“Authorised Representative” has the meaning given to it in clause 24.1;
“Business Day” means a day that is not a Saturday, Sunday or public holiday in Western Australia;
“Card” means a payment card which provides the cardholder electronic access to his or her bank account(s) at a financial institution and includes a debit card and a credit card;
“Contract of Sale” means a contract between You and Us for the sale of an Item;
“Credit Application” means Our application for credit facilities which is to be completed by a Wholesale Customer following submission, and approval, of a Wholesale Customer Form;
“Credit Facility” means the credit service provided pursuant to Our Credit Application;
“Delivery Address” means the address to which the Items are to be delivered as stated in each Order;
“Delivery Agent” means any third party delivery or shipping company nominated by Us;
“Delivery Fee” means the fee charged for the delivery of each Order as set out in the section of Our Website titled “Delivery Information”;
“Delivery Timeframes” means the timeframe for the delivery of each Order as set out in the section of Our Website titled “Delivery Information”;
“eWAY” refers to Web Active Corporation Pty Ltd ACN 086 209 403;
“GST” means goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Intellectual Property Rights”
means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered;
“Item” or “Items” means any goods listed for sale on our Website and includes Wholesale Items;
“Listed Sale Price” means the price at which an Item is listed for sale in a Listing which may be discounted, from time to time, at Our discretion;
“Listing” means a listing on the Website through which We offer to sell an Item to You;
“Order” means an offer, whether oral or in writing, by You to Us to purchase an Item at the Listed Sale Price and includes Wholesale Orders;
“Order Confirmation” has the meaning given to it in clause 4.3;
“Party” means Us and / or You as the context requires;
“Personal Information” means information or an opinion about an individual as defined in section 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by Us for the purposes of the Agreement;
“You” and “Your” are a reference to you;
“Website” means the internet site owned by Us and operating under the URL www.justintimegourmet.com.au;
“We”, “Us” or “Our” means Justin Wearne and Jodee Wearne as trustee for The Wearne Family Trust trading as Just In Time Gourmet ABN 54 833 876 972;
“Wholesale Customer” means a company (or other entity) that has been approved by Us to have a Wholesale Login and a Credit Facility;
“Wholesale Customer Form” means Our wholesale customer form available on Our Website;
“Wholesale Item” means any goods listed for sale on Our Website at wholesale prices that are available for purchase by Wholesale Customers;
“Wholesale Login” has the meaning given to it in clause 8.1; and
“Wholesale Order” means an Order placed by a Wholesale Customer.
You represent and warrant that You are at least 18 years of age and that You have the legal capacity to access the Website and to enter into legally binding contracts under applicable law.
3. PLACING AN ORDER
3.1. Listings on the Website are merely an invitation to treat and do not represent an offer capable of acceptance.
3.2. You can place an Order by:
a) submitting an online order form on the Website;
b) calling Us directly on 1300 667 992;
c) sending Us an email at [email protected]; or
d) sending Us a facsimile to (08) 9414 1697.
3.3. If You are a Wholesale Customer, You can submit a Wholesale Order using Your Wholesale Login.
3.4. You agree to provide in each Order complete and accurate information as to Your personal details (or those of Your nominated recipient for an Item) to enable the processing and delivery of Your Order. This information will also be used by the Delivery Agent to fulfill delivery of Your Order. We will not be liable to You for Your loss or that of any third party for a delay in processing or failure to process an Order or delay in delivery of an Item to You (or Your nominated recipient) to the extent to which that delay or failure is directly or indirectly due to inaccurate or incomplete personal details provided by You with respect to an Order.
3.5. You agree to obtain the consent, from any nominated recipient of an Item, to the provision to Us of Personal Information of that nominated recipient.
3.6. An Order submitted by You is an offer by You to purchase an Item for the Listed Sale Price (plus any Delivery Fee if applicable).
