FIFTH AVENUE DIAMOND EXPERTS
TERMS & CONDITIONS
These terms and conditions regulate the business relationship between you and us. By using Our Website in any way, or by buying from us, you agree to be bound by them.
No person under the age of 18 years may purchase Goods. We look forward to seeing you again when you are over 18.
We are: Fifth Avenue Diamond Experts (ABN: 1708444)
Our address is: 5 Hurstmere Road TAKAPUNA NZ 0620
You are: a visitor to Our Website / our customer.
The terms and conditions:
In this agreement:
Means any person or business contracted by us to carry Goods from us to you.
Means any individual who, in connection with this agreement, is acting for a purpose which is outside his business.
Means any content in any form published on Our Website by us or any third party with our consent.
Means any of the goods we offer for sale on Our Website, or, if the context requires, goods we sell to you.
Means any website of ours, and includes all web pages controlled by us.
Means display, exhibit, publish, distribute, transmit and/or disclose information, Content and/or other material on to Our Website, and the phrases "Posted" and "Posting" shall be interpreted accordingly.
In this agreement unless the context otherwise requires:
2.1.A reference to a person is a reference to one or more individuals, whether or not formally in partnership, or to a corporation, government body, or other association or organisation.
2.2.These terms and conditions apply to all supplies of Goods by us to any customer. They prevail over any terms proposed by you.
2.3. Any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.
2.4.Except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person.
2.5.In this agreement references to a party include references to a person to whom those rights and obligations are transferred or passed as a result of a merger, division, reconstruction or other re-organisation involving that party.
2.6.The headings to the paragraphs and schedules (if any) to this agreement do not affect the interpretation.
2.7.A reference to an act or regulation includes new law of substantially the same intent as that act or regulation.
2.8.In any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party.
2.9.These terms and conditions apply in any event to you as a buyer or prospective buyer of our Goods and so far as the context allows, to you as a visitor to Our Website.
2.10. This agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
3. The Contract
3.1.This agreement contains the entire agreement between the parties.
3.2. Each party acknowledges that, in entering into this agreement, he or she does not rely on any representation, warranty, information or document or other term not forming part of this agreement.
3.3. If you use Our Website in any way and/or place an order on behalf of another person you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you.
3.4. We do not guarantee that all Goods advertised on Our Website are available. We may change these terms from time to time. The terms that apply to you are those posted here on Our Website on the day you order any Goods.
3.5. The price of Goods may be changed by us at any time. We will never change a price so as to affect the price charged to you at the time you buy those Goods.
3.6. If at any time, you buy Goods from us under any arrangement which does not involve payment via Our Website; these terms still apply so far as they can be applied.
3.7. We do not sell the Goods in all countries. We may refuse to deliver the Goods if you live in a country we do not service or sell to. At present we only sell and deliver to [NZ, for NZ stores/AU for Australian stores].
4. Acceptance of your order
4.1. Your order is an offer to buy from us. Nothing said or done by us is an acceptance of an order until we confirm acceptance in writing (or by email confirmation), referring to the order.
4.2. If we do not have all of the Goods you order in stock, we will offer you alternatives. If this happens you may:
4.2.1. Accept the alternatives we offer;
4.2.2. Cancel all or part of your order.
5. Price and Payment
5.1. The Price is as set out in the order confirmation, set in accordance with clause 4.1 above.
5.2. It is possible that the price payable for particular Goods may have increased from that posted on Our Website. If that happens, we will not despatch the Goods until you have confirmed that you wish to buy at the new price. No Goods will be shipped or despatched until payment for the Goods has been received in full.
5.3. Prices include goods and services tax (“GST”).
5.4. If the item you order is available in parts, you must pay us the full price of your order before we will send any part of it.
5.5. Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than Australian dollar (Australian Stores), New Zealand Dollars (new Zealand Stores) will be borne by you.
5.6. Any information given by us in relation to exchange rates are approximate only and may vary from time to time.
5.7. If, by mistake, we have under-priced Goods, we will not be liable to supply those Goods to you at the stated price, provided that we notify you before we dispatch them to you.
5.8. The price of the Goods does not include the delivery charge which will be charged at the rates applicable at the date you place your order and which will be displayed on a page of Our Website before we ask you to pay.
5.9. If we owe you money (for this or any other reason), we will credit your credit or debit card as soon as reasonably practicable but in any event no later than 45 days from the date when we accept that repayment is due.
6.1. Card payments are not processed through pages controlled by us. We use one or more online payment service providers who will encrypt your card or bank account details in a secure environment.
6.2. We do not keep your contact information, nor your purchasing history, or card details. For more information about how your information will be used or not used, refer to https://www.paymentexpress.com/.
6.3. We have no control over the storage of your personal details and are not liable for any misuse, theft or any usage of such information.
7. Delivery and collection
7.1. Subject to payment having been made and received in full, Goods can be expected to be delivered within 30 days from the day you place your order to purchase the Goods and make payment for those Goods.
