Beans and Jazz ABN 11 531 486 850
PO BOX 417, Paddington, NSW, 2021, Australia
Phone: (02) 9332 1810 Email: email@example.com
As of 8 May 2015
We can change the Agreement at any time. We will notify you when a change is made, sent to the email address that You provide when registering (or any other email that You provide subsequently) and will also post the changes at www.beansandjazz.com.au. Accordingly, it is important that You ensure that the email address that We have for You is current. Any changes made by Beans and Jazz to these Terms and Conditions will not apply to disputes of which We had actual notice at the date the changes are made.
By registering for Your Beans and Jazz Account or using the Service, You accept and agree to abide by the Agreement. If You do not agree, You must not use the Service.
1.Definitions and Interpretation
In this Agreement the following expressions have the following meanings:
Account Details means the details You provided to register for the Service.
Brand Features means the copyright, trademarks, domain names, patents and confidential information of Beans and Jazz.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday in Sydney, New South Wales.
Cancellation Fee means a fee of 10% of your total order
Delivery Address is the address You nominate the Goods to be delivered to as stated on the Order. The Delivery Address must be a suburb in Australia. Orders for delivery to addresses in suburbs that We do not deliver to will not be processed. If We stop delivering to Your nominated Delivery Address, You will be notified and Your Order will not be processed.
Delivery Fee means the fee payable per Order to Us for delivery of the Order and costs associated with handling and processing Your Order. This is a flat-rate Australia-wide fee (unless otherwise stated) and will be notified to you at the time You place Your Order with Us.
Fee means the cost of Your Order.
Goods means the Goods described in an Order.
Order means the order by You to purchase Goods through the Service from time to time.
Products means the list of products displayed on the Service on Our Website.
Prohibited Actions means the list of actions referred to in the Schedule.
Service means the advertisement and offering for sale of Products on the Website.
Website means the Website located at www.beansandjazz.com.au
You are the person named in Your Account Details.
Your Account means Your registered account with Us.
(a) A reference to a person includes any other entity recognised by law and vice versa.
(b) Headings, underlining, marginal notes and indexes are only included for ease of reference and do not affect interpretation.
(c) A reference to any legislation or legislative provision includes any modifying, consolidating or replacing legislation or legislative provisions from time to time, and includes all regulations, rules and other statutory instruments issued under the legislation.
(d) A reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time.
(e) References to parties, clauses, schedules, annexures or exhibits are references to parties, clauses, schedules, annexures or exhibits to this Agreement unless otherwise stated.
(f) References to months and years mean calendar months and years.
(g) Words denoting the singular number include the plural, and vice versa.
(h) Where any word or phrase is given a defined meaning any other grammatical form of that word or phrase has a corresponding meaning.
(i) No rule of construction or interpretation applies to the disadvantage of a party because that party prepared this Agreement.
2.1 We agree to provide the Service to You from the date You accept the Agreement, complete the Account Details and registration process.
2.2 As part of the registration process, You will be asked to create a user profile with Us.
2.3 You may place an Order with Us by selecting Products and pressing the “Checkout” button. Orders are deemed to be received by Us at the time of successful transmission of the Order.
2.4 We accept an Order when the Order is received and not rejected within 3 Business Days. We reserve the right to accept or reject an order for any reason including without limitation:
(i) unavailability of the Goods;
(ii) an error in the price, image or product description;
(iii) an error in your Order; or
(iv) delivery location.
2.5 We will not confirm a delivery day, time or date.
2.6 We reserve the right to refuse to deliver to You.
2.7 Each Order is a separate agreement between You and Us.
2.8 The minimum amount for any Order is the price of the Goods requested plus the Delivery Fee (Total Amount).
2.9 If Goods in Your Order are out of stock or bad quality, We will contact you to let you know, and inform you about possible available substitute Products. We will use Our best endeavours to ensure that all Goods Ordered by You (and any agreed substitutes) are supplied to You.
2.10 Goods in Your Order are charged at the purchase price applicable at the time You submit Your Order and as shown on the Order confirmation, except if We are unable to deliver a Good to You, including if a Good is out of stock (in which case You will not be charged for that Good).
2.11 We reserve the right to change the price of Goods if there is a significant cost difference of the Good between when You place the Order and when We purchase the Product from Our suppliers.
2.12 If You cancel an Order within 24 hours after You submit Your Order, You will be required to pay the Cancellation Fee to Us (10% of total sale). We cannot accept cancellations to Your Order after 24 hours of placing Your Order with Us.
