Terms of service

 

TERMS AND CONDITIONS

1.               General

1.1            These terms and conditions represent the whole agreement between the parties and supersedes all previous oral and written communications by or on behalf of any of the Parties and any warranty or representation (whether oral or written) in relation to the subject matter of this Agreement made by Whitakers or by the Customer.

1.2            Subject to clause 1.3, Whitakers reserves the right to change these terms and conditions at any time.

1.3            Should Whitakers propose to change these terms and conditions in relation to an existing contract with a Customer for the supply of Goods or Services which has not been completed, Whitakers must do so in accordance with clause 14.3.

2.               Price and payment

2.1            The Customer agrees that, unless otherwise specified by Whitakers in writing, payment to Whitakers for any Goods purchased or ordered, or for the provision of any Services will be made in the following manner:

2.1.1        50% of the total Price is to be paid by the Customer to Whitakers upon placing the order for the purchase of the Goods or upon requesting the Services (‘the Deposit’); and

2.1.2        Subject to clause 2.2, the remaining total price of the Goods or Services is to be paid to Whitakers after completion of the Services and prior to delivery of the Goods.

2.2            The Customer may nominate to pay the remaining total price pursuant to 2.1.2 by way of a third-party period debit payment service provider (such as EZPay or zip pay) acceptable to Whitakers in its absolute discretion, and on the condition:

2.2.1        the Customer completes the Direct Debit Request Form if required by such third-party provider; and

2.2.2        the Customer is solely responsible for payment any related fees and charges owing to such third-party provider.

2.3            The Customer acknowledges and agrees that Whitakers shall withhold delivery of the Goods until the Customer has paid for the Goods and/or Services in full pursuant to clause 2.1.

2.4            Where applicable, GST is payable on Whitaker’s invoices and will be clearly shown on any invoice. By accepting these terms, the Customer agrees to pay Whitakers an amount equivalent to the GST imposed on these charges.

3.               Risk and Retention of Title

3.1            Despite any other provisions of this Agreement:

3.1.1        legal title in the Goods does not pass from Whitakers to the Customer until all moneys due and payable to Whitakers by the Customer has been fully paid; and

3.1.2        risk (including of loss or damage) in the Goods passes from Whitakers to the Customer immediately upon delivery of the Goods.

4.               No Return of Deposit After Works Commenced

4.1            Despite any other provision of this Agreement, the Customer irrevocably acknowledges and agrees:

4.1.1        the Deposit is a reasonable estimate of the expended labour, and costs for materials, tools & other items required for Whitakers to prepare for and conduct the Services and/or manufacture the Custom Made Goods; and

4.1.2        In the event the Customer cancels the order for Custom Made Goods or the request for Services at any time after Whitakers has commenced the works, to the extent permitted by law, Whitakers shall be entitled to retain the Deposit in full and final satisfaction of Whitaker’s costs referred to in clause 4.1.1.

5.               Custom Made Goods

5.1            Despite any other provision of this Agreement, with respect to any Custom Made Goods, the Customer irrevocably acknowledges and agrees:

5.1.1        the Custom Made Goods are bespoke products that are designed and manufactured specifically to meet the needs of the Customer that ordered them. Accordingly, the Custom Made Goods may hold limited resale value as they may not appeal to the general consumer; and

5.1.2        to the extent permitted by law, and subject to clause 7.2, the Customer will not be entitled to a refund, exchange or to return any Custom Made Goods unless otherwise agreed by Whitakers in its absolute discretion.