7.2. Deliveries will be made by the Carrier to the address stipulated in your order. You must ensure that someone is present to accept the delivery.
7.3. If we are not able to deliver your Goods within 30 days of the date of your order, we shall notify you by e-mail to arrange another date for delivery.
7.4. We may deliver the Goods in instalments if they are not all available at the same time for delivery.
7.5. All Goods must be signed for on delivery by an adult aged 18 years or over. If no one of that age is at the address when the delivery is attempted the Goods may be retained by the driver. When your Goods arrive, it is important that you check immediately the condition and quantity. If your Goods have been damaged in transit, you must refuse the delivery and immediately contact us so that we may dispatch a replacement quickly and minimise your inconvenience. Signing "Unchecked", "Not Checked" or similar is not acceptable.
7.6. If the package is not signed for, the liability over the item transfers to you. We are not responsible or liable for the security, damage or theft of the item after this time. It is your responsibility to pick up the item or arrange for it to be sent to you again at your own cost.
7.7. We will send you a message by email to tell you when we have despatched your order if you elect to have your Goods sent to your nominated location by post.
7.8. If we agree with you to deliver on a particular day or at a particular time, we will do our best to comply. But no time given is to be treated as contractual. To the maximum extent permitted by law we will not be liable to you for any expense or inconvenience you incur on account of delayed delivery or non-delivery.
7.9. Some Goods will be delivered direct from the manufacturer who will contact you to arrange delivery. When delivery of the Goods has been arranged directly with the manufacturer, you will be subject to the manufacturer's delivery policy and we will not, in any circumstance be liable to you for any delivery related issue or complaint.
7.10. Some Goods are so large and heavy that delivery times may be slightly longer. In this case, approximate delivery dates will be given when you place your order.
7.11. Time for delivery specified on the order, if any, is an estimate only and time shall not be of the essence.
7.12. We are happy for you to collect Goods from our shop/ warehouse provided you make an appointment in advance and payment has been received into our bank. Payment in the form of a cheque on arrival is not acceptable and will not be accepted. All payment must be made via the online payment gateway.
7.13. If you collect Goods from our premises then:
7.13.1. We will not be able to assist you in loading heavy items;
7.13.2. Goods are at your risk from the moment they are collected by you or your Carrier from our shop / warehouse;
7.13.3. You agree that you are responsible for everything that happens after you take possession of the Goods, both on and off our premises, including damage to property of any sort, belonging to any person.
8. Foreign taxes and duties
8.1. If you are not in the Commonwealth of Australia, we have no knowledge of, and no responsibility for, the tax, duties and other relevant laws in your country.
8.2. You are responsible for purchasing Goods which you are lawfully able to import and for the payment of import duties and taxes of any kind levied in your country.
9. Return of Goods
These provisions apply in the event that you return any Goods to us for any reason:
9.1. Before you return the Goods to us, please carefully re-read any instructions and check the terms of your order acceptance.
9.2. The Goods must be returned to us as soon as any defect is discovered but not later than 30 days after purchase, and on condition the defect was notified within 15 days.
9.3. Notification must be via email or telephone. The method of return of goods is to be determined by us but at your own risk and cost. A refund will be returned to you upon full satisfaction of requirements set out in clause 9.5 and 10.1.
9.4. So far as possible, Goods should be returned:
9.4.1. With both Goods and all packaging as far as possible in their original condition;
9.4.2. Securely wrapped;
9.4.3. Including our delivery slip; or manufacturer’s delivery slip;
9.4.4. At your risk and cost.
9.5. In returning faulty Goods please enclose with them a note clearly stating the fault and when it arises or arose.
10. Defective Goods
10.1. Our goods come with guarantees that cannot be excluded under the New Zealand Consumer Guarantees Act. If you are entitled to the protections afforded by the New Zealand Consumer Guarantees Act you will be entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and failure does not amount to a major failure.
11.1. The law differs from one country to another. This paragraph applies so far as the applicable law allows.
11.2. All the conditions, warranties or other terms implied by the law of any country other than the Commonwealth of Australia are excluded from this agreement to the extent permitted by law.
11.3. We or our Content suppliers may make improvements or changes to Our Website, the Content, or to any of the Goods, at any time and without advance notice.
11.4. You are advised that Content may include technical inaccuracies or typographical errors. This is inevitable in any large website. We would be grateful if you bring to our immediate attention, any that you find.
11.5. Subject to the guarantees that cannot be excluded under the New Zealand Consumer Guarantees Act, we give no additional warranty and make no additional representation, express or implied, as to:
11.5.1 The quality of the Goods;
11.5.2 Any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose;
11.5.3 The correspondence of the Goods with any description;
11.5.4 The adequacy or appropriateness of the Goods for your purpose;
11.5.5 The truth of any Content on Our Website;
11.6. We are not liable in any circumstances for special, indirect or consequential loss or any damages whatsoever resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with your use of Our Website or the purchase of Goods.
