Online Terms and Conditions of Sale.

 

1. Introduction

The website at www.emuaustralia.com (the “Website”) is operated by EMU (Aus) Pty Ltd (the “Company”) which is registered in Australia under company number ACN 115 944 799.  The business office is at 72 Barwon Terrace, South Geelong, Victoria, 3220.  Our registered ABN is 73 115 944 799.

For any questions please contact our customer service centre via email at onlinesupport_aus@emuaustralia.com

References to “we”, “us”, “our” and “EMU” in these terms refers to the Company.

 

2. Terms and Conditions

These terms and conditions set out:-

(a) The terms and conditions upon which we sell and supply any products (“Products”) listed on our Website; and

(b) The terms and conditions upon which you may use the Website.

Please ensure that you read these terms and conditions of sale and use (the “Terms”) carefully before you purchase a Product or start to use the Website.

By purchasing a Product and/or using our Website, you indicate and confirm that you accept the Terms, that you understand the Terms and that you agree to abide by them. If you do not agree to the Terms, please refrain from purchasing any Products or using our Website.

Any sale of Products via the Website will be on the basis of these Terms.  You may wish to print a copy of these Terms and retain them for your records.

 

3. Serviced countries

This Website is only intended for use by people resident in Australia (‘Serviced Countries”).

 

4. Purchase of products

By placing an order on our Website you warrant and represent that you are:-

(a) legally capable of entering into binding contracts;

(b) at least 18 years old;

(c) resident in one of the Serviced Countries; and

(d) accessing the Website from that country.

 

5. Formation of contract

After placing an order you will receive an email from us acknowledging that we have received your order (“Order Acknowledgement”).  This does not mean that your order has been accepted.  Your order constitutes an offer by you to us to buy a Product.  All orders are subject to acceptance by us and we will confirm such acceptance to you by sending you an email that confirms that the Product has been dispatched (“Dispatch Confirmation”). 

The contract (“Contract”) between us will only be formed when we send you the Dispatch Confirmation and will only relate to those Products for which dispatch has been confirmed in the Dispatch Confirmation.  We will not be obliged to supply any other Products which may have been part of your order until the dispatch of such Products has been confirmed in a separate Dispatch Confirmation. You must check all emails, including the Order Acknowledgement and the Dispatch Confirmation, and ensure that the details in such emails are correct.

Non-acceptance of an order may be a result of (but is not limited to) one of the following:-

(a) The Product that you ordered being unavailable from stock;

(b) Our inability to obtain authorisation for your payment;

(c) The identification of a pricing or Product description error; or

(d) You not meeting the eligibility criteria set out in these Terms.

If there are any errors in your order, or if you require further information, please contact our customer services at onlinesupport_aus@emuaustralia.com

 

6. Your right to cancel

If you are contracting as a consumer, you have the right to cancel a Contract at any time within 14 days for any reason.  

The cancellation period (“Cancellation Period”) will expire 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.

To exercise the right of withdrawal, you must inform us ([Emu Australia]) of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). This letter should be sent to us either by email to onlinesupport_aus@emuaustralia.com or by post to 72 Barwon Terrance, South Geelong, VIC, 3220, for the attention of Online Customer Services. To meet the cancellation deadline it is sufficient for you to send your communication concerning the exercise of your right of cancellation before the Cancellation Period has expired.

Once one of our customer service team members receives your email they will contact you with the relevant information on where to send your Products.

You must send back the Products to us in their original condition with the appropriate purchasing documentation, without undue delay, and in any event not later than 14 days from the day on which you communicate your cancellation from this Contract to us.  The deadline is met if you send back the Products before the period of 14 days has expired.  You will have to bear the direct cost of returning the Products.

 

7. Returns policy

In addition to your right to cancel, you can return unwashed and unworn Products bought on this Website by mail within 30 days of your order date.

