#mySWAglasses T&C’s

TERMS AND CONDITIONS OF TRADE for #mySWAglasses

Definitions

EYE VUE PTY LIMITED (ABN 53 166 196 630) T/A Spectacle Warehouse Australia its subsidiaries and assigns.

“Customer” means the party placing the Order with Spectacle Warehouse Australia

“Order” means an offer by a customer to purchase Products from Spectacle Warehouse Australia.

“Products” includes any goods, services or materials.                 

“Rebate” means any volume, advertising or other rebate as may be agreed by the Customer and Spectacle Warehouse Australia in writing.

“Settlement discount” means any discount for early payment as may be agreed by the Customer and Spectacle Warehouse Australia in writing.

“Trade discount” means any discount for “Trade Customers” as may be agreed by the Customer and Spectacle Warehouse Australia in writing.

  1. Acceptance of Order

Spectacle Warehouse Australia may accept any order in whole or in part. Shipping by Spectacle Warehouse Australia of Products for delivery pursuant to an order (whether by single or multiple delivery) shall be taken as acceptance to the extent shipped.

Accepted orders may not be varied or cancelled by the Customer and (subject to the conditions set out herein) there is no right of return.

  1. Price

The price of the Products shall be as agreed between the parties or otherwise such amount as indicated on invoices provided by Spectacle Warehouse Australia to the Customer regarding Products ordered. Prior to acceptance of an order, Spectacle Warehouse Australia may change its published prices at any time without notice.

Products ordered from Spectacle Warehouse Australia are quoted F.O.B. Frankston, Melbourne, VIC.

Administrative fees may be charged for sales below certain dollar values as may be determined by Spectacle Warehouse Australia from time to time.

  1. Product

Spectacle Warehouse Australia can provide frames and lenses at cost or no cost to the customer.

Any breach in this agreement may terminate the contract immediately and full compensation of any promotions will be revoked and charged accordingly.

  1. Discounts and Rebates

Any discount or rebate will only apply if the Customer and Spectacle Warehouse Australia agree in writing.

A credit adjustment advice will be issued for all approved rebate claims.

Any trade discounts will be indicated on invoices provided by Spectacle Warehouse Australia to the Customer for Products supplied.

Any settlement discounts will be credited to the Customer account when the associated payment is receipted.

If no claim is made during the policy term, this money is not refunded.

If the customer decides to cancel the policy within the term, this money is not refunded.

  1. Taxes

Spectacle Warehouse Australia reserves the right to recover from the Customer any Goods and Services Tax (GST) payable in respect of supply of Products. Unless expressly included all amounts expressed or described in any agreement, price list or in invoices are GST exclusive for frames. Lenses do not incur GST.

  1. Customer approval

Products sought on Customer approval must be clearly marked and requested in the Order. The Customer may not return Products that are not in a saleable condition and must include each original packaging (including case) of the Products with any returns.

  1. Indent and Special Ordered Product

Any Product that has been specially ordered for a Customer (whether locally or from overseas) or which does not form part of the range in the current Spectacle Warehouse Australia published price list shall not in any case be eligible for return.

  1. Credit Card and Direct Debit recovery of costs

A service fee may be added to the price where payment is made by way of a credit card and/or Direct Debit.

  1. Warranty

Spectacle Warehouse Australia warrant that for the warranty period listed in paragraph 16, from the date of purchase it will replace or repair, at its sole discretion, any of its Products that are defective in materials or workmanship, as follows:

