affiliates and their officers, employees, directors and agents harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, costs, awards, fines, damages, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Power Up Site, your violation of these Terms and Conditions or your violation of any rights of another. You agree that PLO has the right to conduct its own defense of any claims at its own discretion, and that you will indemnify PLO for the costs of its defense (including, but not limited to attorney’s fees.)
Disclaimer of Warranties
YOUR USE OF THE POWER UP SITE IS AT YOUR SOLE RISK. THE POWER UP SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PLO AND ITS AFFILIATES EXPRESSLY DISCLAIM AND EXCLUDE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
PLO AND ITS AFFILIATES MAKE NO WARRANTY OR CONDITION THAT (I) THE POWER UP SITE WILL MEET YOUR REQUIREMENTS, (II) THE POWER UP SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE POWER UP SITE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE POWER UP SITE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PLO NOR ITS AFFILIATES WILL BE LIABLE FOR ANY (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, (B) DAMAGES FOR LOSS OF PROFITS, (C) DAMAGES FOR LOSS OF GOODWILL, (D) DAMAGES FOR LOSS OF USE, (E) LOSS OR CORRUPTION OF DATA, OR (F) OTHER INTANGIBLE LOSSES (EVEN IF PLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE POWER UP SITE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE POWER UP SITE; (III) ANY PROMOTIONS AND RELATED PRIZES OR REWARDS MADE AVAILABLE THROUGH THE POWER UP SITE; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE POWER UP SITE; OR (VI) ANY OTHER MATTER RELATING TO THE POWER UP SITE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PLO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES (INCLUDING CONTRACT, NEGLIGENCE, STATUTORY LIABILITY OR OTHERWISE) OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID PLO IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE POWER UP SITE OR WITH THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE POWER UP SITE.
ARBITRATION CLAUSE & CLASS ACTION WAIVER. THIS AFFECTS YOUR LEGAL RIGHTS
Arbitration; Class Action Waiver.
YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US OR ANY OF OUR OFFICERS, DIRECTORS OR EMPLOYEES ACTING IN THEIR CAPACITY AS SUCH (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS AND CONDITIONS, YOUR USE OF THE POWER UP SITE, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS AND CONDITIONS, YOU AND WE ARE EACH WAIVING OUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Notwithstanding the foregoing, nothing in these Terms and Conditions will be deemed to waive, preclude, or otherwise limit the right of either of us to (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) file suit in a court of law to address an intellectual property infringement claim.
Any dispute, controversy or claim arising out of, relating to or in connection with this agreement, including any questions regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by
the Australian Disputes Centre (ADC). The arbitration shall be conducted in Sydney, NSW in accordance with the ADC Rules for Domestic Arbitration operating at the time the dispute is referred to ADC (the “Rules”). The terms of the Rules are hereby deemed incorporated into this agreement and this clause shall survive termination of this agreement.
No Class Actions.
YOU AND WE AGREE THAT EACH MAY BRING CLAIMS TO THE FULLEST EXTENT LEGALLY PERMISSIBLE AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision.
If we make any future change to this arbitration provision, other than a change to our address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to our address for Notice of Arbitration, in which case your account with PLO will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
If this Disputes section is found to be unenforceable, then the entirety of this Disputes section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in the General section below will govern any action arising out of or related to these Terms and Conditions.
We each agree to keep the arbitration proceedings, all information exchanged between us, and any settlement offers confidential, unless otherwise required by law or requested by law enforcement or any court or governmental body. However, we may each disclose these matters, in confidence, to our respective accountants, auditors, and insurance providers.
These Terms and Conditions constitute the entire agreement between you and PLO and govern your use of the Power Up Site, superseding any prior agreements between you and PLO with respect to the Power Up Site. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms and Conditions will be governed by the laws of the State of New South Walves without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and PLO agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Sydney, New South Wales. The failure of PLO to exercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be (or are otherwise) invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms and Conditions remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Power Up Site or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms and Conditions without the prior written consent of PLO, but PLO may assign or transfer these Terms and Conditions, in whole or in part, without restriction. If we fail to enforce any of our rights, that does not result in a waiver of that right. The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Power Up Site may also provide notices to you of changes to these Terms and Conditions or other matters by displaying notices or links to notices generally on the Power Up Site.
Notice and Takedown Procedures; Copyright
If you believe any material accessible on or from the Power Up Site infringe your copyright, you may request removal of those materials (or access thereto) from the Power Up Site by contacting PLO and providing the following information:
Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
PLO’s address for copyright issues relating to the Power Up Site is as follows:
Pink Lotus Oceania Pty Ltd
Governor Phillip Tower, Level 36
1 Farrer Place
In an effort to protect the rights of copyright owners, PLO maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of the Power Up Site who are repeat infringers.