Terms of Use – Augie Eyewear

• Acceptance of Terms of Use

  • This website, application, platform and any service offered under the name “Augie Eyewear” is operated and owned by We Are Trading Co. Pty Ltd (ABN 646 650 544) and its related entities or body corporates (“us”, “we” and “our”).
  • Your use of the Site is strictly subject these terms of use and any other policy displayed on the Site (together the “Terms of Use”). Every time you use this Site or make any purchase off this Site, you indicate that you have read, understood, and accepted to be bound by these Terms of Use. If you do not agree to be bound by these Terms of Use, you must not use the Site.
  • We may amend or modify the Site and/or the Terms of Use at our sole discretion and at any time. Any amendments are effective 14 days after publication on the Site. Your continued use of the Site following such modifications will be deemed as acceptance of these modifications.
  • These Terms of Use will prevail over any other terms or agreement between you and us.

• Definitions

  • In these Terms of Use:

Augie Spectacle Frames means Augie branded spectacle frames.

Business Day means a day on which banks are open for business in the State other than a Saturday or Sunday.

Claim means a claim, action, proceeding, notice, litigation, investigation, judgment, liability or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or deferred whether based in contract, tort or statute and whether involving a third party or party to this agreement.

Copyright Act means the Copyright Act 1968.

GST means goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).

Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

Price means for each Product, the price listed on Site and which are subject to change from time to time.

Privacy Policy means our privacy policy available here.

Product means any products or goods offered for sale on our Site and includes Augie Spectacle Frames.

Sale Contract means a binding legal agreement under which we sell you the relevant Product/s for the Price/s.

Shipping and Return Policy means our shipping and return policy available here.

Site means this website, app, platform and any service offered under the name “Augie Eyewear”.

State means the New South Wales, Australia.

Terms of Use means these Terms of Use which include the Privacy Policy, the Shipping and Return Policy and any other policy displayed on the Site.

Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.

We, we, us, our means We Are Trading Co. Pty Ltd (ABN646 650 544) and its related entities or body corporates.

You, you or your mean you and any user of this Site.

• Access

  • To access and use the Site or to purchase Products through this Site, you must be at least 18 years old and have the legal capacity to enter into binding contracts. If these conditions are not satisfied, please cease using the Site immediately.
  • If you are less than 18 years old or do not have the legal capacity to enter into binding contracts, then you must have your parent or legal guardian use the Site for you.

• Registration

  • While you may browse the Site without creating an account, we may require you to create an account to access certain features of our Site.
  • When you create and activate your account make sure that all the personal information, such as your name and email address and other details that you provide is accurate and current. We will handle such personal information in accordance with our Privacy Policy.
  • You agree to keep your account information and password secure and not allow anyone to use the Site on your behalf. You will be legally responsible for all actions taken by anyone presenting your user name and password on the Site, including without limitation, all communications, submissions or financial obligations, whether or not made with your knowledge or authority. This Site is only for your personal, non-commercial use, and may not be used for any third party (except where you are a parent or guardian using the Site for your child). You must not let someone else use your account.
  • We will not be liable for any Claim or Loss arising from any kind of unauthorised activity that takes place under your account.
  • You must not impersonate any other person or organisation.

• Your conduct

  • In using the Site, you must:
    • strictly comply with any policy displayed on our Site;
    • not breach any law (including international law) which may apply in respect of your use of the Site;
    • not use the Site to stalk, harass, intimidate, mock or ridicule or in any other way make someone else feel uncomfortable;
    • not conduct vulnerability tests or scans on the Site or attempt to make unauthorised modifications to the Site;
    • not interfere with the proper working of the Site or any activities conducted via the Site, including by using any automated or manual software or process to "crawl", "spider" or engage in similar conduct in relation to the Site; and
    • except to the extent the Copyright Act allows you to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Site.

  • Products

    • Sale Contracts

By submitting an online order, you make an offer to purchase Products from us. If we accept your offer by displaying or sending you an order confirmation, a Sale Contract is formed. Each such transaction will be treated as a separate Sale Contract.

• Price

  • Unless otherwise expressly stated, all Prices are payable in Australian currency and are inclusive of GST and handling charges.
  • All Prices are subject to change without notice and must be paid without setoff or deduction in accordance with these Terms of Use;
  • We accept the payment methods as indicated on the Site. By submitting your order you represent and warrant that you are authorised to use the chosen payment method and that you authorise us to charge the Price of the relevant Sale Contract to the chosen payment method;
  • You agree to keep the payment method current until your Sale Contract is complete and quickly resolve any issues that may arise while we process your Sale Contract. We may suspend or cancel your order without notice if the payment method cannot be verified, is invalid or otherwise unacceptable; and
  • We are entitled to charge you:
    • an additional charge depending on the payment method you chose;
    • any cost which we pay to recover any amount owed to us by you, including without limitation any legal fees and debt collection charges; and
    • any bank or merchant fees, or commissions charged to us because of any issue with your payment method, and an additional administration fee of $50 to process such issues. All such charges must be paid to us on demand.

