TERMS AND CONDITIONS OF SALE, AS OF OCTOBER 2019
This page sets out the terms and conditions (“Terms” ) on which Amusematte Australia Pty Ltd (ABN 4407 950 2220), trading as Scene to Believe (“Scene to Believe”) supplies products (“Products”), including photographic prints and including through its websites (“Sites”) and at On-Site, graduation and event locations (“On-site”).
Please read these Terms carefully and make sure you understand them before ordering Products from us. You should retain a copy of these Terms for future reference, but note that we may amend these Terms from time to time, so every time you order Products, please check the Terms.
1. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US?
1.1 If you place a booking and/or an order for a Product online (“Online Order”), you will receive a confirmation from us acknowledging your order (“Confirmation”). The agreement between us will not be formed until we send you the Confirmation.
1.2 If you place a booking and/or order a Product On-Site (for example, at one of our Santa sets in a shopping centre or at a graduation or event – an “On-Site Order”), the agreement between us will be formed when we accept that booking and/or order.
2. CANCELLING A BOOKING FOR A PHOTOGRAPHY SESSION
2.1 If you need to cancel or change the time for a photography session (including any booking and Products purchased through http://www.santasvips.com.au ), you may do so:
( a ) Up to 72 hours prior to the scheduled booking time subject to paying a 10% service fee (based on total purchase including any products and booking fees) unless you are able to reschedule your booking to another available time-slot.
( b ) Within 24-72 hours prior to the scheduled booking time subject to paying a 25% service fee (based on total purchase including any products and booking fees) unless you are able to reschedule your booking to another available time-slot.
( c ) Within 24 hours prior to the scheduled booking time, subject to paying a 100% fee by way of damages (based on total purchase including any products and booking fees) unless you are able to reschedule your booking to another available time-slot.
2.2 We will endeavour to process any refund due to you (as a result of you cancelling but not rescheduling a booked photography session) within 48 hours of us receiving your cancellation request.
3. PRODUCT AVAILABILITY
3.1 If we cannot supply you with a Product – for example because that Product is not in stock or is no longer available or because of an error in the price either on the Site or On-Site– we will inform you of this as soon as possible and we will not process your order. If you have already paid for a Product that we cannot supply, we will also refund you the full amount as soon as possible.
4. YOUR RIGHT OF RETURN AND REFUND
4.1 Subject to your rights under the Australian Consumer Law and related State and Territory legislation (together, “Consumer Law”), you may not cancel an order for a Product and ask for a refund once we have printed the relevant photographs (whether the photographs are the Product or are to be included in the Product).
4.2 We work hard to ensure that all Products supplied (including Photographs) are of good merchantable quality and fit for purpose, and that all photographs taken during a photography session (“Photographs”) are available to be viewed on a preview monitor at our photography location for you to approve before printing. If in a particular case a Product is not of a suitable quality (and without limiting your rights under Consumer Law), we will refund, replace and/or exchange if:
( a ) a Photograph (including a Photograph within a Product) is not of an acceptable standard (for example, there are dust marks on a print, or a fault in the printer paper);
( b ) a Photograph is out of focus or not properly zoomed;
( c ) subjects are cropped or cut out of the Photograph;
( d ) digital media or files (for example, CD or USB drives on which Photographs are supplied to you) are corrupt or faulty; or
( e ) physical Product (such as a snow dome or magnet frame) is damaged on or prior to delivery or otherwise does not meet the consumer guarantees in Consumer Law.
We do not, however, exchange or refund any Product merely because you change your mind.
4.3 If you believe you are entitled to return a Product or to request a refund, please contact us by email at email@example.com or on 02 9417 1888 within 7 days of receiving the Product.
4.4 Subject to Consumer Law, in the case of a Photograph that is not of an acceptable standard we will work to resolve the issue at our cost as follows:
( a ) first: digitally edit the Photograph to a standard acceptable to you;
( b ) second: replace the Photograph with any other Photograph taken during your photography session;
( c ) third: offer you a chance to have new Photographs taken;
( d ) fourth: provide you with a refund.
4.5 Subject to Consumer Law, we will only exchange items at our cost if:
( a ) you return all of the Photographs or other Product we supplied to you; and
( b ) you provide proof of purchase (such as a receipt).
4.6 Refunds will generally be processed by direct deposit.. You may, however, request that a refund be made by cheque addressed to you.
4.7 As we offer warranties that are in addition to those provided under Consumer Law, we also provide the following mandatory text:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
5. DELIVERY AND TITLE
5.1 Delivery will be complete when we deliver your order to you (for example, by handing your Photographs or other Product to you).
5.2 We will not be responsible for any loss, damage or injury you may directly or indirectly suffer as a result of or in connection with any delay or failure to deliver an order within any indicated time-frames.
5.3 In cases where you are not collecting Products you have purchased in person On-Site, you are responsible for providing us with a sufficient delivery address. If a Product is found to have been misaddressed by us, we will be responsible for re-delivery, replacement or a refund but if you have given an incorrect or insufficient address, we will not refund or resend the Product and you will bear all responsibility for correcting delivery.
5.4 Any Products will be your responsibility once they are delivered to you but you will only own Products delivered to you once we have received payment in full, including any applicable delivery charges.