3.7. Once You submit an Order, cancellation of Your Order or changes to any Item specified in Your Order cannot be made (unless agreed to by Us). However, We will allow You to return or exchange an Item in accordance with the returns and exchanges policy set out in clause 7.
4. ACCEPTANCE AND REJECTION OF ORDERS
4.1. We, at Our sole discretion, reserve the right to accept or reject Your Order for any reason at any time.
4.2. You acknowledge and agree that:
a) Items may contain alcohol;
b) Items containing alcohol may only be purchased for the purpose of supply to another person as a gift;
c) alcohol cannot be purchased by You as a separate Item; and
d) the maximum quantity of alcohol purchased in an Item must not exceed two (2) litres.
4.3. If We are willing and able to supply Your Order, We will accept the Order by written notification to You or by Our conduct constituting acceptance (including the provision of Items to You) (“Order Confirmation”).
4.4. A Contract of Sale will be formed when We provide You with Order Confirmation. Your Order will be assigned an order number and We will inform You of it in the Order Confirmation. Please quote the relevant order number in any subsequent correspondence with Us relating to an Order.
4.5. The Contract of Sale will relate only to those Items referred to by Us in the Order Confirmation.
4.6. If You place more than one Order, You will, unless otherwise advised by Us, receive from Us a separate Order Confirmation and payment receipt with respect to each Order.
4.7. Except in the case of Wholesale Orders, a payment receipt is automatically generated once Your Order is submitted. If You require a tax invoice to be issued for GST purposes, please expressly specify this requirement in Your Order or alternatively email Your Order number to [email protected] and We will endeavour to provide You with a tax invoice as soon as possible.
4.8. If We are unable to complete an Order, the Order will lapse and a full refund of the Listed Sale Price (if payment has been made) will be made to You. You acknowledge that a refund of the Listed Sale Price for an Item is the only recourse in the event that Your Order is not accepted. All other liability is excluded.
5.1. We deliver Items to most locations throughout Australia.
5.2. We may use Delivery Agents to deliver Your Items. You agree to Your details including Your Delivery Address being supplied to the Delivery Agent for the purpose of delivering Your Items.
5.3. Where available, a tracking number will be provided to You once We have dispatched Your Order.
5.4. You agree to pay the applicable Delivery Fee for each Order.
5.5. We reserve the right to increase the Delivery Fee if:
a) the quantity of Items in Your Order is large and/or of excessive weight (determined at Our sole discretion);
b) We are required to package Items separately; and/or
c) delivery to You of Your Items otherwise causes Us to incur costs or expenses additional to the usual costs involved in delivery of an Item.
5.6. We recommend that You submit Your Order early to ensure that Your Items are delivered when they are desired.
a) We cannot guarantee that delivery will occur in the Delivery Timeframes;
b) the Delivery Timeframes may change due to unforeseen circumstances; and
c) We are not liable for any loss, damage, cost, expense or injury You suffer or any third party suffers as a result of a change in the Delivery Timeframes or a delay in delivery.
5.8. If a product listed as part of an Item which is a gift hamper is unavailable We will, in order to ensure timely delivery of Your Order, substitute the unavailable product for another product of similar or greater value.
5.9. Subject to clauses 5.10 and 5.11, if You are not personally available to accept delivery of Your Order, You may appoint a representative to do so in Your place. The representative must be over 16 years of age and capable of receiving delivery on Your behalf, and You agree that We are entitled to rely on the representative’s instructions as if they were Your own.
5.10. If an Item in Your Order contains an alcohol product, the person receiving the Item at the Delivery Address must be at least 18 years of age in order to accept delivery. The Item cannot be delivered to and/or left at a Delivery Address without being accepted by a person over the age of 18 years. We reserve the right to require the person receiving the Item to provide proof of age.
5.11. Items that include alcohol products must be delivered to the recipient, receiving the Item as a gift, and cannot be delivered directly to You (as the purchaser and the party placing the Order).
5.12. You or Your nominated representative may be required to sign a delivery manifest to confirm that delivery has taken place. If You or Your nominated representative refuse to sign the delivery document, this will be taken as refusal to accept delivery.