6.               Repairs to External Goods

6.1            If the Customer requests Whitakers repair any jewellery belonging to the Customer which was not designed, manufactured, or sold by Whitakers (Foreign Goods), the Customer irrevocably acknowledges and agrees:

6.1.1        There is typically variation in the alloys, materials and crafting techniques used across different jewellers when manufacturing jewellery. As a result of this, Whitakers may not be able to repair Foreign Goods if they have been crafted with alloys, materials and items that differ to those used by Whitakers;

6.1.2        Whitakers are unable to determine the composition in the alloys or materials contained in Foreign Goods, or notice any difference with those used by Whitakers, until after the repair works have commenced;

6.1.3        In the event Whitakers have commenced the repair works but then notify the Customer they are unable to complete the repair works to the Foreign Goods due to the variation in the alloys and/or materials, then to the extent permitted by law:

(a)             Whitakers shall immediately return the Foreign Goods to the Customer;

(b)             Whitaker’s may, in its absolute discretion, provide the Customer with a full refund for the cost of the repair works (including any Deposit paid by the Customer);

(c)             Subject to clauses 6.1.3(a) and 6.1.3(b), Whitakers shall not be liable for any Claims by the Customer or any other party in connection with damage to the Foreign Goods arising from the repair works, except the extent caused by a negligent act or omission by Whitakers.

7.               Warranties

7.1            Warranty terms in relation to the Goods and/or Services are prescribed by the Australian Consumer Law. The benefits to the consumer given by the warranty are in addition to other rights and remedies of the consumer under a law in relation to the Goods or Services to which the warranty relates.

7.2            If the Customer is a consumer for the purpose of the Australian Consumer Law, Whitaker’s liability is limited to:

7.2.1        in relation to Goods:

(a)             the replacement of the Goods or the supply of the equivalent goods;

(b)             the repair of the Goods;

(c)             the payment of the cost of replacing the Goods or of acquiring equivalent goods; or

(d)             the payment of the cost of having the Goods repaired.

7.2.2        in relation to Services:

(a)             the supply of the Services again; or

(b)             payment of the cost of having the Services supplied again.

For more information about the Customer’s rights as a consumer, see the Australian Consumer Law website at www.consumerlaw.gov.au.

7.3            If the Customer is not a consumer for the purpose of the Australian Consumer Law, then subject to clauses 4, 5 and 6, to the extent permitted at law and at Whitaker’s discretion, Whitaker’s liability is limited to:

7.3.1        Subject to clauses 4, 5, and 6 a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage; or

7.3.2        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.

The Customer will bare the expense of claiming the warranties under this clause 7.3.

8.               Return policy

8.1            Subject to clauses 5 and 8.2 of this Agreement, the Customer may return Goods to Whitakers provided that the Goods are returned to Whitakers:

8.1.1        within 14 days from the date the Goods are delivered to the Customer;

8.1.2        with the original Whitakers receipt issued upon the purchase of the Goods; and

8.1.3        in a Resalable Condition, with such condition to be determined at Whitaker’s complete reasonable discretion, and to be inspected by Whitakers at the time the Customer wishes to return the Goods.

8.2            Whitakers will not under any circumstances accept the return of or provide a refund for any Goods that:

8.2.1        the Customer purchases at a Discounted Price; and

8.2.2        pierces the skin or is inserted into a skin piercing,

unless the Goods are returned to Whitakers because of a breach of a warranty provided to the Customer under the Australian Consumer Law.

9.               Limitation of liability

9.1            Subject to clause 7, and to the extent permitted by law, Whitakers shall not be liable in any way whatsoever to the Customer for any Claims by the Customer or any other party in consequence of or resulting directly or indirectly out of the supply, performance or use of any the Goods, except for to the extent caused by the negligent act or omission of Whitakers or its servants or agents in or in connection with this Agreement.

9.2            In no event will one party be liable to the other party for any Consequential Loss arising out of or in connection with this Agreement or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort (for negligence or otherwise) or on any basis in law or equity.

10.            Indemnity

10.1         Each party shall indemnify and keep indemnified and hold the other harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by one of the parties, and from and against all actions, proceedings, claims or demands made against one of the parties as a result of the other party’s failure to comply with this Agreement, any laws, rules, standards or regulations applicable in relation to the Goods or the use of the Goods.