• Descriptions

Products displayed on our Site or otherwise disclosed may not be available or be exactly as described. To the extent permitted by law, we do not warrant that the descriptions or other content available on the Site or otherwise disclosed are accurate, complete, reliable, current, or error-free.

• Ordering Products

  • All Products are subject to availability and all orders accepted by us will be executed at your sole risk.
  • We may refuse to sell or supply Products to any person, for any reason or for no reason.
    
    

• Cancellation of Order

  • We may cancel or reduce the Products ordered by you without notice, amongst others, for any of the following reasons, or for no reason:
    • the Product or item(s) for the Product is no longer available; or
    • there was difficulty in processing payment information; or
    • delivery to the address was not possible; or
    • a duplicate order for a Product was placed; or
    • the Product was cancelled with your consent.
  • Upon cancellation, any Price paid in advance for the Product will be refunded via your original payment method.
  • You may only cancel an order placed on the website:
    • immediately; if we inform you that an “in stock item” is not available for immediate delivery; or
    • via email to help@augieeyewear.com.au within 60 minutes of you receiving an order confirmation.

Any other order may only be cancelled with our prior written permission, which may be withheld at our sole discretion and on terms which will indemnify us against any Claim or Loss resulting from your cancellation of the order.

• Delivery

  • Shipping: shipping fees and estimated delivery times will be in accordance with our Shipping and Return Policy. However, any delivery times quoted to you are indicative only. Products may be delivered in one or more parts. To the extent permitted by law, we do not accept any liability whatsoever for delayed delivery caused by any third party.
  • Title to Goods: we retain the legal ownership of any Products until the latter of the dispatch of the Products to you or when full payment for the Products is received by us. The legal ownership of the Products will immediately revert to us if we refund any such payment to you.
  • Risk of Loss: you bear the risk of damage to the Products howsoever caused incurred in the course of delivery. You agree that no claim of any nature will lie against us for Products lost or damaged in transit through whatever cause, including negligence, and any carrier of the Products will be deemed to be your agent even where such carrier has been engaged by us
  • Receipt of Products: upon delivery of the Products, you must inspect the Products for any shortage or quality issues. You will be deemed to have accepted the Products and waived the right to make any claim unless you notify us in writing within 7 days of receiving the Products. Where we have provided you with more Products than what you ordered, you must notify us within 7 days of receiving the Products and return the surplus Products to us (we will bear the shipping costs).
  • Title to Goods: we retain the legal ownership of any Products until the latter of the dispatch of the Products to you or when full payment for the Products is received by us. The legal ownership of the Products will immediately revert to us if we refund any such payment to you.
  • Carriers: we reserve the right to deliver the Products by any route and procedure and by successive carriers and according to our own handling, storage and transportation methods.
  • Import Fees: Products shipped to countries outside Australia may be subject to taxes, custom duties and fees levied by the country of destination (Import Fees).
    • You agree that you are liable for all Import Fees and authorise us to designate a carrier to act as your agent with the relevant customs and tax authorities in the destination country, to clear your order, process and remit the Import Fees for the Products supplied.
    • By placing your order you authorise us to collect an Import Fees deposit for the applicable Products in your order. This Import Fees deposit will be used to reimburse the designated carrier for any Import Fees they pay on your behalf to the appropriate authorities in the designated country. In the event the Import Fees deposit exceeds the actual Import Fees, we will refund the difference to you.
    • Please note that by law, all items must be declared at their full price and we cannot alter the amount to decrease any Import Fees.
  • Return
    • Return of goods will be strictly in accordance with our Shipping and Returns Policy.
  • Promotions
    • For certain campaigns, promotions or contests, additional terms and conditions may apply. If you want to participate in such a campaign, promotion or contest, you need to agree to the relevant terms and conditions applicable to that campaign, promotion or contest. In case of any inconsistency between such terms and conditions and these Terms of Use, those terms and conditions will prevail.
  • Intellectual Property Rights
    • Unless otherwise indicated or implied by context, we are the sole owners or licensees of all intellectual property comprised in the Site and the Site content. Nothing in these Terms of Use constitutes a transfer of any intellectual property rights in or related to the Site or Site content by us to you.
    • You acknowledge and agree that the Site and the content contained therein are protected by copyright, trademarks, service marks, patents, design registrations, and other proprietary rights and laws, and you agree to comply with and maintain all copyright notices and other restrictions on content accessed on or via the Site.
    • You must not do anything which breaches or otherwise interferes with our intellectual property rights or those of any of our third-party licensors. You may not distribute, reproduce, publish, alter, modify or create derivative works from the Site content without our prior written permission or that of the relevant third-party licensor or exploit such content for commercial benefit.
    • You acknowledge and agree that damages may not be an adequate remedy for a breach of this clause ‎8 and that equitable or injunctive relief may be necessary.
  • Third party sites
    • The Site may link to websites that are owned and operated by third parties over whom we have no control. These external websites are governed by independent terms and conditions and privacy policies which you must review prior to using such websites.
    • You acknowledge and agree that when you access a third-party website available via a link contained on the Site:
      • you do so at your own risk and that to the full extent permitted by applicable law, we will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access or use of such third-party website; and
      • we are not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third-party website.

