it is the responsibility of the supervisor to ensure that the area in which the Nüdel Kart is being used is clear of all hazards which may affect or impair the safe use of the Nüdel Kart;
the Nüdel Kart, when fully constructed, is heavy. Certain components of the Nüdel Kart are also heavy. Supervisors must ensure at all times that the Nüdel Kart, or any component of the Nüdel Kart, is not used in a manner which has the potential to create a safety hazard or put a user of Nüdel Kart at risk of harm or injury;
it is your responsibility to ensure that all supervisors are familiar with any instruction manuals we provide you with from time to time;
the Nüdel Kart is not designed to be used with other products (whether that be educational or otherwise). Use of the Nüdel Kart in conjunction with other products is done solely at your risk; and
the Nüdel Kart is designed to be used by a trained education professional. Supervisors must use their judgement, based upon their professional experience, to ensure that the Nüdel Kart is used in a manner which is safe and secure for the children who operate, and interact with, the Nüdel Kart.
Accepting these Terms
By purchasing the Product, you agree to be bound by this Agreement. The term "you" refers to a party that purchases, assembles and uses the Product.
The terms "we" and "our" refer to the Supplier. You may not construct or assemble the Product and you may not accept this Agreement if you are not of a legal age to form a binding contract with the Supplier.
If you accept this Agreement, you represent that you have the capacity to be bound by it or if you are acting on behalf of a company or entity that you have the authority to bind such entity. If you do not agree to this Agreement, you will not be able to purchase, assemble or use the Product.
You will be responsible for all acts or omissions of any person who supervises use of the Nüdel Kart on your behalf.
Description of the Product
The Product is a mobile platform, a kart that comes apart into many different pieces, and is filled with loose parts that children can manipulate, build and play with. The Product may be used in many settings, indoors and outdoors. It works across age groups from 3 years to 12 years and beyond, is not gender and culture specific and is highly supportive to people of all abilities.
At all times, you agree that you will maintain the Product in accordance with the Teacher Facilitator Manual. You must:
regularly check the Product and its loose parts. If something breaks or is hazardous, you must remove it immediately from the play area; and
prevent children you are supervising from putting loose objects in their mouth for hygiene reasons. You may need to wash items you are adding to the Product. You may occasionally need to wash / clean loose parts after a period of play, depending on the play site and weather.
You acknowledge that when considering safety, it is important to distinguish between a risk and a hazard:
Risks are inherent in play and allow for childhood growth and development. They are things that children can see, adapt to and learn from and should therefore be supported and not removed.
A hazard is something that children cannot see or are developmentally unaware of. For example, a stick with a hidden nail is a hazard, while the stick itself contains inherent risks that are good for a child to understand.
You represent and warrant that, when supervising use of the Product, you and your personnel will:
stay vigilant and watch for risks and hazards; and
take all necessary actions to mitigate any possible harm or damage that may arise as a result of risks or hazards,
however, notwithstanding paragraphs (a) and (b), you and your personnel will not reduce the opportunities for children to explore reasonable risks or engage in self-directed learning opportunities.
Price and payment
The price payable by you for the Product will be in Australian Dollars (unless otherwise agreed) and will be as specified in the order confirmation (the Price). The price is exclusive of any applicable taxes and charges whatsoever and howsoever incurred (unless otherwise stated)
The Price will be payable in one of the following two methods which will be agreed with you upon the time you place your order.
Method 1 The Price will be payable in the following two instalments:
50% of the Price (unless otherwise agreed) is payable within 30 days of receiving an invoice from the Supplier (the Deposit); and
The balance of the Price is payable within 30 days of receiving a second invoice from the Supplier.
Method 2 The entire Price will be payable within 30 days of receiving an invoice from the Supplier.
The Price must be received in full before the Products are dispatched for delivery.
If the Price is not received in full by us before the due dates specified above in clause 3.2, we cannot and will not continue to manufacture the Product or hold the Product (as the case may be) against your order. In such instances we do not guarantee that the Product will be available should you try to order it again.
If you cancel your order, you agree that we may recover our reasonable costs incurred by us (up to the date on which you notify us of the cancellation) which directly or indirectly relate to fulfilling your order, including input costs and the cost of manufacturing the Products. You authorise us to deduct these reasonable costs from any monies that you have paid to us and refund (if the reasonable costs do not exceed any monies held by us), the balance to you. If you intend to cancel your order, please contact us as soon as possible, so that we can discuss with you the costs that would be incurred in cancelling the same.
