Terms and Conditions
1.1 These trading terms apply to all purchases of Goods by you from Lovesmiles Pty Ltd (ACN 617 751 292) (“us” or “our”) via our Website. Please read them carefully. Your use of our Website, and/or ordering Goods from us via the Website, indicates your acceptance of these terms. These terms supersede any subsequent terms or conditions included with any purchase order, whether or not such terms or conditions are signed by us. We expressly reject any terms you propose that vary or add to our trading terms.
1.2 We reserve the right to make changes to our Website at any time.
1.3 These trading terms apply notwithstanding any forbearance or failure by us to enforce any of the terms, any course of conduct by you and us, or despite any industry practice to the contrary.
2.1 You can place an order for Goods by following and completing all necessary information via our Website.
2.2 We can accept orders in our discretion, and subject to receipt of payment and availability of stock. We will confirm orders we accept by sending you an order confirmation, in which we will specify the intended delivery date. However, even if you receive an electronic or other form of order confirmation this does not signify legal acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We also reserve the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. All orders placed must obtain pre-approval with an acceptable method of payment, as established by our credit and fraud avoidance department. We may require additional verifications or information before accepting any order.
2.3 You are bound to purchase the Goods upon completing the purchase process via our Website.
2.4 If we cancel an order we will make all reasonable attempts to contact you using the details you provided to us. We will refund to you all monies you paid to us, using the same method for repayment as you used in paying us.
2.5 If a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we may refuse or cancel any orders placed for goods listed at the incorrect price (whether or not the order has been confirmed and your credit card charged or other payment method processed).
3.1 At your request we may, consistently with the return policy published on the Website, in our discretion, allow you to return any Goods. You must not return any Goods to us until we have issued you an authorised return number for those Goods.
3.2 Any items returned outside of the returns period (unless faulty) or items returned damaged or soiled (unless faulty) remain purchased by you and it is your responsibility to retrieve them. We will not pay to return these items to you and will not refund to you their purchase price.
4.1 Prices are subject to change without notice.
4.2 The price for the Goods is the price displayed on the Website at the time you complete the purchasing process (providing there is stock of all Goods ordered at that time).
4.3 You must pay for the Goods at the time of completing the purchase via the Website. You warrant that, concerning the payment method selected by you, you are the person whose account or card is nominated and that there are sufficient funds to pay for your purchases. If this is not the case, we are entitled not to fulfil your purchase request.
4.4 At the time of completing your purchase on the Website, it will indicate the additional cost (if any) of freight, which you also agree to pay.
4.5 You must pay all GST arising from the supply of the Goods to you.
4.6 You must pay us in the currency indicated on the Website.
4.7 All credit cards are charged in Australian Dollars. Non-Australian currency figures are all approximations based on an exchange rate.
4.8 All orders are subject to pre-authorisation checks to ensure sufficient funds are available and to confirm the validity of the payment method. The total amount of the order will be frozen on your account and this amount is taken when the order is despatched. Authorisations will appear as pending charges on your card, but you will only be charged once for a single order when it is despatched. Orders cancelled before shipment will still have this authorisation held.
4.9 Some orders may be subject to small charge verification before they are approved for shipment. In these circumstances, a small amount between $0 and $1 will be held on your credit card and you will be asked to confirm this amount to validate your payment. This is not a charge, but an authorisation which will release back to you.
5.1 We will arrange delivery of the Goods to you, at the address nominated by you when completing your purchase via the Website.
5.2 Unless provided for otherwise in the order confirmation, Goods ordered by you will be delivered to the place nominated by you and acceptable to us from time to time.
5.3 We make all statements or forecasts of delivery times in good faith but these are estimates only.
5.4 Customers who choose express shipping (no signature) give authority for their order to be left unattended at their delivery address. We will only replace orders using this shipping method if it is established that the order was lost in transit by our courier company.
5.5 Certain factors such as order size, weight and shipping address may require us to ship via a method other than the method selected by you when you purchased the Goods. We reserve the right to change your shipping method in these cases and will provide tracking details for the new carrier when this is available.
5.6 You must notify us within 7 days after delivery of any quality issues with the Goods delivered or missing Goods compared with the Goods ordered. We will investigate your claim within a reasonable time. If we are satisfied that there was a shortage or quality issue then we will make it up (and this is the maximum extent of our potential liability).
5.7 We are not liable to you for any loss or damage arising directly or indirectly from any delay in delivery of, or failure to deliver, the Goods. If we are not able to deliver the Goods to you we will notify you.
