Terms and Conditions

1. Information

These T&Cs apply to the ordering, purchasing, Delivery and Pick-up of Goods and related Services from the Website. Please read these T&Cs carefully as when You place an Order, You agree to be bound by these T&Cs.

 

2. Interpretation

Some of the words used in these T&Cs have a special meaning.  The meanings are set out in Schedule 1 at the end of these T&Cs.

 

3. Goods and Services

Subject to these T&Cs:

(a)      Subject to clauses 8, 9 and 19.4, We agree to provide the Goods and any related Services to You;

(i) at the Delivery Address on the Delivery Date;

(ii)   at the freight depot nearest Your Delivery Address on the date agreed between Us and You; or

(iii)  at the Warehouse on or after the Pick-up Time, unless otherwise notified by Us to You or by You to Us.

(b)      You agree to pay:

(i) the Price for the Goods;

(ii)   a fee for any related Services (if agreed pursuant to clause 12);

(iii)  any Redelivery Fee; and

(iv)  any fee for storage under clause 14, which may be incurred in accordance with these T&Cs.

 

4. Account

(a)      To purchase Goods from the Website You must have an Account or create an Account by clicking on the “sign in” tab.

(b)      In order to create an Account You will need to provide personal and contact information.

(c)      Please ensure that You enter all information correctly when creating an Account.

(d)      You warrant to Us that all information You provide to Us in relation to your Account is true, accurate and complete.

(e)      You are responsible for maintaining the confidentiality of Your client number and password and for restricting access to Your account.

(f)       You must notify Us immediately if You become aware of any unauthorised use of Your Account.

(g)      We will not be liable to You, or to any person, for any Loss arising directly or indirectly from or in connection with:

 

(i)    Your Account information being inaccurate and incomplete; or

(ii)   any unauthorised use of Your client number, password or Account which takes place prior to You notifying Us in accordance

      with clause 4(f), except to the extent required by law (including, without limitation, the Australian Consumer Law) or caused or

      contributed to by Us.

 

5. Orders

(a)      You may place an Order by following the instructions on the Website.

(b)      We may accept or reject Your Order at Our discretion. We may reject Your Order and cancel Your Order for any reason, including if:

(i) Your payment is declined; or

(ii)   Your credit card is expired.

(c)      When placing an Order it is Your responsibility to enter information carefully and to check the Order carefully (including information in relation

to the Goods, pricing and quantities), as We may not be able to change or cancel an Order after Goods are dispatched.

(d)      You agree to provide Us with true, accurate and complete information when placing an Order.

(e)      You agree to notify Us as soon as You become aware that any Goods have been ordered incorrectly.

(f)       We will not be liable to You, or to any person, for any Loss arising directly or indirectly from or in connection with You Ordering the wrong

Goods, except to the extent required by law (including, without limitation, the Australian Consumer Law), or where caused or contributed to by Us.

 

6. Payment

(a)      You must pay the Price:

(i) by Visa or MasterCard credit card or debit card (Card) or Paypal; or

(b)      By providing Your Card You authorise Us to deduct the Price from such Card.

(c)      If You pay the Price by Card, Your payment will be processed immediately through eWAY.

(d)      We will not accept Your Order or dispatch any Goods unless and until:

(i) eWAY advises Us that Your payment is received in full;

(ii)   Your cash payment is received in full at the Store;

(iii)  Your Card payment is approved at the Store; or

(iv)  Your Application is approved under clause 10(c).

At this point We will accept Your Order (Acceptance).

(e)       If Your Card payment is declined:

(i) eWAY will notify You immediately; and

(ii)   the Website will allow You to enter Your Card details a second time.

(f)      If Your Card payment is declined a second time:

(i) eWAY will notify You immediately

(g)       If We Accept Your Order a binding agreement between You and Us is formed.

(h)       Once Your Order is Accepted We will:

(i) promptly email You a tax invoice; or

(i)      The tax invoice must:

(i) be a valid tax invoice for the purposes of the GST Act;

(ii)   include Our ABN; and

(iii)  contain a description of the Goods Ordered by You and provided or to be provided by Us, (Tax Invoice).

(j)       In addition to the Price, You may also need to pay a Redelivery Fee if You are not at the Delivery Address to accept the Goods when Delivered.

 

7. Prices

(a)      The prices payable for all goods available for purchase are set out on the Website.