5.13. If there is:
a) no one available at the Delivery Address to accept delivery; or
b) there is limited access to the Delivery Address; or
c) it is unsafe or impractical to make delivery,
a calling card will be left for You to collect the Item. It is Your responsibility to follow the instructions stated on the calling card.
5.14. Where redelivery is required for any reason, You may be required to pay an additional Delivery Fee.
5.15. It is Your responsibility to ensure that each Delivery Address specified in an Order is correct. We will not be liable to You for Your loss or that of any third party for a delay or failure to process, fulfil or deliver Items to You due to inaccurate or incomplete personal details provided in an Order by You.
5.16. Any risk associated with the Items passes to You on the date and time of delivery to the Delivery Address.
6. PRICE AND PAYMENT
6.1. The price applicable to an Item ordered by You shall, except in the case of an obvious error, be the Listed Sale Price on the Website at the time You submit Your Order for the relevant Item.
6.2. Subject to clause 6.3, all Listings and Listed Sale Prices are quoted in Australian dollars and are inclusive of GST.
6.3. In the case of Wholesale Items, all Listings and Listed Sale Prices are quoted exclusive of GST.
6.4. If GST is payable in relation to the provision of an Item, You will be responsible for payment of an amount equivalent to any GST or equivalent tax payable by Us at the prevailing statutory rate in relation to the supply of that Item from Us to You.
6.5. The Listed Sale Price of Items is subject to change without notice but changes will not affect Orders in respect of which You have received an Order Confirmation from Us.
6.6. Except in the case of Wholesale Orders, if an Order is submitted by You on the Website, the Listed Sale Price will be processed using a third party payment gateway service run by eWAY. eWAY’s terms and conditions can be viewed on its website at eWAY.
6.7. It is Your responsibility to:
a) ensure there is sufficient clear credit available in Your nominated Card account to meet the Listed Sale Price at the time of placing the Order; and
b) check the amounts debited in the Your account statement provided by Your Card issuer, since if there is insufficient credit in the Your nominated account or You gave Us incorrect account details, You may be charged a fee by Your Card issuer due to the failed or incorrect payment.
6.8. In the case of Wholesale Orders, payment of the Listed Sale Price must, unless otherwise agreed by Us, be made by You within 14 days of issue of an invoice.
6.9. All Items supplied by Us to You, and any proceeds arising therefrom, shall remain Our sole and absolute property as legal and equitable owner until the Listed Sale Price and the Delivery Fee for the Items supplied is received by Us.
7. RETURNS, EXCHANGES AND REFUNDS
7.1. Subject to clause 7.3, We will provide You with a choice of either a refund or an exchange where an Item:
a) has been incorrectly described in a Listing;
b) fails to be of an acceptable quality;
c) is defective or damaged; or
d) is different to the Item You ordered.
7.2. We do not offer refunds or exchanges for “change of mind”.
7.3. We will attempt to ensure that Items containing fragile goods, such as chocolate, are appropriately packaged for delivery. Notwithstanding this, We cannot guarantee that the goods will be free from blemishes that may occur in transit, such as cracking or melting.
7.4. To obtain an exchange or refund, You must contact Us by email at [email protected] You must provide Us with the following details:
a) Your Order number;
b) description of the Item; and
c) the reason(s) for return of the Item.
7.5. Items should be returned by
post or courier to the following address:
Just In Time Gourmet
Unit 5/19 Baling Street
Cockburn Central WA 6164
7.6. You assume the risk of, and shall be responsible for, any loss of or damage to any Item during transit. For this reason, We recommend that You take out shipment/postage insurance.
7.7. Refunds will be credited to a Card of Your nomination. Alternatively, You may request a refund in the form of a credit note.
7.8. Notwithstanding clause 7.1, no refund or exchange will be given, nor will We be responsible for the quality or fitness of an Item, once the Item has been on-sold or gifted by You.