2.13 We aim to deliver Your Order to You as efficiently as is reasonably possible. We aim to dispatch Products that are currently in stock within three (3) Business Days. If You request a specific delivery time on your delivery day, We will use reasonable endeavours to meet your request, but do not guarantee We will be able to do so, as the delivery may be undertaken by a third party.
2.14 Pictures of Products on the Service may differ from the Goods supplied in Your Order. We do not warrant the accuracy of pictures on Website or the information on a Product’s label.
2.15 We do not warrant the accuracy of information on the Website prepared or provided by a third party supplier. You should make Your own enquiries regarding any Product.
2.16 We reserve the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to do any of the following:
(a) satisfy any applicable law, regulation, legal process or governmental request;
(b) enforce this Agreement, including investigation of breaches or potential breaches of it;
(c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam);
(d) respond to user support requests; and
(e) protect the rights, property or safety of Us, Our users and the public.
3.1 You must pay the Total Amount when requested after you have submitted your Order using the Service.
3.2 We will not process any Order until the Total Amount has been paid to Us using the methods outlined in the Service and on the Website.
3.3 Should a dispute ever arise regarding payment of a Good or Order, all other Goods and Orders not in dispute remain due and payable.
4.1 You may cancel Your Account and terminate this Agreement without cause at any time by providing written notice to Us by email sent to the address firstname.lastname@example.org. However, a terminated Account may continue to exist for up to three business days before the cancellation takes effect. Any Orders already accepted by Us at the time of notification by You will continue to be processed by Us in accordance with clause 2.
4.2 We may at any time and for any reason, by notice to You by email, terminate the Website or Service, terminate this Agreement, or suspend or terminate Your Account. On termination, Your Account will be disabled, You will have no access to and no right to use the Service, and You will not be granted access to Your Account, or any files, or other information contained in Your Account although residual copies of information may remain in Our system.
5. Returns and Exchanges
5.1 If Your Order arrives damaged, please notify Us as soon as possible. Damaged Good returns must be requested within seven (7) days of You receiving Your Order. Please provide a photograph of the damaged or faulty Goods, where possible, when you notify us to request a return.
5.2 We encourage you to choose carefully from our Products. We do not offer refunds for return of Goods due to change of mind. We may offer You an exchange but You must notify Us with three (3) Business Days of the date of delivery. The Goods must be returned in the original condition and in its original packaging to Us. Return delivery fees will be at Your expense, as will any additional Delivery Fee associate with delivering your replacement Good. Exchanges will be offered at Our sole discretion and you acknowledge that We are under no obligation to provide this option to You.
5.3 We will accept the return of Goods and provide you with a repair, replacement, refund or credit in circumstances where:
(a) the Good is faulty or is not of a reasonably acceptable quality; or
(b) the Good is not fit for its intended purpose; or
(c) the Good is significantly different from the description on the Website; and
(d) You can present a Beans and Jazz tax invoice or adequate proof of purchase.
5.4 We reserve the right to assess the condition and age of the returned Goods prior to providing a repair, replacement, refund or credit. This may result in the return being refused.
6. Your Obligations
6.1 You must:
(a) ensure that You comply with this Agreement;
(b) promptly notify Us if You believe or suspect that the Service or Your Account has been compromised;
(c) regularly check the email address provided to Us on registration for messages about the Service or Your Order (or, if You have arranged for emails to be forwarded to an alternate email address, You must check that alternate email address);
(d) provide current, accurate identification, contact, and other information that may be required as part of the registration process or continued use of the Service via Your user profile;
(e) agree to continually indemnify and hold harmless Us (including Our officers, employees, contractors and agents) from any loss (including any liability, cost, expense, claim, proceeding, action, demand or damage) suffered or incurred by Us in connection with the delivery of the Order beyond Your front door if You request We deliver the Order other than to Your front door (for example, at Your back door);
(f) ensure the security of Your use of the Website and Service as outlined in the Schedule; and
(g) maintain the confidentiality of Your Account and Account password and accept full responsibility for all activities that occur with Your Account. Where the current Account details (including email address) or password are provided, We are entitled to assume that the access is by You, or authorised by You, and You indemnify Us completely against any claim of loss or damage that results from wrongful, fraudulent or other access (using the correct Account details or password) to Your Account.
