Terms and Conditions
Fairfax & Roberts
1.INTERPRETATION and definitions
In these Terms unless the context otherwise requires:
(a) reference to a person includes any other entity recognised by law;
(b) the singular includes the plural and vice versa;
(c) words importing one gender include all genders;
(d) any reference to any of the parties by their defined terms includes that party’s executors, administrators or permitted assigns or, being a company, its successors or permitted assigns;
(e) an agreement, representation, or warranty on the part of two or more persons binds them jointly and severally;
(f) an agreement, representation, or warranty in favour of two or more persons is for the benefit of them jointly and severally;
(g) clause headings are for reference purposes only;
(h) reference to a statute, ordinance, code, or other law includes regulations and other instructions under it and consolidations, amendments, re-enactments, or replacements of it;
(i) reference to a time is to that time in Sydney, Australia;
(j) reference that something is to be done in writing includes electronic communication;
(k) if the time for something to be done or to happen is the 29th, 30th or 31st day of a month, and that day does not exist, the time is instead the next day; and
(l) if the time for something to be done or to happen is a day that is not a Business Day, the time is extended to the next Business Day.
(a) Australian Consumer Law means schedule 2 of the Competition and Consumer Act 2010 (Cth);
(b) Communication means electronic mail, telephone and/or verbal conversations;
(c) Completion Date has the meaning given to it in clause 5.2(a)(ii);
(d) Costs means all costs, expenses and/or liabilities;
(e) Gift Voucher has the meaning given to it in clause 4.6(a);
(f) Lay-By has the meaning given to it in clause 4.7(a);
(g) Major Defect has the meaning given to “Major Failure” in the Australian Consumer Law;
(h) GST means any tax, levy, charge or impost implemented under the GST Act or an act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
(i) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(j) Price means the:
(i) purchase price of a Product; or
(ii) the fee we allocate for a Service,
(k) Product means jewellery products or any part or component thereof;
(l) Related Entities has the meaning given to it in the Corporations Act 2001 (Cth);
(m) Service means any service that we provide in relation to the Products including, but not limited to, design, creation, finishing, repair, remodelling and/or valuation;
(n) Store means:
(i) the Fairfax & Roberts store located at 19 Castlereagh Street, Sydney, NSW, 2000; and/or
(ii) any location in which we display the Products, for purchase,
(o) Terms means these terms of purchase;
(p) Third Party Product means an item that is supplied to you by a third party;
(q) Us/ we means Fairfax & Roberts Pty Ltd (ACN 001 015 238) and its Related Entities;
(r) You means the entity that, or on whose behalf another entity, agrees to be bound by these Terms by purchasing the Products and/or Services.
(a) These Terms govern your purchase of any Products and/or Services from us.
(b) If you do not agree to the Terms, you must not purchase the Products and/or Services.
(c) If you are agreeing to these Terms on behalf of another entity:
(i) you warrant that you have the authority and capacity to enter into these Terms on that entity’s behalf; and
(ii) in the event that you breach clause 2.1(c)(i), you will be liable to us for any Costs that we incur as a result of your breach.
2.2 Independent Status
You agree and acknowledge that these Terms create a relationship between us and you which is solely that of a supplier and a client and not that of an employer and employee, licensor and licensee, franchisor and client, principal and agent or any joint venture, partnership or any other implied or expressed relationship, whether at law or in equity.
Unless otherwise expressly stated in writing, nothing in these Terms is intended to prevent us from supplying Products and/or Services which are the same or similar to the Products and/or Services to third parties.
3.sale and purchase
You agree and acknowledge that:
(a) you may request that we source a certain Product for you;
(b) we may display information relating to the Products and/or Services on our Website, in our Store or in Communication;
(c) the display referred to in clause 3(b) constitutes an invitation to treat;
(d) you offer to purchase the Products and/or Services by agreeing to pay the Price; and
(e) we will be deemed to have accepted your offer to purchase the Products and/or Services upon our confirmation to you that we will supply the Product and/or Service to you.
4.PRICE, payment and expenses
(a) You agree to pay us the Price that we allocate to Products and/or Services.
(b) We accept payment using all major credit cards, as determined by us, by electronic funds transfer into our nominated bank account and by bank cheque.
(c) All prices are in Australian Dollars (AUD) and, unless otherwise stated, include GST. You agree that you are liable to pay all GST in relation to the Price.
