PROVISIONS OF SALE (AMBER)
Permission to use the Website and to make a Purchase is conditional upon you, the Customer, agreeing to the Provisions set out below. Making a Purchase is only offered to the Customer on condition that the Customer has read and accepts all the Provisions of this Agreement and wishes to make a Purchase. By clicking ” PURCHASE” at the Checkout on our Website, you will be deemed to have accepted the following Provisions. If you do not wish to accept the Provisions, you must not click “PURCHASE”.
1 WEBSITE PROVISIONS OF SALE
1.1 This Agreement covers the Transaction. Importantly, the Customer should read this Agreement carefully and contact Aspire with any questions before completing the Transaction. Aspire is available on firstname.lastname@example.org
2 PURCHASE & USE
2.1 Upon confirming a Purchase the Customer agrees to make the payment of the Price to Aspire.
2.2 The Customer agrees to use the Amber for its Common Purpose.
2.3 Risk and title is transferred to the Customer upon Despatch to the Customer.
3.1 Upon Confirmation of the Purchase, Despatch will occur within forty-eight (48) hours .
3.2 The costs associated with a Despatch are included in the total Price of the Amber and listed at the Checkout.
3.3 Failed Delivery. Purchases that are returned to Aspire due to incorrect or incomplete address, will have the Purchase terminated and the cost of the product refunded.
4 OPERATION OF THE WEBSITE
4.1 The Customer may access and use the Website (including any incidental copying that occurs as part of that use) in the normal manner and may also print one copy of any page within the Website for the Customer’s own personal, non-commercial use.
4.2 The Website contains links to other websites as well as content added by people other than us. Aspire does not endorse, sponsor or approve any such user generated content or any content available on any linked website.
4.3 The Customer acknowledge and agree that:
(a) Aspire retains complete editorial control over the Website and may alter, amend or cease the operation of the Website at any time in our sole discretion; and
(b) the Website will not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes).
5.1 Subject to these terms and conditions, Aspire warrants that Amber will be free from Defects under normal application, use and conditions during the Aspire Warranty Period. Aspire acknowledges that the benefits provided to the Customer by the Warranty are in addition to other rights and remedies available to the Customer under the ACL.
5.2 The parties agree that any Liability of Aspire for a breach of any condition or warranty (including any implied by law except for Major Failures) is limited to, at Aspire’s option, in the case of Amber the:
(a) replacement of the Amber or the supply of equivalent;
(b) repair of the Amber; or
(c) payment of the cost of:-
(i) replacing the Amber or of acquiring equivalent Amber; or
(ii) having the Amber repaired;
5.3 Unless otherwise required under the ACL, the Customer may only activate the appropriate warranty in the event that the Defect becomes apparent during the Warranty Period.
5.4 If Amber is repaired or replaced, the remainder of the Warranty Period will apply to the repaired or replaced Amber. The original Warranty Period will not be extended on account of any warranty repair or replacement.
5.5 This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, Aspire’s limits its liability in respect of any Claim to, at Aspire’s option and cost the replacement of the Amber; or the payment of the cost of replacing the Amber.
5.6 Aspire acknowledges that Aspire’s goods come with guarantees that cannot be excluded under the Australian Consumer Law (ACL). The Customer is entitled to a replacement or refund for a Major Failure and compensation for any other reasonably foreseeable loss or damage. The Customer is 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.”
5.7 The Customer must Notify Aspire of the alleged Defect.
5.8 Immediately upon identifying the alleged Defect, the Customer must immediately cease using the allegedly Defective Amber.
5.9 Upon Notification to Aspire of the identification of the alleged Defect:-
(a) Aspire within three (3) business days will nominate the address to return the Defective Amber; and
(b) The Customer within fourteen (14) days will coordinate the return the Defective Amber to the nominated address and remain responsible for the cost of such return;
5.10 Upon the return of the Defective Amber to Aspire, Aspire will confirm:-
(a) whether the Amber is Defective
(b) what is and is not covered under Warranty and any non-warranty related costs associated with any repairs;
5.11 The Customer agrees that Aspire will not be responsible for any expenses associated with the Defect or return of the Amber to Aspire.
