These Terms and Conditions govern the supply by us of any Product ordered by you on the Site. By agreeing to order a Product, you agree to be legally bound by these Terms and Conditions.
These Terms and Conditions shall apply to all Orders and Contracts made or to be made by us for the sale and supply of Products. When you submit an Order to us, give any delivery instruction or accept delivery of the Products, this shall in any event constitute your unqualified acceptance of these Terms and Conditions.
Nothing in these Terms and Conditions purports to limit your rights arising pursuant to the Australian Consumer Law (including the right to insist that goods you buy from us must correspond with their description, be fit for their purpose and be of satisfactory quality).
These Terms and Conditions shall prevail over any separate terms put forward by you. Any conditions that you submit, propose or stipulate in whatever form and at whatever time, whether in writing, by email or orally, are expressly waived and excluded.
No other terms or changes to the Terms and Conditions shall be binding unless agreed in writing signed by us.
We reserve the right to amend these Terms and Conditions at any time. All amendments to these Terms and Conditions will be posted on our site. However, continued use of the Site will be deemed to constitute acceptance of the new Terms and Conditions.
USING OUR SITE
To place an order with us through our Site you must be over eighteen (18) years of age and possess a valid credit or debit card issued by a bank acceptable to us.
PLACING AN ORDER
When making an Order, you must follow the instructions on the Site as to how to make your Order and how to make changes to your prospective Order before you submit it to us through the Site.
Irrespective of any previous price you have seen or heard, once you select a Product that you wish to Order, you will then be shown or told (on the Site) the charges you must pay (including GST if applicable), and any applicable delivery charges. Unless otherwise stipulated on the Site, all charges are in the currency then in force in Australia. Subject to clause below, this is the total that you will pay for receipt of the ordered Product.
You must pay for the Product in full at the time of ordering by supplying us with your credit or debit card details from a credit or debit card company acceptable to us, which we require in order to process your Order. Alternatively, you may pay by any method that we have said is acceptable to us including Paypal, but in any event we shall not be bound to supply before we have received cleared funds in full. Depending on the results of a credit check we reserve the right not to offer certain forms of payment and to refer you to our other forms of payment.
If you are asked for details of a payment card, you must be fully entitled to use that card and its corresponding bank account. The card or account must have sufficient funds to cover the proposed payment to us.
You undertake and warrant that all details you provide to us for the purpose of purchasing the Product from us will be correct, that the credit or debit card, or account or other payment method which you use is your own and that there are sufficient funds or credit facilities to cover the cost of the Product. We reserve the right to obtain validation of your payment details before providing you with the Product.
When you submit an Order to the Site, you agree that you do so subject to these Terms and Conditions current at the date you submit your Order. You are responsible for reviewing the latest Terms and Conditions each time you submit your Order.
Your Order remains valid as an offer until we issue our Confirmation of Order or, if earlier, when we receive your notice revoking your Order.
We shall not be obliged to supply the Product to you until we have accepted your Order. Unless expressly stating that we accept your order, an email, letter, fax or other Acknowledgement of your Order by us is purely for information purposes and does not constitute the Confirmation of Order. In that Acknowledgement, we may give you an Order reference number and details of the Product you have ordered. We may in our discretion refuse to accept an Order from you for any reason, including unavailability of supplies or we may offer you an alternative Product (in which case we may require you to re-submit your Order first).
A Contract shall be formed and we shall be legally bound to supply the Product to you when we accept your Order. Acceptance shall take place when we expressly accept your Order by email to you, in the form of a document called a "Confirmation of Order" stating that we are accepting your Order. Our Confirmation of Order shall be deemed to come into effect when it has been despatched by us. Without affecting your obligation to pay us earlier, we may send an invoice to you at any time after we have accepted your Order. Until the time when we accept your Order, we reserve the right to refuse to process your Order and you reserve the right to cancel your Order. If we or you have cancelled your Order before we have accepted it, then we will promptly refund any payment already made by you or your credit or debit card company to us for the order of the Product.
If you discover that you have made a mistake with your Order after you have submitted it to the Site, please contact [email protected] immediately. However, we cannot guarantee that we will be able to amend your Order in accordance with your instructions.