In the event that we agree to sell you a Product and/or Service with upfront payment, you must pay us the Price immediately upon our agreement to supply you with the Product and/or Service.
In the event that we agree, in our absolute discretion, that you may pay the Price in instalments, you must pay each instalment on or before its due date for payment.
(c) Time is of the Essence
You agree that time is of the essence in relation to your obligations in this clause 4.2.
In the event that we incur any expenses in the course of performing our obligations under these Terms, we reserve the right to recover those expenses from you. In the event that we demand reimbursement of such expenses, you agree to reimburse us within fourteen (14) days of such demand.
We may apply or set off any monies it receives from you towards any invoices which remain unpaid or are owed to us, as we deems fit.
We reserve the right to charge default interest, at a rate of ten percent (10%) per annum, calculated daily and charged weekly, on the total of all unpaid amounts which are due and owing by you, until such amounts are paid in cleared funds.
4.6 gift vouchers
(a) You may elect to purchase a gift voucher from us (Gift Voucher).
(b) You agree and acknowledge that:
(i) the Gift Voucher will expire six (6) months after you purchase the Gift Voucher;
(ii) the Gift Voucher may only be used up to the value of the Gift Voucher;
(iii) we may elect to apply additional terms to the use of the Gift Voucher, in our discretion; and
(iv) we will not be liable for any loss, damage, costs or injury suffered in relation to any Voucher.
(a) In the event that clause 4.2(b) applies, you must enter into a lay-by agreement with us (the Lay-By Agreement).
(b) In the event that you fail to make an instalment payment by its due date, we may immediately terminate the Lay-By Agreement and clause 4.7(e) will apply.
(c) In the event you wish to terminate the Lay-By Agreement, you acknowledge that clause 4.7(e) will apply.
(d) You acknowledge that we may terminate the Lay-By Agreement in the following circumstances, in which event clause 4.7(e) will apply:
(i) if you have breached the Lay-By Agreement;
(ii) if we are no longer engaged in trade; and/or
(iii) if the Product is no longer available.
(e) If the Lay-By Agreement is terminated, you agree that you are liable to us for all amounts, which we may retain or recover, to compensate any Costs that we have incurred, or we may incur, as a result of, or in relation to, the termination.
5.1 TItle and risk
(a) You agree and acknowledge that title in the Product passes to you upon the later of:
(i) our transfer of possession of the Product to you; and
(ii) our receipt of the Price from you, in cleared funds, in our nominated bank account.
(b) You agree and acknowledge and risk in relation to the Product passes to you upon your agreement to purchase the Product.
5.2 delivery and delays
(a) You will be entitled to take possession of the Product:
(i) upon our receipt of the Price and any other amounts payable to us under these Terms, from you, in cleared funds, into our nominated bank account; and
(ii) in the event that we have sourced the Product and/or provided Services in relation to the Product, when we confirm that the Product is ready for you (Completion Date).
(b) You acknowledge that you may take possession of the Product by attending the Store, courier, post or hand delivery, as determined by us, on a case by case basis, in our absolute discretion.
(c) You acknowledge that we will not be liable in relation to any delays in transferring possession of a Product to you.
You agree and acknowledge that you may request that we provide certain Services in relation to a Product or a Third Party Product, in which event:
(a) you must provide us with accurate, up-to-date, correct and clear information and requests regarding the Services that you require;
(b) we will advise an estimate of the completion date for the Services, in relation to which you agree that this date may be subject to change and that we will not be liable to you, or any other person, as a result of delays in this regard; and
(c) we may elect to subcontract part or whole of the Services in our absolute discretion.
(a) In the event that you wish to vary the Services after we have agreed upon the Price, then you agree that the Price may be varied by us in our discretion.
(b) In the event that we determine that additional work is required in relation to the Services, you agree that the Price may be varied by us in our reasonable discretion.
6.3 third party products
You agree and acknowledge that:
(a) we do not accept any risk in relation to Third Party Products;
(b) we shall not be responsible in tort or contract, or otherwise, and shall be released and indemnified by you for any liability arising from any loss of, or damage to, or deterioration of, Third Party Products, for any reason except the negligence or a wilful act or default by us;
(c) we will not be required to arrange insurance to cover damage, destruction to, or loss of your property; and
(d) any Third Party Products which remain in our possession for a period of one (1) year after the Completion Date will be deemed abandoned and we will be entitled to deal with such Third Party in anyway, in our absolute discretion, without liability to you or any other party.
