Terms and Conditions

Terms and Conditions for Davies Chocolates Pty Ltd Website and Ordering

These terms and conditions (Terms) apply to Your use of Our Website, including Your order of Products through Our Website (Order). By using Our Website and placing Orders for Products, You agree to be bound by and will comply with these Terms.

If You do not accept these Terms, You must refrain from using Our Website or placing an Order for Products.

In these Terms, references to “We”, “Us” and “Our” are references to Davies Chocolates Pty Ltd (ABN 28 165 531 939). References to “You” and “Your” are references to either a user of this Website or a purchaser or prospective purchaser of the Products through placing an Order on Our Website.

1. OPERATION OF THESE TERMS

1.1 These Terms, and an Order which is placed pursuant to these Terms, will form the entire agreement between You and Us in relation to its subject matter. In the event of any inconsistency between the Terms and an Order, these Terms will prevail.

2. CONDITIONS FOR ORDERING

2.1 A supply of Products by Us to You shall be initiated by You placing an Order for Products.

2.2 You may place an Order for Products on Our Website by selecting the Product and quantity, adding the Products to the cart, proceeding to checkout and submitting an Order with payment.

2.3 Any Order placed by You through Our Website is an Order to purchase the Product for the Price displayed at the time You place the Order (including the costs for shipping and taxes confirmed during checkout at the time Your Order is placed).

2.4 When making an Order through the Website, You will be asked to provide billing details and may register as a new customer. All personal information collected during this process and/or collected by Us during our business dealings with You will be used and held in accordance with Our Privacy Policy.

2.5 By placing an Order for Products with Us, You:

(a) warrant You have authority to submit an Order and purchase the Products; and
(b) indemnify Us against any action, claim, or proceeding which may be brought against Us, or any loss or damage we may incur or suffer, as a result of Your breach of the warranty in clause2.5(a).

2.6 We reserve the right to accept or reject any Order for any reason. If We reject an Order, We will notify You.

2.7 When placing an Order through the Website, You may use a Coupon Code. Our Website will accept or reject the Coupon Code as the case may be but should you have difficulties in using a Coupon Code, please do feel free to Contact Us and we may confirm the validity of the Coupon Code.

2.8 Some of the Products may not be available at the time of Your Order. If we do not have the Products in stock, we may (but shall not be obliged) to offer You an alternative which you are free to accept or reject. If this happens, we will telephone or email you, at our sole discretion to confirm whether you wish to:(a) accept the alternative;(b) cancel the Order; (c) continue with the Order but omitting the out of stock Product; or(d) continue with the Order with an agreed delay for Delivery.

(a) accept the alternative;
(b) cancel the Order;
(c) continue with the Order but omitting the out of stock Product, or
(d) continue with the Order with an agreed delay for Delivery.

3. USE OF INFORMATION & LINKED WEBSITES

3.1 Our Website serves the purpose of providing information about the Products manufactured and supplied by Us and services offered by Us. It contains general information and is not in the nature of advice, nutritional or otherwise. We reserve the right to update all of the information on Our Website from time to time without notice to You.

3.2 We do not make any representations or warranties that any information We provide is reliable, up-to-date, accurate, complete, free from human defects or mechanical error, or suitable for any particular purpose or that your access to the Website will be uninterrupted, timely or secure.

3.3 Subject to 9.1, We do not accept responsibility for any direct loss, indirect loss, consequential loss or damage, however caused (including through negligence), which you may directly or indirectly suffer in connection with:

(a) Your use of Our Website;
(b) any Linked Websites; or
(c) Your use or reliance on information, content or material contained on or accessed through Our Website.

3.4 Your use of Our Website and information contained within it is entirely at Your own risk.

3.5 You must not adapt, reproduce, store, distribute, transmit, print, display, publish or create derivative works from any material downloaded from Our Website.  In addition, You may not commercialise any Products or any information or materials downloaded from Our Website.

3.6 Our Website may contain links to, or indirect references to, third party websites (Linked Sites). We are not responsible and have no control over the content, information or privacy practices of any Linked Sites and do not guarantee the accuracy, relevance, timeliness, completeness of any information on Linked Sites.

3.7 We do not make any representations or warranties that any information on Linked Websites is reliable, up-to-date, accurate, complete or suitable for any particular purpose or that your access to Linked Websites will be uninterrupted, timely or secure.

3.8 Your use of and access to Linked Sites and information contained on them is entirely at Your own risk.

4. ACCOUNTS & SUBSCRIPTIONS

4.1 You may register as a customer with Us or subscribe to Our Newsletter.

4.2 Any personal information provided by You to Us in relation to Your purchase of Products, placing of an Order or Subscription will be used and held by Us in accordance with Our Privacy Policy.

