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Terms and Conditions of Sale
Last updated on 13th May 2020.
These terms and conditions (Terms) govern your use of the eCommerce Store website located at www.zenko.com.au (Website) and our supply of goods through the Website.
By using this Website, ordering any goods or services (Goods) through this Website, or otherwise engaging with the content on this Website, you:
(a) agree to be bound by these Terms; and
(b) represent and warrant that you are over 18 years of age,
as a binding legal agreement between you and us, Zenko Trading Pty Ltd ABN 75639041071 (eCommerce Store, our, we or us).
We may change these Terms at any time by updating this page of the Website, and your continued use of the Website following such an update will represent an agreement by you to be bound by the Terms as amended.
2. Use of the Website
2.1 Access and Use of the Website
You must only use the Website in accordance with these Terms and any applicable laws, and must ensure that your employees, sub-contractors and any other agents who use or access the Website comply with the Terms and any applicable laws.
2.2 Your Obligations
You must not:
(a) copy, mirror, reproduce, translate, adapt, vary, modify, sell, decipher or decompile any part or aspect of the Website without the express consent of eCommerce Store;
(b) use the Website for any purpose other than the purposes of browsing, selecting or purchasing Goods;
(c) use, or attempt to use, the Website in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(d) use, or attempt to use, the Website in a manner that may interfere with, disrupt or create undue burden on the Website or the servers or networks that host the Website;
(e) use the Website with the assistance of any automated scripting tool or software;
(f) act in away that may diminish or adversely impact the reputation of eCommerce Store, including by linking to the Website on any other website; and
(g) attempt to breach the security of the Website, or otherwise interfere with the normal functions of the Website, including by:
(i) gaining unauthorised access to Website accounts or data;
(ii) scanning, probing or testing the Website for security vulnerabilities;
(iii) overloading, flooding, mailbombing, crashing or submitting a virus to the Website;
(iv) instigating or participating in a denial-of-service attack against the Website.
2.3 Information on the Website
While we make every effort to ensure that the information on the Website is as up-to-date and accurate as possible, you acknowledge and agree that we do not (to the maximum extent permitted by law) guarantee that:
(a) the Website will be free from errors or defects;
(b) the Website will be accessible at all times;
(c) messages sent through the Website will be delivered promptly, or delivered at all;
(d) information you receive or supply through the Website will be secure or confidential; or
(e) any information provided through the Website is accurate or true.
We reserve the right to change any information or functionality on the Website by updating the Website at anytime without notice, including product descriptions, prices and other Website Content.
2.4 Intellectual Property
(a) eCommerce Store retains ownership of the Website and all materials on the Website (including text, graphics, logos, design, icons, images, sound and video recordings, pricing, downloads and software) (Website Content) and reserves all rights in any intellectual property rights owned or licensed by it not expressly granted to you.
(b) You may make a temporary electronic copy of all or part of the Website for the sole purpose of viewing it. You must not otherwise reproduce, transmit, adapt, distribute, sell, modify or publish the Website or any Website Content without prior written consent from eCommerce Store or as permitted by law.
2.5 Links to Other Websites
(a) The Website may contain links to other websites that are not our responsibility.
(b) We have no control over the content of the linked websites and we are not responsible for it.
(c) Inclusion of any linked website on the Website does not imply our approval or endorsement of the linked website.
eCommerce Store does not accept responsibility for loss or damage to computer systems, mobile phones or other electronic devices arising in connection with use of the Website. You should take your own precautions to ensure that the process that you employ for accessing the Website does not expose you to risk of viruses, malicious computer code or other forms of interference.
2.7 Reporting Misuse
If you become aware of misuse of the Website by any person, any errors in the material on the Website or any difficulty in accessing or using the Website, please contact us immediately using the contact details or form provided on our Website.
(a) (Limitation of liability) To the maximum extent permitted by applicable law, eCommerce Store limits completely all liability to any person for loss or damage of any kind, however arising whether in contract, tort (including negligence), statute, equity, indemnity or otherwise, arising from or relating in any way to this Website, these Terms or any goods or services provided by eCommerce Store to $100 (AUD).
(b) (In transit) Claims for loss of or damage to Goods in transit must be made against the carrier.
(c) (Warranties) Goods sold by eCommerce Store will have only the benefit of any warranty given by the manufacturer. All other express or implied representations and warranties are, to the maximum extent permitted by applicable law, excluded.
(d) (Consumer law) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, you may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services we provide.
(e) (Indemnity) You agree to indemnify eCommerce Store and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from your or your representatives':
(i) breach of any of these terms;
(ii) use of the Website; or
(iii) use of any Goods or services provided by eCommerce Store.
(f) (Consequential loss) To the maximum extent permitted by law, under no circumstances will eCommerce Store be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Website, these Terms or any goods or services provided by eCommerce Store (except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth)).
3. Supply Terms
3.1 Offer to Purchase
By submitting an order for purchase of a Good using the Website's functionality (Purchase Order) you represent and confirm that you:
(a) have the legal capacity and are of sufficient age to enter into a binding contract with us; and
(b) are authorised to use the debit or credit card included in your order.
Submitting a Purchase Order constitutes your intention and offer to enter into a contract, where we will provide you with the Goods you have ordered in exchange for your payment of the total amount listed upon checkout. A contract is not formed until we have approved your payment and you receive an email from us confirming that your order is being processed.
