THE FURNITURE GALLERY – STANDARD TERMS AND CONDITIONS
In these Terms:
“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“Discounts or Incentives” are written offers to provide Goods on terms or in a way that has been accepted by you.
“Force Majeure Event” means any act, event or circumstances, other than a lack of funds:
- as a direct or indirect result of which, the party relying on it is prevents from or delayed in performing any of its obligations under these Terms; and
- that is beyond the reasonable control of that party,
and includes plant and delivery breakdowns, industrial action, raw materials shortages, adverse weather or computer or IT downtime.
“Goods” means any goods supplied or to be supplied by us to you on these Terms.
“GST” has the meaning given to that term in the GST Act.
“GST Act” means a New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.
“Intellectual Property Rights” means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, moral right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, know-how, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of those rights.
“Loss“ includes, but is not limited to, loss, claim, action, damage, liability, cost, charge, expense, penalty, compensation, fine or outgoing suffered, paid or incurred.
“Order” means an oral or written order for Goods placed with us.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Pre-Order Goods” are goods which are not yet in stock but have been made available to purchase as a pre-order.
“Sale of Goods Act” means the Sale of Goods Act 1895 (WA).
“Terms” means these trading terms, as varied under clause 16.
“we” means The Furniture Gallery Osborne Park Pty Ltd ACN 169 572 203 and our successors and assigns (“us” and “our” have corresponding meanings).
“Website” means www.thefurnituregallery.com.au.
“you” means a party requesting supply of Goods.
- You acknowledge that each and every Order submitted to us (including both oral and written Orders):
- is a separate offer all or part of which we may accept or reject at our absolute discretion; and
- to the extent accepted by us, gives rise to a binding agreement between you and us for the supply of Goods on these Terms (“Contract”).
- These Terms replace any other terms previously in force.
- We may vary these Terms at any time in accordance with clause 16. Your continued purchase of Goods after these terms are varied constitutes your acceptance of the varied terms applying to all Orders after the date of variation.
- OUR PRICES
- Prices listed on are Website are stated in Australian Dollars and inclusive of GST. Delivery and any other installation costs will be charged in addition to be price stated on the Website and will be added during checkout.
- We aim to ensure that the pricing of the Goods shown on the Website is correct at all times. However, the Website may not always accurately reflect the correct details at the time you place your Order.
- We reserve the right to change prices displayed on our Website at any time and without notice. If we discover an error in the price or payment of any Goods which you have ordered we will inform you of this as soon as possible and given you the option of reconfirming your Order at the correct price or cancelling the Order. If we are unable to contact you, we will treat the Order as cancelled.
- If the Order is cancelled and you have already made a payment towards the Goods, you will receive a full refund.
- You may order Goods by submitting an Order to us.
- Please choose carefully as we do not refund or exchange Goods if you change your mind or make a wrong selection. Once submitted, an Order cannot be cancelled, or Delivery deferred, without our consent. We do not offer lay-by.
- We are not bound by an Order except to the extent we accept an Order, either by you notifying you of acceptance or by commencing performance of the accepted part of the Order. We are not obliged to accept any Order.
- Please note that there may be variances between the colours and textures of timber, leather and other products in store and depicted on our online store due to natural characteristics of the product. Colours, shades or textures may appear different to the physical product if they are viewed on screens and may present differently on different displays and screens. If the exact colour, shade or texture is important to you please arrange a viewing at one of our stores. Refunds will not be given for any such variations on colours, shades or textures as will be considered a change of mind. However, if Goods are materially different from the representation on the Website, you may be entitled to a refund or exchange under the Australian Consumer Law.
- All particulars of weight, size and dimensions on are Website are approximate only. If you would like to find out further approximate dimensions not shown on the Website, please contact us or otherwise visit us in store.
- Unless otherwise specified, all Goods are available within Australia only.
- You must pay:
- the agreed charges in respect of each item of Goods supplied by us (which may include our cost of arranging Delivery or freight of Goods);
- any other amounts owing under these terms or our pricing policies,
(in each case without deduction or set-off) to us within the relevant timeframe set out in this clause 5.
