WEBSITE TERMS OF SUPPLY
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Supplier’s contact details
1.1 www.emersonjane.com.au (Supplier’s website) is a website operated by Emerson Jane Pty Ltd (ABN 86 690 099 551) (Supplier).
1.2 The Customer’s attention is drawn to clause 18 (Definitions and Interpretation).
1.3 The Customer may contact the Supplier by completing the online enquiry form accessible via the Supplier’s website.
2. Our contract with you
2.1 These Conditions apply to the order for Goods by the Customer, including via the Supplier’s website, and the supply of Goods by the Supplier to the Customer. These Conditions apply subject to any rights the Customer may have under the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified.
2.2 Not used
2.3 The Supplier’s order process allows the Customer to check and amend any errors before submitting its order to the Supplier. The Customer is responsible for checking the order carefully before confirming it. The Customer is responsible for ensuring that its order is complete and accurate.
2.4 After the Customer places its Order, the Customer will receive an email from the Supplier acknowledging that the Supplier has received it. The Customer acknowledges this does not mean that its order has been accepted. The Supplier’s acceptance of the Customer’s Order will take place as described in clause
2.5 The Order shall only be deemed to be accepted by the Supplier when the Supplier issues a written acceptance of the Order, including by email confirmation, at which point the Contract shall come into existence. The Contract will relate only to those Goods confirmed in the Order confirmation.
2.6 If the Supplier is unable to supply the Customer with the Goods for any reason (in whole or in part), the Supplier shall inform the Customer of this by email and the Supplier will not process the Customer’s order to the extent it is unable to do so. If the Customer has already paid for the Goods, the Supplier will refund the Customer the relevant amount (in whole or in part having regard to the amount payable for each of the Goods, as relevant).
2.7 For the avoidance of doubt, the Customer waives any right it might otherwise have to rely on any term contained in any documents of the Customer that are inconsistent with these Conditions.
2.8 A quotation for the Goods (if any) given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 14 days from its date of issue.
3. Goods and Services
3.1 The Goods are described in the Supplier's website.
3.2 Whilst the Supplier uses reasonable commercial endeavors to ensure that the Goods are described as accurately as possible on the Supplier’s website, descriptions and images are illustrative only and may vary to the extent permitted by law. Where the Supplier becomes aware of any misdescription, the Supplier reserves the right to correct any error or omission. Images have been provided for illustrative purposes only and the Supplier does not guarantee that any image will reproduce in true colour nor that any given image will reflect or portray the full design or options relating to the relevant Goods.
3.3 Where Goods have been listed at the incorrect price or with incorrect descriptive information or image due to typographical error or similar oversight, the Supplier reserves the right to cancel a Contract or transaction (in whole or in part). Where your credit card has been charged, the Supplier will immediately refund your credit card for the total amount debited in respect of the relevant Contract or transaction (or part thereof).
4. Delivery
4.1 The Supplier shall ensure that:
a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Supplier reference numbers (if any), the type and quantity of the Goods
(including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of Goods is typically effected within five (5) to ten (10) business days from the date of order confirmation. This timeframe is indicative only and does not constitute a guarantee of delivery within that period.
4.4 The Customer acknowledges and agrees that:
a) delivery times may vary due to factors outside the Supplier’s reasonable control, including carrier delays, supply chain disruptions or other Force Majeure Event; and
b) except in the case of fraud or gross negligence, and to the maximum extent permitted by law, the Supplier is not liable for any loss or damage arising from delays in delivery.
4.5 Delivery is completed on the completion of delivery of the Goods at the Delivery Location.
4.6 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods, including where such delay is caused by a Force Majeure Event or the Customer's failure to accept delivery of the Goods or provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Supplier fails to deliver the Goods, the Customer may exercise any rights available under the Australian Consumer Law or any other applicable law. To the extent permitted by law, and subject to those rights, the Supplier’s liability for failure to deliver the Goods is limited to the price paid by the Customer for the affected Goods. The Supplier is not liable for delay or non-delivery to the extent caused by a Force Majeure Event or the Customer’s failure to provide adequate delivery instructions or other instructions relevant to the supply of the Goods.
5 Quality
5.1 The Supplier warrants that on delivery, the Goods will:
a) conform in all material respects with their description and any applicable specifications;
b) be free from material defects in design, material and workmanship; and
c) be of acceptable quality within the meaning of the Australian Consumer Law.
5.2 In addition to any rights the Customer has under the Australian Consumer Law, if the Customer notifies the Supplier within a reasonable time after discovering that some or all of the Goods do not comply with clause 5.1, and the Supplier is given a reasonable opportunity to examine the Goods, the Supplier will, at its option and to the extent permitted by law, repair or replace the defective Goods, or refund the price paid for the defective Goods.