7.REPAIRS, RETURNS and REFUNDS
7.1 MAJOR DEFECT
A Product may be deemed to contain a Major Defect if:
(a) the Product has an issue with it that, if known to you prior to purchasing, you would not have proceeded to purchase the Product;
(b) the Product does not fit the description, sample and/or demonstration model used to sell the Product;
(c) the Product is not fit for purpose; or
(d) the Product is unsafe.
7.2 returns, refunds and repairs
(a) In the event that you establish that a Product has a Major Defect or has a failure that cannot be remedied, then you may return the Product to us within seven (7) days of receiving title in the Product, at which point we will provide you with a store credit or a refund in the value of the Price.
(b) In the event that the failure relating to the Product is not a Major Defect, or it can be remedied, then you may request that we repair the Product within seven (7) days of receiving title in the Product.
7.3 NO ENTITLEMENT
Clause 7.2 will not apply in the event that:
(a) the failure or Major Defect was brought to your attention prior to entering into these Terms;
(b) you do not meet the timeframes stipulated;
(c) you have changed your mind;
(d) you have lost, damaged or destroyed the Product; and/or
(e) in relation to damage relating to fair wear and tear, misuse or failure to use in accordance with instructions.
8.1 by you
You may only terminate these Terms in accordance with clause 4.7(c) or 7.2(a).
8.2 by us
(a) We may terminate these Terms in the following circumstances:
(i) if you breach your obligations within these Terms;
(ii) if clause 4.7(d) applies; or
(iii) in the event that a Product or Service is no longer available.
(b) If these Terms are terminated, except in accordance with clause 7.3(a), then you agree that you are liable to us for all amounts, which we may retain or recover, to compensate any Costs that we have incurred, or we may incur, as a result of, or in relation to, the termination.
You agree and acknowledge that:
(a) the Product has not been sold to you by way of sample;
(b) no representations have been made as to the fitness or suitability of the Product for any purpose;
(c) you accept the Products with any defects that we bring to your attention prior to entering into these Terms;
(d) you have provided us with correct, accurate and up-to-date information;
(e) you have the capacity to enter into these Terms;
(f) you have elected to purchase the Products and/or Services of your own free will;
(g) we may, in our absolute discretion and without notice to you:
(i) modify, discontinue, temporarily or permanently, your acces to the Website and/or the Store in whole or in part;
(ii) assign our interests in these Terms;
(iii) run advertisements and promotions on the Website; and/or
(iv) suspend or terminate your access to the Website.
10.INTELLECTUAL PROPERTY, confidential material AND DATA PROTECTION
(a) We own all of the intellectual property rights related to or arising out of our business, the Products, the Services, the Website, the Store and all information, messages, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material and content contained therein, including but not limited to any trademarks, copyright, patents, patents pending, know how, trade secrets, names of domains, products, brands and services, moral rights, designs, inventions, confidential material, irrespective of whether these items or rights are registered, or capable of registration, which arise by operation of contract, legislation, common law or equity (Intellectual Property).
(b) Nothing in these Terms is intended to be construed as granting you any goodwill or ownership rights in the Intellectual Property.
(c) The Intellectual Property is the exclusive property of us and/or our Related Entities and as such all goodwill accrued in relation to the Intellectual Property accrues to the exclusive benefit of us and/or our Related Entities.
(d) You agree that you will not alter, adapt, recreate or otherwise change any of our Intellectual Property without our prior written consent.
(e) You agree that we may, in our absolute discretion, use images, reproductions, graphics or other representations of any Products that you purchase from us in advertising or other marketing collateral without your consent.
10.2 CONFIDENTIAL MATERIAL
The information relating to these Terms, the Products and/or the Services are confidential, and you must not disclose them without our prior consent, which we may withhold in our absolute discretion.
11.LIABILITY, WARRANTIES & INDEMNITIES
(a) Limitation of Warranties and Liability
(i) The provisions of various statutes, rules, and regulations in force from time to time, which apply to these Terms, may not, or may not except to a limited extent, be varied, modified or excluded. To the extent that it is not lawful to vary, modify or exclude them they shall, but only to the extent required by law, form part of these Terms.
