WEBSITE AND ONLINE SHOP TERMS AND CONDITIONS
Thank you for visiting www.gerrybrowns.com.au (the Site) (which may be available through other addresses or channels), which is owned by Chandem Pty Ltd ACN 134 934 919 trading as Gerry Brown’s Shelving (GBS/we/us/our).
These terms and conditions create a contract between GBS and the person who accesses or views this Site (you) (which includes, in the case of a minor (as per the age of majority in the jurisdiction in which they reside) (a Minor), their legal parent or guardian) (the Agreement). Please read the Agreement carefully.
The Agreement applies to the access to and/or the use of the Site, the online store accessible at www.gerrybrowns.com.au/shop (the Store) and the use of the information services and content provided through this Site. By accessing and using this Site and/or the Store and/or making a purchase through the Store, you are agreeing to comply with and be bound by the terms of the Agreement. If you do not agree to the terms of the Agreement, you must immediately cease using the Site and may not access or use the Site or the Store.
- THE WEBSITE CONTENT
- 1.1 The ‘Content’ is, collectively any products, content, and features made available by us through the Site.
- 1.2 GBS grants to you, and you accept, a non-exclusive, non-transferable, limited licence for you to use the Content strictly in accordance with this Agreement.
- 1.3 The licence provided under this Agreement is personal to you and you must not re-sell, sub-license, rent, lease or otherwise distribute the Content. All other rights in respect of the Content is reserved to us.
- 1.4 To use our Site, the Store and/or the Content, you need compatible hardware, software (latest version recommended and sometimes required) and internet access (fees may apply). Our Site or Store’s performance may be affected by these factors.
- 1.5 You acknowledge that the terms of agreement with your respective internet and/or mobile network provider (Network Provider) will continue to apply when using the Site and the Store. As a result, you may be charged by the Network Provider for access to network connection services for the duration of the connection while accessing the Site and/or the Store or any such third party charges as may arise. You accept responsibility for any such charges that arise. If you are not the bill payer for the mobile telephone or device being used to access the Site and/or the Store, you will be assumed to have received permission from the bill payer.
- 1.6 Your right to use the Site and/or the Store is subject to your ongoing compliance with all provisions of this Agreement.
- 1.7 If you are the legal parent or guardian of a Minor, you are responsible for and liable for ensuring that the Minor complies with all provisions of this Agreement, as if they were named as you in it.
- 1.8 Our Site may contain links to websites operated by third parties. Unless expressly stated otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. You should make your own investigations with respect to the suitability of those websites.
- 1.9 We may add to, alter, change, temporarily suspend or withdraw partially or completely any parts of the Site, the Store and/or the Content at any time without notice to you, in our sole discretion
2. THE ONLINE STORE – Orders
- 2.1 Orders placed through the Store are subject to acceptance by us (the Order). Acceptance (or rejection) of an order will be notified to you as part of the ordering procedure. Acceptance is always subject to payment first being made by you. For the removal of doubt, by placing an order, you make an offer to purchase the relevant product or service that is the subject of the Order (the Goods).
- 2.2 A contract (which is separate to this Agreement) for the supply of the Goods is made when you place an Order for the Goods from GBS. That contract is subject to the terms contained in this Agreement.
- 2.3 GBS may not be able to supply all or some of the Goods for whatever reason, in which case you will not be charged for the Goods or if you have been charged, you will be refunded.
- 2.4 You agree that you do not rely on the skill or judgement of GBS in relation to the suitability of any of the Goods for a particular purpose unless you have indicated that purpose in writing to GBS and GBS have acknowledged in writing that the Goods will be fit for that particular purpose.
Prices and Payment
- 2.5 Unless otherwise specified, all prices shown in the Store will include GST.
- 2.6 GBS will use a payment gateway (or a similar service) for all financial transactions entered into when placing an Order via the Store.
- 2.7 You acknowledge that you agree to any terms and conditions relating to a third-party arrangement with a payment gateway (or similar service) used when placing an Order via the Store.
- 2.8 GBS are not able to access your credit card or other financial details and you agree that GBS will not be held liable for any loss you incur arising from your use of this payment method unless caused by our fraud or the fraud of our employees.
- 2.9 Without prejudice to GBS’s other remedies at law, GBS shall be entitled to cancel all or part of an Order which remains unfulfilled and all amounts owing to GBS shall, whether or not due for payment, become immediately payable if:
- (1) you become insolvent; or
- (2) appoint a receiver, manager, liquidator or similar.
Shipping and Delivery
- 2.10 GBS reserves the right to arrange transport of the Goods by any means, in their sole discretion.
- 2.11 The cost of carriage of the Goods to your nominated shipping address (Delivery Fee) are in addition to the price of the Goods and you shall bear all such costs.
- 2.12 GBS reserves its right to waive the Delivery Fee, in its sole discretion.