5.3 Clause 5.2 does not apply to the extent that the failure is caused by:
a) the Customer continues to use the Goods after the defect becomes apparent and that continued use causes or materially contributes to the loss or damage;
b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
c) the Customer alters or repairs such Goods without the written consent of the Supplier;
d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Nothing in this clause 5 limits any rights or remedies the Customer may have under the Australian Consumer Law or any other applicable law.
5.5 The Supplier does not exclude, restrict or modify any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.7 All returns of Goods must be made strictly in accordance with the Supplier’s returns policy, as published on the Supplier’s website from time to time. Returned Goods must be sent to the post office box or other address nominated by the Supplier from time to time, and the Supplier will not accept returns sent to any other address.
6. Title and risk
6.1 Title to the Goods passes to the Customer when the Supplier receives payment in full for the Goods, and risk in the Goods passes to the Customer on completion of delivery.
7. Customer’s obligations
7.1 It is the Customer’s responsibility to ensure that:
a) the terms of the Customer’s order are complete and accurate;
b) the Customer cooperates with the Supplier in all matters relating to the Goods;
c) the Customer provides the Supplier with such information the Supplier may reasonably require in order to supply the Goods, and ensures that such information is complete and accurate in all material respects; and
d) the Customer complies with all applicable laws.
7.2 By completing an Order, the Customer represents that all information provided is true, accurate and complete and that the Customer is legally entitled to purchase the Goods. The Customer must promptly notify the Supplier of any changes to the details provided as part of the Order.
8. Price and payment
8.1 The price of the Goods is the price set out on the Supplier’s website at the time the Customer places the Order, as confirmed at checkout.
8.2 Once the Customer places an Order and payment is successfully processed, the Supplier will not increase the price of the Goods for that Order without the Customer’s consent.
8.3 Unless otherwise expressly stated, all prices displayed on the Supplier’s website are in Australian dollars and include GST. Any delivery fees and other charges payable by the Customer will be separately identified before the Customer places the Order.
8.4 Payment for an Order must be made in full at the time the Customer places the Order. The Supplier will process the Order only after payment has been successfully received.
8.5 The Customer must pay for the Goods in full and in cleared funds at the time of placing the Order using one of the payment methods made available on the Supplier’s website.
8.6 If a payment is reversed, dishonoured, charged back or otherwise not successfully received after an Order is placed, the Supplier may suspend or cancel the Order and recover from the Customer any reasonable third party fees actually incurred by the Supplier as a result.
8.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.8 The Customer represents and warrants that the Customer has the authority to make the payment on the order or transaction by providing the Supplier with a valid credit card or third party payment processor, as relevant.
8.9 The Supplier does not store and/or hold your credit/debit card/third party payment processor account details in its systems. All credit card or third party payment transactions will be processed through a secured e-payment system by a third-party service provider.
8.10 The Supplier accepts the following modes of electronic payment processes: Visa, MasterCard and third party payment processor.
8.11 The Customer must pay the applicable purchase price and any disclosed processing fees or charges specified on the Supplier’s website at checkout in relation to the Goods selected by the Customer.
8.12 The Customer will receive an email confirmation of the Order after payment is successfully processed. That confirmation acknowledges receipt of the Order and payment, but does not of itself guarantee stock availability or constitute acceptance of the Order.
8.13 The Customer will receive a receipt or tax invoice by email once payment for the Order is successful.
8.14 The Supplier may change the payment methods available for future Orders by updating the Supplier’s website. Any such change will not affect an Order that has already been placed and paid for.
9. Intellectual property rights
9.1 Nothing in these Conditions transfers ownership of any Intellectual Property Rights of the Supplier to the Customer.
10. Use of personal information
10.1 The Supplier may collect, use and disclose the Customer’s personal information to process Orders, supply the Goods, process payment, provide customer support and otherwise as described in the Supplier’s privacy policy accessible on the Supplier’s website. The Supplier may send the Customer direct marketing communications to the extent permitted by applicable law, and the Customer may opt out at any time.
11. Liability
11.1 The restrictions on liability in this clause 11 apply to every liability arising under, or in connection with, the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation;
c) any consumer guarantee, right or remedy conferred by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified; or
d) defective products under the Australian Consumer Law.
11.3 Subject to clause 11.2, and to the extent permitted by law, the Supplier’s total liability to the Customer arising out of or in connection with the Contract is limited to the price paid by the Customer for the relevant Goods.
11.4 Subject to clause 11.2, and to the extent permitted by law, the Supplier is not liable for any indirect or consequential loss.
11.5 Nothing in the Contract is intended to have the effect of excluding, restricting or modifying the application of the Australian Consumer Law.
11.6 Where the Supplier is permitted by law to limit its liability for a failure to comply with a consumer guarantee, the Supplier’s liability is limited, at the Supplier’s option, to one or more of the following:
a) the replacement of the Goods or the supply of equivalent goods;
b) the repair of the Goods;
c) the payment of the cost of replacing the Goods or acquiring equivalent goods; or
d) the payment of the cost of having the Goods repaired.
