TERMS AND CONDITIONS OF USE
1.1 Phenix Jewellery Pty Ltd (ACN 101 609 885) (the Company) is in the business of selling jewellery and watches as well as providing the services of independent valuation and 3D scanning of jewellery (collectively, the Services). Details of the Services are found on our website www.phenixjewellery.com (the Website).
2 Acceptance of these Terms
2.1 You accept these terms and conditions (the Terms) by registering for the Services, making payment to the Company, browsing the Website, or by creating an account. By using, browsing, signing up to and/or making payment through the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease use of the Website and the Services immediately.
2.2 You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with the Company; or
(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
2.3 The Company reserves the right to review and change any of the Terms by updating this page at its sole discretion. When the Company updates the Terms, it will use reasonable endeavours to provide you with notice of the same. Any changes to the Terms take immediate effect from the date of their publication. If you choose not to accept any changes to the Terms, your sole recourse will be to stop using the Services. Before you continue, we recommend you keep a copy of the Terms for your records.
3 Account Set Up
3.1 To access the Services, you may be required to register for an account with the Company (the Account). You may register for an account via the Website.
3.2 As part of the registration process or as part of your continued use of the Services, you will be required to provide personal information about yourself (such as identification, contact details, payment details and other personal information).
3.3 You agree that any information you give to the Company will always be accurate, correct and up to date
3.4 You understand that by supplying the Company with your address, email address and phone number, you may receive regular emails, newsletters, telephone calls or SMS updates from the Company to keep you informed about the Company's activities. If you do not wish to receive updates from the Company, you may contact the Company at firstname.lastname@example.org.
4 Identify Verification
4.1 You acknowledge and agree that due to the nature of the Services, the Company may be required to verify your identity to ensure that you are not using the Services in an illegal or fraudulent manner.
4.2 You warrant that where the Company advises you in writing that they require further verification of your identity then you will make all reasonable endeavours to comply with this request within seven (7) days of receipt of same.
4.3 You warrant that any information that you provide pursuant to this clause will be true and correct to the best of your knowledge and belief and failure to comply with this clause will warrant an immediate termination of the provision of the Services to you.
5 Collection Notice
5.2 The Company may disclose that information to third parties that help it deliver its services (including information technology suppliers, communication suppliers and our business partners) or as required by law. If you do not provide this information, The Company may not be able to provide all of its Services to you. The Company may also disclose your personal information to recipients that are located outside of Australia.
6.1 By the Company offering its Service to you, you agree and acknowledge that:
(a) unless otherwise stated, all amounts are listed in Australian Dollars (AUD) and are inclusive of GST;
(b) you shall remain solely responsible for assessing the implications and risks of using the Services; and
(c) these Terms do not create a relationship of employment, trust, joint venture, agency, partnership or other relationship of a fiduciary nature between the parties.
6.2 You acknowledge that the Company has entered into these Terms in reliance on the acknowledgements, representations and warranties given by you in these Terms.
6.3 In Australia, our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. nothing in these terms and conditions purports to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Competition and Consumer Act and other laws. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law or the Competition and Consumer Regulation 2010 are expressly excluded where permitted, including liability for incidental or consequential damages caused by breach of any express or implied warranty or condition.
7 Price Comparison
7.1 Where the Website displays a price comparison, the Company is comparing the price it is currently offering for a product to the following (whichever is lower):
(a) the price determined by the National Council of Jewellery Valuers based on the retail replacement for insurance valuation for the same or similar product in a similar market or geographical location; or
(b) the manufacturer’s recommend retail price (RRP), which either reflects a current market price or the price at which the product has been sold at previously.
7.2 Prices published on the Website are valid on the date(s) shown and may be varied at any time without notice.
7.3 Prices shown on the Website are for personal use and guidance only and does not constitute any contractual representation or warranty.
8 Payment and Non-Payment
8.1 All payments made in the course of the use of the Services are made using a third-party payment processing provider as specified in the Website (the ‘Payment Gateway’). In using the Website, the Services or when making any payment in relation to your use of the Services, you warrant that you have read, understood and agree to be bound by the Payment Gateway’s terms and conditions which are available on their website.
8.2 In the event you elect to pay the fee by way of direct debit and/or credit card and there is a chargeback by your credit provider, the Company may suspend or terminate the Services immediately. You will be charged the then current the Company administration fee, available on the Website, plus GST (Administration Fee), and you agree to pay 2% plus the Cash Rate Target set by the Reserve Bank of Australia (the Interest) on amounts which remain unpaid after thirty (30) days from the date of the tax invoice. Upon payment of the Administration Fee and Interest in accordance with the Terms, the Company may reinstate the Services to you.
8.3 The Company reserves the right to terminate or suspend your access to the Services in the event that you fail to pay any payment pursuant to the Services or any invoice sent by the Company from time to time.
9 Refund Policy
9.1 Details of the Company’s refund policy are outlined at https://phenixjewellery.com/about/returns.
10 Copyright and Intellectual Property
10.1 The Website, the Services and all of the related products and services of the Company (the Material) are subject to copyright. Unless otherwise indicated, all rights (including copyright) in the content and compilation of the Materials (including but not limited to text, graphics, logos, button icons, video images, audio clips, Website, code, scripts, lists, design elements and interactive features) (the Content) are owned or controlled for these purposes and are reserved by the Company or its contributors.
10.2 The Company retains all rights, title and interest (including copyrights, patents and trademarks) in the Material, the Content, and all related content therein. Nothing you do will transfer any interest in the Material to you, other than the grant of the licence to you in clause 8.4 below.
