In this agreement:
“Carrier” means any person or business contracted by us to carry Goods from us to you, whether all or part of the distance.
“Consumer” means any natural person who, in connection with this agreement, is acting for purposes which are outside his business.
“Our Website” means the entire computing hardware and software installation that is or supports Our Website www.performancewarehouse.com.au
“Goods” means any of the Goods we offer for sale on Our Website
“Content” means any material in any form published on Our Website by us or any third party with our consent.
“Material” means Content of any sort submitted by you
"Order" means an offer made by you in response to an invitation to treat made by Performance Warehouse via Our Website
2. About this website
2. This website is published by Australian Auto Accessories (Import) Pty Ltd Trading As Performance Warehouse ("us, "our", "we", "Performance Warehouse")
2.3 Photographs are for illustrative purposes only and may vary from Goods depicted or described.
3. Description of users and Performance Warehouse
3.1 No person under the age of 18 years may purchase Goods. If you are under 18, please confer with an adult to make your purchase.
3.2 We are: Australian Auto Accessories (Import) Pty Ltd Trading As Performance Warehouse. Our address is: Performance Warehouse 17 Moncrief Road Nunawading, Vic 3131 Australia.
3.3 You are a visitor to Our Website/a customer.
4 Our contract with you
These terms and conditions apply:
4.1 So far as the context allows, to you as a visitor to Our Website; and
4.2 In any event to you as a buyer or prospective buyer of our Goods.
4.3 You and Performance Warehouse may enter into a contract of sale for the sale and supply of products by you making an offer to Performance Warehouse via the website to purchase Goods at a specified price subject to these terms.
4.4 We shall accept your Order by e-mail confirmation. That is when our contract is made. Our message will also confirm details of your purchase and tell you when we shall despatch your Order.
4.5 These terms may be amended at any time without notice. The terms that apply are those posted here on Our Website on the day you order Goods. Your use of the website will represent an agreement by you to be bound by these terms. We recommend you review the terms each time you use the website and before placing any Order.
4.6 Unfortunately, we cannot guarantee that Goods advertised on Our Website are available.
4.7 If we do not have all of the Goods you Order in stock, we will offer you alternatives. If this happens you may:
4.7.1 accept the alternatives we offer;
4.7.2 cancel all or part of your Order.
4.8 If we owe you money on account of your cancellation, we will credit your credit or debit card as soon as reasonably practicable but in any event no later than 30 days from the date of cancellation of your Order.
4.9 Prices shown are in Australian dollars and include GST where applicable. Prices may not include delivery and handling charges. Prices are subject to change.
5. Your account with us
5.1 You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Goods.
5.2 If you use the website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your account and password.
5.3 You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority. You should also log in to your account and change your password.
5.4 We reserve the right to refuse you access to Our Website.
6. Price and Payment
6.1 We endeavour to keep Our Website and catalogue prices updated and accurate but it is possible that a price may have increased from that published. If that happens, we will not send your Order until you have confirmed that you wish to Order at the new price.
6.2 Banking charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than Australian Dollars will be borne by you.
6.3 Any information given by us in relation to exchange rates are approximate only and may vary from time to time.
6.4 Prices include Australian Goods and Services Tax (GST). If you show by your delivery address that you reside outside Australia, we will refund to you the amount charged as GST.
6.5 The transmission of your offer or the confirmation of any payment, made through an electronic instruction may not be received by Performance Warehouse for reasons beyond either parties' reasonable control including but not limited to, electronic failure, mechanical, software, computer, or telecommunications, or the omission or failure of third party website providers or systems;
6.5.1 to the extent permitted by law, Performance Warehouse is not liable to you in any way for any loss or damage at all and however caused, arising directly or indirectly in connection with the transmission of an electronic instruction through the website, or any failure to receive an electronic instruction for whatever reason;
6.5.2 Performance Warehouse may act on and process all completed electronic instructions transmitted or issued through the website without further consent from or reference to you; and
6.5.3 Performance Warehouse may treat an electronic instruction as authentic and is under no obligation to investigate the authenticity or authority of persons issuing or transmitting such electronic instructions, or to verify the accuracy and completeness of such electronic instructions.
7.1 Deliveries will be made by post/a Carrier instructed by us to the address stipulated in your Order. You must ensure that someone is present to accept and sign for the delivery.
