Terms and Conditions
These terms and conditions are the contract between You and Diesel Help Australia (DHA) (“us”, “we”, etc.). By visiting or using Our Website, purchasing a DHA Membership or Licensed Product, ordering Physical Goods or purchasing Services, You agree to be bound by them.
Purple Flamingo PTY LTD trading as Diesel Help Australia, is a company registered in Australia – ACN 625947159. Our address is PO BOX 9012, Burnett Heads, Queensland, Australia 4670.
Accessing the DHA Website for automotive trade technical information, whether a free or charged Service, You agree to be bound by the Terms. If you do not agree with it, you should leave Our Website immediately.
Please read the following terms and conditions of use carefully.
1. Definitions
In this agreement, the following words shall have the following meanings, unless the context requires otherwise:
| “Copy or Publish” | with reference to a Licensed Product, means reproducing or publishing in whole or in part, using any means, in any medium. It includes breaking up, changing, cropping or any other change or use as part of some other created work. |
| “DHA Membership” | means the membership service described on Our Website, including the membership benefits, technical information, resources and support expressly included in the applicable membership package. |
| “Intellectual Property” | means intellectual property owned by us including patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, together with all rights which are derived from those rights. It includes in particular the Know-how, software, systems and methods we may use to perform the Service with you. |
| “Know-how” | means methods, procedures and ways of working and organising which are not capable of protection as copyright. |
| “Licence” | means the licence granted by us to you in the terms of this agreement for use of the Licensed Product. |
| “Licensed Product” | means DHA Membership content, HaynesPro access and any software, database, digital material or other content offered by us under licence through Our Website or otherwise. It does not include Physical Goods sold outright. |
| “Manual Renewal” | is the alternative payment type taken via Capricorn Society. |
| “Manufacturer Warranty” | means any voluntary warranty against defects or other warranty provided by the manufacturer, importer or other identified warranty provider in relation to Physical Goods, subject to the terms and conditions of that warranty. |
| “Our Website” | means the website at www.dieselhelp.com.au or other services designed for electronic access by mobile or fixed devices which is owned or operated by us. |
| “Physical Goods” | means any tangible diagnostic equipment, gauge, kit, tool, replacement part, component, accessory or other physical item offered by us for sale through Our Website or otherwise, but does not include a Licensed Product supplied solely under licence. |
| “Services” | means all of the services available from DHA Website, whether free or charged. |
| “You” | means the business or organisation that purchases or uses a DHA Membership, Licensed Product, Physical Goods or Services. |
2. Our contract
| 2.1. | These terms and conditions regulate the business relationship between You and us. By purchasing a DHA Membership, Licensed Product, Physical Goods or Services, or by using Our Website free of charge, You agree to be bound by them. |
| 2.2. | We do not offer the Services in all countries. We may refuse to provide the Services if you live in a country we do not serve. |
| 2.3. | Subject to these terms and conditions, we agree to supply the DHA Membership, Licensed Products, Physical Goods and Services described on Our Website or otherwise agreed with You, at the applicable price stated when You place the order. |
| 2.4. | Our contract with you and Licensed Product to you, lasts for 12 months. Any continuation by us or by you after the expiry of 12 months is a new contract under the terms then posted on DHA website. Your continued use of our Services after that shall be deemed acceptance by you of the changed Service, system and/or terms. This clause applies only to a DHA Membership or Licensed Product supplied for a 12-month term and does not apply to an outright sale of Physical Goods. |
| 2.5. | In relation to a DHA Membership, Licensed Product or Service, a contract is formed when we accept Your order or booking and receive any payment required before supply. In relation to Physical Goods, Your order is an offer to purchase the goods on these terms. We accept that offer when we send You an order acceptance or dispatch confirmation, or otherwise expressly confirm acceptance. If we cannot accept an order after taking payment, we will refund the amount paid for the affected item. |
| 2.6. | If we give you free access to a Service or feature on DHA website which is normally a charged feature, and that Service or feature is usually subject to additional contractual terms, you now agree that you will abide by those terms. |
| 2.7. | We may change this agreement in any way at any time. The version applicable to your contract is the version which was posted on DHA website at the time that the contract was made. |
3. DHA Membership
| 3.1. | Details of the cost and benefits of DHA Membership are as set out on Our Website. |
| 3.2. | If any information you provide is inaccurate, the Licence is automatically terminated, and no refund of money will be due to you. |
| 3.3. | You acknowledge that Diesel Help Australia owns all right, title and interest in and to the Licensed Product and that you have no right to use it beyond the express terms of this agreement. |
| 3.4. | The purchase of one DHA Membership will grant You and Your employees in one workshop location a 12 month non-transferable License to access the membership benefits subject to the Terms and Conditions of the licensing agreement. |
| 3.5. | A single username and password is provided for You and Your employees to view the associated Membership area. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner. |
| 3.6. | At any time, You may use the My Account tab on DHA website to access your personal information, update your payment details or cancel your subscription. |
| 3.7. | Prior to the end of your 12 month DHA Membership a reminder message will be sent to your last known email address that your membership will be automatically renewed for a further 12 months. |