4.3 You may only have one active Account with Us at any time.

4.4 We reserve the right to, at any time:

(a) refuse to accept the registration of You or Your Subscription;
(b) suspend Your Account or Subscription;
(c) cancel or terminate your password, Account or access to Our Website; or
(d) terminate Your Account or Subscription.

4.5 If You wish to cancel a Subscription at any time, it is Your responsibility to opt out.

4.6 You are entirely responsible for:

(a) maintaining the confidentiality of Your password and Account information;
(b) notifying Us immediately if you know or suspect unauthorised use of Your Account, and
(c) opting out of any Subscription to Our Newsletter or otherwise.

5. DELIVERY TERMS

5.1 You are responsible for providing Us correct delivery information at the time of placing Your Order for the Products.

5.2 Orders will be shipped in accordance with Our Shipping Policy via a transportation mode selected by Us in our sole discretion to the delivery address You provide Us in accordance with clause 5.1, unless You choose to purchase Our Hot Weather Packaging at the time of placing an Order.

5.3 You are directed to refer to Our Shipping Policy for guidance on whether it may be appropriate to purchase Hot Weather Packaging for the Products when placing Your Order.

5.4 If You choose to purchase Hot Weather packaging in accordance with our Shipping Policy and the Products are damaged in transit by heat, We will replace or refund those heat damaged Products in Our sole discretion.

5.5 We are not responsible and have no liability for damaged occasioned to Products caused by heat in transit if you do not choose to purchase Hot Weather Packaging.

5.6 Title in the Products will pass to You when We receive full payment for the Products in the Order.

5.7 Risk in the Products will pass to You immediately upon delivery of the Products to Your delivery address.

5.8 You will be deemed to have accepted the Products as delivered unless You notify Us, within 2 Business Days of receipt:

(a) of any defect in the Products; or
(b) that the Products do not match the Order.

6. PRICE AND PAYMENT

6.1 All Prices are inclusive of GST (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).

6.2 Save for prices affecting current orders in accordance with clause 2.3, We reserve the right to change the prices or specifications of the Products at any time without notice to You.

6.3 The Price includes the cost of packaging and any other expenses unless otherwise stated in these Terms.

6.4 The costs of shipping and taxes will be confirmed at the time You place the Order.

6.5 Payment of Orders through Our Website may be made using a Credit Card or PayPal where payment will be processed immediately on placing an Order for Products.

6.6 We accept no responsibility and have no control over Your payment through PayPal and would refer you to PayPal terms and conditions which may apply to Your use of this payment method.

7. OUR CANCELLING OF AN ORDER

7.1 We may cancel an Order or part of an Order without liability if:

(a) there is an error in the price or product as displayed on Our Website;
(b) the requested Products are not available, or
(c) an Order is submitted in breach of these Terms.

8. INSPECTION AND PROOF OF DELIVERY

8.1 You must inspect the Product immediately upon receipt. Thereafter, quantity, description, date, time and place of delivery of the Products as indicated on Our invoice, delivery docket or other delivery documentation shall be conclusive evidence of quantity, description, date, time and place of delivery of the Products.8.2 Requests by You for proof of delivery will only be accepted by Us within 14 days from the date of delivery, and proof of the delivery shall constitute proof of the total delivery indicated on Our delivery documents.

8.2 Requests by You for proof of delivery will only be accepted by Us within 14 days from the date of delivery, and proof of the delivery shall constitute proof of the total delivery indicated on Our delivery documents.

9. WARRANTIES AND LIABILITY OF DAVIES CHOCOLATE

9.1 You have rights under the Australian Consumer Law (ACL) and similar state and territory laws, including guarantees, which may not be excluded or limited. Nothing in these Terms operates to limit or exclude those rights. To the extent permitted by law, Our liability for breach of any non-excludable guarantee is limited, at Our option to the:

(a) repair or replacement of the Products or supply of equivalent Products; or
(b) costs of repairing or replacing the Products.

9.2 Except to the extent required by law, We make no express or implied warranties or guarantees in relation to these Terms, the Products or the delivery of such Products.

9.3 Except for losses attributable to breaches of the consumer guarantees in the ACL, we do not accept any liability for any direct loss, indirect loss, consequential loss or damage, however caused (including through negligence), which you may incur or suffer in connection with:

(a) Our Website;
(b) the Products;
(c) delivery of the Products (other than our breach of clause 6.2);
(d) damage, loss or theft of the Products after they are posted by Us; or
(e) Your use or reliance on information, content or material contained on or accessed through the Website.

9.4 Notwithstanding any other provision of these Terms, Our aggregate liability in connection with these Terms, the Products and any Orders is limited to the Price paid for the Order/s in connection with which the relevant liability arises.