We try very hard to ensure that the price given to you is accurate, but the price of your Order will need to be validated by us as part of our acceptance procedure. If the price for the Order changes before we accept your Order, we will contact you and ask you to confirm that you wish to proceed at the amended price.
A Contract will relate only to those Products whose dispatch we have confirmed in the Confirmation of Order. We will not be obliged to supply any other Products which may have been part of your Order until we have sent a Confirmation of Order in relation to those Products.
You must only submit to us or our agent or the Site information which is accurate and not misleading and you must keep it up to date and inform us of changes.
We aim to deliver the Product to you at the place of delivery requested by you in your Order.
We aim to deliver within the time indicated by us at the time of your Order (and updated in the Confirmation of Order) but we cannot promise an exact date when you submit your Order or at the Confirmation of Order. We always aim to deliver within 10 working days from the date of any Order which we accept but we cannot guarantee any firm delivery dates.
We shall aim to let you know if we expect that we are unable to meet our estimated delivery date, but, to the extent permitted by law, we shall not be liable to you for any losses, liabilities, costs, damages, charges or expenses arising out of late delivery.
On delivery of the Product, you may be required to sign for delivery, unless you grant us ‘authority to leave’ pursuant to clause 5.5 below. You agree to inspect the Product for any obvious faults, defects or damage before you sign for delivery. You need to keep receipt of the delivered Product in case of future discussions with us about it.
You may grant us an ‘authority to leave’ when placing your Order. If you do, you understand and agree that this authority to leave gives us and/or our selected couriers permission to leave the Order in question unattended by the front door – or, where applicable, at the reception or concierge’s desk – of the delivery address without obtaining a signature confirming delivery at the delivery location. In such circumstances, you understand and agree that by granting us authority to leave, we and our couriers are released of all responsibility and liability for the Orders delivered and left unattended, and that this responsibility and liability transfer to you on delivery.
Please note that it might not be possible for us to deliver to some locations. If this is the case, we will inform you using the contact details that you provide to us when you make your Order and arrange for cancellation of the Order or delivery to an alternative delivery address.
We deliver in our standard packaging. Any special packaging requested by you is subject to additional charges.
Unless otherwise specified, all risk in the Product shall pass to you upon delivery, except that, where delivery is delayed due to a breach of your obligations under a Contract, risk shall pass at the date when delivery would have occurred but for your breach. From the time when risk passes to you, we will not be liable for loss or destruction of the Product.
You must take care when opening the Product so as not to damage it, particularly when using any sharp instruments.
You shall ensure that you are ready for safe receipt of the Product without undue delay and at any time reasonably specified by us.
If you are not available to take delivery or collection, we may leave a card giving you instructions on either re- delivery or collection from the carrier.
If delivery or collection is delayed through your unreasonable refusal to accept delivery or if you do not (within two weeks of our first attempt to deliver the Product to you) accept delivery or collect the Product from the carrier, then we may (without affecting any other right or remedy available to us) do either or both of the following:
- charge you for our reasonable storage fee and other costs reasonably incurred by us; or
- no longer make the Product available for delivery or collection and notify you that we are immediately cancelling the applicable Contract, in which case we will refund to you or your credit or debit card company as applicable any money already paid to us under the applicable Contract, less our reasonable administration charges (including for attempting to deliver and then returning the Product, and any storage fees as provided for in clause 5.12(a) above).
It is your responsibility to ensure that the Products are sufficient and suitable for your purposes and meet your individual requirements. We do not warrant that the Products will meet your individual requirements. You acknowledge that the Products are standard and not made bespoke to fit any particular requirements that you may have.
CANCELLATION BY US
We may cancel a Contract if the Product is not available for any reason. We will notify you if this is the case and return any payment that you have made.
We will usually refund any money received from you using the same method originally used by you to pay for the Product.
CANCELLATION BY YOU
If you wish to cancel your order please contact our Customer Service Team at [email protected] A cancellation fee may apply. Once an order has been dispatched it may not be cancelled and the item must instead be returned to the company according to guidelines provided by the customer care department.
We warrant that:
- the Product will be delivered undamaged in the quantities ordered; and
- the Product will conform with the manufacturer's latest published instructions as set out on the Site or in our Product material at the time of your Order.
