Terms & Conditions

TERMS & CONDITIONS

These Terms and Conditions apply to your use of the Pumpy Chocolate website. In these Terms and Conditions, “us”, “we” or “our” means Pumpy Jackson Pty Ltd (ACN 148 093 958).

 

  1. 1.         Your order will be shipped by our nominated carrier and a shipping fee will be applied as notified with your order. We are not responsible for any delays in shipping.

 

  1. 2.         The advertising of products on our website constitutes an "invitation to treat"; and your order for products constitutes a contractual offer. No contract will come into force between you and us unless and until we accept your order in accordance with the procedure detailed below. In order to enter into a contract to purchase products from us, you will need to take the following steps:

(1)        you must add any the products you wish to purchase to your shopping cart, and then proceed to the checkout;

(2)        if you are a new customer, you may have to create an account with us and log in; if you are an existing customer, you may be asked to enter your login details;

(3)        once you are logged in, you may be asked to select your preferred method of delivery and confirm your order and your consent to these terms of sale;

(4)        you will be required to pay for the product to be supplied;

(5)        we will then send you an initial acknowledgement; and

(6)        once we have checked whether we are able to meet your order, we will either send you an order confirmation (at which point your order will become a binding contract) or we will confirm by email that we are unable to meet your order.

 

  1. 3.         Prices for products are quoted on our website. The website contains a large number of products and it is always possible that some of the prices on the website may be incorrect. We will verify prices as part of our sale procedures so that a product's correct price will be stated when you pay for the product. In addition to the price of the products, you will have to pay a delivery charge, which will be as stated when you pay for the product. Payment must be made upon the submission of your order. We may withhold the products and/or cancel the contract between us if the price is not received from you in full in cleared funds. The payment method is as specified on our website.

 

  1. 4.         Payment for products that we sell are payable before shipping and is at the price stated at checkout and if one is stated then on our website and if not stated then in accordance with our price list at the time of order and is payable on request by us.

 

  1. 5.         Where you return a product to us requesting a refund, at our discretion:

(1)        we may not refund or exchange the product.  We will comply with our legal obligations to exchange or refund if the situation requires us to do so;

(2)        we may retain the returned product until you pay to us such additional amount as we may charge for re-delivery of the returned product; and

(3)        if we do not receive payment of such additional amount within 14 days of issuing a request for payment, we may destroy or otherwise dispose of the returned product in our sole discretion without any liability to you.

 

  1. 6.         We may update the version of these terms of sale on the website from time to time, and the terms as updated at the time of a purchase order apply to sales at that time. 

 

  1. 7.         You warrant to us that:

(1)        you are legally capable of entering into binding contracts, and you have full authority, power and capacity to agree to these terms of sale;

(2)        the information provided in your order is accurate and complete; and

(3)        you will be able to accept delivery of the products.

 

  1. 8.         The products will be at your risk from the time of sending. Ownership of the products will pass to you upon the later of:

(1)        sending of the products; and

(2)        receipt by us of full payment of all sums due in respect of the products (including delivery charges). 

Until ownership of the products has passed to you, you will possess the products as our fiduciary agent and bailee, and if you are a business customer you must store the products separately from other goods and ensure that the products are clearly identifiable as belonging to us. We will be entitled to recover payment for the products even where ownership has not passed to you.

 

  1. 9.         At any time we may vary any order as to quantity of product required to be delivered and as to timing of deliveries, at no time will we be liable for delay in the delivery of product of the quantity delivered being less than the amount ordered.

 

  1. 10.      Nothing in these terms of sale affects any statutory rights you may have as a consumer and to the extent they do they will be read down.

 

  1. 11.      In these terms "force majeure event" means:

(1)        any event which is beyond our reasonable control;

(2)        the unavailability of raw materials, components or products; and/or

(3)        power failure, industrial disputes affecting any third party, governmental regulations, fires, floods, disasters, civil riots, terrorist attacks or wars.

