Terms of Service - Access Touch

Terms and Conditions

These Terms are entered into between HTP Entertainment Pty Ltd t/a Access Touch ABN 17 643 218 428 (we, us or our) and you, the person (or the person’s legal guardian where the person does not have the mental capacity to enter into these Terms), who requests to hire the Doll through our website, available at www.accesstouch.com.au (Site). Together, we are the “Parties”, and each is a “Party”.

1. Acceptance and Term

1.1 You accept these Terms by the earlier of:

(a) confirming that you accept these Terms through our Site;

(b) completing and sending the Form through our Site;

(d) instructing us (whether orally or in writing) to proceed with hiring out the Doll; and

(e) paying any part of the Fee.

1.2 By accepting these Terms, you:

(a) confirm that you do not have a sexually transmitted disease;

(b) confirm that you are at least 18 years of age;

(c) warrant that you have the legal capacity to accept these Terms, or, where you do not have legal capacity, that your guardian has accepted these Terms on your behalf and accepts all responsibilities and liabilities under these Terms; and

(d) confirm that you are located in our delivery locations as set out on the Site.

1.3 We may, at our absolute discretion, accept or reject any request to hire the Doll for whatever reason and we will have no obligation to hire the Doll to you (including if we cannot charge your chosen payment method). We will notify you of a rejection within a reasonable time of your acceptance of these Terms.

1.4 These Terms will commence on the Commencement Date and end on the later of the date the Doll is collected by us, or returned to us, in accordance with these Terms or the expiry of the Hire Period, unless these Terms are terminated earlier.

2. Our obligations

2.1 In consideration of you paying the Fee and complying with these Terms, we agree to hire out the Doll in accordance with these Terms.

2.2 If these Terms express a time within which the Doll is to be hired out, you agree that such a time is an estimate only, and creates no obligation on us to hire out the Doll to you by that time.

3. Your general obligations

3.1 You agree to:

(a) comply with these Terms, any user guides or manufacturers guides that we provide along with the Doll, our reasonable requests or requirements (including as to safety procedures and policies) and all applicable laws; and

(b) provide all assistance, information, and all things reasonably necessary to enable us to comply with our obligations under these Terms and at law.

3.2 You warrant and agree that:

(a) there are no legal restrictions preventing you from entering into these Terms;

(b) all information and documentation that you provide to us in connection with these Terms is true, correct and complete; and

(c) you have not relied on any representations or warranties made by us in relation to hiring out the Doll (including as to whether the Doll is fit or suitable for your particular purposes), unless expressly stipulated in these Terms.

3.3 You agree to pay us:

(a) the Fee;

(b) the Cancellation Fee (if applicable); and

in accordance with the Payment Terms.

3.4 If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion):

(a) immediately cease hiring out the Doll and, if applicable, enter any premises where the Doll is located, and recover or repossess the Doll (and you agree to provide any access, items and consents required to enable us to do so), and you agree to pay our additional costs of doing so;

(b) charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date; and/or

(c) engage debt collection services for the collection of unpaid and undisputed debts for any outstanding amounts owed to us.

4. Ordering and Delivery

4.1 We currently deliver to certain areas as set out on the Site. Please refer to the delivery information on the Site to ensure you are in our delivery area.

4.2 You will have the ability to choose a Delivery Time and Location, and a Collection Time, using the Form, based on the availability of Dolls as set out on the Site.

4.3 We will attempt to notify you via text message when we are on our way to deliver or collect the Doll.

4.4 We will deliver and collect the Doll ourselves or through our Personnel.

4.5 On the Form, you will be able to select either Discrete Delivery or Assisted Delivery.

4.6 Discrete Delivery means that the Doll will be dropped off at the Location and you will be notified of this via a text message. Where you have selected Discrete Delivery, the Doll will also be collected in a discrete manner at the Collection Time.

4.7 Assisted Delivery means that we will assist you in moving the Doll inside your premises at the Location when delivering the Doll. Where you have selected Assisted Delivery, we will assist you in moving the Doll out of your premises at the Collection Time.

4.8 You agree that you or your authorised representative must be present at the Delivery Time and the Location to receive the Doll. You agree to notify us if you need to change the Delivery Time or Location and the Parties will mutually agree on a new Delivery Time and/or Location.

4.9 You agree that despite any delay in us delivering the Doll, or a change in the Delivery Time, your obligation to pay the full Fee will remain.

4.10 Cancellations by you: If you cancel the hire of the Doll, these Terms will terminate and clause 9.2 will apply. You may cancel your order to hire the Doll at least 24 hours prior to the start of the Hire Period. If you cancel within 24 hours of the start of the Hire Period, you agree to pay the Cancellation Fee. You agree that the Cancellation Fee is a genuine pre-estimate of loss, suffered or incurred by us, as a result of your cancellation of hiring the Doll at short notice.

5. Hire

Original Condition of Doll

5.1 You agree that you are solely responsible for determining whether the Doll will be suitable, fit for purpose, and in compliance with its description.