| 3.8. | The DHA Membership renewal fee will be automatically charged to the payment method, PayPal, Stripe or Manual Renewal which you purchased your Membership. |
| 3.9. | If the renewal payment method fails, we will suspend your License for up to 7 days. We shall email to inform You of the failed payment. After 7 days if a renewal payment has not been received we will terminate your DHA Membership. |
| 3.10. | If we terminate your DHA Membership due to non-payment You may lose access to the locked in renewal price originally purchased at. |
| 3.11. | Termination does not entitle You to a refund for Services or membership benefits already properly supplied, except where these terms or applicable law require otherwise. Where we terminate a prepaid Service or Membership for a reason not caused by Your breach, we will refund any unused prepaid amount to the extent appropriate and required by law. |
| 3.12. | We may amend these terms from time to time. An amended version will apply to a new contract or renewal entered into after the amended terms are made available. We will not retrospectively make a material change to an existing contract unless the change is required by law or is reasonably necessary for security or proper operation of the Service and is fair and reasonable in the circumstances. Where practicable, we will give reasonable notice of a material change affecting an existing contract. |
4. Physical Goods: orders, price and delivery
| 4.1. | We may offer Physical Goods through Our Website or otherwise, including diagnostic equipment, gauges, kits, tools, replacement parts, components and accessories. The product description and any specifications expressly identified when we accept Your order form part of the contract. |
| 4.2. | We take reasonable care to describe Physical Goods accurately. Images are illustrative and minor variations in appearance, packaging or specification may occur where they do not materially affect the nature, functionality or quality of the goods. If a material specification changes before dispatch, we will notify You and give You the option to accept the change or cancel the affected item for a refund. |
| 4.3. | You are responsible for checking that Physical Goods are compatible with the vehicle, engine, system or intended application before ordering, except where You have made a particular purpose known to us, reasonably relied on our skill or judgment and we have agreed or represented that the goods are suitable for that purpose. Nothing in this clause limits any right or remedy that cannot lawfully be excluded. |
| 4.4. | All orders are subject to availability and acceptance by us. If an item is unavailable or we cannot reasonably fulfil an order, we may decline or cancel the affected item and will refund any amount already paid for it. |
| 4.5. | The price, GST treatment, delivery charge and any other charge payable for Physical Goods will be stated on Our Website, quotation, order confirmation or invoice before the contract is formed. Unless we agree approved account terms, payment is required before dispatch. |
| 4.6. | You must provide a complete and accurate delivery address and any information reasonably necessary for delivery. A delivery date is an estimate unless we expressly agree in writing that it is a binding date. We will notify You of a material delay where reasonably practicable. |
| 4.7. | Title to Physical Goods passes to You when we have received payment in full. Risk passes when the Physical Goods are delivered to You or Your nominated delivery address. If You independently arrange Your own carrier, risk passes when the Physical Goods are delivered to that carrier. |
| 4.8. | You should inspect Physical Goods reasonably promptly after delivery and notify us promptly of visible transit damage, an incorrect item or an apparent shortage so that we can investigate. Failure to notify us immediately does not remove any right or remedy that cannot lawfully be excluded. |
| 4.9. | We will provide an order confirmation, invoice, receipt or other proof of transaction as required by applicable law. |
5. Physical Goods: warranties, faults and returns
| 5.1. | Physical Goods may be supplied with a Manufacturer Warranty. The applicable warranty provider, warranty period and conditions will be those stated in the relevant product description, warranty document or other warranty information supplied with the goods. |
| 5.2. | Where the applicable supplier or manufacturer provides a 12-month warranty, that warranty applies for the stated 12-month period in accordance with its terms. Unless we expressly state otherwise, DHA does not provide a separate warranty against defects in addition to the applicable Manufacturer Warranty. |
| 5.3. | If You believe Physical Goods are faulty, You should contact us and provide reasonable information sufficient for us to assess the claim, including where applicable Your business name, purchase or order details, the item and serial number, a description of the fault, when the fault occurred, how the goods have been used and any relevant photographs or video. |
| 5.4. | We may reasonably inspect or test the Physical Goods, or arrange for them to be inspected or tested by the relevant supplier, manufacturer or distributor, before determining whether a warranty claim is accepted and what remedy is available. |
| 5.5. | A warranty claim may be declined where the problem falls outside the applicable Manufacturer Warranty, including where it results from misuse, abnormal use, accidental damage, unauthorised modification, incorrect installation or failure to follow applicable operating or manufacturer instructions. |
| 5.6. | If a claim is accepted under a Manufacturer Warranty, the available repair, replacement, credit or other remedy will be determined in accordance with the terms of that warranty. We may liaise with the relevant supplier, manufacturer or distributor in administering the claim. |
| 5.7. | Expiry of a Manufacturer Warranty means that a claim is no longer covered by that voluntary warranty, but does not exclude any other contractual or statutory right that may apply and which cannot lawfully be excluded. |