5.12 Suppliers. Nothing in this Agreement excludes, restricts or modifies any rights or remedies of the Customer against any other manufacturer or supplier who provide the Amber to Aspire;
6 EXCLUSION FROM LIABILITY
6.1 Aspire warrants and acknowledges to the Customer that the provisions of Clause 6 do not exclude or modify the application of the statutory guarantees in Section 64 or Section 259 of the ACL.
6.2 Exclusion. Notwithstanding any other provision of this Agreement, Aspire will not be liable to the Customer for any:
(a) indirect loss, loss of revenue, loss of profit, loss of goodwill, lost opportunity, financial penalties imposed by any governmental agency or any other indirect or consequential loss arising from or in relation to this Agreement and notwithstanding termination of this Agreement by either party; or
(b) liability in negligence for acts or omissions of Aspire arising out of or in connection with this Agreement; or
(c) act completed by the Customer in the provision of the Amber to a third party;
(d) allergic reaction to the Amber (such as metallic irritation or allergy to amber); or
(e) liability in respect of loss of data, interruption of business or any consequential or incidental damages from the use of the Website; or
(f) Claim suffered or incurred by the Customer in connection with the Customer’s use or modification of the Amber; and
the Customer releases Aspire from such Liability.
6.3 Limitation. Aspire is not liable for any Defects if, and to the extent that, it is due to, or comprises:-
(a) damage or defects from after the Amber has been Despatched to the Customer for reasons not related to their state or condition at the time of Despatch;
(b) defects or liabilities for Defects of which the Customer was aware or ought reasonably to have been aware of at the time of contracting for the sale or supply of the Amber or in respect of which adequate instructions or warnings (including safety warnings) are given at or before the sale or supply of the Amber;
(c) failure by the Customer to immediately Notify Aspire the Defect is first identified;
(d) superficial marks;
(e) damage or deterioration that occurs after Despatch;
(f) misuse or abusive use of the Amber;
(g) the incorrect or improper storage of the Amber at temperatures other than at room temperature or by excessive exposure to heat or moisture;
(h) exposure to abnormal conditions; adverse external conditions such as extreme weather events, acts of God, vermin or insect infestation, water damage (liquid spillage or ingression) or acts of terrorism;
7.1 The Customer. The Customer indemnifies Aspire against all:-
(a) liabilities which Aspire suffers; and
(a) Claims made by any third party against Aspire in relation to, by reason of, or in connection with any failure by the Customer to fulfil their obligations under this Agreement;
provided that Aspire has not contributed to the circumstances under which the Claim or Liability has arisen against Aspire.
8 FORCE MAJEURE EVENTS
8.1 Aspire will not be liable for any failure to perform, or delay in performing, an obligation under this Agreement if the failure or delay arose from a cause beyond its reasonable control. Aspire must give the Customer notice of the cause as soon as possible after becoming aware of it and must take all reasonable steps to mitigate the consequences of the failure or the duration of the delay.
8.2 For the purposes of this clause 9 a cause beyond the reasonable control of Aspire includes an act of God, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, medical pandemic, flood, fire, earthquake, explosion, embargo, strike, trade dispute, industrial action, delay in transportation, accident of any kind, default or delay by any supplier to Aspire, damage to stoppage or breakdown of or machinery or shortage of any labour or material because of a cause related to the Amber independent of human control that occurred to the Amber after they left the control of Aspire.
9.1 Neither party may start court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has first complied with this clause.
9.2 A party claiming that a Dispute has arisen must notify the other party in writing of the event occurring that has given rise to the Dispute.
9.3 If a Dispute is not resolved within a 20 day working period (or if the parties agree a longer period, that longer period), of a Dispute being notified under clause 9.2, the Dispute must be referred:-
(a) for mediation, in accordance with the Australian National Mediation Standards; and
(b) to a mediator agreed to by the parties, or if the parties do not agree on a mediator, a mediator nominated by the then current President of the Queensland Law Society.
10 INTELLECTUAL PROPERTY
10.1 Nothing in this Agreement constitutes a transfer of any intellectual property rights. The Customer acknowledge and agree that, as between the Customer and Aspire, Aspire’s own all intellectual property rights in the Website, brand and those rights in the supply of the Amber.