    • Product Warranties

      • Augie Spectacle Frames
        • All Augie Spectacle Frames carry a 12-month warranty against manufacturing defects (commencing on the date of their delivery to you). If we agree that there was a manufacturing defect, we may choose at our sole discretion whether to repair, replace or refund the defective Augie Spectacle Frame. The warranty does not cover colour fading or peel off on frames or any damage caused due to misuse, improper storage and cleaning of any Augie Spectacle Frame.
        • We will endeavour to replace any Augie Spectacle Frame with another pair in the same style and colour. On non-availability of such frame, you may choose an alternate frame of the same value that can fit the existing lenses.
      • Lenses
        • All lenses carry a 12-month warranty against manufacturing defects and defective materials (commencing on the date of their delivery to you). The warranty does not cover accidental damage, scratches, damage caused by negligence, tampering and normal wear and tear. If we agree that there was a manufacturing defect or defective materials, we may choose at our sole discretion whether to repair, replace or refund the defective lenses.
        • In case of any coating peel off on the lenses within 12 months from the date of their delivery to you, a re-coat will be made to such lenses at no additional cost.
        • Orders placed with your own frame or any other product provided by you will be undertaken solely at your risk and we will not be responsible for replacement of frame or any other product or for any refund. We will also not be liable for any breakage or loss of your own frame or your own lenses during fitting.
        • We will process spectacle lenses as per the prescription specified in the order placed by you. The thickness of lenses will vary based on prescription and type of lens selected by you.
      • To the maximum extent permitted by law, we do not provide any warranty on cleaning cloths, or spectacle or lens cases that are provided by us.
      • Other Products

Not all Products (other than Augie Spectacle Frames and lenses) come with a manufacturer’s warranty. An express manufacturer’s warranty is only available in respect of such other Products if a written warranty is delivered with the Products. 

• Disclaimer and limitation of liability

  • To the maximum extent permitted by law, we exclude all Warranties except for those expressly stated in the Terms of Use. Any Products supplied pursuant to a Sale Contract are supplied “as is” and “as available”.
  • We are not optometrists or medical professionals, and we do not provide any medical advice or recommendations whatsoever. Never use the Products contrary to the advice of a medical professional.
  • When you provide us with any prescription details, you warrant to us that the prescription is current and was provided to you by a registered medical practitioner. We exclude all liability arising from any injury and/or damage in relation to the prescription you provided.
  • Any information or advice provided on the Site, including any information or advice in relation to the Products or anything else, is of general nature only. You acknowledge that:
    • your use of any Products and consumables or any advice is solely at your own risk;
    • you must rely entirely on your own enquiries and judgment in relation to Products and anything offered by us, any advice and any other information or material contained on the Site;
    • you should always seek specific and independent medical advice, including without limitation from an optometrist;
    • you must not use any Products or other accessories in a manner inconsistent with any displayed instructions; and
    • we are not liable for any reckless or negligent act or omission by you.
  • You must take reasonable steps to store, maintain and clean all Products and accessories in accordance with standard practice and any instructions provided. We exclude all liability for any damage to the Products caused by your failure to properly follow our advice or reasonable caution in this regard.
  • To the extent that any law including Competition and Consumer Act 2010 (Cth) (“CCA”) restricts our right to exclude Warranties under these Terms of Use, these Terms of Use must be read subject to those provisions and nothing in these Terms of Use is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, we limit our liability pursuant to such provisions to:
    • the replacement of the relevant Products or the supply of equivalent products;
    • the repair of the relevant Products;
    • the payment of the cost of replacing the relevant Products or of acquiring equivalent products; and
    • the payment of the cost of having the relevant Products repaired.
  • Our liability arising in connection with these Terms of Use or the Site is also limited as follows:
    • we exclude all liability for consequential, special, indirect, non-economic or remote loss, including loss of opportunity or business;
    • our total maximum total liability arising in connection with these Terms of Use is capped to the total amount of Prices of any Products you have purchased from us in the last 12 months;
    • our liability is excluded to the extent that you contributed to the liability or are aware of anything for longer than six months but have not commenced a Claim; and
    • our liability is subject to your duty to mitigate your loss.
  • We provide the Site on an “as is” and on an “as available” basis without any Warranties as to continuous, uninterrupted or secure access to the Site, that its servers are free of computer viruses, bugs or other harmful components, that defects will be corrected, or that you will not have disruption or other difficulties in using the Site.
  • In the event that we terminate the Site or your access to the Site pursuant to these Terms of Use, you release us from all Loss or Claims suffered by you as result of or arising out of such termination.
  • All of the above subclauses are cumulative to one another.
    