  1. Spectacle Warehouse Australia endeavours to keep spare parts and replacement frames for a number of years. However, due to the fashion nature of many of its Products, Spectacle Warehouse Australia reserve the right to replace any faulty frame or sunglasses with what it fairly judges to be a similar style as available, should this be necessary;
  2. This warranty does not apply to Products that have been altered, broken or damaged by misuse, tampered with in any way or where the fault arises from a failure to follow the recommended glazing, product care or maintenance instructions provided with the Products;
  3. Spectacle Warehouse Australia does not warrant against normal wear and tear, accidental frame damage or scratched or broken lenses that were not defective when shipped for delivery;
  4. Note that Spectacle Warehouse Australia provides a replacement parts service where goods are not covered by warranty;
  5. In no event shall the liability of Spectacle Warehouse Australia for defective goods exceed the invoiced price of the Products concerned.
  6. All warranty claims are assessed against Australian Standards.
  7. Any damage, breakage or fitting errors where lenses are not fitted by Spectacle Warehouse Australia are not covered.
  8. Any Spectacle Warehouse Australia grind lens deemed to be faulty by Spectacle Warehouse Australia will be credited.
  9. The Spectacle Warehouse Australia progressive warranty is valid for three months from the date of delivery and covers adaption, PD and height adjustment. Changes in materials, Rx or frames are not covered.
  10. The Spectacle Warehouse Australia multicoating warranty is valid for 12 months from date of delivery and covers manufacturing defects only. The warranty does not cover machine or heat damage or mistreatment. Replacement lenses must be the same Rx and the details as the original order. The original lenses and original invoice details must be returned with the lenses for credit.
  11. Spectacle Warehouse Australia goes not guarantee exact colour match when tinting. Spectacle Warehouse Australia does not guarantee matching single lens tints. Spectacle Warehouse Australia will not make any alterations after the lens/lenses have been treatment with a hard coat or have been multicoated.
  12. Jobs cancelled prior to commencement will not be charged. Jobs that have been commenced will attracted a charge of 100% of the net price.
  13. For any other items than those mentioned in this document, warranty claims for manufacturing defects must be received within 7 days of the original invoice date.
  14. Warranty Periods
  15. Ophthalmic frames – all brands 1 year from the date of delivery. A new frame will be invoiced and sent. The old frame must be returned with the original order/invoice details for inspection and a credit will be given if found to be faulty. Warranty does not cover freight.
  16. Sunglasses – all brands 1 year from the date of delivery. A new frame will be invoiced and sent. The old frame must be returned with the original order/invoice details for inspection and a credit will be given if found to be faulty. Warranty does not cover freight.
  17. Claims and Returns

The Customer shall inspect the Products on delivery and shall within 24 hours thereof notify Spectacle Warehouse Australia of any apparent defect, shortage in quantity, damage or failure to comply with the order or quote. Any Products which are apparently defective, or which are not in accordance with the Customer’s order, must be returned within fourteen (14) days of delivery. The Customer must include each original packaging (including case) of the Products with any returns.

No credit or replacement shall be given unless and until Products so returned have been verified as being defective or otherwise valid for return. The Customer shall be liable for the reasonable costs and handling fees of Spectacle Warehouse Australia where the returned Products prove not to be defective or otherwise valid for return.

All freight, handling and other charges in relation to returning goods (other than goods defective or not ordered) are the responsibility of the Customer.

All claims with be individually accessed and dealt with. Spectacle Warehouse will fix the issue with the least expensive method to the company to ensure the product is of acceptable and useable condition.

Loss is not claimable without a crime report. https://www.police.vic.gov.au/crime-reports

A claim can be made with any proof of broken spectacles. Any part of the spectacles needs to be sighted by Spectacle Warehouse as proof that the spectacles are broken. The spectacle needs to be identified as the exact make and model that the policy is covering.

A claim can be identified as, substantial scratches, broken spectacles, damaged lenses.

There is a maximum of 1 claim per policy term per pair of glasses. A claim maybe a single lens replacement, a new frame replacement al the way up to a completely new pair of glasses. The replacement will be an exact or similar product like for like.

Claims cannot be exchanged from one pair to another pair.

Claims cannot be aggregated over time.

Once a new pair has been provided the policy will cover the new pair and not the older pair.

Private health funds can be used to offset the amount of cost for Direct Debit. The health fund amount will vary from customer to customer hence each policy amount will be calculated individually. Private health funds can be used to claim only once per payment transaction. You cannot use the second year of private health rebate for the same pair of glasses already claimed in the prior year.

All Direct Debit payments need to be up to date before a claim can be processed. In an event this is not current, the missing amount in payments needs to be paid prior to re-instating the policy. This is up to Spectacle Warehouse Australia discretion. Spectacle Warehouse Australia may decide not to re-instate your policy with no reason.

  1. Set-off

The Customer shall not be entitled to set off against or deduct from the price of Products sold any sums owed or claimed to be owed to the Customer by Spectacle Warehouse Australia.

  1. Disputed Charges

If the Customer objects to any invoiced item, the Customer may withhold payment of the disputed amount, but only if on or before payment or the due date for payment (whichever first occurs), the undisputed amount is paid in full and notice in writing of the dispute is given to Spectacle Warehouse Australia, setting out the details of the amount disputed, the reasons for the dispute, and the basis for calculating the disputed amount. Spectacle Warehouse Australia will investigate all disputes. If the amount is found to be payable (in whole or in part) then the Customer must pay the due amount within 7 days of receiving notice and the basis of the decision. Invoiced amounts that are not objected to in writing within 30 days of the invoice date will be deemed to be correctly charged.