11.1 Aspire may Terminate this Transaction immediately by written notice to the Customer if the Customer is in breach of its obligations under this Agreement which breach undermines the benefit of this Agreement to Aspire and the Customer does not remedy the breach (to the extent that it can be remedied) for 14 days after receiving a written notice from Aspire specifying the breach and requiring it to be remedied;
11.2 Upon Termination:
(a) the Customer must pay Aspire the Price for the Amber if Despatched; and
(b) each party retains its rights under this Agreement and at law in respect of any breach of this Agreement by the other party.
12.1 Clauses survive end of Agreement. The provisions of this Agreement which by their nature survive the Termination of the Transaction continue in force after the expiration or Termination of this Transaction including without limitation clause 7 (Indemnity) and this clause 12 (Survival).
13.1 In this Agreement, unless the context otherwise requires, the following expressions will have the meanings as ascribed to them below:-
|ACL||The legislation contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), and “CCA” will have a corresponding meaning;|
|Agreement||The legally binding agreement between Aspire and the Customer in respect of the Transaction inclusive of these Provisions and the Checkout;|
|Business Day||Between 9:00am and 5:00pm on a day other than a Saturday or Sunday in Queensland, Australia public holiday;|
|Checkout||That function on the Website whereby the Customer is able to input purchase information such as their name, address and payment details in order to make a Purchase;|
|Claim||Includes a notice, demand, action, cause of action, proceeding, litigation, arbitration, investigation, verdict, judgement, debt due, or Liabilities however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or under the provisions of any statute (except for those non-excludable provisions under the ACL), award, order or determination, whether involving a third party or a party to this Agreement, and whether or not known at the date of Purchase;|
|Common Purpose||That purpose for which the Amber is sold, namely as jewellery;|
|Confirmation||That confirmation after the Purchase has been confirmed by Aspire through an email being sent to the email address specified at the Checkout;|
|Corporations Act||The Corporations Act 2001 (Cth);|
|Customer||That Customer who has completed the details on the Website at the Checkout and confirmed the Purchase;|
|Defective||In relation to the Amber, mean that the Amber:|
(a) has problem that would have stopped someone from buying it if they had known about the problem;
(b) is significantly different from the sample or description;
(c) is substantially unfit or do not work for its Common Purpose and cannot easily be replaced within a reasonable time;
(d) is unsafe’;
(e) has an error, defect or malfunction; or
(f) is not of merchantable quality;
and Defect has a corresponding meaning;
|Despatch||The date on which Aspire posts via a postage service the Amber to the Customer and “Despatched” will have a corresponding meaning;|
|Dispute||A dispute arising out of or relating to this Agreement, including without limitation, a dispute about the breach, termination, validity, or subject matter of this Agreement, or a claim in equity or in tort relating to the performance;|
|Intellectual Property||Includes any and all intellectual property and industrial property (within the meaning of the term industrial property including but not limiting the foregoing, copyright and trade marks;|
|Liabilities||Includes all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses (including any legal costs and expenses) of whatever description and “Loss” will have the corresponding meaning;|
|Major Failure||Any breach by Aspire of either or both of s260 or 268 of the ACL;|
|Notify||That written notice of a Defect by the Customer to Aspire:-|
(a) Aspire – Irene Mengel
(b) 53 Kennedy Terrace, Paddington Qld 4069
(c) (07) 3368 1514
and “Notifies” and “Notification” shall have a corresponding meaning;
|Payment||That payment of the Price by the Customer to Aspire made at the time of Purchase for the Amber and “Pay” shall have a corresponding meaning;|
|Personnel||A party’s directors, officers, employees, agents, contractors, sub-contractors and their respective Personnel;|
|Price||The total price of the Amber including GST as nominated on the Website prior to the Customer confirming the Purchase|
|Provisions||These terms and conditions of the Agreement between Aspire and the Customer for the Transaction;|
|Purchase||That act of purchasing at the Checkout for the Amber for the Price;|
|Return Policy||That policy available on the Website which elaborates on the process to request a return of the Amber to Aspire;|
|Aspire||That entity being Aspire Gallery and its Personnel;|
|Amber||Those pieces of amber and amber jewellery sold by Aspire through the Website in accordance with this Agreement;|
|Term||That period of time from execution by both parties of this Agreement until an event specified in clause 11 occurs, and “Termination” will have a corresponding meaning;|
|Transaction||That sales transaction between Aspire selling the Amber to the Customer for the Price as specified at the Checkout and confirmed by the Purchase;|
|Warranty||That warranty provided by Aspire as specified to the Customer in clause 5 and 6 as part of the Transaction;|
|Warranty Period||That warranty period of the Amber being for thirty (30) days from Despatch;|