Please send back your Products in to us in their original condition and unworn condition, in the original packaging with all tags still attached with the appropriate purchasing documentation.  Failure to do this may result in delays in processing any exchange or refund.

All costs associated with the return of goods are the sole responsibility of the customer except in the case that the Product is defective.

 

8. Refunds policy

If you cancel this Contract, we shall reimburse to you all payments received from you, including the costs of delivery (except for the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us).

We may make a deduction from the reimbursement for loss in the value of any goods supplied, if the loss is the result of unnecessary and inappropriate handling by you.

We will make the reimbursement without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract.

We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.

We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest.

If you return a Product for any other reason, we shall examine the Product and notify you of your refund via email or exchange within a reasonable period.  Refunds or exchanges will be processed within [30] days of the day you inform us that you wish to return the Product.

Products returned as a result of a defect with be refunded in full, including delivery charges for sending them to you and the cost incurred by you in returning them to us.

We will refund any money received from you using the same method originally used by you to pay for your purchase.

 

9. Availability and delivery

Delivery times may vary. However, we aim to deliver your Products within 2 to 7 business days to any given location.  All deliveries can be tracked online and this tracking information will be sent to you once your Products have left our warehouse.

If you order multiple items, these may be dispatched in separate packages and may arrive at different times.  If this occurs, please wait an extra day for the remaining Products to arrive before contacting EMU with a delivery enquiry.

It is your responsibility to ensure correct delivery details are provided.  We are not responsible for reshipping orders at our expense if incorrect details are provided. Delivery shall be completed when we deliver the Products to the address that you gave us and the Products will be your responsibility for tha time.

If the Product(s) are not delivered within 30 days of the Dispatch Acknowledgement, then you may cancel your order straight away if any of the following apply:

(a) we have refused to deliver the Products;

(b) delivery within the delivery deadline was essential (taking into account all the relevant circumstances); or

(c) you told us before we accepted your order that delivery within the delivery deadline was essential.

 

10. Risk and title

The Products will be at your risk from the time of delivery. Ownership of the Products will only pass to you from the time of payment.

Risk in relation to Products being returned to us passes from you to us once you have posted the returned Products.

If you do not pay for any Products on the due date, EMU is irrevocably authorised by you to enter your premises (or any premises under your contorl or as your agent if the Products are stored at other premises) and use reasonable force to take possession of the Products without liability for the tort of trespass, negligence or payment of any compensation to you or anyone claiming through you whatsoever.

If any of the Products are not paid for in full by the due date, you must not allow any person to create, have or acquire any security interest in the Products.

You acknowledge that EMU holds a security interest capable of registration pursuant to the Personal Property Securities Act 2009 (Cth) (“PPSA”) in all Products (including all present and after-acquired Products which have not been paid for) and in all present and after acquired personal property of yours to secure payment of the amount you owes to us from time to time. You further acknowledge that the security interest will continue until EMU gives a final release in respect of it.

You acknowledge and agree that EMU may take all necessary steps to register its security interest under the PPSA, and hereby irrevocably consents to EMU doing so. You further undertake to promptly provide any information or supply any documentation and do all such things as required by EMU to enable it to perfect its security interest in the Products or other personal property of yours in accordance with the PPSA.

You acknowledge that the Products constitute commercial property and you hereby waive your right to receive notification from EMU of the registration of the security interest pursuant to section 157(3) of the PPSA.

 

11. Price and payment

The price of any Products will be as quoted on our Website in Australian dollars  from time to time, except in cases of obvious error.

These prices include GST. 

Prices are liable to change at any time, but changes will not affect orders in respect of which we have already sent a Dispatch Confirmation.

It is always possible that, despite our best efforts, some of the Products that we sell may be incorrectly priced.  We will normally check prices as part of our despatch procedures so that, where the Products' correct price is less than our stated price, we will charge the lower amount when dispatching the Products to you. If the Products' correct price is higher than the price stated on our Website, we will either contact you for your instructions before shipping the Product or reject your order and notify you of such rejection.