Where a force majeure event gives rise to a failure or delay in us performing our obligations under these terms of sale, those obligations will be suspended for the duration of the force majeure event. If we become aware of a force majeure event which gives rise to, or which is likely to give rise to, any failure or delay in us performing our obligations under these terms of sale, we will notify you forthwith. We will take reasonable steps to mitigate the effects of the any force majeure event.

 

  1. 12.      Nothing in these terms of sale will limit or exclude your or our liability for:

(1)        death or personal injury caused by negligence;

(2)        fraud or fraudulent misrepresentation; or

(3)         any matter for which it would be illegal to limit or exclude, or attempt to limit or exclude, liability.

Subject to this:

(1)        we will not be liable for any losses arising out of a force majeure event;

(2)        we will not be liable in respect of any defect in the products arising from fair wear and tear, wilful damage, accident, negligence by you or a third party, use otherwise than in accordance with the manufacturer's or our instructions or recommendations, or any alteration carried out by you or any third party; and

(3)        if you are a business customer:

(a)       our liability in connection with any product purchased through our website is strictly limited to the higher of the purchase price of the relevant product and the replacement cost of the relevant product; and

(b)       we will not be liable for any loss of income or revenue, loss of business, loss of profits or contracts, loss of anticipated savings, loss of data or waste of management or office time, or loss of goodwill or reputational damage.

 

  1. 13.      If you are a business customer, you hereby indemnify us and undertake to keep us indemnified against all and any liabilities, losses, damages, expenses and costs (including legal expenses and amounts paid in settlement of any demand, action or claim) arising, directly or indirectly, out of a breach by you of any of your obligations under these terms of sale.

 

  1. 14.      We may cancel a contract to supply products to be supplied under these terms of sale immediately by written notice to you if you fail to pay on time or in full, any amount due to us under the contract, or commit any material breach of your obligations to us under the contract. If you are a business customer, we may cancel a contract to supply products made under these terms of sale if:

(1)        you cease to trade;

(2)        you become insolvent or unable to pay your debts within the meaning of the insolvency legislation applicable to you;

(3)        a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of your business or assets, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;

(4)        the ability of your creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that your creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or

(5)        any process is instituted which could lead to you being dissolved and your assets being distributed to your creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).

 

  1. 15.      Upon the cancellation of a contract in accordance with these terms:

(1)        we will cease to have any obligation to deliver products which are undelivered at the date of cancellation;

(2)        you will continue to have an obligation where applicable to pay for products which have been delivered at the date of cancellation (without prejudice to any right we may have to recover the products); and

         

  1. 16.      These terms of sale do not constitute or contain any assignment or licence of any intellectual property rights, do not govern the licensing of works (including software and literary works) comprised or stored in products, and do not govern the provision of any services by us or any third party in relation to the products.

 

  1. 17.      Images of products on our website are for illustrative purposes; actual products may differ from such images. 

 

  1. 18.      We will treat all your personal information that we collect in connection with your order in accordance with the terms of our Privacy Policy. Use of our website will be subject to our website terms of use. Contracts under these terms of sale may only be varied by an instrument in writing signed by both you and us. We may revise these terms of sale from time-to-time, but such revisions will not affect the terms of any contracts which we have entered into with you. If any provision of these terms of sale is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect, and such invalid or unenforceable provisions or portion thereof will be deemed omitted. No waiver of any provision of these terms of sale, whether by conduct or otherwise, in any one or more instances, will be deemed to be, or be construed as, a further or continuing waiver of that provision or any other provision of these terms of sale. You may not assign, charge, sub-contract or otherwise transfer any of your rights or obligations arising under these terms of sale. Any attempt by you to do so will be null and void. We may assign, charge, sub-contract or otherwise transfer any of our rights or obligations arising under these terms of sale, at any time - provided where you are a consumer that such action does not serve to reduce the guarantees benefiting you under these terms of sale. Each contract under these terms of sale is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person. The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under such contracts is not subject to the consent of any person who is not a party to the relevant contract. These terms of sale contain the entire agreement and understanding of the parties in relation to the purchase of products from our website, and supersede all previous agreements and understandings between the parties in relation to the purchase of products from our website; and each party acknowledges that no representations not expressly contained in these terms of sale have been made by or on behalf of the other party in relation to the purchase of products from our website. These terms of sale will be governed by and construed in accordance with Australian law, and the courts of Australia will have exclusive jurisdiction to adjudicate any dispute arising under or in relation to these terms of sale.