10. CUSTOMER WARRANTIES

10.1 You warrant that:

(a) all information provided to Us is true and accurate;
(b) You have authority to submit and place an Order for Products; and
(c) You have and will comply with applicable laws relating to use of Our Website and fulfillment of obligations relating to Your purchase of the Products and placing Orders.

11. GENERAL OBLIGATIONS & RESTRICTIONS ON YOU

11.1 It is Your responsibility to:

(a) read and understand these Terms;
(b) ensure You provide Us accurate and correct details when registering as a customer with Us or subscribing to Our newsletter;
(c) notify Us of any  change in Your personal details relating to Your registration, Account or Subscription;
(d) monitor and maintain use of Your Account and notify Us upon becoming aware there is or has been unauthorised use of Your Account;
(e) ensure Your Subscription complies with the policies applying to Your selected email address; and
(f) read all the information provided in respect of Products selected for purchase including but not limited to ingredients and dietary warnings.

11.2 You must not:

(a) use the Website for any purpose other than obtaining information relating to services offered by Us, or placing Orders of Products;
(b) tamper with or attempt to tamper with the display or operation of Our Website;
(c) upload any malicious or harmful software, code or any other virus to Our Website;
(d) use or provide incorrect information when registering Your details with Us; and
(e) use a third parties registration details on Our Website to place an Order.

12. CHANGES TO TERMS & CONDITIONS

12.1 We reserve the right to alter or modify these Terms at any time. Such alterations and modifications will be effective as soon as they are uploaded to Our Website, without notice to You.

12.2 The Terms that will be applied Your Order will be the Terms that existed and were uploaded on Our Website at the time of You placing and Order.

13. CONFIDENTIAL INFORMATION

13.1 Neither You nor We are permitted to use Confidential Information for any purpose not contemplated by these Terms. We shall restrict access to any information supplied in relation to these Terms to personnel within Our organisation or other third parties, such as consultants, who need such access in order to perform their duties and ensure they receive it under obligations of confidentiality.

13.2 If Confidential Information is disclosed, the Receiving Party shall ensure it shall be used for the sole and exclusive purpose of fulfilling any obligations it has in relation to these Terms. The Receiving Party shall not, without the written consent of the Disclosing Party, disclose any such Confidential Information to any other person or entity other employees or agents who must have access to such Confidential Information for the sole and exclusive purpose of fulfilling its obligations under these Terms. All such employees shall be bound to maintain such Confidential Information in confidence and the parties will take such reasonable steps to require its employees to preserve such trust and confidence. The Receiving Party shall be responsible for any breach of these obligations by its employees.

14. INTELLECTUAL PROPERTY

14.1 You acknowledge that:

(a) You acquire no rights to any intellectual property provided on Our Website or in relation to the Products provided by Us; and
(b) all intellectual property rights including but not limited to rights to all present and future copyright, design rights, trademark rights and rights to the company’s name and all other  intellectual property as defined in Article 2 of the World Intellectual Property Organisation (WIPO) Convention whether registrable, registered, patentable or not, which exist in connection with Our Website or Products and the information and data reproduced thereon, in particular such as texts, pictures, graphics, logos, symbols, names, product and company designations, belongs exclusively to Us and at all times remains Our property.

15. COMPLAINTS POLICY AND DISPUTE RESOLUTION

Complaints
15.1 If you are dissatisfied with the Products please Contact Us as soon as practically possible and provide the following information:

(a) Product Name (as shown on the packaging);
(b) Batch code and best before date (as printed on the packaging);
(c) date and place of Purchase or confirmation of whether an Order was placed through Our Website; and
(d) a full and complete description of the issue and cause for your dissatisfaction with the Products,
(a Complaint).

15.2 Upon receipt of any Complaint in accordance with clause 15.1, We:

(a) may request the return of the Products and its packaging at Our Cost;
(b) may decide in our absolute discretion, to replace the Product with the same or similar product of equal or greater value of the Price;
(c) will carry out all reasonable investigation into the circumstances of Your Complaint and the relevant Order, the subject of the Complaint;
(d) will advise you of the outcome of Our investigation where appropriate to do so together with our findings relating to the cause and action subsequently taken; and
(e) may implement any corrective and/or preventative actions relating to Your Complaint as We deem reasonably necessary and where practicable to do so.Dispute Resolution15.3 If any dispute or difference arises between You and Us in connection with these Terms or an Order for the Products including in respect of any Complaint (Dispute), the party claiming a Dispute shall provide written

Dispute Resolution
15.3 If any dispute or difference arises between You and Us in connection with these Terms or an Order for the Products including in respect of any Complaint (Dispute), the party claiming a Dispute shall provide written notice to the other party.

15.4 Within 10 Business Days of receipt of the notice of the Dispute, We will work in good faith with You and You will work in good faith with Us to attempt to resolve the Dispute.