11.7 This clause 11 shall survive termination of the Contract.
12. Indemnity
12.1 The Customer indemnifies the Supplier against Losses actually suffered or incurred by the Supplier arising from:
a) any material breach of the Contract by the Customer; and
b) any unlawful, negligent or wilful act or omission by the Customer in connection with the Goods,
except to the extent the Loss is caused or contributed to by the Supplier’s negligence, wilful misconduct or breach of the Contract.
13. Termination
13.1 Without limiting its other rights or remedies, the Supplier may cancel or terminate a Contract before delivery by written notice to the Customer if:
a) the Customer commits a material breach of the Contract and, if the breach is capable of remedy, fails to remedy it within 7 days after being notified in writing; or
b) payment for the Order is reversed, dishonoured, charged back or otherwise not successfully received.
13.2 On termination of the Contract, the Supplier will refund any amount paid by the Customer for Goods not supplied, less any deductions permitted under these Conditions or applicable law.
13.3 Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14. Force majeure
14.1 Except in the case of an obligation to pay money, neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Contract by giving reasonable written notice to the affected party.
15. GST
15.1 Words used in this clause 15 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.
15.2 Unless expressly stated otherwise, the consideration for any supply under or in connection with the Contract is inclusive of GST.
15.3 To the extent that any amount payable under the Contract is expressly stated to be exclusive of GST and is consideration for a taxable supply, the recipient must pay an additional amount equal to the GST payable in respect of that taxable supply.
15.4 The recipient must pay any additional amount payable under clause 15.3 at the same time as the consideration to which it relates and on receipt of a valid tax invoice.
15.5 Whenever an adjustment event occurs in relation to any taxable supply to which clause 15.3 applies:
a) the supplier must determine the amount of the GST component of the consideration payable; and
b) if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
15.6 If either party is entitled under the Contract to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with the Contract, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative member.
16. Dispute resolution
16.1 A party claiming that a dispute has arisen from or in connection with the Contract should first give written notice of the dispute to the other party and seek to resolve it in good faith. Nothing in this clause prevents either party from commencing proceedings or exercising any rights under the Australian Consumer Law or any other applicable law.
17. General
17.1 Assignment and other dealings.
a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
17.2 Entire agreement.
a) The Contract constitutes the entire agreement between the parties.
b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
c) Without limiting paragraph (b), and subject to any rights the Customer may have under the Australian Consumer Law, the Customer acknowledges that the Goods are supplied in accordance with their description and any applicable specifications.
17.3 Variation.
The Supplier may amend or update these Conditions from time to time for future Orders by posting the updated Conditions on the Supplier’s website. Any amendment or update will not affect a Contract for an Order already placed and paid for unless required by law or agreed with the Customer.
17.4 No waiver.
a) A waiver of any right, power or remedy arising under or in connection with the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
b) Neither party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with the Contract.
c) A delay or failure to exercise, or the single or partial exercise of, any right, power or remedy arising under or in connection with the Contract shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.5 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 17.5 the parties shall negotiate in good faith to agree to a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.6 Notices.
a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
i) delivered by hand or by express post or other next working day delivery service at the location specified in the Order; or
ii) sent by email to the email addresses specified in the Order (or an address substituted in writing by the party to be served).
b) Any notice shall be deemed to have been received:
i) if delivered by hand, at the time the notice is left at the proper address;
ii) if sent by express post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
c) This clause 17.6 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.7 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of the State of Queensland.
17.8 Jurisdiction.
Each party agrees that the courts of the State of Queensland shall have non-exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract or its subject matter or formation.
18 Definitions and interpretation.
18.1 Definitions:
In these Conditions, unless the context clearly indicates otherwise the following terms have the following meanings:
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day: a day other than a Saturday, Sunday or public holiday in Brisbane, Queensland.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 17.3.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control including any Act of God, riots, insurrections, rebellions, terrorist acts, civil disturbances, wars (declared or undeclared), Government regulations for national defence, fire, lightning, severe weather conditions, flood, pandemic, epidemic, strikes, boycotts, lockouts or other labour disturbances or compliance with any Laws or order of any Government Body.
Goods: the articles, goods, materials or their parts specified to be supplied under the Contract, and includes any related Services (if any).
GST: means any form of goods and services tax payable under the GST Law.
GST Law: the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights: all current and future registered and unregistered rights in respect of copyright, circuit layouts, designs, trademarks, know-how, confidential information, patents, inventions, plant breeder’s rights and discoveries and all other intellectual property as defined in article 2 of the convention establishing the World Intellectual Property Organisation Convention 1967.
Order: the Customer's order for the Goods, as set out in the Customer's order.
Services: any ancillary services supplied by the Supplier in connection with the Goods.
Supplier: Emerson Jane Pty Ltd (ABN 86 690 099 551).
18.2 Interpretation:
a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b) A reference to a party includes its personal representatives, successors and permitted assigns.
c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
e) A reference to writing or written includes in electronic form, including email.