The Product is intended to be used strictly in accordance with the manufacturer's latest published instructions as set out on the Product itself. It is your responsibility to ensure that you use the Product strictly in accordance with those instructions.
We try very hard to deliver Products in excellent condition. However, if you tell us that the Product is faulty, you agree to keep the Product in its current condition available for us (or our agent) to inspect within a reasonable time.
In order to provide you with any remedies for a faulty Product, we may need your assistance and prompt provision of certain information regarding the Product, including:
- you specifying with reasonable detail the way in which it is alleged that the Product is damaged or defective; and
- you providing us with the delivery note number and such other information as we reasonably require.
If you would like us to repair, replace or provide a refund for the Product where it did conform to the applicable Contract, and we find that the Product has:
- been misused, abused or subjected to neglect, improper or inadequate care, carelessness, damage or abnormal conditions; or
- been involved in any accident or damage caused by an incorrect attempt at modification or repair; or
- been dealt with or used contrary to our or the manufacturer's instructions for the Product; or
- deteriorated through normal wear and tear, after delivery by us, we may at our discretion decide not to repair, replace or refund you for the Product and/or we may require you to pay all reasonable carriage costs and servicing costs at our current standard fees and costs and charge this to your credit or debit card, or the payment details that you provided to us when you made your Order, and, to the extent permitted by law, we shall not be liable to you for any losses, liabilities, costs, damages, charges or expenses as a result.
LIMITATION OF LIABILITY
This clause 9 prevails over all other clauses and sets forth our entire Liability, and your sole and exclusive remedies, for:
- the performance, non-performance, purported performance or delay in performance of these Terms and Conditions or a Contract or the Site (or any part of it or them); or
- otherwise in relation to these Terms and Conditions or the entering into or performance of these Terms and Conditions.
Nothing in these Terms and Conditions shall exclude or limit:
our Liability for
- death or personal injury caused by our Breach of Duty;
- any breach of the obligations implied by law; or
- any other Liability which cannot be excluded or limited by applicable law; or
- your statutory rights as a consumer.
In performing any obligation under these Terms and Conditions, our only duty is to exercise reasonable care and skill.
Subject to clause 9.2:
- we do not warrant and we exclude all Liability in respect of th e accuracy, completeness, fitness for purpose or legality of any information accessed using the Site; and
- we exclude all Liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature; and
- you should not rely on any information accessed using the Site to make a purchasing decision – you should make your own enquiries before forming your own opinion and taking any action based on any such information.
Save as provided in clauses 9.2, we do not accept and hereby exclude any Liability for Breach of Duty other than any such Liability arising pursuant to the provisions of these Terms and Conditions.
Save as provided in clause 9.2, we shall have no Liability for:
- loss of revenue;
- loss of actual or anticipated profits;
- loss of contracts;
- loss of the use of money;
- loss of anticipated savings;
- loss of business;
- loss of operation time;
- loss of opportunity;
- loss of goodwill;
- loss of reputation;
- loss of, damage to or corruption of data; or
- any indirect or consequential loss;
and such Liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, clauses 9.6(a) to 9.6(l) apply whether such losses are direct, indirect, consequential or otherwise.
Save as provided in clause 9.1:
- our total Liability under any Contract shall in no circumstances exceed, in aggregate, a sum equal to the greater of
- $100; or
- 110% of the value of the relevant Contract under which the cause of action arises; and
- our total Liability to you or any third party shall not in any other circumstances exceed, in aggregate, a sum equal to the greater of:
- 110% of any aggregate amount paid by you to us in the 12 months preceding any cause of action arising.
The limitation of Liability under clause 9.7 has effect in relation both to any Liability expressly provided for under these Terms and Conditions and to any Liability arising by reason of the invalidity or unenforceability of any term of these Terms and Conditions.
We shall perform our obligations under these Terms and Conditions with reasonable skills and care.
We place great value on our customer satisfaction. You may contact us at any time using the contact details available on the Site. We will attempt to address your concerns as soon as reasonably possible and will contact you on receipt of any relevant enquiry or complaint. In guarantee cases, the manufacturer frequently must be involved, and as such it may take longer to resolve such an enquiry or complaint.