7.2 If we are not able to deliver your Goods within 20 days of the date of your Order, we shall notify you by e-mail to arrange a later date for delivery.
7.3 If we are unsuccessful at our first attempt of Goods delivery then further delivery charges may apply.
7.4 If we are unsuccessful at our second attempt of Goods delivery and the Goods are returned to us a restock fee of 10% of the total cost of the Goods plus the freight charges may apply. These charges will be deducted from your payment and the balance will be reimbursed to you.
7.5 We may deliver the Goods in instalments if they are not all available at the same time for delivery.
7.6 Goods are sent at your risk.
8. Cancellation of Order
8.1 You may cancel your Order at any time before we despatch your Order.
8.2 Details of our after-sales service and guarantees, if any, are given on Our Website.
8.3 If you cancel before we have sent the Goods, we will refund to you the price of the Goods and the cost of delivery, if any.
8.4 The option to cancel your Order is not available if the Goods are:
8.4.2 made or altered to your specification.
8.5 This paragraph does not affect your rights in the event that the Goods are faulty.
9. Foreign taxes, duties and import restrictions
9.1 If you are not in Australia, we have no knowledge of, and no responsibility for, the laws in your country.
9.2 You are responsible for purchasing Goods which you are lawfully able to import and for the payment of import duties and taxes of any kind levied in your country.
10. Goods returned
10.1 Our most important task is to ensure your absolute satisfaction. However, we acknowledge that mistakes are made occasionally. This paragraph covers that possibility. If you are not wholly satisfied with the Product, please tell us at the earliest opportunity:
10.1.1 exactly what is the fault;
10.1.2 the date, if relevant, when the fault became apparent;
10.1.3 when and how you discovered the fault;
10.1.4 how the fault affected your use of the Goods.
10.2 To do this, it is essential that you follow the instructions below. These provisions apply in the event that you return Goods to us because you say they are faulty.
10.3 You must tell us by email message or by letter to our land address at the top of this agreement, that you would like to return Goods, specifying exactly what Goods and when purchased, and giving full details of the defect or other reason for return. We will then issue a returns note. If you send Goods to us without a returns note, we may not be able to identify sufficient details to enable us to attend to your complaint.
10.4 The Goods must be returned to us as soon as any defect is discovered.
10.5 So far as possible, Goods should be returned:
10.5.1 with both Goods and all packaging as far as possible in their original condition;
10.5.2 securely wrapped;
10.5.3 including our delivery slip;
10.5.4 at your risk and cost.
10.6 You cannot return Goods because you have changed your mind.
11.1 We or our Content suppliers may make improvements or changes to Our Website, the Content, or to any of the Goods, at any time and without advance notice.
11.2 You are advised that Content may include technical inaccuracies or typographical errors. This is inevitable in any large website. We would be grateful if you bring to our immediate attention, any that you find.
11.3 We give no warranty and make no representation, express or implied, as to:
11.3.1 the adequacy or appropriateness of the Goods for your purpose;
11.3.2 the truth of any Content on Our Website published by someone other than us;
11.3.3 any implied warranty or condition as to merchantability or fitness of the Goods for a purpose other than that for which the Goods are commonly used;
11.3.4 compatibility of Our Website with your equipment, software or telecommunications connection.
11.4 Our Website may contain links to other Internet websites outside our power and control. You acknowledge and agree that we shall not be liable in any way for the Content of any such linked website, nor for any loss or damage arising from your use of any such website.
11.5 We are not liable in any circumstances for special, indirect or consequential loss or any damages whatsoever resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with your use of Our Website or the purchase of Goods.
11.6 In any event, including the event that any term or condition or obligation on our part (“Implied Term”) is implied into these conditions by law, then our liability is limited to the maximum extent permitted by law, to the value of the Goods or services you have purchased.
11.7 The above two sub paragraphs do not apply to a claim for personal injury.
11.8 These Terms and Conditions are not intended to exclude or limit any rights which you may have under the Competition and Consumer Act 2010 (Cth).
12. Content and Intellectual Property Rights
12.1 We will defend the intellectual property rights in connection with our Goods and Our Website, including copyright in the Content whether provided by us or by any other Content provider (including copyright in: text, graphics, logos, icons, images, audio clips, digital downloads, data, and software).