If the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing, we do not have to provide the Products to you at the incorrect (lower) price.

In order to process your order, we will need to share your payment details with third party service providers. This will be done in accordance with our privacy policy. By providing us with this information, you specifically authorise us to do this.

You must make payment for Products in advance by credit or debit card.  We will not dispatch the Products to you until your payment for the Products purchased is approved.

 

12. Our liability

You acknowledge that you have made due inquiries and rely on your own skill and judgment when deciding whether the Products are fit for all the purposes for which products of the kind are commonly supplied. Subject to any specific warranties offered in relation to specific Products or those implied by law, we do not offer any guarantees or warrantees in relation to the Product(s).

It is your responsibility to satisfy yourself that Products are of a description, quality and character suitable for the purpose for which they are purchased and, to the extent permitted by law, EMU shall not be liable in any way for any loss or damage (including direct, indirect or consequential) arising from your failure to so satisfy yourself.

We will not accept liability for a failure to comply with specific care instructions stated in the Product or within the Product’s packaging.

To the extent permitted by law, we exclude all statutory or implied conditions and warranties and any other liability we may have to you (including liability for indirect or consequential loss) that may arise under statute or at law including without limitation for breach of contract, in tort (including negligence) or under any other cause of action.

To the extent permitted by law, we limit our liability which cannot be legally excluded under all statutory or implied conditions and warranties and any other liability we may have to you (including liability for indirect or consequential loss) that may arise under statute or at law including without limitation for breach of contract, in tort (including negligence) or under any other cause of action, to whichever of the following we determine at our discretion:

· supplying equivalent Products again; or

· paying of the cost of acquiring equivalent Products again.

In any event, we are not responsible for any indirect losses of any nature and howsoever arising (whether loss of income, revenue or otherwise), including but not limited to:-

(a) Loss of income or revenue;

(b) Loss of business;

(c) Loss of profits or contracts;

(d) Loss of anticipated savings;

(e) Loss of data.

We will take all reasonable care, in so far it is in our power to do so, to keep the details of your order and payment secure, but in the absence of negligence on our part, we cannot be held liable for any loss you may suffer if a third party procures unauthorised access to any data you provide when accessing or ordering from the Website.

You indemnify us against all costs (including legal costs), expenses, damages, accounts or other losses or liability, including those arising from any actions, suits, proceedings, claims or demands, made against or suffered by us, arising out of supplying the Products in accordance with these Terms or arising out of the you breaching any of your obligations (which includes any negligent act or omission by the you or your agents) under these Terms.

 

13. Events outside of our control

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by events outside our reasonable control (“Force Majeure Event).

A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

(a) strikes, lock-outs or other industrial action;

(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;

(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

(e) impossibility of the use of public or private telecommunications networks; and

(f) the acts, decrees, legislation, regulations or restrictions of any government.

Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.

 

14. Accessing our site

Access to our Website is permitted on a temporary basis, and we reserve the right to withdraw, deny access to or modify the service we provide on our Website without notice (see below). We will not be liable if, for any reason, our Website is unavailable at any time or for any period.

You are responsible for making all arrangements necessary for you to have access to our Website. You are also responsible for ensuring that all persons who access our Website through your internet connection are aware of these terms, and that they comply with them.

Access to the Website is always subject to these Terms and your use of the Website constitutes your acceptance of these terms of use. These Terms can be updated at any time and it is your responsibility to check this page from time to time to ensure you agree with any amendments.

 

15. Intellectual property rights

We are the owner or the licensee of all intellectual property rights in our Website, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved. You must not use any part of the materials on our Website for commercial purposes without obtaining a license to do so from us or our licensors. We reserve the right to monitor any such usage and take appropriate action against any person who we believe to be contravening our intellectual property rights.

You may print off one copy, and may download extracts, of any page(s) from our Website for your personal (and non-commercial) reference.