Your use of the Product
You acknowledge that the Product is heavy and is able to be dismantled into several stand-alone components. Accordingly, you must at all times comply with the Teacher Facilitator Manual, Construction Manual and Pack-up Manual (the User Manuals). The Supplier will not be held liable for any loss or damage suffered as a result of assembly or use of the Product which is not consistent with the User Manuals.
Your right to use the Product is personal to you (or the entity you are accepting this Agreement on behalf of) and is not transferable by you to any other person or entity.
You are only entitled to assemble and use the Product for lawful, internal, and non-commercial purposes. Subject to your compliance with this Agreement, the Supplier hereby grants to you, a personal, worldwide, non-assignable, non-sublicensable, non-transferrable, and non-exclusive licence to use the Product and content provided to you as part of the Product offering.
You agree that the Supplier may use your feedback, suggestions, or ideas in any way, including in future modifications of the Product, other products or services, advertising or marketing materials. You grant the Supplier a perpetual, worldwide, fully transferable, sublicensable, irrevocable, full paid-up, royalty free licence to use the feedback you provide to the Supplier in any way.
You represent and warrant that you will not use the Product or interact with the Product in a manner that:
is inconsistent with the User Manuals;
infringes or violates the intellectual property rights or any other rights of anyone else (including the Supplier);
violates any applicable laws, regulations or this Agreement;
is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
decompiles, reverse engineers, or otherwise attempts to obtain the source code or design or underlying ideas or information of or relating to the Product; and
circumvents, removes, alters, deactivates, degrades or thwarts any technological measure or content protections of the Product.
Shipping and delivery
Subject to this Agreement, we will:
after receiving the entire Price from you, contact you (via email) to provide you with an estimated delivery time frame and/or the anticipated delivery date (Anticipated Delivery Date); and
endeavour to deliver the Products on or around the Anticipated Delivery Date.
Notwithstanding clause 4.1(b), you acknowledge that:
the Anticipated Delivery Date is an estimate only and does not constitute a guarantee that the Products will be delivered on or before the relevant date;.
the Anticipated Delivery Date may be delayed for various reasons including (but not limited to):
the availability of on-hand stock to fulfil your purchase;
our manufacturing capacity at any particular time;
our ability to source input materials and supplies from third-parties;
your geographical location;
the method of delivery (including for example, if air-freight or sea-freight delivery services are required); or
delays incurred by the shipping service providers.
to the extent permitted by law, you release us from and indemnify us against any action, proceeding, claim, demand or liability arising from or in connection with any delayed delivery.
Standard and express post are subject to different fees and charges. In addition, the Product is a large and bulky item, so it may be subject to additional charges. We will notify you of the cost of shipping before you purchase the Product. You will be responsible for paying for all taxes, charges and fees relating to shipping (including, if applicable, any charges that may be payable as a result of international delivery and customs processing).
Express post may only be available in certain areas and for certain orders. Your order eligibility will be confirmed with you prior to checkout.
A signature may be required for deliveries, and you are responsible for ensuring you are able to accept delivery. We will not be held liable for late delivery where attempted delivery has occurred on or before the Anticipated Delivery Date or where a parcel has been signed for delivery (regardless of whether or not you have personally accepted delivery).
We reserve the right to change, modify or discontinue any delivery options at our absolute discretion.
Problems with the Product – contacting us
If you have a problem with the Product, please contact us using one of the following methods:
by post, addressed to: From the Ground Up Ltd (ABN 78152 504 400) trading as Playground Ideas 1/29 Nunan Street East Brunswick
by phone: 0432 738 719; or
by email: firstname.lastname@example.org.
We will investigate your issues and advise you whether your Product needs to be returned and, where required, provide you with instructions on how to return the Product. The Supplier may request photographic evidence of the problem with the Product (including for example, photos of imperfections which you might claim constitutes a defective product).
Once you have provided photographic evidence of a claimed defect, or where instructed by the Supplier to return the Product (or component of the Product) and this is received by the Supplier, we will either inspect the Product (or component as appropriate) and investigate any claimed defect or, in some cases, send the goods to third parties for assessment and / or repairs. Where applicable we will provide a remedy in relation to the Product.