(a) (Payment obligations) Unless otherwise agreed in writing:
(i) if eCommerce Store issues an invoice to you, payment must be made by the time specified in such invoice;
(ii) in all other circumstances, you must pay for all Goods on or prior to eCommerce Store dispatching the Goods for delivery; and
(iii) you must not set off any money alleged to be owing by eCommerce Store against money due by you to eCommerce Store.
(b) (GST) Unless otherwise indicated,amounts stated on the Website do not include GST. In relation to any GST payable for a taxable supply by eCommerce Store, you must pay the GST subject to eCommerce Store providing a tax invoice.
(c) (Card surcharges) eCommerce Store reserves the right to charge credit card surcharges in the event that payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club).
(d) (Online payment partner) We may use third-party payment providers (Payment Providers) to collect payments for Goods. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.
We reserve the right to cancel your order for any reason, and will notify you of this as soon as possible. Where payment has already been debited, the full amount will be credited back to your original method of payment.
3.4 Pricing Errors
In the event that we discover an error or inaccuracy in the price at which your order was purchased (including shipping prices), we will attempt to contact you and inform you of this as soon as possible. You will then have the option of purchasing your order at the correct price, or cancelling your order. If you choose to cancel your order and payment has already been debited, the full amount will be credited back to your original method of payment.
3.5 Delivery and Shipping
(a) (Delivery) For Goods to be delivered, eCommerce Store may charge you for delivery at any time (notwithstanding that it may not have previously done so). Where prices are stated as inclusive of delivery, delivery is to the delivery point specifically accepted by eCommerce Store.
(b) (Shipping) All delivery times provided to you are estimates only and are subject to postal delays and reasons beyond our control. We do not warrant or make any representation that your order will be delivered within the times indicated. We will not be liable for any loss or damage suffered as a result of or in connection with late deliveries.
3.6 Title and Risk
(a) (Title) Until the price of Goods is paid in full, title in those Goods is retained by eCommerce Store.
(b) (Risk) Risk in the Goods will pass to you on delivery. Delivery must not be refused by you.
(c) (Failure to pay) If you do not pay for any Goods on or before the due date for payment:
(i) or you otherwise fail to comply with these Terms, and by the terms of sale credit has been extended to you, eCommerce Store reserves the right to revoke such credit and demand immediate payment before any further shipment of Goods;
(ii) you must pay eCommerce Store interest at the rate of 12% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by eCommerce Store;
(iii) you authorise eCommerce Store, its employees and agents to enter any premises occupied by you or any other place where the Goods are located and use reasonable force to retake possession of the Goods without liability for trespass or any reasonable damage;
(iv) eCommerce Store may at its option keep or resell Goods retaken from you; and
(v) if you sell Goods or items into which the Goods are incorporated before payment in full to eCommerce Store, you acknowledge that such sale is made by you as bailee for and on behalf of eCommerce Store, to hold the proceeds of sale on trust for eCommerce Store, in an account in the name of eCommerce Store, and you must pay that amount to eCommerce Store on demand.
3.7 Customs and Duties
eCommerce Store reserves the right to refuse international orders. Approved international orders may be subject to customs and import duties upon reaching its country of destination. You will be responsible for paying all customs and import duties and acknowledge that failure to pay may result in your order being held at customs. We will not be liable for any costs you may incur in having your order released from customs, including reimbursing you for any customs or import duties you may pay.
3.8 Returns and Exchanges
(a) Returns of Goods will only be accepted if the Goods are faulty and you comply with the provisions of this clause 3.8, or we agree in writing to accept return of the Goods.
(b) (Proof of Purchase) As a condition precedent to us considering any refund, replacement, repair or exchange, you must be able to provide valid proof of purchase of the relevant Goods.
(c) (Change of size exchanges) If you have ordered Goods that are clothing goods that you would like to exchange for a different size, please let us know by emailing us details of your order and the size you would like instead. We will do our best to exchange the clothing for the new size you've requested and, if we are unable to do so, we will provide you with a store credit or refund (at our option).
(d) (Change of mind return) We do not accept change of mind returns.
(e) (Faulty Goods) The following process applies to any Goods you believe to be faulty.
(i) If you believe your Goods are faulty, please contact us using the details provided on our Website with a full description of the fault (including images if possible) within a reasonable time after you receive the Goods. eCommerce Store will not refund or exchange Goods after more than a reasonable time after purchase.
(ii) If we determine that your Goods may be faulty, we will request that you send the Goods back to us at your cost for further inspection, including any accessories, manuals, documentation or registration shipped with the Goods. We reserve the right to further inspection before deeming Goods faulty.
(iii) If we determine in our reasonable opinion that the Goods are not faulty, or is faulty due to fair wear and tear, misuse, failure to use in accordance with the manufacturer's instructions, or failure to take reasonable care, we will refuse your return and send the Goods back to you at your cost.
(iv) Upon inspection, if we determine that the Goods are faulty, you will be credited the full amount paid (including shipping costs) and you may request a refund, exchange or store credit. All refunds will be credited back to your original method of payment unless you request otherwise and we approve this request.
(v) If you fail to comply with the provisions of this clause 3.8 in respect of faulty Goods, we may, in our absolute discretion, issue only a partial refund or no refund in respect of such faulty Goods.
(vi) Nothing in this clause 3.8 is intended to limit or otherwise affect the operation of any manufacturers' warranties which you may be entitled to or any of your rights which cannot be excluded under applicable law.
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
5.1 Governing Law and Jurisdiction
This agreement is governed by the law applying in New South Wales. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
5.4 Joint and Several Liability
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
5.7 Entire Agreement
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word "includes" and similar words in any form is not a word of limitation; and
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.