(ii) These Terms contains certain express terms and warranties. To the extent permitted by law, there are no other terms, warranties or conditions, whether statutory, express, implied, collateral or otherwise, and such terms, warranties or conditions are hereby expressly excluded to the extent permitted by law.
(iii) We are not responsible for typographical errors or omissions relating to Products and/or Services, availability, pricing, text or imagery. In the event that any information displayed on the Website or in the Store is incorrect due to a typographical or administrative error, including but not limited to errors or inaccuracies relating to stock, availability, pricing, delivery times, or other information, you agree that we may terminate any agreement arising from any acceptance of an offer made in this regard, despite the fact that you have received a confirmation email. In this event, we will refund (or provide you with a credit note) in relation to the amounts that you have paid to us for the applicable Product.
(iv) In no event shall we or our respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, be liable to you or anyone claiming under or through you, for any punitive, exemplary, incidental, indirect, or special damages, or consequential loss, based on, arising out of or in connection with these Terms, a Product and/or a Service, or any matter relating to these Terms, a Product and/or a Service , or error in information (whether negligent or not) supplied before or after the date of these Terms or a Product in connection with its subject matter, or with the supply or use of the Products or the Services, whether based on contract, tort (including but without limitation negligence), or any other legal or equitable grounds, even if we knew or ought to have known of the possibility of such damages or consequential loss. ‘Consequential loss’ shall include but not be limited to loss of profits, interest revenue, use, or goodwill (or similar financial loss), loss of data, business interruption, or payments made or due to any third party.
(v) Any liability of us or our respective affiliates, partners, officers, employees, directors, agents, contractors, representatives, successors or assigns, as such, to you or anyone claiming under or through you for all losses including without limitation, causes of action and claims based upon breach of contract, tort (including but not limited to negligence), breach of warranty, or any other legal or equitable grounds, under, based on, arising out of or in connection with these Terms, or any matter relating to these Terms, or for error of information supplied before or after the date of these Terms in connection with its subject matter, shall not, in relation to Products, exceed in total the reasonable amount required to repair or replace the Product and, in relation to Services, the total amount required to have the Services performed again.
You agree to indemnify us and our agents, directors, and employees from all claims, demands, losses, damages, proceedings, compensation, costs, charges, expenses and liabilities arising from your failure to comply with these Terms or any applicable legislation.
You must not mislead or deceive, or make disparaging remarks to, the public or any other entity in relation to the us, our Products and/or Services and in this regard you agree to indemnify us in relation to any claims, demands, proceedings, losses, damages and expenses which we may sustain as a result of your breach of this clause.
The parties agree that a failure by us to enforce any provisions of these Terms shall not operate as a waiver of our rights in relation to enforcement of those provisions.
Unless otherwise specified in the Agreement, all notices, requests, demands, and other communications (other than routine operational or billing communications) required or permitted hereunder shall be in writing.
If anything in these Terms is deemed to be unenforceable, illegal or void, then it is severed and leaves intact all other non-severable parts of these Terms, which remain in full force.
Neither party shall be in default of these Terms due to any failure or delay in the performance of any obligations if that failure or delay is due to any cause which is beyond the reasonable control of that party and furthermore is not due to that party’s fault or negligence, which causes shall include, without limitation: storms, floods, other acts of nature, fires, explosions, epidemics, pandemics, riots, macroeconomic crises, delays in transportation, inability to obtain necessary labour, supplies or manufacturing facilities, war or civil disturbance, strikes or other labour unrests, embargoes and other governmental actions or regulations that would prohibit either party from ordering or furnishing the Services or the Products or any other aspects of the obligations hereunder.
(a) These Terms will be governed by and construed in accordance with the laws from time to time in force in the state of New South Wales and both parties submit to the non-exclusive jurisdiction of the courts of that state and of the Commonwealth of Australia.
(b) We agree that these Terms will be amended in the event that any laws are changed or introduced which, in the opinion of us or our solicitors, renders the Agreement unenforceable, illegal or void.
18.SURVIVAL OF CLAUSES UPON TERMINATION
The expiration or termination of these Terms does not operate to terminate or extinguish any of the continuing obligations under these Terms and those obligations remain in full force and effect and are binding upon you.
An amendment or variation to these Terms must be effected in writing and agreed by both parties.
20.QUESTIONS AND COMMENTS
If you have any questions or comments regarding these Terms, the Products, the Services and/or the Website, please submit them to us, using the email address info@fairfax&Roberts.com.au.