Subject to local law requirements (see clause 6.1), the Supplier may elect to replace or repair a component which you claim is defective. A component will not be defective and you will not be entitled to a replacement, repair or refund of that component if:
you fail to comply with the User Manuals with respect to the care and maintenance of the Product;
the defect is caused by incorrectly assembling the Product; or
you have caused or contributed to the defect.
Subject to local law requirements, if we do not believe a remedy is applicable upon inspecting the Product, for example, where we believe the Product has been:
misused, or there was a failure to use the product in accordance with the User Manuals,
used it in a way which is contrary to the User Manuals or there has been a failure to take reasonable care in using the Product or any components of the Product, we will reject your claim and return the Product to you. You agree that you will cover the cost of return shipping in order to receive the Products or parts of the Product we have rejected on inspection, and we will provide you with instructions on how to make this payment.
Refunds will be issued using the payment method used for purchase.
We aim to process refunds and replacements within 28 days of receipt by us of the Product, however, depending on the number of returns in our system, this may take longer.
You cannot return the Product if you change your mind. If you are having difficulty in constructing or setting up the Product, please contact the Supplier at email@example.com. Our team will use its best endeavours to assist you with any queries you may have in relation to the construction or use of the Product.
In some jurisdictions, the Product will come with guarantees that cannot be excluded by law. You may be entitled to a replacement or refund for a major failure and compensation for any reduction in the value of the goods and any other reasonably foreseeable loss or damage. You may also be entitled to have the Product repaired or replaced if the Product fails to be of acceptable quality and the failure does not amount to a major failure.
Any product warranty given by the Supplier will apply in addition to other rights and remedies that you may have under local law. Where applicable, you may make a claim in relation to a Product that is faulty in accordance with our warranty terms and conditions (if applicable). The Supplier will notify you at the time of purchase of the Product if there is an additional product warranty that applies to the Product (or any additional spare parts which may be purchased from time to time).
The Supplier's Intellectual Property Rights
The contents of the Product, and any User Manuals, including their respective "look and feel" (e.g. text, graphics, images, logos, design, format and button icons), photographs, editorial content, notices, software and other material are protected under applicable copyright, trademark and other laws. The contents of the Product belongs or are licensed to the Supplier or its third party suppliers.
To be more specific, all specifications, drawings, schematics, tests, designs, inventions, engineering notices, financial information, technical data, samples, prototypes, models and / or equipment (Technical Information) supplied to you by the Supplier, directly or indirectly, remains our property and you must hold this in confidence.
You cannot reproduce Technical Information or User Manuals, nor can you use or disclose the Technical Information or User Manuals to other third parties without our prior written consent (with the exception of your personnel that will be supervising the use of the Product).
The Supplier grants you the right to view and use the Product subject to these terms. You may download or print copies of the User Manual provided with the Product for your personal, internal or non-commercial use only. Any distribution, reprint or electronic reproduction of the Product or the Product Content in whole or in part for any other purpose is expressly prohibited without our prior written consent.
Disclaimers and exclusions
Subject to clause 8.2, to the maximum extent permitted by local law:
the Product and User Manuals are provided to you on an "as is" basis. The Supplier makes no representations or warranties of any kind, express or implied, as to the quality or operation of the Product. You expressly agree that your use of the Product is at your own risk;
The Supplier makes no representation, warranties or guarantees, express or implied, regarding the accuracy, reliability or completeness of the content provided to you in connection with the Product, and expressly disclaims any warranties or non-infringement or fitness for a particular purpose; and
The Supplier makes no representation, warranty or guarantee that the Product is free from properties that could cause damage or harm to users of the Product.
Because some states or jurisdictions do not allow exclusions or disclaimers or representations, warranties or guarantees regarding the matters considered in clause 8.1, those limitations shall apply to the maximum extent permitted by local law. Nothing in this agreement affects statutory rights that cannot be waived or limited by contract.
Limitations on Playground Ideas’ Liability
Subject to clause 9.2, the Supplier shall in no event be responsible or liable to you or to any third party, whether in contract, warranty, tort (including negligence) or otherwise, for any indirect, special, incidental, consequential, exemplary, liquidated or punitive damages, including but not limited to loss of profit, revenue or business, arising in whole or in part from your assembly of the Product, use of the Product or this Agreement, your patch up or repair of the Product, or for any loss or damage caused by your reliance on information obtained in connection with the purchase or use of the Product, even if the Supplier has been advised of the possibility of such damages. Notwithstanding anything to the contrary in this Agreement, the Supplier's liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the Price you pay to the Supplier for the Product.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of the Supplier will be limited to the fullest extent permitted by local law. Therefore, the foregoing limitations shall apply to the maximum extent permitted by law. Nothing in this Agreement affects statutory rights that cannot be waived or limited by contract.