12.2 We also claim copyright in the designs and compilation of all Content of Our Website. Title, ownership rights, and shall remain the sole property of us and /or the other Content provider. We will strongly protect those rights in all countries.
12.3 Except as set out below, you may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part.
12.4 You may not use our name or logos or trademarks or any other Content on any website of yours or that of any other person.
12.5 Subject to the other terms of this agreement, you may download or copy Content only for your own personal use, provided that you maintain all copyright and other notices contained in it. You may not store electronically any significant portion of any Content.
13. Your email address
13.1 You represent that any user name or email address selected by you, when used alone or combined with a second or third level domain name, does not interfere with the rights of any third party and has not been selected for any unlawful purpose.
13.2 You acknowledge and agree that if we believe such selection does interfere with the rights of any third party or is being selected for any unlawful purpose, we may immediately suspend the use of such name or email address, and you will indemnify us for any claim or demand that arises out of your selection.
13.3 You acknowledge and agree that we shall not be liable to you in the event that we are ordered or required by a court or judicial authority, to desist from using or permitting the use of a particular domain name as part of a name or email address.
14. System Security
14.1 We will do our best to maintain Our Website so that you have constant use, but there will be times when your use may be interrupted.
14.2 You agree that you will not, and will not allow any other person to violate or attempt to violate any aspect of the security of Our Website.
14.3 You may not use any software tool for the purpose of extracting data from Our Website.
14.4 You understand that any such violation is unlawful in many jurisdictions and that any contravention of law may result in criminal prosecution.
You agree to indemnify us against any claim or demand, including reasonable lawyers’ fees, made by any third party due to or arising in any way out of your use of Our Web Site or the infringement by you, or by any other person using your computer or login, of any intellectual property or other right of any person.
16. Miscellaneous provisions
17.1 When we communicate with you we may do so by email and/or phone. You agree that email and/or phone communications are contractually binding in the same way as properly signed and dated paper sent by post.
17.2 Where we provide Goods or services without specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other Goods or service for which a charge is made. Accordingly, there is no contractual nor other obligation upon us in respect of those Goods or services.
17.3 Nothing in this agreement or on Our Website shall confer on any third party any benefit or obligation.
17.4 If any of these terms is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
17.5 No waiver by us, in exercising any right, power or provision in this agreement shall operate as a waiver of any other right or of that same right at a future time; nor shall any delay in exercise of any power or right be interpreted as a waiver.
17.6 In the event of a dispute arising out of or in connection with these terms or any contract between you and us, then you agree to attempt to settle the dispute by engaging in good faith with us in a process of mediation before commencing arbitration or litigation.
17.7 We are not liable for any breach of our obligations resulting from causes beyond our reasonable control including strikes of our own employees.
17.8 This Agreement shall be governed by and construed in accordance with the law of Australia. This agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
18. Orders for Collection at Performance Warehouse
13.1 The terms of this clause apply where you select to collect your Order from Performance Warehouse.
13.2 If you select to collect your Goods from Performance Warehouse, a representative of the company will contact you by telephone or email to notify you when the Order is available for collection.
13.3 Orders for collection must be collected within 14 days after you have been notified by telephone or by email that your Order is available for collection. If your Order is not collected within this time, Performance Warehouse has the right to allocate those Goods to another customer and reorder the Goods for you if available.
19. Title and risk in Goods
Title and risk in the products, such as loss and damage, pass to you on despatch or collection, as the case may be.
If any part of these terms are found to be void, invalid, unlawful or unenforceable then that provision or part will be deemed to be severed from these terms and the remaining terms and provisions of these terms will remain in force and constitute the agreement between you and Performance Warehouse
The failure by Performance Warehouse to exercise or enforce any right or provision under these terms will not constitute a waiver of such right or provision. Any waiver of any provision under these terms will only be effective if it is in writing and signed by Performance Warehouse.
22. All Sales are made in Victoria
All sales shall be deemed made in the state of Victoria, Australia regardless of the location of the customer. The customer agrees that any dispute that arises with Performance Warehouse shall be brought by the Customer exclusively in the state or federal courts in the state of Victoria.
All documents are copyright.
Performance Warehouse Online Terms and Conditions of Sale Version 2.0 October 2015