In the event of a complaint it will help us if you can describe the object of your complaint as accurately as possible and, where applicable, send us copies of the Order or at least the order number that we assign you in the Acknowledgement or Confirmation of Order. Should you not have received any reaction from us within five Business Days, please make further enquiries. In rare cases your emails may be caught up in our spam filters or not reach us, or correspondence that we send to you may otherwise not have reached you
We shall not be liable to you for any Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen.
Either you or we may terminate a Contract forthwith by written notice to the other in the event that the Event of Force Majeure lasts for a period of two Business Days or more, in which event neither you nor we shall be liable to the other by reason of such termination (other than for the refund of a Product already paid for by you and not delivered).
If we have contracted to provide identical or similar Products to more than one Customer and are prevented from fully meeting our obligations to you by reason of an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
The intellectual property rights in all software and content made available to you on or through this Site remain our property or that of our licensors and are protected by intellectual property laws and treaties around the world. All such rights are reserved by us and our licensors. You may store, print and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or which appears on this Site nor may you use any such content in connection with any business or commercial enterprise.
We shall keep a record of your Order and these Terms and Conditions until six years after we have accepted your Order. However, for your future reference, we advise you to print and keep a copy of these Terms and Conditions, your Order, the Acknowledgement and the Confirmation of Order.
No failure or delay by us or you in exercising any right under these Terms and Conditions or a Contract shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish our or your rights under these Terms and Conditions or a Contract.
If any clause in these Terms and Conditions or a Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other clause or part of any clause, all of which shall remain in full force and effect, so long as these Terms and Conditions or a Contract shall be capable of continuing in effect without the unenforceable term.
You shall not assign, transfer, novate, charge, sub-contract, create any trust over or deal in any other manner with these Terms and Conditions or a Contract or all or any of your rights or obligations under these Terms and Conditions or a Contract.
Nothing in these Terms and Conditions or a Contract shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between you and us.
No person who is not a party to these Terms and Conditions or a Contract shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to these Terms and Conditions or that Contract its assent to any such term.
These Terms and Conditions and a Contract (and all non-contractual obligations arising out of or connected to them) shall be governed and construed in accordance with the laws of Queensland. Both we and you hereby submit to the non-exclusive jurisdiction of the courts of Queensland. All dealings, correspondence and contacts between us shall be made or conducted in the English language.
In these Terms and Conditions, the following words shall have the corresponding meaning:
"Account" means the account that you will need to register for on the Site if you would like to submit an Order on the Site
"Acknowledgement" means our acknowledgement of your Order by email
"Breach of Duty" means the breach of any:
- obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or
- common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
"Business Day" means a day which is neither:
- a Saturday or Sunday; nor
- a public holiday anywhere in Australia
"Confirmation of Order" means our email to you, in which we accept your Order in accordance with clause of these Terms and Conditions
"Contract" means your Order of a Product or Products in accordance with these Terms and Conditions which we accept in accordance with clause of these Terms and Conditions
"Customer" means individual who places an Order on the Site
“Event of Force Majeure” means any breach, hindrance or delay in the performance of a Contract attributable to any cause beyond our reasonable control, including without limitation any natural disaster and unavoidable incident, actions of third parties (including without limitation hackers, suppliers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil commotion, war, hostilities, warlike operations, national emergencies, terrorism, piracy, arrests, restraints or detainments of any competent authority, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, weather conditions, earthquake, natural disaster, accident, mechanical breakdown, third party software, failure or problems with public utility supplies (including electrical, telecoms or Internet failure), shortage of or inability to obtain supplies, materials, equipment or transportation
"Liability" means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with these Terms and Conditions, including, without limitation, liability expressly provided for under these Terms and Conditions or arising by reason of the invalidity or unenforceability of any term of these Terms and Conditions
"Order" means the order submitted by you to the Site to purchase a Product from us
“Product” means a product sold by us through the Site
“Site” means diwazambezi.org
“we” or “us” Means Diwa Zambezi Inc. trading as “Diwa Zambezi”
"you" means the Customer who places an Order
In these Terms and Conditions:
- references to "clauses" are to clauses of these Terms and Conditions;
- headings are for ease of reference only and shall not affect the interpretation or construction of the Terms and Conditions;
- words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership;
- references to "includes" or "including" or like words or expressions shall mean without limitation.