6.1 The prices of Products are as quoted on the Site and On-Site from time to time.
6.2 We take all reasonable care to ensure that the prices of Products are correctly displayed, but it is always possible that, despite our best efforts, some Products may be incorrectly priced. We will normally check prices as part of our despatch procedures so that:
( a ) where the Product’s correct price is less than the price stated on the Site or On-Site, we will charge the lower amount when despatching Products to you; and
( b ) if the Product’s correct price is higher than the price stated on the Site or On-Site, we will:
(i) contact you as soon as possible to inform you of this error; and
(ii) give you the option of continuing to purchase the Product at the correct price or cancelling your order; but
(iii) not process your order until we have your instructions (and if we are unable to contact you using the contact details you provided during the order process, we will treat the order as cancelled and notify you in writing).
6.3 Prices for our Products may change from time to time, but changes will not affect any order confirmed with a Confirmation or On-Site.
6.4 Unless stated otherwise, any special deals or offers will only be valid for as long as they are displayed on the Site or On-Site. For Online Orders, any special deal or offer will be applied on checkout, but only if you are able to comply with any terms or conditions applicable to that special deal or offer.
6.5 The price of a Product includes GST (where applicable) at the applicable rate chargeable in Australia for the time being. However, if the rate of GST changes between the date of your order and the date of delivery, we will adjust the GST you pay, unless you have already paid for the Products in full before the change in GST takes effect.
7. POSTAGE AND HANDLING
7.1 Any postage and handling costs are in addition to the cost stated for Products and will be stated on checkout before you place an order.
7.2 If you order Products for international delivery, your order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and cannot predict their amount. You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your order.
7.3 You must comply with all applicable laws and regulations of the country for which the Products are destined. We will not be liable or responsible if you break any such law.
8. HOW TO PAY
8.1 You may pay for Products ordered by Online Order by using Visa, MasterCard and PayPal. All payment processing is performed by third-party providers.
8.2 Payment for Products and any applicable delivery charges is in advance.
9. OUR PRODUCTS
9.1 Images of Products on the Site are for illustrative purposes only. In particular, we cannot guarantee that your computer accurately displays colours, and the Products you order may vary slightly from those images.
10. RESTRICTIONS ON SALES AND ON USE OF PRODUCTS
10.1 By placing an order for a Product, you warrant that you are legally entitled to purchase that Product, and you acknowledge that if you are not (for example, because age restrictions apply to a particular Product), we do not authorise you to order these Products.
10.2 Any Product you purchase from us must not, by way of trade, be rented out or resold, or offered for rent or commercial resale.
11. LIMITATION OF LIABILITY
11.1 To the maximum extent permitted by law and save for the express written terms in these Terms, all other express or implied terms, conditions, warranties, statements, assurances and representations in relation to the Products or arising from these Terms are expressly excluded.
11.2 If any of the exclusions or limitations set out in this clause 11 are declared illegal or void or if there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by these Terms, then, to the extent permitted by law, our entire liability and your exclusive remedy is limited to, at our discretion, the replacement of the Products or the supply of equivalent Products.
11.3 In no event will we (including our agents, employees or contractors) be liable for any: (a) direct loss; or (b) indirect or consequential loss (even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable), (including, but not limited to, loss of profits, production, data, opportunity or goodwill; or business interruption) however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of our performance or non-performance of this agreement.
11.4 To the maximum extent permitted by law, our maximum cumulative liability under these Terms shall not exceed an amount greater than the income we have received from you in the previous 3 months.
12. BUYING ON BEHALF OF AN ORGANISATION
12.1 You confirm that you have authority to bind any business or other organisation on whose behalf you purchase Products.
13. EVENTS OUTSIDE OUR CONTROL
13.1 To the maximum extent permitted by law, we will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations caused by any act or event beyond our reasonable control (including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war – whether declared or not – or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport).
13.2 If an event covered by clause 12.1 takes place that affects the performance of our obligations to you:
( a ) we will contact you as soon as reasonably possible;
( b ) our obligations will be suspended and the time for performance of our obligations will be extended for the duration of the event; and (where the event affects our delivery of Products to you)
( c ) we will arrange for delivery after the event is over.
13.3 We use reasonable endeavours to ensure that the Site and any transactions conducted on them are secure. However, you acknowledge that the security of information and payments transmitted via the internet can never be entirely secure or error free, and that (to the maximum extent permitted by law) we will not be liable for any damage suffered due to failure, delay, interception or manipulation of electronic communications by any third party on any computer program (including those used to transmit viruses).
14. OTHER IMPORTANT TERMS
14.1 We may transfer our rights and obligations to you to another organisation, but this will not affect your rights or our obligations under these Terms.
14.2 You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.
14.3 Each of the paragraphs of these Terms operates separately. If any are found to be unlawful or unenforceable, those paragraphs will be severed and the remaining paragraphs will remain in full force and effect.
14.4 If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
14.5 These Terms are governed by the law in force in New South Wales, and any dispute or claim arising out of or in connection with them or a Product will be governed by New South Wales law. You and we both agree to that only the courts of New South Wales will have jurisdiction over any such dispute or claim.