- 2.13 Delivery of the Goods is taken to occur at the time that:
- (1) you, or your nominee, takes possession of the Goods at your nominated shipping address; or
- (2) the Goods are delivered to your nominated shipping address or a post office close to your nominated shipping address;
and risk in relation to the Goods is taken to have passed to you once delivery has occurred.
- 2.14 Where GBS or our nominated transport contractor enters your premises or the premises of a third party to deliver the Goods, you:
- (1) release GBS from any claim in respect of damage occasioned to the Customer’s premises or injury to persons arising out of the delivery by GBS or our nominated transport contractor of the Goods;
- (2) indemnify and hold GBS harmless from and against any loss, damage or liability suffered or incurred by GBS in respect of damage occasioned to the third party’s premises or injury to persons arising out of the delivery by GBS or our nominated transport contractor of the Goods, except for an to the extent that such loss, damage or liability suffered or incurred by GBS arises out of the negligent act or omission of GBS or our nominated transport contractor.
- 2.15 You agree and acknowledge that:
- (1) if your nominated shipping address is an unattended location, then the Goods shall be left at your sole risk;
- (2) GBS will not be liable in any way for any delay in delivery of the Goods and you must accept delivery of the Goods even if there has been a delay;
- (3) you may cancel an Order for the Goods or refuse to take delivery of the Goods, however, in doing so you indemnify GBS against all losses incurred as a result of any such cancellation or failure to take delivery;
- (4) you release GBS from any liability associated with loss incurred as a result of any transport contractor delivering the Goods to your nominated Shipping Address; and
- (5) if the Goods are unable to be delivered to your nominated shipping address, for whatever reason, and GBS are required to store the Goods on your behalf for any period of time GBS reserves the right to charge you for storage and administration costs incurred as a result.
Defects & Warranties
- 2.16 Except as expressly set out in this Agreement, GBS makes no warranties or other representations in relation to the Goods.
- 2.17 You must inspect the Goods on delivery and must within forty-eight (48) hours of delivery or as soon as reasonably possible after any such defect becomes evident notify GBS in writing of any evident defect/damage, shortage in quantity or failure to comply with the description. Upon such notification GBS may require that you provide them with photographic evidence of any defect/damage, shortage in quantity or failure to comply with the description.
- 2.18 To the extent permitted by law, the liability of GBS in respect of any defect in or damage to the Goods is limited to, at the option of GBS:
- (1) the replacement or repair of the Goods; or
- (2) the payment of the cost of repairing or replacing the Goods; or
- (3) a refund of any money paid for the Goods.
- 2.19 Subject to clauses 17 and 2.18, returns will only be accepted provided that
- (1) you have complied with the provisions of clause 17; and
- (2) GBS has agreed that the Goods are defective; and
- (3) the Goods are returned within a reasonable time at your cost (if that cost is not significant); and
- (4) the Goods are returned in the same, or materially the same condition to that in which they were delivered in.
- 2.20 Notwithstanding anything contained in clause 19, if GBS is required by a law to accept a return then GBS will only accept a return on the conditions imposed by that law.
- 2.21 GBS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- (1) your failure to properly maintain or store any Goods;
- (2) your use of the Goods for any purpose other than that for which they were designed;
- (3) your continued use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- (4) your failure to follow any instructions or guidelines provided by GBS; or
- (5) fair wear and tear, any accident, or act of God.
- 2.22 Nothing in this Agreement is intended to exclude, restrict or modify rights which you may have under the Competition and Consumer Act 2010 (Cth) or any other legislation which may not be excluded, restricted or modified by agreement.
3. LIMITATIONS OF LIABILITY, RELEASE & INDEMNITY
- 3.1 In relation to Orders placed via the Store and the associated Goods, the following limitations of liability apply:
- (1) you acknowledge and agree that installation, construction and/or erection of the Goods may be required upon delivery and such activity involves an inherent risk of bodily harm or injury (including death) and that GBS will not be liable for monitoring or supervising your use of the Goods and to this end, GBS accepts no responsibility or liability for any injury, illness or death that results directly or indirectly from the use or misuse of the Goods by you or any other party, to the fullest extent permitted by law; and
- (2) you acknowledge and agree that it is your responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the Goods and, where information is supplied to you on potential hazards relating to the Good, to bring such information to the attention of your employees, agents, subcontractors, visitors and customers and that GBS cannot be held responsible in any way for your failure to fulfill your responsibility in this regard.