5.8 If the Website includes a special instructions box on the delivery page of the checkout then this is used for any instructions to help the driver make delivery of your order (e.g. “Last house at end of driveway”, “Office hours 9-5”). Drivers are unable to grant specific requests such as “Deliver between 3-4pm” or “Leave parcel under caravan in carport”. We are not responsible if your instructions are not followed.
5.9 We reserve the right to dispatch your order in one delivery or by instalments. If we fail to deliver any instalment this does not entitle you to cancel or repudiate any remaining instalments.
5.10 The shipping address for your order is shown in the checkout and on your order confirmation. If an incorrect address was entered, address changes can only be made until the order commences being processed. We cannot accommodate all address change requests.
5.11 We take no responsibility for orders shipped to an incorrect or invalid address and are not liable for any associated loss.
6. Title & Risk
6.1 Until you have paid to us the price for the Goods ordered by you:
(a) We are and remain the legal and equitable owner of the Goods;
(b) You hold the Goods as a fiduciary bailee for us and you must store the Goods safely; and
(c) you grant to us, our employees and authorised representatives an irrevocable licence to enter your premises (or any other premises either under your control or where the Goods are stored on behalf of you) at any time, if you default in paying for those Goods, to use reasonable force to take possession of the Goods without liability for trespass, negligence, payment of any compensation to you, another person or otherwise. Any exercise of this right is without prejudice to any other rights we may have against you, including the right at all times to make a claim against you for the invoiced price of the Goods, when due and payable.
6.2 Notwithstanding the operation of this clause, risk in the Goods (including responsibility for insurance) passes to you upon the bag or parcel containing your Goods being collected by the nominated courier company (who is your agent for delivery).
7. International Orders – customs duty and tax
7.1 Some orders may incur customs or import duty or other tax. We do not have any control over these charges and are unable to advise what they will be, as it is based on your own country’s tax regime. For further information, please contact your local customs office.
7.2 All customs, local tax or other charges are to be paid by the customer on delivery of order. Orders cannot be returned to sender and we are not responsible for, and will not pay, these customs charges on your behalf. If you refuse to pay these charges your parcel may be abandoned, and we are not responsible for any loss you suffer as a result, and are not responsible for paying you a refund. We cannot mark International orders as a gift in order to bypass or reduce any custom fees. This is an illegal practice and we will not do this.
8.1 We guarantee that the Goods are of acceptable quality as defined in the Australian Consumer Law.
8.2 The guarantee in clause 8.1 operates for the period (if any) specified for any particular Good in the swing tags or other written materials that accompany them or, if not specified, for the period allowed in the Australian Consumer Law.
8.3 If any particular Good does not conform to the guarantee in clause 8.1 then:
(a) at our request, you must send that Good to us (at your cost); and
(b) if we agree that the Good do not conform to our warranty, we will (at our option) repair or replace that Good and return it to you (at our cost) or provide you with a refund.
8.4 To the maximum extent permitted by law:
(a) us repairing, replacing or providing a refund for the Goods pursuant to clause 8.3(b) is the limit of our liability to you; and
(b) we are not liable to you or any other person, whether in contract, tort or otherwise, for more than the price paid by you for the Goods.
8.5 This warranty does not apply and we are not obliged to repair, replace or provide a refund for any Goods if:
(a) the Goods were damaged after you took possession of them for a reason not related to a defect, or if the Goods are lost, destroyed or disposed of;
(b) you or another person undertakes any unauthorised repairs or alterations to the Goods; or
(c) the goods are damaged due to misuse, accident or neglect by you or you do not follow any applicable care instructions.
8.6 To the maximum extent permitted by law, we are not liable in any circumstances for:
(a) any injury, damage or loss, including consequential damage or loss (including without limitation loss of market, loss of profit or loss of contracts) whether arising directly or indirectly, whether arising in contract, tort, in equity or on some other basis, to people or property arising out of us supplying the Goods to you (or you supplying the Goods to another person including another consumer who uses them) including because of any latent or other defects therein, or your use of the Website; or
(b) any loss of or damage to the Goods or caused by the Goods whilst in transit.
9. No resale
9.1 We are a reseller to end user customers and do not accept orders from dealers, exporters, wholesalers, or other customers who intend to resell the Goods.
9.2 You warrant that you are an end consumer of the Goods and you must not resell the Goods, via the internet or otherwise.
10. Intellectual Property
10.1 You acknowledge that all intellectual property in the Goods, their associated trade marks and marketing and advertising material are our sole property.