(b)      We may change the price of any goods available on the Website at any time. The Price on the Website at the time You place Your Order will

continue to apply even if the Price changes before We accept Your Order.

(c)      We will make every effort to ensure that pricing and product information set out on the   Website is correct and up-to-date.

(d)      Subject to any rights You may have under the Australian Consumer Law, You acknowledge and agree that We may correct any obvious errors

in prices set out on the Website.

 

8. Cancellation of orders by Us

(a)      Subject to any rights You may have under the Australian Consumer Law, We may cancel Your Order if:

(i) a Force Majeure Event occurs;

(ii)   We suspect fraud;

(iii)  You want the Goods Delivered outside Tasmania; or

(iv)  You are not at least 18 years of age.

(b)      If We cancel Your Order for any reason set out in clause 8(a), We will contact You over the phone or by email using the details provided to Us on the Website to either:

(i)    change Your Order; or

(ii)   cancel Your Order and provide You with a refund.

 

9. Cancellation of Orders by You

Please refer to Cancelling an order.

10. In store pick up/click and collect

Please refer to In-store pickup.

 

11. Delivery

Please refer to Delivery.

 

12.  Installation Services

We offer installation Services on selected Goods for a fee.

Please refer to Installation.

 

13. Uncollected Goods

(a)      If We are prevented from Delivering the Goods to You on the Delivery Date or if You do not Pick-up the Goods within 14 days of the Pick-up

Time, We may contact You to arrange a new Delivery Date or Pick-up Time (New Date).

(b)      If We have arranged a New Date, and:

(i) You do not Pick-up the Goods; or

(ii)   You fail to accept Delivery of the Goods, (as applicable), on the New Date (or if We have been unable to contact You to arrange a New

      Date or a New Date has not been agreed, on the Pick-up Time or the Delivery Date) (Relevant Date), then, You acknowledge and agree

      that:

(iii)  We are entitled to charge You a reasonable amount for storing the Goods (Charges) from the Relevant Date until You Pick-up or accept

     Delivery of the Goods, or they are sold in accordance with clause 14(d); and

(iv)  You must pay any Charges within 14 days of receiving a notice under clause 14(c)(ii).

(c)      You acknowledge and agree that on and from the Relevant Date, We may serve a notice on You requiring You to:

(i) Pick-up or accept Delivery of the Goods within the timeframe specified in the notice; and

(ii)   pay Our Charges.

(d)      If You fail to comply with a notice given under clause 13(c), You acknowledge and agree that We may, at any time, resell the Goods to

another customer.

(e)      If We resell the Goods in accordance with clause 13(d) for a subsequent purchase price that is less than the Price, then without limiting Your

obligation to pay the Charges:

(i) You acknowledge and agree that We may retain from the amount paid by You, an amount equal to the Price less the subsequent purchase price plus Our Charges; and

(ii)   We acknowledge and agree that We will reimburse You for the difference between the Price and the subsequent purchase price, minus Our Charges.

 

14. Return of Goods

Please refer to Returns.

 

15. Liability

15.1    Indemnities

To the extent permitted by law and subject to clause 16.2, You are liable for and indemnify Us against all Loss (including legal costs and expenses on a solicitor/own client basis), liability (including for any loss or damage to property, damage, injury or death to any person), arising directly or indirectly from or in connection with any one or more of the following occurring:

(a)      the breach of any provision of these T&Cs by You;

(b)      the breach of any Laws by You;

(c)      Your negligence in relation to Your obligations under these T&Cs;

(d)      any damage to any Goods caused by You; and

(e)      Your act or omission in respect of this Document, except to the extent caused or contributed to by Us or any of Our agents, officers,

employees and contractors.

 

15.2    Limitation of Liability

(a)      Despite any other provision of these T&Cs, nothing in these T&Cs is to be read as excluding, restricting or modifying any guarantees,

warranties, representations or conditions implied or imposed by any Laws (including the Australian Consumer Law) which by law cannot be excluded, restricted or modified.

(b)      Notwithstanding any other provision of these T&Cs, Our liability, if any, for a breach of a guarantee or warranty implied by any Laws in relation

to the supply of any goods (except for any guarantee under sections 51, 52 or 53 of the Australian Consumer Law) under these T&Cs, not of a kind ordinarily acquired for personal, domestic or household use or consumption, is limited, at Our option, to:

(i) the replacement of the defective goods or the supply of equivalent goods;

(ii)   the repair of the goods;

(iii)  the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv)  the payment of the cost of having the goods repaired.