15.5 If the Dispute cannot be resolved within a reasonable time, either party may require that the Dispute is referred to mediation. The mediator shall be agreed between the parties, or otherwise appointed by the President of the New South Wales Law Society.

15.6 Each party will bear their own respective legal costs (as between solicitor and client) of the enforcement or attempted enforcement of respective rights, remedies and powers under these Terms, including referral of any Dispute under these Terms to mediation.

15.7 Neither party will be entitled to commence legal proceedings in respect of a Dispute, other than in respect of a claim for payment of the Price for Products the subject of an Order, until and unless the process set out in this clause 15 has been complied with and the Dispute remains unresolved.

15.8 Nothing in this clause 15 will prevent either party from obtaining urgent interlocutory relief at any time.

16. TERMINATION

16.1 Either You or Us has the right to terminate these Terms immediately by notice in writing in the event of the other party committing:

(a) an Insolvency Event;
(b) any breach of these Terms where the breach is not capable of being remedied; or
(c) any breach of these Terms which is capable of being remedied, but which is not remedied by the breaching party upon 30 days’ notice from the non-breaching party requiring the breach to be remedied.

16.2 Termination of the Terms or an Order for Products is without prejudice to any rights or remedies of either party which have accrued prior to the effective date of termination and termination shall not relive either party from liability arising from any antecedent breach of these Terms.

17. MISCELLANEOUS

17.1 Notices

(a) Each notice given by one party to the other pursuant to these Terms, must be made in writing and sent by post or email.
(b) We will send notices to You (if applicable) to the address details You provide to Us.
(c) You can Contact Us by email, post or phone but any notices sent to Us pursuant to these Terms needs to be sent in writing.
(d) Notices to Us may be sent using the details below, or such other details as notified Us to You from time to time:

• Attention: Noel Kowald
• Postal address: Davies Chocolates, 181 Kingsgrove Road, Kingsgrove NSW 2811
• Email address: [email protected]
• Telephone Number: (02) 9502 2811

17.2 Applicable Law

Any dispute that arises under this Terms or an Order shall be dealt with in accordance with the law of New South Wales, and any claim or dispute arising hereunder shall be subject to the jurisdiction of the courts of New South Wales and the Commonwealth of Australia.

17.3 Force Majeure

Neither party shall be liable for any failure or delay or default in performance of their obligations arising under these Terms if such failure or delay or default is caused by conditions beyond its control including but not limited to acts of god, government restrictions, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.

17.4 Waiver

No delay or failure in exercising a right arising under these Terms will constitute a waiver of that right.  No single or partial exercise of such a right will preclude the holder of that right from exercising that right again or in full.

17.5 Severability

Where any provision of these Terms (or a part thereof) is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision (or part thereof) must be interpreted as narrowly as possible to avoid such invalidity, illegality or unenforceability, as the case may be.  If this is not possible, the provision (or part thereof) will be treated as severed from these Terms and the remaining Terms will remain in full force and effect.

17.6 Survival Of Terms

Notwithstanding termination of these Terms or an Order for any reason, the following clauses will continue to operate: clauses 1, 3, 11, 12, 13, 15, 16, 17 and 19.

18. DEFINITIONS

18.1 “Account” means Your customer user account on Our Website when you place an Order for Products;

18.2 “ACL” means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth);

18.3 “Business Day” means a day that is not a Saturday, Sunday or public holiday in New South Wales, Australia;

18.4 “Coupon Code” means a code offering a discount in the price of Orders made through the Website or a prepaid gift voucher;

18.5 “Confidential Information” means any information which relates to the business, assets or affairs of either party which is made available by that party (Disclosing Party) to the other party (Receiving Party) or is otherwise obtained by the Receiving Party and which is by its nature confidential or the Receiving Party knows, or ought to know, is confidential but does not include information that is:

(a) in or enters the public domain through no fault of the Receiving Party or any of its officers, employees or agents;
(b) received by Receiving Party from a third-party who had a legal right to provide it; or
(c) or was developed by Receiving Party independently of the other Party and any of its officers, employees or agents;

18.6 “Newsletter” means Our monthly newsletter;

18.7 “Delivery Lead Time” means the delivery lead times We confirm to You;

18.8 “Insolvency Event” means, in relation to a party, that party being unable to pay its debts as they fall due, becoming insolvent, having an administrator, liquidator, receiver, receiver and manager, or other controller in insolvency appointed to it or any of its assets, entering into a formal arrangement with its creditors or any class of them, or suspending payment of its debts generally;

18.9 “Order” means an order submitted on Our Website for Products;

18.10 “Price” means the price for each Product sold to a Customer under these Terms;

18.11 “Products” means products supplied by Us and advertised for sale on Our Website;

18.12 “Subscription” means Your request to receive Our Newsletter by email; and

18.13 “Website” means www.davieschocolate.com.au.