TERMS AND CONDITIONS

 

 

NSW FAIR TRADING ACT – DISCLOSURE OF PREJUDICIAL TERMS - OUR DISCLOSURES TO YOU:

 

This disclosure is made by us to you if you are purchasing products in New South Wales. We are required by New South Wales law to disclose to you any terms or conditions of the Terms that may substantially prejudice you, as set out below. By accepting the Terms, you agree that:

• we may amend these Terms at any time (without your agreement) by publishing varied terms on the Site (please see clause 11(j));
• you are responsible for the risk in the products (including any loss or damage) as soon as they are delivered to the delivery address (please see clause 5(g));
• subject to your consumer law rights (including under the Australian Consumer Law), you have not relied on any representations or warranties made by us prior to accepting the Terms that are not included in the Terms (please see clause 6(c));
• subject to your consumer law rights (including the Australian Consumer Law), our Liability for the provision of the products will be limited to, at our discretion, the resupply of the products or the repayment of the Price paid by you to is (please see clause 9(a)(1));
• subject to your consumer law rights (including under the Australian Consumer Law), we exclude our liability for consequential losses (please see clause 9(a)(2)), however, your liability for consequential loss is also excluded; and
• subject to your consumer law rights (including under the Australian Consumer Law), will not be liable if (and to the extent) we are affected by an event or circumstance beyond our reasonable control (please see clause 9(a)(4)), however, you will also not be liable if (and to the extent) you are affected by an event or circumstance beyond your reasonable control, except that this does not affect your liability to pay the Price.

 

Please read these Terms carefully prior to accepting these Terms and/or placing an order for the products, and contact us if you have any questions or concerns.

 

1         Acceptance

(a)      This website (Site) is operated by Tramontina Australia Pty Ltd (ABN 82 107 466 937) (we, our or us). It is available at: tramontinaaustralia.com.au and may be available through other addresses or channels.

(b)     By accessing and/or using the Site you:

(1)            warrant to us that you have reviewed these terms and conditions (Terms) and you have read our Privacy Policy (available on the Site), with your parent or legal guardian (if you are under 18 years old);

(2)            warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years old) you have your parent’s or legal guardian’s permission to access and use the Site and they have agreed to the Terms on your behalf; and

(3)            agree to use the Site in accordance with the Terms.

(c)      If you are a parent or legal guardian permitting a person who is at least 13 years old but under 18 years old (a Minor) to use the Site including to create an account on the Site, you agree to: (i) supervise the Minor’s use of the Site; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Site; (iii) ensure that the content on the Site is suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor’s behalf.

2         Orders

(a)      You may order products from us as set out on the Site. Any order placed through the Site is an offer by you to purchase a particular product or products for the price notified (including delivery costs and other applicable charges and taxes) at the time you place your order.

(b)     We may, at our absolute discretion, accept or reject an order. We will endeavour to notify you of a rejection at the time of the order or within a reasonable time thereafter.

(c)      Each order that we accept results in a separate binding agreement between you and us for the supply of products in accordance with the Terms.

(d)     It is your responsibility to check the order details, including selected products and pricing, before you submit your order through the Site.

(e)      When you order and pay on the Site and your payment has been validated, we will provide you with an order confirmation email, which may include an order ID, the delivery and billing addresses and a description of what was ordered.

3         Price and payments

(a)      You must pay us the purchase price of each product you order plus any applicable delivery costs based on the delivery options selected by you as set out on the Site (the Price) in accordance with this clause. All amounts are stated in Australian dollars and are inclusive of Australian GST (where applicable). We display delivery costs separately from the product price.  

(b)     For products which are available at the time of your order, you must pay the Price upfront.

(c)      You must not pay, or attempt to pay, the Price by fraudulent or unlawful means. In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the Price.

(d)     If we offer payment via a third party payment processor, such as Stripe, PayPal or any of our buy now pay later options, the payment may be subject to such third party payment processor’s s terms and conditions.

(e)      We may, from time to time, issue promotional discount codes for certain products on the Site. To claim the discount, you must enter the promotional discount code at the time of submitting your order through the Site. The conditions of use relating to promotional discount codes will be specified on the Site at the time they are issued. We may also from time to time run competitions on the Site or associated social media platforms. Such competitions are subject to terms and conditions which will be made available on the Site at the time of the competition.

4         Availability and Cancellation

(a)      All purchases made through the Site are subject to availability. We do our best to keep products in stock and to keep the Site up to date with the availability of products.

(b)     We reserve the right to cancel, at any time before delivery and for whatever reason, an order that we have previously accepted, including where there is a considerable delay in dispatching your order, if for any reason we cannot supply the products you order (for example for an event beyond our reasonable control) or if the products ordered were subject to an error on our Site (for example in relation to a description, price or image). If we need to cancel your order, we will contact you using the details you provided when you placed your order. You may choose to receive a refund or a store credit or to place your order on backorder. If you choose a refund or store credit, any delivery costs you have paid for the products will be refunded to you. If you choose to place your order on backorder, we will contact you to arrange delivery once the products are available.

5         Delivery, Title and Risk

(a)      If possible, we will deliver the products to the delivery address you provide when making your order. We deliver Australia wide (unless our delivery provider does not deliver to your area).

(b)     Delivery costs are set out on the Site.

(c)      We normally dispatch products within 48 hours of receiving an order, unless otherwise noted on the Site. Any delivery periods displayed on the Site are estimates only, based on the information provided by the delivery company.

(d)     If you need to change the delivery date or delivery address, you agree to notify us immediately in writing. You acknowledge that although we will take reasonable steps to comply with such a request, we may be unable to do so (including where our third party delivery provider rejects such a request).