10.3 Whilst using the Services, the Company grants you a worldwide, non-exclusive, royalty-free, revocable licence during these Terms to:
(a) download the Material and the Content;
(b) your sole use of the Material and Content;
(c) copy and store the Material and Content; and
(d) print pages from the Website for your own personal use.
10.4 The Company does not grant you any other rights whatsoever in relation to the Material and/or the Content. All other rights are expressly reserved by the Company.
10.5 You may not, without the prior written consent of the Company and the permission of any other relevant rights owner: broadcast, republish, upload to a third party, transmit, post, distribute, show or display or publish in public, adapt or change in any way the Material or Content for any purpose, other than for the purposes expressly allowed by these Terms. This prohibition does not extend to the Material and Content which are freely available for re-use or are in the public domain.
11 General Disclaimer
11.1 Except for any guarantees, warranties, representations or conditions which by law cannot be limited or excluded, the Company and its affiliates, directors, officers, employees, contractors, volunteers or agents (“Personnel”) gives no other guarantees, warranties, representations or conditions and all guarantees, warranties, representations or conditions which are not expressly stated in the Terms are excluded.
11.2 To the maximum extent permitted by law, use of the Website is at your own risk. Everything in relation to the Website are provided to you “as is” and “as available” without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of the Company make any express or implied representation or warranty about its Content or any products or Services (including the products or services of the Company) referred to on the Website, except as otherwise provided. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
(b) the accuracy, suitability or currency of any information on the Website, the Service, or any of its Content related products (including third party material and advertisements on the Website);
(c) costs incurred as a result of you using the Website, the Services or any of the products of the Company;
(d) the Content or operation in respect to links which are provided for your convenience;
(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
(f) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
12 Limitation of liability
12.1 To the extent permitted by law, you acknowledge and agree that the Company and its Personnel shall not be liable to you for any indirect, incidental, special, consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
12.2 To the maximum extent permitted by law, the total liability of the Company and its Personnel arising out of or in connection with the Services or the Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to you, or the payment of the cost of having the Services resupplied to you.
12.3 The Company and its Personnel are not responsible or liable for any loss, damage, injury due to matters beyond their reasonable control.
13.1 You agree to indemnify the Company from and against any and all claims, damages, liabilities, losses, settlements, costs and expenses (including, without limitation lawyers' fees and court costs on a full indemnity basis) (“Loss”) which arising in connection with: (a) any fraudulent or unlawful act or omission by you; (b) any death or personal injury caused or contributed to by any of your act or omission of; (c) any damage to or loss or destruction of real or personal property caused or contributed to by any of your negligent act or omission; (d) any content provided by you that may infringe on any intellectual property, including, but not limited to, infringement of any copyright, trademark, patent or trade secret of any third party; or (e) any of your breach of the Terms; except to the extent that the Loss is directly attributable to the negligence or wrongful act or omission of the Company.
14 Termination of Services
14.1 The Terms will continue to apply until the deletion of your account, or until terminated by the Company as set out below. 14.2 The Company may at any time, terminate the Terms with you if:
(a) you have breached any provision of the Terms or intend to breach any provision;
(b) the Company is required to do so by law;
(c) the partner, if any, with whom the Company offered the Services to you has terminated its relationship with the Company or ceased to offer the Services to you;
(d) the Company is transitioning to no longer providing the Services to Users in the country in which you are resident or from which you use the service;
(e) the provision of the Services to you by the Company is, in the opinion of the Company, no longer commercially viable;
(f) if you have used the Services:
(i) in breach of any law;
(ii) in a way that is misleading or deceptive;
(iii) in a way which is unreasonable as determined by the Company at its absolute discretion; or
(iv) in a manner which can or does bring the Company into disrepute or could damage the Company’s reputation as determined by the Company at its absolute discretion.
14.3 Subject to local applicable laws, the Company reserves the right to discontinue or cancel your access to the Services at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct damages the Company’s name or reputation or violates the rights of those of another party.
14.4 Upon the termination of the customer’s account, all of the legal rights, obligations and liabilities that you and the Company have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
15 Dispute Resolution
15.1 If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sort).
15.2 A party to the Terms claiming a dispute (“Dispute”) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
15.3 On receipt of that notice (“Notice”) by that other party, the parties to the Terms (“Parties”) must:
(a) Within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(b) If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the Australian Disputes Centre;
15.4 The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
15.5 The mediation will be held in Brisbane, Australia.
15.6 All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
15.7 If thirty (30) days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
16 Governing Law and Jurisdiction
The Services offered by the Company are intended for residents of Australia. These Terms are governed by and are to be constructed in accordance with the laws of the State of Queensland, Australia. You submit to the exclusive jurisdiction of the courts situated in Brisbane, Australia in respect of all matters arising out of or relating to these Terms, the Website, the Services and their performance.
17 Force Majeure
The Company shall not be liable to you for any default due to circumstances beyond its reasonable control including acts of God, natural disasters, pandemics, acts of war, unusually severe weather, industrial action, act of a government agency or civil disorder, riots and strikes (“Force Majeure Event”).
If any part of the Terms is found to be void or unenforceable, that part shall be severed and the rest of the Terms shall remain in force.
19.1 A waiver of any right, power or remedy under this Agreement must be in writing signed by the party granting it.
19.2 A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
19.3 The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.
20.1 The Company may assign or transfer its rights or obligations under the Terms without your consent.
20.2 You may not assign or transfer your rights or obligations under the Terms without prior written consent of the Company. A purported assignment without written consent will be deemed to be void and convey no rights.