You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. For the avoidance of doubt all proprietary notices, in particular intellectual property notices such as copyright ©, trademark, ™ and ® must be preserved and displayed intact.

Our status (and that of any identified contributors) as the authors of material on our Website must always be acknowledged.

If you print off, copy or download any part of our Website in breach of these Terms, your right to use our Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

Nothing stated in these Terms shall be construed as an implied or express transfer of the intellectual property rights to you or any other party.

 

16. Description of products

We have taken every care in the preparation of the content of this Website. In particular, we have made every effort to display as accurately as possible the colours of our products that appear at the Website. We cannot guarantee that your computer monitor's display of any colour will be accurate. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to our Website, or by anyone who may be informed of any of its contents.

All samples, drawings, descriptive matter and specifications issued by us and published on the Website are issued or published for illustration only and do not form part of the Contract unless specifically referred to therein.

 

17. Our site changes regularly

We aim to update our Website regularly, and may change the content at any time. If the need arises, we may suspend access to our Website, or close it indefinitely. Any of the material on our Website may be out of date at any given time, and we are under no obligation to update such material.

 

18. Information about you and your visits to our site

We process information about you in accordance with our Privacy Policy

 

19. Viruses, hacking and other offences

We make every effort to ensure that this Website is free from viruses or defects. However, we cannot guarantee that your use of this Website or any websites accessible through it won't cause damage to your computer. It is your responsibility to ensure that the right equipment is available to you in order to use the Website and screen out anything that may damage it.

You must not misuse our Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which may be malicious or technologically harmful. You must not attempt to gain unauthorised access to our Website, the server on which our Website is stored or any server, computer or database connected to our Website. You must not attack our Website in any manner whatsoever, including via a denial-of-service attack or a distributed denial-of service attack.

We will report any such breach of these provisions to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Website will cease immediately.

We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our Website or to your downloading of any material posted on it, or on any website linked to it.

 

20. Linking to our site

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

Where our Website contains links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.

 

21. Written communications

We will contact you by email or provide you with information by posting notices on our Website.

For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your legal rights.

 

22. Waiver and rights of third parties

If we do not insist upon strict performance of any of your obligations under the Contract or these Terms, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

No person other than a party to this Contract shall have any rights to enforce any term of this Contract.

 

23. Assignment

You may not transfer any of your rights or obligations under these Terms without our prior written consent. We may transfer any of our rights or obligations under these Terms without your prior written consent to any legal entity that we enter into a joint venture with, purchase or are sold to.

 

24. Severability

If any of these Terms or any provisions of the Contract are determined to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

 

25. Entire agreement

These Terms and any document expressly referred to in them constitute the whole agreement between us and supersede any previous arrangement, understanding or agreement between us, relating to the subject matter of any Contract.

We each acknowledge that, in entering into a Contract, neither of us relies on nor has any remedies in relation to, any statement, representation, assurance or warranty which is not expressly set out in these Terms and any document expressly referred to in them.

Nothing in this paragraph shall limit or exclude any liability for fraud.

 

26. No set off

You may not, without the consent of EMU, raise a set off or counterclaim available to you against EMU in reduction of your liability under these Terms.

 

27. Our right to vary these Terms and Conditions

We have the right to revise and amend these Terms from time to time.

You will be subject to the policies and Terms in force at the time that you order Products from us, unless any change to those policies or these Terms is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these Terms and conditions before we send you the Dispatch Confirmation (in which case we have the right to assume that you have accepted the change to the Terms and conditions, unless you notify us to the contrary within seven working days of receipt by you of the Products).

 

28. Law, jurisdiction and language

Contracts for the purchase of Products through our Website and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) or the use of this Website will be governed by the laws of the State of Victoria, Australia.

Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) or the use of this Website shall be subject to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.

We retain the right to bring proceedings against you for breach of these provisions in your country of residence or any other relevant country.

Any contracts for the purchase of Products through our Website and all communications between us will be in the English language.