(e)      We may deliver the products using a range of delivery methods such as Australia Post and Direct Freight Express. You may need to sign for some deliveries. If neither you nor your authorised representative is at the delivery address to accept delivery, the delivery company will generally leave the product in a safe space at the delivery address or deliver the products to your nearest post office.

(f)       Title to the products will remain with us until you have paid us the Price in full in accordance with the Terms. Until title passes, you must not do anything which seeks to create an encumbrance, lien, charge or other interest in or over the products.

(g)      Risk in the products will pass to you as soon as they are delivered to the delivery address you provided in your order. Once risk in the products passes, you will be solely responsible for them.

6         Returns

Change of mind returns

(a)      We offer exchanges (subject to stock availability) or refunds of products for change of mind where we determine (at our absolute discretion):

(1)        you have provided proof of purchase and you purchased the products within 30 days prior to the request for an exchange or refund;

(2)        the products are in their original condition and have not been used, damaged or tampered with;

(3)        the products are in their original undamaged packaging;

(4)        the products are not sale items, custom-made, special buy products or gift vouchers; and

(5)        a return and exchanges form has been completed through our Site.

(b)     We will not cover the costs of delivery or re-delivery for a change of mind return. You must cover these yourself.

Australian Consumer Law

(c)      Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law. In Australia, our goods come with guarantees which 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. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.

(d)     Where you return the products to us to seek an Australian Consumer Law remedy, you will need to cover any associated costs (for example delivery costs) of you returning the products to us.

(e)      Where your claim is a valid claim under the Australian Consumer Law, we will refund your return delivery costs and, depending on the failure, either dispatch a new or repaired replacement product or refund you the Price of the relevant product. Please contact us for further information.

7         Warranty Against Defects

(a)      Some of our products may come with a warranty against defects, as set out on the Site.

(b)     If a warranty against defects comes with a product you order, separate terms and conditions for that warranty against defects will apply, as made available to you. Any claim under such warranty against defects is to be handled in accordance with the separate terms and conditions.

(c)         If You think any Goods are defective, damaged, missing or misdelivered, You must notify Us of any complaint in writing and within 7 business days of delivery/collection of those Goods. You must take all steps necessary to mitigate any Loss arising from any defect in the Goods supplied. You will be deemed to accept the Goods (including any defects) if You do not make a complaint in accordance with these Terms.

(d)        Any complaint under this section must be accompanied by:-

1. i)Proof of purchase;
2. ii)Written details of the alleged defect including photographs;

8         Intellectual property

(a)      All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with the Terms and the products) will at all times vest, or remain vested, in us.

(b)     You must not, without our prior written consent:

(1)            copy or use, in whole or in part, any of our intellectual property;

(2)            reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any of our intellectual property to any third party; or

(3)            breach any intellectual property rights connected with the Site or the products, including (without limitation) altering or modifying any of our intellectual property; causing any of our intellectual property to be framed or embedded in another website; or creating derivative works from any of our intellectual property.

9         Limitations

(a)      Despite anything to the contrary, to the maximum extent permitted by law:

(1)            our maximum aggregate liability arising from or in connection with the Terms (including the products and/or the subject matter of the Terms) will be limited to us resupplying the products to you or, in our sole discretion, repaying you the amount of the Price paid by you to us in respect of the supply of the Products to which the liability relates;

(2)            neither party will be liable for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

(3)            a party’s liability under or in connection with the Terms will be reduced to the extent caused or contributed to by the acts or omissions of the other party (or any of its personnel) (including a failure to take reasonable steps to mitigate); and

(4)            if either party is delayed in performing or is unable to perform an obligation under the Terms (other than your obligation to pay the Price), it agrees to notify the other party in writing, and the party will not be liable to the other party for such delay or failure if and to the extent the delay or failure is caused or contributed to any event or circumstance beyond its reasonable control.

10      Collection Notice

(a)      We collect personal information about you in order to enable you to access and use the Site, to contact and communicate with you, to respond to your enquiries, to process and dispatch your orders and for other purposes set out in our Privacy Policy.

(b)     We may disclose that information to third party service providers who help us deliver our services (including our delivery company, inventory management software, information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners), to our related entities and as required by law. If you do not provide this information we may not be able to provide our products to you.  In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.

(c)      Our Privacy Policy contains further information about:

(1)        how we store and use your personal information;

(2)        how you can access and seek correction of your personal information;

(3)        how you can make a privacy-related complaint; and

(4)        our complaint handling process. 

(d)     By providing personal information to us, you acknowledge we will collect, hold, use and disclose your personal information in accordance with our Privacy Policy.

11      General

(a)      Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this clause).

(b)     Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided when you submitted your order. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email, and where that day is not a business day, 9am on the next business day.

(c)      Waiver: Any failure or delay by a party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a party from exercising that power or right or any other power or right. A waiver must be in writing.

(d)     Relationship of parties: These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.

(e)      Photographs: If you provide us with photographs of the products, including via email or by tagging us on social media, you consent to us publishing such photographs and details (including but not limited to your name, location and date) for our marketing purposes including on the Site and social media.

(f)       Feedback and complaints: We are always looking to improve our services. If you have any feedback or a complaint, please notify us on our contact details below and we will take reasonable steps to address any concerns you have.

(g)      Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions.

(h)     Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent.

(i)       Entire agreement: The Terms contain the entire understanding and agreement between you and us in respect of their subject matter.

(j)       Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. Prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any order that has been accepted by us, the terms and conditions that apply will be the ones that were in effect (and which you agreed to) when you placed your order.

(k)      Governing law: These Terms are governed by the laws of NSW. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in NSW and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Site may be accessed in Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Site.