11.            Lay-by Conditions on Goods excluding Custom Made Goods

11.1         To the extent permitted by law, Whitakers Jewellers will, in its absolute discretion and to approved Customers, offer the following lay-by conditions:

11.1.1     Minimum deposit of 20% required at commencement of lay-by;

11.1.2     All purchases must be finalised within 3 months, otherwise Goods will be returned to stock;

11.1.3     At any time during the three (3) month period the Customer can cancel the lay-by;

11.1.4     In the event of cancellation by the Customer, or termination by Whitakers following the Customer’s failure to comply with the above conditions, the Goods will be returned to stock and a $50 cancellation fee deducted from the Deposit;

11.1.5     A minimum Deposit of 50% is required for any Goods or other items that are specifically ordered or manufactured. The cancellation of a lay-by item specifically ordered or manufactured will incur a cancellation fee of 50% of the purchase price; and

11.1.6     If a lay-by is cancelled, the balance of any monies due will be refunded using the Customer’s original payment method or by cheque from Whitakers head office, which will be decided at the discretion of Whitakers.    

12.            Applicable Law

12.1         This Agreement shall be governed by the laws in force in the States of New South Wales and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.

13.            Severance

13.1         If any part of this Agreement is invalid or unenforceable, this Agreement does not include it. The remainder of this Agreement continues in full force.

14.            Waiver or Variation

14.1         A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.

14.2         The exercise of a power or right does not preclude:

14.2.1     its future exercise; or

14.2.2     the exercise of any other power or right.

14.3         The variation or waiver of a provision of this Agreement or a party's consent to a departure from a provision by another party will be ineffective unless in writing and agreed to by the parties.

15.            Further Assurance

15.1         Each party will from time to time do all things (including executing all documents) necessary or desirable to give full effect to this Agreement.

16.            Definitions

Unless the subject matter or context requires otherwise in this Agreement, the following terms (in both singular and plural forms) will have the respective meanings assigned to them:

16.1         Agreement means these terms and conditions;

16.2         Claims means all actions, suits, claims, demands for or in relation to damages, compensation or orders (and/or costs) whether arising under statute, common law, equity, or otherwise;

16.3         Consequential Loss means any:

16.3.1     loss of income, loss of revenue, loss of profit, loss of financial opportunity, loss of business or loss of business opportunity, loss of contract, loss of goodwill, loss of use or loss of production (whether the loss is direct or indirect); or

16.3.2     direct or indirect financing costs,

whether present or future, fixed or unascertained, actual or contingent;

16.4         Custom Made Goods means special order Goods designed and/or manufactured by Whitakers for a Customer at that Customer’s request;

16.5         Customer means the party who purchases, orders and/or receives the Goods or Services from Whitakers;

16.6         Deposit has the meaning given within clause 2.1.1;

16.7         Direct Debit Request Form means a direct debit request in the form required by the relevant third party period debit payment service provider pursuant to clause 2.2;

16.8         Discounted Price means where the standard price for any Goods has been reduced by Whitakers due to any discount sale promotions, or where the Goods have been offered to the Customer at a fixed discounted price;

16.9         Goods means any diamonds, gemstones, rings or other jewellery supplied by Whitakers to the Customer including, where applicable, the Custom Made Goods;

16.10      Price means the price payable by the Customer for the Goods or Services (including any costs or expenses Whitakers incurs on behalf of the Customer which is incidental to the provision of the Goods or the carrying out the Services) under this Agreement;

16.11      Resalable Condition means that the Goods are:

16.11.1 within the original packaging;

16.11.2 are returned with any instruction manuals, certificates or other documentation and accessories provided to the Customer with the sale of the Goods; and

16.11.3 unworn, unopened, unused and in the same condition as at the date Whitakers delivered the Goods to the Customer;

16.12      Services means any services provided by Whitakers to the Customer, including repair works, and everything else incidental to, or which can be inferred from, those services including the carrying out of all obligations which may be reasonable and necessary to bring about the contractual result; and

16.13      Whitakers means Whitakers Jewellers (ABN 13 082 807 387), the provider of the Goods and Services.