10.2 You must not advertise or use our name, trade marks or other intellectual property in any manner without our prior written consent and must immediately ceasing using them at our request.
11.1 The Website is owned and operated by us. Unless otherwise specified, all materials appearing on this Website, including the text, site design, logos, graphics, icons, and images, as well as the selection, assembly and arrangement thereof, are our sole property.
11.2 All software used on the site is our sole property or those supplying the software.
11.3 You may use the content of this site only for the purpose of shopping on this site or placing an order on this site and for no other purpose.
11.4 No materials from this site may be copied, reproduced, modified, republished, uploaded, posted, transmitted, or distributed in any form or by any means without our prior written permission. All rights not expressly granted herein are reserved. Any unauthorised use of the materials appearing on this site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
11.5 The Website may contain links to other sites on the internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of, or content located on or through, any such other site.
12. Privacy and Personal Information
12.1 We, in operating the Website, abide by, to the extent applicable, the Privacy Act 1988 and the Australian Privacy Principles.
12.2 In certain circumstances, we may collect personal information about you, for example when you create an account, contact us, enter a competition, make a purchase or join a mailing list. The types of personal information we may collect includes your name, contact details, payment details and enquiry or complaint details. We also collect personal information through our records of your transactions and interactions (including by email, phone and online) with us or on the Website. We collect personal information from you and in some cases from third parties including our related companies, your representatives and public sources. You consent to our collection of this information.
12.3 We collect and use your personal information to provide, administer, improve and personalise the Website and our products and services, to run competitions, conduct surveys, process payments and refunds, understand you better, maintain and update our records, complete registrations, verify your identity, train and manage our people, protect our lawful interests and facilitate any acquisitions or potential acquisitions of our business. We may not be able to do these things without your personal information. For example, we may not be able to deliver your orders or respond to your enquiries.
12.4 Much of the information We collects is “aggregated” — meaning that the information from many users is grouped together in a way that does not reveal the personal information of any particular user. We may use this aggregated information to evaluate which products and services are successful and which ones are not, and in order to evaluate which new services we should make available on the Website. We may also use the anonymous click stream data to help our advertisers deliver better-targeted advertisements.
12.6 You can also contact us as set out below if you wish to access or correct any personal information we hold about you. We may need to verify your identity. If we deny any request to access or correct personal information, we will provide our reasons. Where we decide not to make a requested correction to your personal information, you may ask us to note your request with the information.
12.7 By ordering or registering on our Website you grant us the right to add your contact details to our database and email to you your transactional order, shipping information and product review emails. From time to time we may contact you about offers and new products. You can easily be removed by either unsubscribing via the link at the footer of any marketing communications or contacting our customer service team and we will remove you from marketing communications.
12.8 We may exchange your personal information with our related companies and with third party service providers who assist us with payment, marketing, data processing, IT, archival, auditing, accounting, customer contact, legal, business consulting, banking, delivery, data analysis, document management, research, investigation, insurance, website and other services. Some of these third parties may be located in Australia, USA, EU or other countries.
12.9 Contact: Privacy Officer; Email: email@example.com. Phone:(Australia only) 1300 568 376. For more information about the Privacy Act, or if your concern is not resolved to your satisfaction, you may contact the Privacy Commissioner on 1300 363 992 or www.oaic.gov.au.
13.1 The laws of Queensland, without reference to “choice of law” principles, govern these trading terms. You and we submit to the non-exclusive jurisdiction of the courts of that place.
13.2 Other than clause 4.3, time is not of the essence under these trading terms.
13.3 A reference to “includes”, “including”, “in particular” or “such as” are to be read as if followed by the words “without limitation”.
13.4 All rights and powers enjoyed by us and any discretion, consent or decision to be made by us pursuant to these trading terms may be exercised by us in our absolute discretion and may be given or withheld subject to conditions. All approvals by us are only effective and binding when given in writing by an authorised officer.
13.5 If any provision or part of any provision of these terms is unenforceable (including any of the sub-clauses in clause 5) then it will be severed from the rest and such unenforceability does not affect any other part of such provision or any other provision of these terms.
13.6 In these trading terms, the following terms apply:
Goods mean any product delivered by us to you pursuant to these trading terms; and
GST means any consumption tax imposed by any government or government agency, whether at the point of sale or at some other occurrence, by whatever name, which operates during the time we supply you with Goods and includes a goods and services tax, an indirect tax and value added tax.
Website means our website, or other form of electronic or social media, that permits consumers to buy Goods for subsequent delivery by us (or click and collect).