5.2 Unless you notify us in writing within 1 hour of receiving the Doll, demonstrating that the Doll does not comply with any description detailing the condition of the Doll (Original Condition Description), you agree that the Doll has been delivered in good condition, clean, free from damage or defect, fit for purpose and in accordance with these Terms (Original Condition).

5.3 If you provide us with notice under clause 5.2, you may agree to accept the Doll in the condition provided, which will then be deemed to be the Original Condition.

Warranties

5.4 You warrant and agree that:

(a) the Doll may only be used by you;

(b) you will not use the Doll, or allow the Doll to be used, in breach of any laws (including any laws regarding safety);

(c) you will keep the Doll under your custody and control at all times, and you will not sublease, rent, sell, or otherwise transfer the Doll to any other person;

(d) you will only use the Doll at the Location;

(e) you will use the Doll safely and not partake in reckless behaviour while using Doll (including, but not limited to, using the Doll outdoors or using the Doll in a state that may restrain or impair your ability to use the Doll safely and in accordance with any laws);

(f) you will not make any modifications to the Doll; and

(g) you will immediately discontinue the use of the Doll if it is unsafe to use the Doll, including due to any technical or mechanical error or default.

Maintenance

5.5 You agree to:

(a) protect and keep the Doll in the Original Condition (including being in good working order and condition), subject to any fair wear or tear;

(b) only allow our Personnel to service or repair the Doll;

(c) prevent the Doll from being subject to any loss, theft, damage, vandalism or destruction and notify us immediately if the Doll is stolen, lost, destroyed or damaged; and

(d) contact us immediately if there are any technical or mechanical issues with the Doll.

5.6 You agree that you are responsible for the costs of any repairs or replacement to or of the Doll that are necessary as result of loss, theft, damage, vandalism, misuse or neglect to the Doll during the Hire Period.

5.7 Where we undertake the repairs or replacement on your behalf, you agree to pay us the costs of the repairs or replacement. For the avoidance of doubt, if the Doll is stolen, you will be responsible for paying us the then current market value of the Doll, taking into consideration the Original Condition.

5.8 For any amounts due under clauses 5.6 or 5.7 you will be invoiced the amount and payment will be due as per the payment terms on the invoice.

5.9 If the Doll is stolen, you agree to immediately notify the police and file a police report.

Collection of Doll

5.10 You agree to allow us to collect the Doll in the Original Condition, at the Location and by the Collection Time, or sooner, if requested by us on reasonable grounds (or as otherwise provided under these Terms). If the Doll is not available to be collected by us within a reasonable time of the Collection Time, we may report the Doll as stolen and you will be responsible for the Doll under clause 5.6.

5.11 You agree to provide us (and our Personnel) with unfettered access to any premises where the Doll is located, including the Location, free from harm or risk to health or safety:

(a) at the times and on the dates requested by us; and/or

(b) to enable us to comply with our obligations under these Terms or at law,

and you agree to pay us any additional costs that we may suffer or incur if you fail to do so.

6. Title and Risk

6.1 Risk in the Doll will pass to you once we have delivered the Doll to the Location.

6.2 You agree that once we have delivered the Doll to the Location, you will be solely responsible for the Doll. We agree that risk in the Doll will be with us during any period where the Doll is in our full custody and control and when it is returned to us in accordance with these Terms.

6.3 You agree that title in the Doll will remain with us, and you take the Doll as a bare bailee only.

7. Security Interest

7.1 You agree to not create an encumbrance, lien, charge or other interest on or over the Doll.

7.2 You agree that we hold a general lien over the Doll, for the satisfactory performance of your obligations under these Terms.

7.3 You agree that these Terms and your obligations under these Terms creates a registrable security interest in favour of us, and you consent to the security interest (and any other registrable interest created in connection with these Terms) being registered on any relevant securities register (and you must do all things to enable us to do so).

8. Liabilities

8.1 Australian Consumer Law

(a) Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Doll which cannot be excluded, restricted or modified (Statutory Rights).

(b) If the Australian Consumer Law applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the Australian Consumer Law. You agree that our Liability for the hiring out of the Doll provided to an entity defined as a consumer under the Australian Consumer Law is governed solely by the Australian Consumer Law and these Terms.

(c) Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services is provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

8.2 Exclusions

Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

(a) your acts or omissions;

(b) any personal injuries or illnesses arising from your use of the Doll;

(c) any use or application of the Doll by a person or entity other than you, or other than as reasonably contemplated by these Terms;

(d) any works, services, goods, materials or items which do not form part of the hiring out of the Doll (as expressed in these Terms), or which have not been provided by us; and

(e) any event outside of our reasonable control, including a Force Majeure Event (whether known or unknown at the Commencement Date.

8.3 Limitations

Despite anything to the contrary, to the maximum extent permitted by law:

(a) we will not be liable for Consequential Loss;

(b) a liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party; and

(c) our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Doll or, in our sole discretion, to us repaying you the amount of the Fee paid by you to us in respect of the Doll to which the Liability relates.