6.2 You must not do, and You must not authorise or encourage any third party to do, any of the following:
(a) prevent other account holders from using the Service;
(b) use the Service for any illegal, fraudulent or inappropriate purpose;
(c) use the Service in any other way that violates any of the items as described in the list of Prohibited Actions;
(d) interfere with or construct Your own system to access the information on the Service; or
(e) act in any way that violates this Agreement.
6.3 You acknowledge and agree to each of the following:
(a) many of the items We stock are handmade and will have handmade characteristics which are not faults;
(b) We can not guarantee a delivery time for Your Order;
(c) any person at the Delivery Address who receives the Order is deemed to be authorised to receive the Order;
(d) the Service is only provided to You for so long as You continue to accept the Agreement, if you no longer accept the Agreement you must discontinue You use of the Service;
(e) the Website and Service may be subject to technical limitations;
(g) the Website and Service is provided on an AS IS and AS AVAILABLE basis and We make no warranties or guarantees in respect of uptime for the Service;
(h) due to the nature of the Website and Service, We do not promise that it will be continuous, accessible at all times or fault-free; and
(i) We reserve the right to modify, suspend or discontinue any part of the Website and Service with or without notice at any time and without any liability to You.
7. Intellectual Property Rights
You acknowledge that We own all right, title and interest in and to the Service, including without limitation all intellectual property rights (Our Rights), and Our Rights are protected by intellectual property laws. Accordingly, You must not copy, reproduce, alter, modify, reverse engineer or create derivative works from the Service. You must not use any robot, spider, other automated device, or manual process to monitor any content from, hosted by or that is otherwise available using the Service. Our Rights include rights to the Service developed and provided by Us, all software associated with the Service and the Brand Features. Our Rights do not include third-party content used as part of Service, including the content of third party advertisements or communications appearing on the Service.
9. Warranties and Indemnity
9.1 You warrant to the best of Your knowledge that the materials and information provided to Us the purposes of providing the Services and an Order:
(a) are true, correct and current;
(b) are able to be disclosed by You;
(c) do not infringe the rights of any third party;
(d) are able to be legally provided to Us and its disclosure does not breach any law or any obligation (whether of confidence or otherwise) owed to any person;
(e) are not illegal, defamatory, threatening, racially, sexually or politically offensive, dishonest or misleading, and do not violate any Commonwealth, State or local laws; and
9.2 You have all necessary rights, power and authority to enter into the Agreement and to perform the acts required of You under the Agreement.
9.3 We cannot guarantee a delivery time for Your Order.
9.4 You indemnify and keep indemnified Us and Our officers, employees, agents, subsidiaries and affiliates against all claims (including third party claims), demands, damages, costs (including legal costs), penalties or suits arising out of or consequential upon Your use of the Service and any breach of any warranty or other term of this Agreement.
10. Limitation of Liability
10.1 To the extent permissible by law, We exclude any liability
(a) for any failure of performance, error, omission, interruption, deletion, defect or delay in transmission or operation;
(b) any communications line failure;
(c) for theft or destruction;
(d) any unauthorised access to, alteration or use of the Service or Website; or
(e) for any injury, loss or damage
Provided that We do not exclude any such liability if it arises as a result of Our failure to take reasonable steps to guard against and use its best endeavours to immediately rectify any of the matters referred to in this clause 10.1 of which We are aware.
10.2 You acknowledge that We assume no liability and make no representations impliedly or expressly to assume or contribute in any form towards any costs You may incur through Your use of the Website or Service.
10.3 Risk in the Order passes to You on delivery of the Order to the Delivery Address.
10.4 Subject to law, We are not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in anyway connected with the provision of or failure to provide the Service, an Order or otherwise arising out of the Service or an Order, whether based on contract, negligence, strict liability or otherwise, even if We have been advised of the possibility of damages.
10.5 You expressly agree that use of the Services and placing an Order is at Your own risk. To the extent allowed by law, Our liability for breach of a term implied into this Agreement by any law is excluded.
10.6 We give no warranty in relation to the Service or Order provided or supplied. Under no circumstances are We or any of Our carriers or suppliers liable or responsible in any way to You or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Service or an Order including its form, content and timeliness of delivery, including, without limitation, for and in relation to any of the following:
(a) any Service or Order supplied to You;
(b) any delay in supply of the Service or Order;
(c) any failure to supply the Service or Order;
(d) any technical or non-technical failure; or
(e) any content or information accessed via the Service with or without Your authorisation.