 

 

TERMS OF USE OF WEBSITE

  1. 19.      These terms of use govern your use of our website; by using our website, you accept these terms of use in full. If you disagree with these terms of use or any part of these terms of use, you must not use our website.

 

  1. 20.      We own the intellectual property rights in the website and material on the website. Subject to the licence below, all these intellectual property rights are reserved. You may view, download for caching purposes only, and print pages from the website for your own personal use, subject to the restrictions set out below and elsewhere in these terms of use. You must not:

(1)        republish material from this website (including republication on another website);

(2)        sell, rent or sub-license material from the website;

(3)        show any material from the website in public;

(4)        reproduce, duplicate, copy or otherwise exploit material on our website for a commercial purpose;

(5)        edit or otherwise modify any material on the website; or

(6)        redistribute material from this website except for content specifically and expressly made available for redistribution (such as our newsletter). Where content is specifically made available for redistribution, it may only be redistributed within your organisation.

 

  1. 21.      You must not use our website in any way that causes, or may cause, damage to the website or impairment of the availability or accessibility of the website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity. You must not use our website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software. You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to our website without our express written consent.

 

  1. 22.      Whilst we endeavour to ensure that the information on this website is correct, we do not warrant its completeness or accuracy; nor do we commit to ensuring that the website remains available or that the material on the website is kept up-to-date. To the maximum extent permitted by applicable law we exclude all representations, warranties and conditions relating to this website and the use of this website (including, without limitation, any warranties implied by law of satisfactory quality, fitness for purpose and/or the use of reasonable care and skill).

 

  1. 23.      Nothing in these terms of use (or elsewhere on our website) will exclude or limit our liability for fraud, for death or personal injury caused by our negligence, or for any other liability which cannot be excluded or limited under applicable law. Subject to this, our liability to you in relation to the use of our website or under or in connection with these terms of use, whether in contract, tort (including negligence) or otherwise, will be limited as follows:

(1)        to the extent that the website and the information and services on the website are provided free-of-charge, we will not be liable for any loss or damage of any nature;

(2)        we will not be liable for any consequential, indirect or special loss or damage;

(3)        we will not be liable for any loss of profit, income, revenue, anticipated savings, contracts, business, goodwill, reputation, data, or information;

(4)        we will not be liable for any loss or damage arising out of any event or events beyond our reasonable control;

(5)        our maximum liability in relation to any event or series of related events will be limited to $1000.

 

  1. 24.      You hereby indemnify us and undertake to keep us indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by us to a third party in settlement of a claim or dispute on the advice of our legal advisers) incurred or suffered by us arising out of any breach by you of any provision of these terms of use, or arising out of any claim that you have breached any provision of these terms of use.

 

  1. 25.      Without prejudice to our other rights under these terms of use, if you breach these terms of use in any way, we may take such action as we deem appropriate to deal with the breach, including suspending your access to the website, prohibiting you from accessing the website, blocking computers using your IP address from accessing the website, contacting your internet service provider to request that they block your access to the website and/or bringing court proceedings against you.

 

  1. 26.      We may revise these terms of use from time-to-time. Revised terms of use will apply from the date of variation.

 

  1. 27.      We may transfer, sub-contract or otherwise deal with our rights and/or obligations under these terms of use without notifying you or obtaining your consent. You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under these terms of use.

 

  1. 28.      If a provision of these terms of use is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

 

  1. 29.      These terms of use, together with our Privacy Policy, constitute the entire agreement between you and us in relation to your use of our website, and supersede all previous agreements in respect of your use of this website.  The Terms contained in our Privacy Policy are binding on you and us.