Your indemnification of the Supplier
To the maximum extent permitted by local law, you shall defend, indemnify and hold harmless the Supplier and its officers, directors, shareholders, and employees, from and against all claims and expenses reasonably incurred, including but not limited to legal fees, in whole or in part arising out of or attributable to your use of the Product or any breach of this Agreement by you or your violation of any law or the rights of a third party when using the Product.
For the purposes of this clause 11, Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
acts of God, lightning, storm, fire, earthquake or explosion, cyclone, tidal wave, landslide, adverse weather conditions;
act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic or pandemic as assessed by the World Health Organisation (including, for the avoidance of doubt, in relation to COVID-19 as defined by the World Health Organisation); and
the effect of any applicable laws, orders, rules or regulations of any government or other competent authority.
If a party is prevented in whole or in part from carrying out its obligations under this Agreement (including, for the avoidance of doubt, any of its obligations in relation to delivery or manufacture of the Product) as a result of the Force Majeure, it must promptly give a notice to the other party that complies with this clause 11.2.
Following this notice, and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended if the party giving notice has taken all proper precautions, due care and reasonable alternatives with the intention of avoiding the delay and failure and of carrying out its obligations under this Agreement.
A notice under clause 11.2 must:
specify the obligations a party cannot perform; and
fully describe the event of Force Majeure.
The party that is prevented from carrying out its obligations under this Agreement as a result of a Force Majeure must take all action reasonably practicable to mitigate any loss suffered by a party as a result of its failure to carry out its obligations under this Agreement.
Governing Law and General Provisions
This Agreement and your relationship with the Supplier is governed by the laws of the State of Victoria. In relation to these and related non-contractual matters each of us irrevocably submits to the non-exclusive jurisdiction of the courts there, and waives any right to object to the venue on any ground.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction, is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provision of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
A failure to exercise, or a delay in exercising, any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
Where the Supplier modifies this Agreement, we will provide you with reasonable notice of such modification.
Schedule - Jurisdiction Specific Terms Australia. If you are purchasing, assembling or using the Product in Australia, the following additional terms apply and form part of the Agreement. To the extent of any inconsistency, these additional terms prevail over the other provisions of the Agreement.
Application of the Australian Consumer Law: Nothing in this Agreement will, or is intended to, disclaim, exclude, prevent or limit the application of the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth), including any applicable statutory consumer guarantees, contained in the Australian Consumer Law. Any disclaimer of representations or warranties, release or limitation of liability to you shall only apply to and be enforceable under this Agreement to the extent permitted by law, including the Australian Consumer Law, if applicable.
Defective product: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. You are also entitled to be compensated for any reduction in the value of the goods and any other reasonably foreseeable loss or damage from a failure in the goods or service.
Limitation of Liability:
Subject to clause 1 and clause 3(b) of the Jurisdiction Specific Terms above, the Supplier's liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the Price you pay to the Supplier for the Product.
Playground Idea's liability to you will not be limited by clause 3(a) for liability arising from the Supplier's gross negligence, wilful misconduct or fraud.
You will not be obliged to indemnify the Supplier under clause 10 of the Agreement, for any consequential loss or to the extent that any claims and expenses arise from the gross negligence, wilful misconduct or fraud of the Supplier, its officers, directors, shareholders and employees.
Marketing and communications: Subject to your rights to unsubscribe, you consent to receiving, and our use and disclosure of your personal information in order to send you, sponsored links from advertisers, third party officers, the Supplier's offers, personalised links and electronic notifications, which might be of interest to you.
Unless the context requires otherwise, words and phrases used in this clause that have a specific meaning in the GST law (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) shall have the same meaning in this clause.
If GST is payable, or notionally payable, on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable, or notionally payable, on that supply (the GST Amount). Subject to the prior receipt of a tax invoice, the GST Amount is payable at the same time that the other consideration for the supply is provided. This clause does not apply to the extent that the consideration for the supply is expressly stated to be GST inclusive or the supply is subject to reverse charge.
Any reference in this Agreement to a cost, expense or other similar amount (Cost) is a reference to that Cost exclusive of GST.