| 5.8. | We are not required to accept a return merely because You change Your mind, order the wrong item, find the item cheaper elsewhere or no longer require it, unless we have expressly agreed to accept that return or have offered a separate change-of-mind return policy for the relevant purchase. |
| 5.9. | Before returning Physical Goods for a warranty, fault or other approved claim, You should contact us for reasonable return instructions. Return, inspection, freight and other claim costs will be dealt with in accordance with the applicable warranty terms, our agreement with You and applicable law. |
6. Interruption to Services
| 6.1. | If it is necessary for us to interrupt the Services, we will give you reasonable notice where this is possible and when we think the down time is such as to justify telling you. |
| 6.2. | You acknowledge that the Services may also be interrupted for many reasons beyond our control. |
| 6.3. | To the extent permitted by law, we are not liable for loss caused solely by an interruption resulting from an event outside our reasonable control. This clause does not exclude or restrict any right or remedy that cannot lawfully be excluded. Where applicable law requires a remedy for a material interruption to a paid Service, we will provide that remedy. |
7. Restrictions on use of DHA Membership
You agree that You will not:
| 7.1. | use the Licensed Product for any reason other than to maintain and repair diesel engines; |
| 7.2. | use a Licensed Product in part or as a whole, to incorporate it in any intellectual property of yours; |
| 7.3. | sub-license, rent out, lease, or lend the Licensed Product; |
| 7.4. | Copy or Publish a Licensed Product except as specifically allowed in this agreement; |
| 7.5. | represent or give the impression that you are the owner or originator of any Licensed Product; |
| 7.6. | remove any identification or reference number or other information which may be embedded in any file of a Licensed Product. |
8. Indemnity
You agree to indemnify us against any loss, damage or liability, suffered by us at any time and arising out of:
| 8.1. | any act, neglect or default of yours in connection with this agreement or your use of the Services; |
| 8.2. | your breach of this agreement; |
| 8.3. | your failure to comply with any law; |
| 8.4. | any act, neglect or default by any agent, employee, licensee or customer of yours; |
| 8.5. | a contractual claim arising from your use of the Services. |
9. Intellectual Property
You agree that at all times you will:
| 9.1. | not disclose to any person the method of working or the Intellectual Property involved in our Services for you; |
| 9.2. | not cause or permit anything which may damage or endanger our title to the Intellectual Property; |
| 9.3. | indemnify us for any loss or expense arising from your misuse of the Intellectual Property; |
| 9.4. | on the expiry or termination of this agreement immediately stop using the Intellectual Property except as expressly authorised by us in writing; |
| 9.5. | not use any name or mark similar to or capable of being confused with any name or mark of ours; |
| 9.6. | so far as concerns Software provided or made accessible by us to you, you will not:| 9.6.1 | copy, or make any change to any part of its code; | | 9.6.2 | use it in any way not anticipated by this agreement; | | 9.6.3 | give access to it to any other person than you, in this agreement; | | 9.6.4 | in any way provide any information about it to any other person or generally. |
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10. Disclaimers and limitation of liability
| 10.1. | Nothing in this agreement excludes, restricts or modifies any right, remedy or liability under the Australian Consumer Law or other applicable law to the extent that it applies to a particular supply and cannot lawfully be excluded, restricted or modified. |
| 10.2. | Subject to clause 10.1 and to the extent permitted by law, Our Website and Services are provided “as is”, and all conditions, warranties and other terms implied by law which may lawfully be excluded are excluded. |
| 10.3. | We make no representation or warranty that the Service we provide specifically to you will achieve the target or intended results. |
| 10.4. | We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website. |
| 10.5. | Subject to clause 10.1 and to the extent permitted by law, our liability to You is limited to the amount paid for the Physical Goods or Licensed Product giving rise to the claim or, in relation to Services, the amount You paid us during the immediately preceding 12 months for the Services concerned. |
| 10.6. | Subject to clause 10.1 and to the extent permitted by law, we will not be liable to you for any loss or expense which is:| 10.6.1 | indirect or consequential loss; or | | 10.6.2 | economic loss or other loss of turnover, profits, business or goodwill even if such loss was reasonably foreseeable or we knew you might incur it. |
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| 10.7. | This paragraph (and any other paragraph which excludes or restricts our liability) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us. |
| 10.8. | If you become aware of any breach of any term of this agreement by any person, please tell us by email. We welcome your input but do not guarantee to agree with your judgement. |
| 10.9. | Nothing in this agreement will be construed as limiting or excluding our liability for death or personal injury caused by our negligence. |
11. Miscellaneous matters
| 11.1. | Our privacy policy is strong and precise. It complies fully with the current privacy law which is at Privacy Policy. Please read it together with these terms. |
| 11.2. | When you visit Our Website or send messages to us by email, you are communicating with us electronically. We communicate with you by e-mail or by posting notices on Our Website. You agree that all our electronic communications satisfy any legal requirement that such communications be in writing. |
| 11.3. | In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation. |
| 11.4. | So far as the law permits, and unless otherwise stated, this agreement does not give any right to any third party. |
| 11.5. | The validity, construction and performance of this agreement shall be governed by the laws of the State of Queensland and you agree that any dispute arising from it shall be litigated only in that State. |
