Terms And Conditions

1. Terms of Website Use

The Terms of Use

Kmart Australia Limited ("Kmart") owns and operates websites, including Kmart.com.au (Website) and mobile applications (App) (each a Site and collectively the Sites). By using or accessing a Site you acknowledge that you have read, understood and agreed to be bound by these terms and conditions ("Terms of Use"). If you do not agree to the Terms of Use, please do not use the Sites.

Ownership of the Sites and Content

Kmart owns the Sites and, unless otherwise indicated, owns or is licensed to use all content and other material appearing on the Sites. The material on the Sites is protected by copyright under the laws of Australia and New Zealand (NZ) and may not be used without written permission by Kmart. No trademark (whether registered or not) that is displayed on the Sites may be used in any way without the prior written permission of Kmart or of the relevant trademark owner.

Downloading and support for the App

The App is provided to you by us. We are responsible to you for it, even where you download it from Apple or Google. Apple and Google aren't responsible for it. These words apply for their benefit.

If you have any queries or issues (including any legal issues) about the App, you must contact us, not Apple or Google.

You also agree that Kmart (and Apple or Google or any third party who you may connect or interact with on or via the App) may collect and store information relating to your mobile phone – like network type and carrier name, device type and model, operating system, screen resolution and the location of your mobile phone. In some cases, the IP address is collected to determine the location of your mobile phone but is then deleted and not stored. If you don't consent to the collection of this information, you must stop using the Kmart App and delete it.

Security

Kmart does not guarantee any data or program available for download on the Sites (or any linked website) are free of viruses or other spyware, and you agree that you assume the risk of any damage to your computer as a result of using the Sites.

Third Party Content

The Sites contain information from or hyperlinks to websites operated by third parties. Kmart provides such information and hyperlinks for your convenience only but is not responsible for and does not endorse the content of any such information or website.

Revisions

Kmart may revise these Terms of Use or the Terms of Purchase below at any time in its absolute discretion by posting revised terms, and these revisions will be effective immediately. Your continued use of the Sites thereafter constitutes your acceptance of any revised terms to the Sites, these Terms of Use or the Terms of Purchase. If you do not agree to any revisions, then you must immediately stop using the Sites. If any of the terms are found to be unenforceable, you agree that the remainder of the Terms of Use and the Terms of Purchase remain in full force and effect.

Liability

Kmart provides the Sites and their contents on an "as is" basis, and to the extent permitted by law, makes no representation as to the accuracy, completeness, currency or reliability of the information contained on the Sites. Again, to the extent permitted by law, Kmart will not be liable in contract, tort (including negligence) or otherwise to you for any direct, special, indirect or consequential loss or damage (including loss of profits or loss of data) arising out of or in connection with the Sites.

If your use of this website or its content is subject to the New Zealand Fair Trading Act 1986 ("FTA") and/or Consumer Guarantees Act 1993 ("CGA"), you may have rights or remedies which are not excluded or limited by the above. However, if you are using this website or its content for business purposes, are acquiring goods or services in trade through this website and are in trade yourself, then the above exclusions and limitations will still apply and you agree that the CGA will not apply. Similarly, if you are acquiring goods or services in trade through this website and you are in trade, then you agree to contract out of sections 9, 12A and 13 of the FTA.

Your Privacy is Important

We are committed to protecting the privacy of everyone who shops or interacts with us. Kmart’s Privacy Policy sets out our commitment to you on privacy, including our use of "cookies".

Responsible Use

You warrant that all information you provide to Kmart will be true, accurate, current and complete, and you will promptly notify us of any updates to that information such that it remains accurate, current and complete.

You may access a Site for your personal use only.

You must not use a Site for any other purpose, including without limitation any:

resale or commercial use of the Site or any Site Materials (defined above);
modification, adaptation, translation, reverse engineering, de-compilation, disassembly or conversion into human readable form any of the Site Materials, including use of or directly viewing the underlying HTML or other code from the Site except as interpreted and displayed in a web browser;
copying, imitating, mirroring, reproducing, distributing, publishing, downloading, displaying, performing, posting or transmitting any Site Materials (including any trademarks) in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise;
the collection and use of any product listings or descriptions;
making modifications to or other derivative uses of the Site and any Site Materials; or
use of any data mining, bots, spiders, automated tools or similar data gathering and extraction methods, directly or indirectly, on the Site Materials or to collect any information from the Site or any other user of the Site.

Except as granted above, you are not granted any right or licence (by implication, estoppel, or otherwise) in or under a patent, trademark, copyright, database right or other intellectual property right belonging to Kmart or any third party.

You may not use any meta-tags or any other hidden text utilising any name, trademark, or product name of Kmart without our prior written consent.

Without limiting our other rights, we may terminate your rights under these Terms or your use of or access to the Website or App at any time if you breach or permit any breach of these Terms.

In using a Site you must not:

engage in or encourage a criminal offence;
breach any applicable law or infringe the rights of any third party;
impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
disseminate any harmful content of any kind, including without limitation, viruses, Trojan horses, worms, time bombs, zombies, bots or any other computer programming routines that may damage, spy-on, interfere with, intercept or expropriate any system, programme, data or Personal Data held by Kmart;
inhibit any other person from using or enjoying a Site;
interfere or disrupt the security of a Site or our servers; or
attempt or permit any other person to do any of the above acts.