  1. Payments

Spectacle Warehouse Australia will use ‘GoCardless’ to direct debit your account. This will be set up in store. You will be bound by the terms and conditions of ‘GoCardless’. You can cancel at any time with 30 days written notice.

  1. Credit Policy and Default

Spectacle Warehouse Australia may charge interest on all amounts not paid by the Customer within the term for payment at a rate of 2% per calendar month calculated from the due date and accruing monthly therefrom until the date of payment. If the Customer defaults in payment of any invoice when due and payable, the Customer shall indemnify Spectacle Warehouse Australia from and against all expenses costs and disbursements incurred by Spectacle Warehouse Australia in pursuing the debt including all reasonably charged legal costs on a “solicitor and own client” basis and the fees charged to Spectacle Warehouse Australia by any mercantile agency. If the Customer fails to pay for the Products in accordance with invoices issued to the Customer, Spectacle Warehouse Australia may at its sole discretion:

  1. cancel any provision of credit to the Customer;
  2. reverse any rebates and discounts allowed;
  3. require cash pre-payment for any further Products ordered;
  4. provide to a credit reporting agency details of the payment default;
  5. commence legal proceedings against the Customer (and any guarantors) for all outstanding amounts, interest and costs;
  6. decline to supply Products to the Customer and terminate any other agreement with the Customer; and
  7. exercise any other rights at law.
  8. If no successful payment of Direct Debit has occurred for 2 months or greater the policy is immediately void.

A certificate of debt signed by a representative of Spectacle Warehouse Australia shall be prima facie evidence and proof of money owing by the Customer to Spectacle Warehouse Australia at that time.

  1. Recovery

Notwithstanding any other provision to the contrary, if any amount is not paid by the Customer within the term for payment, Spectacle Warehouse Australia reserves the following rights in relation to the Products until all amounts owed by the Customer to Spectacle Warehouse Australia in respect of the Products and all other Products and services supplied to the Customer by Spectacle Warehouse Australia at any time are fully paid:

  1. legal and equitable ownership of the Products;
  2. to retake possession of the Products; and
  3. to keep or resell any of the Products repossessed.

The Customer hereby grants full leave and irrevocable license without any liability to Spectacle Warehouse Australia and any person authorised by Spectacle Warehouse Australia to enter any premises where the Products may for the time being be placed or stored for the purpose of retaking possession of the Products.

  1. Disclaimer and Limitation of Liability

The Competition and Consumer Act 2010 CTH and various State Acts imply certain warranties into transactions circumstances cannot be excluded. Notwithstanding this (but subject to such laws as necessarily apply) Customer acknowledges that it has not relied on any advice given or made by or on behalf of Spectacle Warehouse Australia in connection with the Products. Spectacle Warehouse Australia excludes all implied conditions and warranties from this agreement, except any conditional warranty (such as conditions or warranties implied by the Competition and Consumer Act 2010 CTH and State Acts) to the extent that they cannot be excluded (“Non Excludable Conditions”).

  1. for breach of any Non Excludable Conditions to the extent that liability for such breach can by law be limited to the invoice cost of the Products supplied; and
  2. for any error or omission in delivery of the Products caused by Spectacle Warehouse Australia to (at Spectacle Warehouse Australia’s sole discretion) resupply of the Products affected by the breach, or the payment of the cost of resupply.

Subject to this Clause, Spectacle Warehouse Australia excludes all other liability to the Customer for any costs, expenses, losses and damages suffered or incurred by the Customer in connection with this agreement whether that liability lies in contract, tort (including Spectacle Warehouse Australia’s negligence) or under statute. Without limitation, Spectacle Warehouse Australia will in no circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity. The Customer indemnifies Spectacle Warehouse Australia and its officers, employees, contractors and agents against any costs, expenses, losses, damages and liability suffered or incurred arising from the which in certain the Spectacle Warehouse Australia limits its liability:

Customer’s breach of this agreement and any negligent or unlawful act or omission of the Customer in connection with the Products.

  1. Force Majeure

Spectacle Warehouse Australia will have no liability to the Customer in relation to any loss, damage or expense caused by Spectacle Warehouse Australia’s failure to complete an order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock out, war or the inability of Spectacle Warehouse Australia’s suppliers to supply necessary materials or any other matter beyond Spectacle Warehouse Australia’s control.