- If one or more invoices are outstanding, we may elect to apply and allocate all of the proceeds of any payment made by you (or on your behalf) firstly to any late payment fees accrued on any outstanding invoices, secondly to the oldest invoice outstanding and then to each more recent invoice (in order from the oldest to the most recent) until all invoices are paid in full.
- You must pay us the full amount of any Order prior to us accepting the Order and Delivery of relevant Goods.
- We may at our absolute discretion agree to accept an Order with a minimum deposit of 20% with the final payment of the balance at a later time (maximum two payments per Order). In all circumstances full payment must be received by us prior to delivery or pickup. All deposits are non-refundable if you choose to cancel your Order or do not pay the balance amount to accept delivery of the Goods.
- We have no obligation to Deliver, and no liability for failure to Deliver, any Order unless and until full payment has been received in cleared funds.
- You have not paid our invoice for Goods until the entire amount due at any time by you to us under that Invoice has been received by us.
- DELIVERY OF GOODS
- Any time quoted for delivery of Goods (including Pre-Order Goods) is an estimate only.
- The estimated delivery time for Pre-Order Goods is subject to change pending arrival of stock.
- Delivery of Goods is to the location identified as the delivery address listed on your Order with our white glove delivery service or when the Goods are collected by you or your nominated carrier (“Delivery” or “Deliver” as the context requires), unless otherwise specified in writing.
- Our white glove delivery service includes unwrapping, assembly of the goods, and removal of packaging as part of Delivery.
- Delivery charges and estimated times will depend on where your product is being delivered. You must ensure the correct delivery address and access details are provided to us and advise us if goods are to be delivered upstairs or downstairs. Any date or time provided by us for delivery are estimates only.
- We will telephone your nominated telephone number about 1 hour before delivery will be effected. Products will only be delivered if you or your nominated representative (being a person over 18 years) is able to accept delivery at the delivery address. Delivery will require rescheduling and a further delivery charge will be incurred if you or your nominated representative is not present to accept delivery.
- You must take delivery of goods within 7 days of us notifying you they are ready for Delivery. If you fail to do so, we may arrange suitable storage for such Goods at our premises or elsewhere and you must pay and/or indemnify us for all costs of such storage, including insurance, handling and pro-rata premises rental.
- We reserve the right to make part Deliveries of any Order and each part Delivery constitutes a separate Contract upon these Terms.
- If the Goods arrive and you notice the packaging or the item itself is clearly and significantly damaged or clearly does not meet the description of the Goods, please take photos or videos of the damage and/or Goods. In those circumstances, please refuse to accept the delivery and email us those photos and/or videos immediately to firstname.lastname@example.org.
- Within 48 hours of any Delivery, you must arrange for an inspection of the delivered Goods. You acknowledge that by accepting Delivery and not contacting us in writing within this time period, you confirm that the delivered Goods have been received in accordance with the Order (subject to your rights under law, including the Australian Consumer Law, which cannot be excluded).
- You agree Goods may only be returned to us in accordance with our returned goods policy, available at the Website.
- You agree that the policies referred to in this clause 5 (as amended from time to time) form part of the Terms.
- RISK AND TITLE
- Risk in the Goods passes to you, on the earlier to occur:
- when the Goods are collected by you or by any person or carrier authorised to collect the Goods on your behalf; or
- on delivery to the street address nominated by you (if you have requested us to deliver the Goods).
- Proper title to Goods supplied by us to you under a Contract does not pass to you until all Goods supplied by us under any Contract have been paid for in full as identified in clause 5.5.
- While the title in the Goods remains with us and until such time it passes to you, you must not:
- charge or encumber the Goods in anyway;
- grant or otherwise give any interest in the Goods to a third party;
- convert the Goods and, if so converted, we will be the owner of the end Goods; and
- sell or dispose of the Goods and, if so sold or disposed of, you will hold any proceeds of the sale or disposal on trust for us until you have paid for the Goods in full.
- You should consider whether you need to obtain suitable insurance.
- You warrant that you or the person making an Order on your behalf has sufficient power and authority to enter into a Contract with us on these Terms.
- You warrant that no statement or representation made by you or on your behalf to us prior to entering into any Contract with us is misleading or deceptive in any respect, and you warrant that you will be truthful and accurate in your dealings with us.