(c)      Notwithstanding any other provision of these T&Cs, Our liability, if any, for a breach of a guarantee or warranty implied by any Laws in relation

to the supply of any services under these T&Cs, not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited, at Our option, to:

(i) supplying the services again; or

(ii)   the payment of the cost of having the services supplied again.

(d)      To the extent permitted by law and subject to this clause 15 all terms, guarantees, warranties, representations or conditions which are not

stated in these T&Cs are excluded.

 

16. Confidentiality

16.1    Non-disclosure

The parties agree, in respect of any Confidential Information:

(a)      Subject to clause 16.2, not to disclose such information to any person, without the prior consent of the disclosing party, unless and until:

(i)   such information becomes generally available to the public in printed publications in general circulation in Australia, through no

     action, default or other breach by the recipient party; or

(ii)   the recipient party is required by law to make disclosure, and then only to such extent; and

(b)      to keep such documents and any other material containing or incorporating any Confidential Information, in safe custody.

16.2    Representatives

The parties may, notwithstanding clause 16.1, disclose Confidential Information to such of its representatives who may need such information and only to the extent so needed, to enable such party to fulfil its obligations under these T&Cs.

 

17. Privacy

We agree, in respect of Personal Information held in connection with these T&Cs:

(a)      to comply with the Privacy Act and other legislation regarding privacy in force from time to time that is applicable to You or to Us;

(b)      to comply with Our Privacy Policy; and

(c)      to use the Personal Information only for the purposes set out in these T&Cs and Our Privacy Policy, including:

(i) to provide Goods and any related Services under these T&Cs;

(ii)   for administrative, statistical and auditing purposes;

(iii)  to facilitate and process Your Order; and

(iv)  to respond to Your requests.

(d)      Please refer to Our Privacy Policy to see how We may use Your Personal Information.

(e)      You acknowledge and agree that by providing Your Personal Information You consent to Us using Your Personal Information for the reasons

outlined in these T&Cs and in Our Privacy Policy.

 

18. Force Majeure

18.1    Force Majeure Event

Neither party (Affected Party) is liable to the other for any failure to perform an obligation under these T&Cs, (provided that the Affected Party has made all reasonable efforts to minimise the effects such events may have on the performance of its obligations under these T&Cs) to the extent that such failure is caused by or due to:

(a)      an act of God,

(b)      any Governmental requisition, control, intervention, requirement or interference;

(c)      any circumstances airing out of war, threatened act or war or warlike operations; acts of terrorists or the consequences thereof;

(d)      riots, civil commotions, blockages or embargoes;

(e)      epidemics;

(f)       earthquakes, landslides, floods or other extraordinary weather conditions;

(g)      strikes, lockouts or other industrial action, but only if of a general nature and not limited to the Affected Party and/or the contractors of the

Affected Party;

(h)      fire, accident or explosion except where caused by the proven negligence of the Affected Party or its employees, agents or contractors;

(i)       the effect of any applicable Laws; or

(j)       any other act or circumstance which is beyond the reasonable control of the Affected Party,which makes performance of an obligation under

these T&Cs impossible and not merely more onerous or uneconomical (each a Force Majeure Event).

 

18.2    Notice

Where a Force Majeure Event takes place, the Affected Party must:

(a)      immediately notify the other party of this and provide complete details of the Force Majeure Event; and

(b)      notify the other party within a reasonable time after the giving of notification referred to above of any methods or procedures known to it to

circumvent the Force Majeure Event.

 

18.3    Cessation of Force Majeure

Where a Force Majeure Event ceases, the parties must immediately re-commence performing the duties that were previously affected by the Force Majeure Event.

 

18.4    Termination

Where a Force Majeure Event continues for a continuous period of 28 days or more, either party may terminate these T&Cs by written notice to the other party.

 

19. Continuing Obligations

The expiry or termination of these T&Cs (for any reason) does not act to extinguish a debt, obligations or liability of either of the parties which has accrued under these T&Cs and the provisions, rights and obligations described in the following clauses will survive and continue to apply:

(a)      all indemnities in these T&Cs, including those in clause 16.1 (Indemnities);

(b)      clause 15.2 (Limitation of liability);

(c)      clause 8 (Cancellation of Orders by Us);

(d)      clause 9 (Cancellation of Orders by You);

(e)      clause 16 (Confidentiality);

(f)       clause 17 (Privacy); and

(g)      clause 20 (GST).