8. WHOLESALE CUSTOMER
8.1. In order to place a Wholesale Order, You will be required to obtain a username and password (“Wholesale Login”) by completing a Wholesale Customer Form and be approved by Us for a Credit Facility.
8.2. You must select a password known only to You.
8.3. Your Wholesale Login is non-transferable. You must keep Your Wholesale Login details safe and must not disclose them to any third party. The Wholesale Login may be used only by the individual or entity who created it and not by anyone else. We reserve the right to terminate Your Wholesale Login if We have reason to believe that Your Wholesale Login details are being used by anyone other than You.
8.4. You shall be liable for all activities that are undertaken using Your Wholesale Login together with the associated password and shall compensate Us for any and all losses We may suffer as a result of any failure by You to keep Your username and password strictly secure at all times.
9. USE OF THE WEBSITE AND LIMITATION OF LIABILITY
9.2. When accessing and using the Website, You must:
a) not attempt to undermine the security or integrity of Our computing systems or networks or, where the Website is hosted by a third party, that third party’s computing systems or networks;
b) not use, or misuse, the Website in any way which may impair the functionality of the Website or impair the ability of any other user to use the Website;
c) not attempt to gain unauthorised access to any materials, other than those to which You have been given express permission to access, or to the computer system on which the Website is hosted;
d) not transmit, or input into the Website, any:
i. files that may damage any other person’s computing device or software;
ii. content that may be offensive; or
iii. material or data in violation of any law (including data or other material protected by copyright or trade secrets which You do not have the right to use);
e) not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to operate the Website.
9.3. You acknowledge and agree that:
a) all pictures and images of Items displayed on the Website are for illustration purposes only, and the sizes and dimensions of the actual Items may be different;
b) You have read any corresponding written description of the Items prior to submitting Your Order;
c) the colour of the actual Item may vary in shade, tone or density from the colour as depicted on the Website;
d) where dimensions or other measurements are provided in the description of an Item, it is Your responsibility to ensure that the actual size of each Item is suitable for Your purpose prior to submitting Your Order (including whether the Item will be capable of delivery to Your Delivery Address due to sufficient, appropriate and safe access); and
e) any accessory featured with the Item is for illustration purpose only, and may be sold separately.
10. INTELLECTUAL PROPERTY
10.1. Title to, and all Intellectual Property Rights with respect to, the Website and any associated documentation are Our property and may not be used or reproduced in full or in part without Our prior written authority.
10.2. You may not, unless expressly permitted by the Agreement, use the Website, or the material contained in it (“the Material”), for any purpose. This includes:
a) the reproduction of the Material in any material form;
b) the distribution of the Material in any material form;
c) re-transmission of the Material by any medium of communication;
d) uploading and / or reposting the Material to any other site on the Internet; or
e) “framing” the Material with other material on any other Internet site.
10.3. You may not modify, copy or otherwise commercialize:
a) the layout of the Website; or
b) any computer software or code contained in the Website.
11.1. To the maximum extent permitted by law, We exclude all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss, including consequential loss, or damage resulting, directly or indirectly, from any use of, or reliance on, the Website.
11.2. If You suffer loss or damage as a result of Our negligence, breach of contract or other act or omission that cannot at law be avoided pursuant to clause 11.1, any claim by You against Us arising will be limited in respect of any one incident, or series of connected incidents, to an amount equal to the value of the relevant Items purchased by You.
12.1. You agree to release, indemnify and keep Us indemnified from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by Us arising out of or in connection with Your:
a) failure to comply with the Agreement;
b) failure to complete a transaction;
c) use of the Website;
d) purchase of an Item; and
e) infringement of the intellectual property, privacy or confidentiality rights of a service provider or any third party.
12.2. We cannot guarantee uninterrupted, timely, secure or error free access to the Website, and its operation may be interfered with by numerous factors outside of Our control.