- MANUFACTURER’S WARRANTY
- In the case of Goods sold but not manufactured by us, we will to the extent permitted by law and contractual terms applicable to us extend the manufacturer’s warranty to you.
- If manufacturer’s warranty is available to you, on delivery of the Goods, you may be required to register the purchase of the Goods with relevant manufacturer and sign the warranty documentation, to obtain the benefit of the manufacturer’s warranty (“the Manufacturer’s Warranty”).
- Any product warranty given by us will apply in addition to other rights and remedies you may have under the Australian Consumer Law. Where applicable, you may be eligible to make a claim in relation to goods that are faulty in accordance with our Warranty Terms & Conditions. [Hyperlink]
- Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to 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.
- You agree to indemnify us against all actions, claims, proceedings, demands, liabilities, Losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against us or which we may pay, sustain or incur as a direct or indirect result of any one or more of the following:
- any breach of non-performance of these Terms by you, including any breach of warranty;
- any wrongful, wilful or negligent act or omission by you or by any of your employees, agents or contractors;
- the storage, handling or use of any Goods sold under or in connection with these Terms, except to the extent caused by the wrongful, wilful or negligent act or omission or use of any of our employees, agents or contractors; and
- any injury or loss sustained by any person who is employed or engaged by you as an employee, agent or contractor for the purpose of (among other things) the performance by you of your obligations under these Terms and who suffers any injury or loss arising out of or in the course of such employment or engagement.
- LIMITATION OF LIABILITY
- To the maximum extent permitted by law and subject to clauses 12.2 and 1.1:
- we exclude all conditions and warranties expressed or implied whether by statute, the common law, equity or otherwise howsoever (including but not limited to under the Sale of Goods Act);
- we are not liable to you for any Loss, damage, liability, expense, injury or death sustained or incurred by you or any other party, including without limitation any loss of profits, or economic, special, indirect or consequential loss or damage, whether resulting directly or indirectly out of any negligence by us, the supply, performance or use of any Goods out of any breach by us under any Order incorporating these Terms, even if notified of the possibility of that potential loss or damage;
- where liability cannot be excluded, we limit liability to the resupply (or at our election, paying for the cost of resupply) of that part of the relevant Goods subject to any claim;
- we accept no liability in relation to or on behalf of third parties, including liability to your customers.
- If despite clause 12.1, we are held or found to be liable to you for any matter, our maximum aggregate liability for all claims under or relating to these Terms or its subject matter, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, is limited to an amount equal to the price paid by you under the relevant Order to which the claim relates.
- Pursuant to and subject to the applicability of the Australian Consumer Law and Sale of Goods Act, where we are not able to exclude a guarantee, term, condition, warranty or similar imposed by legislation in relation to these Terms or an Order (Non-Excludable Provision), and we are able to limit your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to (at our election), the repair or replacement of the Goods that relate to the breach or the supply of substitute Goods that relate to the breach (or the cost of doing so).
- Nothing in this clause 12 excludes, restricts or modifies the application of any law, the exercise of any right or any liability which cannot, by law, be excluded, restricted, or modified or any right to rely on any exclusion or limitation of liability or any defence provided for by any such law.
- In no event shall we be liable to you or any other party for any Loss which is indirect, consequential or special in nature, including without limitation loss of profit, loss of income, loss of revenue, loss of opportunity, loss of production, any economic loss or financial costs, in each case whether arising in contract, tort (including negligence), equity or any other legal principle or doctrine.
- INTELLECTUAL PROPERTY
- Title to, and all Intellectual Property Rights in the Website and any documentation relating to the Goods, remains the property of us (or our licensors). We do not give you any right in or license to any of the Intellectual Property Rights on or associated with our Website.
- No part of our Website or any of our content supplied to you or which appears on our Website may be copied, reproduced, republished, preformed/presented in public, uploaded, publicly displayed, encoded, translated, sold, exploited, transmitted or distributed in any way to any other computer, server, website or other medium for publication or distribution or for any business or commercial enterprise (including further copying, recording, taping or by a store and information retrieval system) without our prior consent.