- 3.2 In relation to your use of the Site, the Store and the Content, the following limitations of liability apply:
- (1) you acknowledge and agree that GBS will not be liable to you or any other persons for:
- (a) any loss or damage of any kind that is directly or indirectly caused by or results from your wrongful, wilful or negligent act or omission; or
- (b) any direct, incidental, special or consequential damages, including loss or profits or anticipated profits, even if notified of the possibility of that potential loss or damage;
- (2) you release GBS from any liability or claims relating to, but not limited to:
- (a) any personal injury, illness or death caused to you or any other person; and
- (b) any breach of your obligations;
- (1) you acknowledge and agree that GBS will not be liable to you or any other persons for:
except to the extent arising from the wilful or negligent acts or omissions of GBS;
- (3) GBS does not represent or guarantee that the Site, the Store or the Content will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion, and you hereby release GBS from any liability relating thereto;
- (4) you assume full responsibility for backing-up and/or otherwise protecting your data in the Site or the Store against loss, damage or destruction; and
- (5) GBS is not responsible for data charges you may incur in connection with your use of the Site, the Store or the Content.
- 3.3 You acknowledge and agree that this Agreement’s limitations of liability in clause 1 and 3.2 are essential to GBS and GBS would not have entered into this Agreement in their absence.
- 3.4 You indemnify GBS for:
- (1) all losses and expenses we incur (including legal costs on an indemnity basis) we; and
- (2) all liabilities we incur;
directly or indirectly caused by, or resulting from any breach of this Agreement or from any wrongful, wilful or negligent act or omission by you.
4. INTELLECTUAL PROPERTY
- 4.1 You agree that the Site, including but not limited to the Content, graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Site, the Store or the Content contain proprietary information and material that is owned by GBS and/or its licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Site, the Store or the Content for personal, non-commercial uses in compliance with this Agreement.
- 4.2 No portion of the Content may be reproduced in any form or by any means, except as expressly permitted by this Agreement. You agree not to modify, rent, loan, sell, or distribute the Content in any manner, and you shall not exploit the Content in any manner not expressly authorised. This clause does not modify, restrict or exclude any additional rights you may have under applicable laws that cannot be so modified, restricted or excluded.
- 4.3 GBS’ names and logos are the property of GBS and you are not granted any right or license with respect to any of these names or logos.
- 4.4 If you believe that any of Content available through the Site infringes the copyright claimed by you, please contact GBS as soon as possible.
5. GENERAL PROVISIONS
- 5.1 You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Site, the Store and/or the Content. Your use of the Site, the Store and/or the Content may also be subject to other laws.
- 5.2 You hereby grant GBS the right to take steps GBS believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. You agree that GBS has the right, without liability to you, to disclose any data and/or information to law enforcement authorities, government officials, and/or a third party, as GBS believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to GBS’s right to cooperate with any legal process relating to your use of the Site, the Store and/or the Content, and/or a third-party claim that your use of the Site, the Store and/or the Content is unlawful and/or infringes such third party’s rights).
- 5.3 A party waives a right under this Agreement only if it does so in writing. We do not waive a right simply because we fail to exercise the right, we delay exercising the right or only exercise part of the right. A waiver of one breach of a term of this Agreement does not operate as a waiver of another breach of the same term or any other term.
- 5.4 If a provision in this Agreement is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of the provision that is invalid or enforceable must, to that extent, and in that jurisdiction, be treated as deleted from this Agreement. This does not affect the validity or enforceability of the remaining provisions in that jurisdiction, or of the deleted provision in any other jurisdiction. If you are a qualified public educational or government institution and any part of this Agreement is invalid or unenforceable against you because of applicable local, national, state or federal law, then that portion shall be deemed invalid or unenforceable, as the case may be, and instead construed in a manner most consistent with applicable governing law.
- 5.5 We may assign or otherwise deal with the benefit of any contract made pursuant to this Agreement without your consent.
- 5.6 GBS may subcontract with one or more affiliates or third parties to provide any service required to be provided by GBS under this Agreement, provided that no such use of subcontractors shall relieve GBS of its obligations under this Agreement.
- 5.7 You may not assign your rights and obligations under this Agreement under any circumstances without first obtaining our written consent to do so. Any purported assignment not undertaken in accordance with this clause will be invalid.
- 5.8 All contracts made between us and you shall be governed by and construed in accordance with the laws of the State of Queensland. You agree to submit to the exclusive jurisdiction of the Queensland courts for all purposes of or in connection with such contracts.
- 5.9 GBS will not be liable for any loss incurred as a result of delay or failure to make any supply of the Goods or to observe any of the terms and conditions contained in this Agreement due to an event of force majeure (including any cause or circumstance beyond GBS’s reasonable control, including but not limited to, any lack of production capacity or raw materials, strikes, lock-outs, labour disputes, fires, floods, acts of God or public enemy, pandemic or epidemics, malicious or accidental damage, delays in transport, breakdowns in machinery or restrictions or prohibitions by an government or any semi-government authorities or embargoes). During the continuance of an event of force majeure, GBS’s obligations under this Agreement will be suspended.