    

• Release and Indemnity

  • To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
  • To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.
  • In this clause:
    • Released Parties means us and our officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, sponsors, and other third-party partners.
    • Relevant Matter means anything in connection with:
      • A prescription provided by you, including you providing the wrong or a faulty prescription;
      • any damage to person, property, personal injury or death, or defect in the Products, or the use, repair, or storage, of the Product;
      • cancellation of an order, howsoever caused;
      • your breach of these Terms of Use, the Sale Contract or any applicable law;
      • any matter for which we have purported to disclaim liability for under these Terms of Use; and
      • your use, misuse, or abuse of the Site.

    • Termination

      • You acknowledge and agree that:
        • we may terminate your access to the Site at any time without giving any explanation;
        • we may terminate these Terms of Use or any Sale Contract immediately by notice to you in writing if you are deemed to breach these Terms of Use or associated policies in any way, in our sole discretion; and
        • Termination of these Terms of Use, a Sale Contract or your access to the Site does not release you from any of your obligations and liabilities that may have arisen or been incurred prior to the date of such termination.

      • General

        • You agree that our delivery notes will be deemed to be proof of delivery to you of the Products described in the delivery note. In the event of a dispute as to the number of Products sold and delivered and their value, the onus of proving that the Products were not delivered and/or the quantity and price thereof is not in accordance with our invoices will be upon you.
        • Unexpected Events: We are not liable for any failure to comply with a Sale Contract if the failure (directly or indirectly) arises out of circumstances which are not within our reasonable control such as strikes, lock‑outs, failure of usual sources of supply of Products, civil commotion, acts of terrorism, commercial exigencies, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, act of God or any order or direction of any local, state or federal government, government agency or instrumentality. If such circumstances occur, we may delay or suspend delivery of Products, without any cost to us. In such an event, we may with your consent cancel the order and at our sole discretion, issue a credit, or refund any moneys paid in advance, after which you will have no further claim on the Products or against us. If the order is not so cancelled, we will complete delivery as soon as reasonably practicable.
        • No concession, latitude or indulgence allowed by us to you may be construed as a waiver or abandonment of any of our rights under the Terms of Use or act as an estoppel against us.
        • You agree that a certificate signed by any of our employees setting out the balance owing by you to us for Products sold will be final, binding and conclusive as against you.
        • You hereby irrevocably appoint us as your attorney and agent to do all acts and deeds and sign all documents in your name so as to enable us to exercise our rights under these Terms of Use or any Sale Contract.
        • Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a Business Day, in which case they are deemed to be received on the next Business Day. Any notice to you will be addressed to the most recent address that we have of you in our records. Any notice to us must be sent to help@augieeyewear.com.au
        • You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms of Use.
        • If a provision of these Terms of Use is invalid or unenforceable, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
        • These Terms of Use are governed by the laws of the State and each party submits to the exclusive jurisdiction of the courts of that State and all courts of appeal therefrom.
        • Any waiver of any term on these Terms of Use by us can only be done in express writing. Any failure on our part to enforce a term does not constitute a waiver and we reserve the right in relation to all breaches unless expressly stated otherwise.
        • The contents of these Terms of Use and the Sale Contract constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of this agreement, whether orally or in writing.
        • A provision of this agreement which can and is intended to operate after its conclusion will remain in full force and effect – including all indemnities and releases.

Effective: 1st March 2020