|Website||That website being www.aspiregallery.com.au;|
14.1 For ease of reference headings will not affect the interpretation or construction of this Agreement.
14.2 Any reference to any Act, or any section of any Act of Parliament or any ancillary Statutory Regulation whether in Australia or elsewhere, will be read as though the words “or any effectual modification or re-enactment thereof” were added to such reference.
14.3 Words denoting the singular number include the plural;
14.4 Assignment. Aspire may assign or novate this Agreement and its rights and obligations specified in this Agreement. The Customer must not assign any of its rights or obligations under this Agreement without the prior written consent of Aspire.
14.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, arrangements and understandings in respect of the Transaction but does not negate the intended operation of:-
(a) any third party warranties given by other manufacturers or their distributors whose goods are distributed by Aspire as the Amber;
(b) the operation of those non-excludable rights under the ACL.
and document issued by or on behalf of the Customer at any time in relation to Transaction made under this Agreement will vary this Agreement.
14.6 Variation. No variation of this Agreement will be of any force or effect unless it is in writing and signed by the parties to this Agreement.
14.7 Further acts. Each party do all things to effect, perfect or complete this Agreement.
14.8 Governing law and jurisdiction. This Agreement is governed by the law of the State of Queensland, Australia. The parties submit to the exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts, either for forum, non conveniens or on any other basis.
14.9 Severability. If any clause makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.
14.10 Waiver. A waiver by a party is only effective if it is in writing. A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
14.11 Costs. Except as otherwise provided, each party undertakes to the other will bear its own costs of and incidental to the preparation, execution and performance of this Agreement.
14.12 Counterparts. The Agreement may be executed in any number of counterparts and all such counterparts when executed and taken together will constitute this Agreement.
14.13 Notices. Any notice given under this Agreement must be:
(a) made in writing; and
(b) addressed to the last known address of the intended recipient, or to agents known to be in communication with the intended recipient, or to a receiver liquidator or other properly appointed person having authority by virtue of their appointment over the affairs of the intended recipient.
A notice sent:
(c) by prepaid, registered mail, will be deemed to have been properly given five (5) Business Days after the date of dispatch;
(d) by email will be deemed to have been properly given:
(i) if transmitted during business hours of the intended recipient –
one (1) hour after dispatch; or
(ii) if not transmitted during business hours of the intended recipient
– at 9:00am on the next business day;
unless actual receipt at an earlier date or time is established by the sender. Proof that:
(e) an email was sent; or
(f) a letter was properly addressed and deposited;
will be sufficient evidence of service on the intended recipient
RETURN POLICY (AMBER)
Subject to the Terms of Sales, available above, Aspire warrants that Amber will be free from Defects under normal application, use and conditions during the Aspire Warranty Period.
Aspire acknowledges that Aspire’s goods come with guarantees that cannot be excluded under the Australian Consumer Law (ACL). The Customer is entitled to a replacement or refund for a Major Failure and compensation for any other reasonably foreseeable loss or damage. The Customer is 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.”
As outlined in the Terms of Sale, available above, Aspire does not provide a refund for returned products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use at any time after the risk passes to the purchaser.
Aspire also does not provide a refund for ‘change of mind’.
Refund requests must be made directly to Aspire at email@example.com
Following your approved request for a refund, Aspire will credit the amount paid for the returned product within five business days, (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the credit card or PayPal you used to make the original purchase.
Aspire does not control when a specific credit card company processes a chargeback transaction. You are responsible for contacting your credit card company if you have questions about the status of the chargeback.