- In this clause 15:
- the expressions Consideration, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act; and
- Supplier means any party treated by the GST Act as making a Supply under a Contract.
- Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with these Terms are exclusive of GST.
- If GST is imposed on any Supply made under or in accordance with these Terms, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply.
- Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply as required by these Terms.
- We reserve the right to amend or vary these Terms from time to time at our discretion.
- You will be given notice of any change or variation to these Terms by us publishing the amended Terms on the Website or by being sent a copy of the amended Terms by email, post or facsimile.
- The amended Terms apply and are incorporated into each and all Orders from that time.
- This clause applies if you are a trustee and whether or not we have notice of the trust.
- Where you comprise two or more persons and any of those persons is a trustee this clause applies to such trustee.
- You agree that even though you enter into these Terms as trustee of the trust, you also shall be liable personally for the performance and observance of every covenant to be observed and performed by you expressed or implied in these Terms.
- OTHER ACTIVITIES AND THIRD PARTY WEBSITES
- From time to time, we may promote, or advertise events, offers, items services or other activities that may be conducted offline or which may be conducted by third parties. These events, items, services or other activities may be subject to separate terms and conditions. You acknowledgement that you participate in any of these activities entirely at your own risk and in accordance with those separate terms and conditions.
- Our Website may feature or display hyperlinks and pointers to websites operated by third parties. Such websites do not form part of our Website and are not under our control. We do not accept responsibility for the contents of any such hyperlink or linked website. If you click on a link to any third party websites you leave our Website entirely at your own risk.
- Our failure to insist, or delay in insisting, upon strict performance of these Terms will not be deemed to be a waiver of any of our rights or remedies.
- If any of these Terms is unenforceable, illegal or void then it is severed and the rest of the Terms remain in force.
- Our obligations will be suspended during the time and to the extent that we are prevented from or delayed in complying with those obligations as a result of a Force Majeure Event.
- If we or any of our suppliers, manufacturers or any carriers are affected by a Force Majeure Event, we must:
- as soon as reasonably possible after being affected, give you particulars of the Force Majeure Event and the manner in which our performance of our obligations will be prevented or delayed; and
- take reasonable steps to remove, overcome or minimise the effects of the Force Majeure Event, except that we are not obliged to settle a strike, lockout or other labour difficulty.
- If at any time, we or any of our suppliers, manufacturers or any carriers are affected by a Force Majeure Event which continues for a period of 14 days or more, we may terminate the Order without any liability to you. In these circumstances, you will receive a full refund.
- Service by us of any document will be treated as having been effected when sent to: (a) the mail address shown in the Order; (b) the fax number, by facsimile transmission; or (c) the email address, by email.
- Any agreement, deed, covenant, representation, or warranty given by two or more persons in connection with these Terms or a Contract is given jointly and severally.
- To the extent that there is any inconsistency between these Terms and any other agreement (including your standard terms or any earlier terms between us), these Terms will prevail and these Terms (and the incorporated policies) contain the entire agreement between us in relation to the supply of Goods by us to you.
- These Terms, our policies, any Contract and any communications we have with you regarding our terms of supply (including without limitation our pricing and Discounts or Incentives) are our confidential information. You or your employees must not disclose this confidential information to any person (except to the legal, financial, or business advisers for the purpose of seeking advice relating to the terms and conditions), without our prior written consent. You must notify us immediately of any unauthorised use or disclosure of our confidential information. Nothing in this clause prevents you from disclosing our confidential information if you reasonably believe it is required by law (except this paragraph does not permit you to disclose or authorise the disclosure of any information under section 275(1) and (4) of the PPSA unless section 275(7) of the PPSA applies), as long as you notify us immediately when you become aware that such a disclosure may be required. The obligations of confidentiality will survive expiration or termination of these Terms and will continue until the information ceases to be confidential.
- These Terms and each Contract will be governed by and construed in accordance with the laws of Western Australia. The parties submit to the non-exclusive jurisdiction of the Queensland courts and any courts with appellate jurisdiction from the Western Australian Courts.
- All indemnities in a Contract are continuing and will not be released by our neglect or forbearance or by a Contract being terminated or otherwise ceasing to operate.
- Time is of the essence to these Terms.