8.4 Indemnity

Despite anything to the contrary, to the maximum extent permitted by law, you are liable for and agree to indemnify, hold harmless, release and discharge, us in respect of any Liability which we may suffer, incur or are otherwise liable for as a result of, or in connection with:

(a) any loss (including theft) of, or damage to, the Doll while the Doll is in your custody or control or possession;

(b) our inability to deliver or collect the Doll in accordance with these Terms where such an inability is caused or contributed to by you;

(c) the Doll not being in its Original Condition at the end of the Hire Period or at the time of collection or return of the Doll;

(d) all Liabilities suffered or incurred by us in repossessing or recovering the Doll;

(e) your acts or omissions; or

(f) your breach of these Terms or any laws.

8.5 This clause 8 will survive the termination or expiry of these Terms.

9. Termination

9.1 These Terms will terminate immediately upon written notice by:

(a) us, if:

(1) you breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us; or

(2) you are unable to pay your debts as they fall due; and

(b) you, if we are in breach of a material term of these Terms, and that breach has not been remedied within 10 Business Days of being notified by you.

9.2 Upon expiry or termination of these Terms:

(a) we will cease providing the Doll to you;

(b) you are to pay for any Fee due and payable prior to termination, and all other amounts due and payable under these Terms, including the Cancellation Fee (if applicable);

(c) pursuant to clause 9.1(a), you also agree to pay our additional costs arising from, or in connection with such termination; and

(d) you agree to grant us such rights of access, in accordance with clause 5.11, to any premises where the Doll is located to allow us (or our Personnel) to immediately recover or repossess the Doll.

9.3 Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

9.4 This clause 9 will survive the termination or expiry of these Terms.

10. General

10.1 Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. Prior to requesting the Doll, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any provision of the Doll that has been accepted by you (and not rejected by us), the terms and conditions that apply will be the ones that were in effect (and which you agreed to) when you requested the Doll.

10.2 Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.

10.3 GST: If and when applicable, GST payable on the Doll will be set out in our Site. You agree to pay the GST amount at the same time as you pay the Fee.

10.4 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

10.5 Entire agreement: These Terms contain the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and agreements, in respect of its subject matter.

10.6 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control, including a Force Majeure Event, whether known or unknown at the Commencement Date.

10.7 Governing law: These Terms are governed by the laws of Victoria. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

10.8 Intellectual Property: You agree that all intellectual property (including copyright) developed, adapted, modified or created by us or our Personnel, including but not limited to any materials we provide to you (including in connection with these Terms and the Doll) will at all times vest, or remain vested, in us.

10.9 Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

10.10 Relationship of Parties: These Terms is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

10.11 Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

11. Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in these Terms and:

Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Doll means the doll being hired under these Terms, the particulars of which are set out in the Form.

Business Days means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.

Collection Time means the date and time, agreed between the Parties, for the collection of the Doll by us, and may be particularised in the Form.

Commencement Date means the date these Terms are accepted in accordance with clause 1.1.

Consequential Loss includes any consequential loss, indirect loss real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

Delivery Time means the date and time, agreed between the Parties, for the delivery of the Doll by us, and may be particularised in the Form.

Fee means the fee payable by you to hire the Doll, as set out on our Site.

Force Majeure Event means any one, or combination of law or government regulation which comes into force or any act of God, flood, war, revolution, civil commotion, political disturbance, fire explosion, ionizing radiation, contamination by radioactivity, nuclear, chemical or biological contamination, disease, epidemic, pandemic (including in relation to the coronavirus, severe acute respiratory syndrome coronavirus 2, or any mutation thereof), government sanctioned shutdown, global economic downturn or any other cause whatsoever over which a Party has no control.

Cancellation Fee means the fee payable by you if you cancel the hire of the Doll within 24 hours prior to the start of the Hire Period.

Form means the form completed by you on our Site in order to hire the Doll.

Hire Period means the period of hours during which you will hire the Doll, the first hour aligning with the Delivery Time, and the last hour aligning with the Collection Time, as selected by you on the Form, or as otherwise agreed between the Parties.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.

Location means the location, agreed between the Parties, for the delivery and collection of the Doll.

Original Condition has the meaning given in clause 5.2.

Payment Terms means:

(a) the Fee is due in one upfront payment before the Hire Period;

(b) for any other amounts due and payable under these Terms, on the date set out in our invoice;

with such amounts being payable via PayPal, credit card or debit card on our Site.

Personnel means, any of our employees, consultants, suppliers, subcontractors or agents.

Statutory Rights has the meaning given in clause 8.1(a).

Terms means these terms and conditions and any documents, attached to, or referred to, in it.

12. Interpretation

In these Terms, unless the context otherwise requires:

(a) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b) a reference to the singular includes the plural, for example, Doll may also mean Dolls where you have hired more than one Doll;

(c) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(d) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(e) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(f) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(g) a reference to a covenant, obligation or Terms of two or more persons binds or benefits them jointly and severally;

(h) a reference to time is to local time in Victoria; and

(i) a reference to $ or dollars refers to the currency of Australia from time to time.

For any questions and notices, please contact us at:

HTP Entertainment Pty Ltd ABN 17 643 218 428

Email: contact@accesstouch.com.au

Last update: 12 October 2021