  1. Privacy Information

Spectacle Warehouse Australia may give information about the Customer, its guarantors, directors or proprietors to a credit reporting agency for the following purposes:

  1. to obtain a consumer credit report about the Customer, its guarantors, directors or proprietors;
  2. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer, its guarantors, directors or proprietors; and
  3. to obtain commercial credit information about the Customer, its guarantors, directors or proprietors from a credit reporting agency.
  4. Waiver of terms of agreement

The failure by Spectacle Warehouse Australia to exercise, or delay in exercising, any right, power or privilege available to it under this agreement will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power.

  1. Proper Law

The agreement is governed by and will be construed in accordance with the laws of the State of VIC and the parties agree to submit to the exclusive jurisdiction of the Courts of the State of VIC.

  1. Entire Agreement

This document represents the entire agreement between the parties and may not be amended except in writing signed by each of the parties.

  1. General

Spectacle Warehouse Australia may serve any notice or Court document on the Customer by forwarding it by ordinary pre-paid post to the address of the Customer last known to Spectacle Warehouse Australia.

If any term of this agreement shall be invalid, void, illegal or unenforceable, the remaining provisions shall not be affected, prejudiced or impaired.

Spectacle Warehouse Australia may assign or licence or subcontract all or any parts of its rights and obligations hereunder without the Customer’s agreement or consent.

Except as otherwise agreed in writing, these terms and conditions shall apply to all sales to Customers by Spectacle Warehouse Australia. To the extent that these terms and conditions (as published on the website of Spectacle Warehouse Australia) may be varied over time by Spectacle Warehouse Australia then the conditions current at the time of acceptance of any specific order or part of an order shall apply. Spectacle Warehouse Australia shall not be required nor responsible to notify the Customer of the existence or content of any such variation.

In the event that the Customer sells its business, the Customer shall be responsible to notify Spectacle Warehouse Australia in writing of such sale to enable the account to be closed. If the Customer fails to so notify then the Customer shall be jointly and severally liable to Spectacle Warehouse Australia for the payment of Products subsequently sold to a third party on the Customer’s account as if the Customer had ordered the Products itself.

  1. Personal Properties Securities Act 2009 CTH (‘PPSA’)
  2. Creation of Security Agreement: The Customer acknowledges that by accepting the terms of this Agreement and/or an associated agreement, the Customer also agrees to and accepts that an agreement (held within this Agreement or an associated agreement, whether severable or not), is created which gives rise to a ‘security interest’ pursuant to and for the purposes of the PPSA (whether it be a ‘Purchase Money Security Interest’ or a ‘Personal Properties Securities Lease’ or another form of interest as defined by the relevant legislation). Under this arrangement, the Customer will be the Grantor of the secured interest and Spectacle Warehouse Australia will be the Secured Party. The Goods or Stock under the security agreement will be the Collateral.
  3. The security interest will apply to all goods supplied under agreement and in all future goods supplied under agreement.
  4. Permission to Register Security Interest: The Grantor consents to the registration of the Secured Parties’ interest in the Personal Properties Securities Register and any details provided therein, including the registration of a financing statement.
  5. The Grantor agrees that it will provide all the necessary information to allow for effective registration.
  6. Waiver of notice requirements under PPSA: The Grantor expressly waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required and cannot be excluded by the PPSA. In particular, the Customer agrees to waive rights under section 157 to receive a copy of the verification statement. This and any other material will be available to the Customer on specific request.
  7. Confidentiality Agreement: The Grantor and the Secured Party agree to keep information required under the PPSA, and in particular required by section 275(1) of the PPSA confidential and will not disclose this information to any person or any interested person without written consent from the Secured Party. This clause constitutes a confidentiality agreement for the purposes of section 275(6)(a) of the PPSA. This clause is subject to the information allowed by section 275(7) of the PPSA, which is to be available to interested persons by law.
  8. The Grantor is not permitted to do any of the following: create or allow another interest (other than the present interest) in any Collateral to be created or dispose of;
  1. assign or declare a trust over the Collateral;
  2. lease or licence the Collateral;
  3. change the nature of the Collateral;
  4. permit any of the Collateral to became an accession to any goods except with permission from the Secured Party;
  5. permit any of the Collateral to be commingled with any product or mass that is not Collateral or subject to the Security

Agreement;

  1. change the location of the Collateral from the Grantor carries on business;
  2. remove or permit the removal of the Collateral to any place outside Australia; and/or
  3. part with possession of any of the Collateral except with written agreement from the Secured Party.
  4. The Grantor irrevocably grants to the Secured Party the right to enter the Grantor’s premises to seize its Collateral if the Secured Party is exercising its rights under section 123 and/or 128 of the PPSA. If such an exercise takes place, the Grantor agrees to keep the Secured Party indemnified against any claims as a result of such exercise.