11.7. Except in the case of liability for personal injury or death, our liability under this contract is limited, to the maximum extent permitted by law, to the value of the Goods you have purchased.
12. Your account with us
12.1. You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Goods.
12.2. If you use Our Website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your account.
12.3. You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority and also log in to your account and change your password.
13. Our Website
You agree that you will not use or allow anyone else to use Our Website to Post Content which is or may:
13.1. Be malicious or defamatory;
13.2. Consist of commercial audio, video or music files;
13.3. Be illegal, obscene, offensive, threatening or violent;
13.4. Be sexually explicit or pornographic;
13.5. Be likely to deceive any person or be used to impersonate any person, or to misrepresent your identity, age or affiliation with any person;
13.6. Give the impression that it emanates from us or that you are connected with us or that we have endorsed you or your business;
13.7. Solicit passwords or personal information from anyone;
13.8. Be used to sell any goods or services or for any other commercial use;
13.9. Include anything other than words (i.e. you will not include any symbols or photographs) except for a photograph of yourself in your profile in such place as we designate;
13.10. Link to any of the material specified above, in this paragraph;
13.11. Send age-inappropriate communications or Content to anyone under the age of 18.
14. Your Posting: restricted content
In connection with the restrictions set out below, we may refuse or edit or remove a Posting which does not comply with these terms.
In addition to the restrictions set out above, a Posting must not contain:
14.1. Hyperlinks, other than those specifically authorised by us;
14.2. Keywords or words repeated, which are irrelevant to the Content Posted;
14.3. The name, logo or trademark of any organisation other than yours;
14.4. Inaccurate, false, or misleading information.
15. Removal of offensive Content
15.1.For the avoidance of doubt, this paragraph is addressed to any person who comes on Our Website for any purpose.
15.2.We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility to monitor or police Internet-related activities. However, we may do so without notice to you and without giving you a reason.
15.3.If you are offended by any Content, the following procedure applies:
15.3.1Your claim or complaint must be submitted to us in the form available on Our Website, or contain the same information as that requested in our form. It must be sent to us by post or email.
15.3.2we shall remove the offending Content as soon as we are reasonably able;
15.3.3after we receive notice of a claim or complaint, we shall investigate so far as we alone decide;
15.4.We may or may not, in our absolute discretion re-instate the Content about which you have complained.
15.5.In respect of any complaint made by you or any person on your behalf, whether using our form of complaint or not, you now irrevocably grant to us a licence to publish the complaint and all ensuing correspondence and communication, without limit.
15.6.You now agree that if any complaint is made by you frivolously or vexatiously you will repay us the cost of our investigation including legal fees, if any.
16. Security of Our Website
16.1.If you violate Our Website we shall take legal action against you.
16.2.You agree that you will not, and will not allow any other person to:
16.2.1Modify, copy, or cause damage or unintended effect to any portion of Our Website, or any software used within it;
16.2.2Download any part of Our Website, without our express written consent;
16.2.3collect or use any product listings, descriptions, or prices;
16.2.4collect or use any information obtained from or about Our Website or the Content;
16.2.5aggregate, copy or duplicate in any manner any of the Content or information available from Our Website, other than as permitted by this agreement or as is reasonably necessary for your use of Our Website;
16.2.6share with a third party any login credentials to Our Website;
You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:
17.1.your failure to comply with the law of any country;
17.2.your breach of this agreement;
17.3.any act, neglect or default by any agent, employee, licensee or customer of yours;
17.4.a contractual claim arising from your purchase of the Goods using our website;
17.5.a breach of the intellectual property rights of any person.
18. Intellectual Property
18.1.We will defend the intellectual property rights in connection with our Goods and Our Website, including copyright in the Content whether provided by us or by any other content provider (including copyright in text, graphics, logos, icons, images, audio clips, digital downloads, data, and software).
18.2.Except as set out below, you may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part.
18.3.You may not use our name or logos or trademarks or any other Content on any website of ours or that of any other person.
19. Miscellaneous matters
19.1.When we communicate with you we do so by email. You agree that email communications are contractually binding in the same way as properly signed and dated paper sent by post.
19.2.Where we provide Goods without specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other Goods for which a charge is made. Accordingly, there is neither contractual nor other obligation upon us in respect of those goods or that service.
19.3.If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
19.4.The rights and obligations of the parties set out in this agreement shall pass to any permitted successor in title.
19.5.No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
19.6.Any communication to be served on either party by the other shall be delivered by hand or sent by first class post or recorded delivery or by e-mail. It shall be deemed to have been delivered:
19.6.1If delivered by hand: on the day of delivery;
19.6.2If sent by post to the correct address: within 72 hours of posting;
19.6.3If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.
19.7.In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
19.8.This agreement does not give any right to any third party.
19.9.Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond his reasonable control, including any labour dispute between a party and its employees.
19.10.The validity, construction and performance of this agreement shall be governed by the laws of the State of New South Wales.