10.7 We make no representation or warranty of any kind, express or implied, as to the operation of the Website or the information, content, materials, or Products included on the Website or offered through the Services. You expressly agree that your use of the Website and Service is at your own risk.
10.8 Subject to law, We disclaim all warranties, express or implied. We do not warrant that the Website, its servers, or email sent from or on behalf of Us are free from viruses or other harmful components. We will not be liable for any damages of any kind arising from the use of the Website, including but not limited to direct, indirect, incidental, punitive or consequential damages.
10.9 You assume total responsibility for Your use of the Website and Services and any linked websites. Your sole remedy against Us for dissatisfaction with the Website or any content is to stop using the Website or any such content. The limitation of relief is a part of this Agreement between the parties.
10.10 The Australian Consumer Law implies certain conditions and warranties into the Agreement that cannot be excluded. You are entitled to a replacement or refund for a major failure and for 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.
11.1 Any Notice given by Us under this Agreement must be in writing and delivered either by notification on the website, electronic pop-up function or by email to the address used by You to access the Services. A Notice required to be given to Us in connection with this Agreement must be in writing and must be delivered, by registered mail, or by email and must be addressed to our postal address or email address as set out in this Agreement, or as may be notified to you from time to time.
11.2 A notice received by post before 4 pm on a Business Day, will be deemed to have been received on that day and, in any other case of hand delivery, will be deemed to have been received on the Business Day next following.
12. Joint and Several Liability
Every covenant or provision in this Agreement applying to or binding, or a right conferred on, more than one person binds or benefits them jointly and each of them severally.
Any consent or approval referred to in, or required under, this Agreement from any party may be given or withheld, or given subject to any conditions, as that party in its absolute discretion thinks fit.
You must not assign or novate any right or obligation under this Agreement without Our prior written consent.
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
16. Entire Agreement
Each party must do, sign and deliver and must procure that each of its employees and agents does, signs, and delivers, all acts, , things and documents reasonably required of it by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
17.1 If any part of this Agreement is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down so as to be valid and enforceable.
17.2 If clause 16.1 is not possible, and that part does not go to the essence of the Agreement, that part will be severed from this Document and the rest of this Document continues to have full force and effect.
18. Governing Law and Jurisdiction
The law in force in New South Wales governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeals from those courts in respect of any proceedings in connection with this Agreement. Each party irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum where that venue falls within New South Wales
In addition to those acts listed in the terms, the following acts are prohibited in using or in connection with the Service:-
- Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content.
- Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature.
- Impersonate another person (via the use of an email address or Account) or otherwise misrepresent Yourself or the source of any email or communication.
- Use the Website to violate the legal rights (such as rights of privacy and publicity) of others.
- Promote, encourage or participate in illegal or unlawful activity.
- Interfere without cause in the reasonable enjoyment by other users of the Service.
- Create multiple user accounts, create user accounts by automated means or otherwise engage in false, fraudulent, deceptive or misleading conduct in respect of user identity.
- Sell, trade, resell, transfer or otherwise attempt to dispose of a Your Account, or otherwise exploit any content on the Service for any unauthorised commercial purpose.
- Modify, adapt, translate, or reverse engineer any portion of the Service.
- Remove any copyright, trade mark or other proprietary rights notices contained in or on the Service.
- Reformat or frame any portion of any Web page that is part of the Service.
- Create third party software without the permission of Beans and Jazz.
- Misrepresent Us or the Service as being associated with content with another Website, Web service, software service, software or other service without Our prior permission.
- You must promptly notify Us of any actual or suspected breach of security related to the Services, including, but not limited to, unauthorised use of Your password or Your Account.
- You are responsible for the security of Your password, login or access details or other security measures. You are responsible for all electronic communications and other information entered through or under user IDs, passwords, access numbers or account numbers. You must not disclose any security measures to any other person and must keep those details confidential.
- To help ensure the security of Your password or Account, please sign out from Your Account at the end of each session.
YOU ACKNOWLEDGE, CONFIRM AND AGREE THAT:
(A) YOU HAVE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS; AND
(B) THESE TERMS AND CONDITIONS OF THE AGREEMENT ARE THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN YOU AND BEANS AND JAZZ, WHICH SUPERSEDE ANY AND ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND BEANS AND JAZZ RELATING TO THE MATTERS CONTAINED IN THIS AGREEMENT.