13. LINKS TO OTHER WEBSITES OR SERVICES
The Website may include links to other websites maintained by third parties which are not under Our control (“Linked Sites”). We make available Linked Sites to You solely as a convenience, and the inclusion on the Website of links to Linked Sites does not imply endorsement by Us of the Linked Sites. Linked Sites are not under Our control and We are not responsible for the material contained on any Linked Site or the consequences of accessing such sites. You access Linked Sites at Your own risk and by accessing them You leave the Website.
15. CONSUMER GUARANTEES
To the maximum extent permitted by law, any statutory consumer guarantee or statutory provision intended to protect non-business consumers in any jurisdiction does not apply to the Agreement.
17. RESTRICTION OF USE
17.1. Without limiting other remedies available to Us at law, in equity or under the Agreement, We may, without notice to You and at Our sole discretion, issue You a warning, restrict Your activities through the Website or temporarily prohibit or indefinitely prohibit Your use of the Website where:
a) You have, or We believe that You have, breached the Agreement, which includes any of Our policies, in any way;
b) We are unable to verify or authenticate any information You provide to Us; or
c) We believe that Your actions may cause loss or damage to or otherwise unlawfully harm You, third parties or Us, Our related bodies corporate or affiliates, directors, employees or agents.
17.2. For security, confidentiality and privacy reasons, We are not obliged to provide You with the details of any investigation that We may conduct or any action which We may take, in relation to Your use of the Website.
18. HELP AND ASSISTANCE
18.1. If you require technical help with the Website, please check the support provided by Us on the Website or failing that email Us at [email protected]
18.2. Whilst We intend that the Website be available 24 hours a day, seven days a week, the Website may occasionally be unavailable for maintenance or other development activity. If the Website is likely to be unavailable for significant periods of time, We will use reasonable endeavours to publish such interruption details on the Website in advance.
18.3. Please contact Us on [email protected] if You suspect any abuse or misuse of the Website so that We are able to notify the relevant authorities.
19. ENTIRE AGREEMENT
The Agreement supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between You and Us relating to the Website and any other matter dealt with in the Agreement.
The failure to exercise or delay in exercising any power or right by 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 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.
a) without giving You notice; and
b) without giving You any explanation or justification for such change.
22. GOVERNING LAW AND JURISDICTION
The Agreement is governed by the laws of Western Australia, without giving effect to any principles of conflicts of laws. You agree to the jurisdiction of the courts of Western Australia to determine any dispute arising out of the Agreement.
If any part of the Agreement is found to be void, unlawful, or unenforceable then that part will be deemed to be severed without affecting the validity and enforceability of the remaining provisions.
24.1. You acknowledge and agree that any notice given under the Agreement by either Party to the other must be:
a) in writing;
b) signed by the sender or an Authorised Representative of the sender;
c) given to the other Party:
i) by hand delivery;
ii) by prepaid mail;
iii) by facsimile; or
iv) by email transmission.
For the purpose of this clause 24, an “Authorised Representative” means:
a) a solicitor acting on behalf of the Party; or
b) a person appointed by the Party to act as a representative.
24.2. If a notice is sent or delivered in the manner provided in clause 24.1 it must be treated as given to or received by the addressee in the case of:
a) delivery in person, when delivered;
b) delivery by post in Australia to an Australian address, the third Business Day after posting;
c) facsimile, when a transmission report being printed by the sender’s facsimile machine stating that the document has been sent to the recipient’s facsimile number; or
d) electronic mail, when the sender’s computer reports that the message has been delivered to the electronic mail address of the addressee,
but if delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day.
24.3. Our contact details for delivery of notices are as follows:
Just In Time Gourmet
Address: Unit 5/19 Baling Street
Cockburn Central WA 6164
Facsimile: (08) 9414 1697
Electronic Mail: [email protected]
Attention: Jodee Wearne
24.4. Notices to You will be sent to the address, facsimile or email address provided by You to Us when placing an Order.
24.5. A Party may change its address or numbers for service by written notice to each other Party.