Governing Law

Kmart operates the Sites from its offices within Australia. To the extent permitted by law, the laws of the State of Victoria govern these Terms of Use and the Purchase Terms below, and you agree to submit to the non-exclusive jurisdiction of the courts of Victoria. You agree to be responsible for compliance with applicable local laws if you access this website outside Australia. Nothing in this clause is intended to limit the application of the New Zealand Fair Trading Act 1986 and/or Consumer Guarantees Act 1993, to the extent that these statutes apply and have not been contracted out of as set out in the Liability clause above, or the ability of the New Zealand Courts to determine any disputes arising under these statutes.

2. Terms of Product Purchase

The Agreement

In addition to the Terms of Use, these terms and conditions ("the Purchase Terms") set out the additional terms and conditions under which you may purchase from Kmart products appearing on the Sites. By completing the customer application process and purchasing products from the Sites, an agreement exists between you and Kmart once Kmart accepts an order. Each accepted order is a separate agreement.

Customer Application

You must complete the customer application process before placing any orders. You warrant that all information and data provided by you is accurate, complete and up to date. You will promptly notify Kmart if there is any change to this information or data. You must take responsibility for the safekeeping of your username and password, as you are liable if an unauthorised person uses your username and password.

Orders

You place an order with Kmart by selecting products and pressing the "purchase now" button on the checkout page. Kmart reserves the right to accept or reject an order for any reason including without limitation, unavailability of product; an error in the price, image or the product description; or error in your order. Orders are deemed received by Kmart at the time of successful transmission of the order, and you will thereafter be unable to cancel the order to the extent permitted by law. Orders are deemed accepted by Kmart upon Kmart acknowledging such order or failing to reject such order within 14 days. We only accept orders from mainland Australia, Tasmania and from New Zealand.

Product Availability

Kmart uses its best endeavours to ensure products ordered are available for delivery, and in most cases will notify you where a product is unavailable prior to you completing your order. However you acknowledge that in some cases this is not possible and Kmart may need to reject an order you have placed for a product where Kmart establishes that it is actually unavailable for delivery. In such cases Kmart will refund in full all amounts you paid in respect of such unavailable product. Kmart cannot provide rainchecks for products ordered online, and where permitted by law reserves the right to limit the sale of products to reasonable or normal household quantities.

Payment

You must pay for your products purchased on the Site at the time of placing an order. We accept Paypal and all major credit cards including Mastercard, American Express, Diners Club and Visa. Products may also be purchased using Afterpay, subject to Afterpay’s terms www.afterpay.com/terms.

Variation of Products and Price

Kmart may vary the prices on the Sites at any time, and prices are subject to change until you have paid for the products in full. Product availability and product prices may vary between Kmart’s retail stores and those found on the Sites.

Delivery

Delivery terms included delivery areas, delivery costs and estimated delivery times are contained in Kmart’s Delivery Policy. The Delivery Policy is expressly incorporated in these Purchase Terms. Please note that to purchase products, your delivery address must be within a suburb where Kmart provides delivery. Orders will not be processed for delivery to an address in a suburb not in Kmart’s delivery area. Risk in the products passes to you upon delivery to your nominated delivery address, and title passes upon payment for the products in full.

Returns

Return claims (including for replacement products, refunds or credits) are detailed in Kmart’s Returns Policy. The Returns Policy is expressly incorporated in these Purchase Terms. Please refer to this policy to determine your entitlement to a return, and the process that you need to follow.

3. Customer Product Review terms and conditions

These Terms of Use govern your conduct associated with the Product Review service (the "PR Service") offered by Kmart Australia. To the extent of any conflict between Kmart Australia's Privacy Policy and these Terms of Use, these Terms of Use shall control with respect to the PR Service.

By submitting any content to Kmart Australia, you represent and warrant that:

you are the sole author and owner of the intellectual property rights thereto;
all "moral rights" that you may have in such content have been voluntarily waived by you;
all content that you post is accurate;
you are at least 18 years old;
use of the content you supply does not violate these Terms of Use and will not cause injury to any person or entity.

You further agree and warrant that you shall not submit any content:

that is known by you to be false, inaccurate or misleading;
that infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
that violates any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
that is, or may reasonably be considered to be, defamatory, libelous, hateful, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
for which you were compensated or granted any consideration by any third party;
that includes any information that references other websites, addresses, email addresses, contact information or phone numbers;
that contains any computer viruses, worms or other potentially damaging computer programs or files.

You agree to indemnify Kmart Australia (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers, including but not limited to Yotpo, Inc.), from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown including reasonable attorneys' fees, arising out of a breach of your representations and warranties set forth above, or your violation of any law or the rights of a third party.

For any content that you submit, you grant Kmart Australia (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers, including but not limited to Yotpo, Inc.) a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world without compensation to you.

All content that you submit may be used at Kmart Australia's sole discretion. Kmart Australia reserves the right to change, condense or delete any content on the Sites that Kmart Australia deems, in its sole discretion, to violate the content guidelines or any other provision of these Terms of Use. Kmart Australia does not guarantee that you will have any recourse through Kmart Australia to edit or delete any content you have submitted. Ratings and written comments are generally posted within two to four business days. However, Kmart Australia reserves the right to remove or to refuse to post any submission for any reason. You acknowledge that you, not Kmart Australia, are responsible for the contents of your submission.

None of the content that you submit shall be subject to any obligation of confidence on the part of Kmart Australia, its agents, subsidiaries, affiliates, partners or third party service providers and their respective directors, officers and employees.

By submitting your email address in connection with your rating and review, you agree that Kmart Australia and its third party service providers may use your email address to contact you about the status of your review and other administrative purposes.