 

20. GST

(a)      Unless otherwise stated on the Website, where possible, all prices listed on the Website are GST inclusive.

(b)      If GST is imposed or payable on any supply made by a party under these T&Cs, the recipient of the supply must pay to the supplier, in

addition to the GST exclusive consideration for that supply, an additional amount equal to the GST exclusive consideration multiplied by the prevailing GST rate. The additional amount is payable at the same time and in the same manner as the consideration for the supply.

(c)      A party’s right to payment under clause 21(b) is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.

 

21. General

21.1    Assignment

A party cannot assign or otherwise transfer any of its rights under these T&Cs without the prior written consent of each other party (which will not be unreasonably withheld).

 

21.2    Consents

Unless these T&Cs expressly provide otherwise, a consent under these T&Cs may be given or withheld in the absolute discretion of the party entitled to give the consent and to be effective must be in writing.

 

21.3    Further acts and documents

Each party must promptly do all further acts and execute and deliver all further documents (in a form and content reasonably satisfactory to that party) required by law or reasonably requested by another party to give effect to these T&Cs.

 

21.4    Waivers

The non-exercise of, or delay in exercising, any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other exercise of it or the exercise of any other power or right.  A power or right may only be waived in writing, signed by the party to be bound by the waiver.

 

21.5    Severance

(a)      If anything in these T&Cs is unenforceable, illegal, void or voidable then it is severed and the rest of the T&Cs remains in force, unless the

severance would change the underlying principal commercial purpose or effect of these T&Cs.

(b)      If two or more provisions of these T&Cs are unenforceable, illegal or void then it is severed and the rest of the T&Cs remain in force, unless the

severance would change the underlying principal commercial purpose or effect of these T&Cs.

 

21.6    Subcontracting

You acknowledge and consent to Us subcontracting all or, any part of the Services at any time during the Term.

 

21.7    Entire Agreement

These T&Cs constitute the entire agreement between the parties and supersede any previous representations, agreements or understandings regarding the subject matter of these T&Cs.

 

21.8    Variation to T&Cs

We may vary these T&Cs at any time.  Any variation to these T&Cs will only apply to future orders.  The T&Cs which apply at the time You place Your Order are applicable.

 

21.9    Exclusion of relationships

The parties acknowledge and agree that these T&Cs and the performance of these T&Cs does not represent or imply a partnership, agency, employment relationship, fiduciary relationship, joint venture, distribution or any other category of commercial or personal relationship between the parties recognized at law or in require as giving rise to forms of specific rights and obligations.

 

21.10  Governing law

The laws of Tasmania govern these T&Cs.

 

21.11  Jurisdiction

You submit to the non-exclusive jurisdiction of the courts of Tasmania and any other Court that can hear appeals from those courts.

 

Schedule 1

1        Definitions and Interpretation

1.1     Definitions

In these T&Cs, unless the contrary intention is expressed, defined terms have the meanings set out below:

Account means a personal account created by You on the Website.

Australian Consumer Law means the Australian consumer law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Business Day means any week day on which banks are generally open for business in Hobart, Tasmania.

Commencement Date means the date that We Accept Your Order.

Confidential Information means these T&Cs, any information notified by the disclosing party to the recipient party as confidential.

Corporations Act means Corporations Act 2001 (Cth).

Delivery means delivery of the Goods to You by Us at the Delivery Address or at the freight depot nearest Your Delivery Address.

Delivery Address means the address notified by You to Us on the Website after We Accept Your Card Order.

Delivery Date means the date You select from the Delivery Schedule (or such other date agreed between the parties in writing).

Email Address means [email protected]

eWAY means the online payment gateway where Your payment is processed.

Expiry Date means the Delivery Date.

Force Majeure Event has the meaning given in clause 18.

Goods means the goods You Order from the Website including the size, make, style and colour You select from the Website.

GST has the meaning given in the GST ACT.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth. Expressions used in the GST Act have the same meaning when used in clause 21.

Laws includes any statute, rule, regulation, proclamation, ordinance, order or by-law whether Commonwealth, state, territorial or local.

Loss includes any damage, loss, cost, claim, liability or expense.

Mailing Address means GPO Box 364, Hobart, Tasmania, 7001.

Order means Your offer to purchase Goods for the Price set out on the Website which are available and in-stock at the Warehouse.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion.

Pick-up means pick-up of Goods by You at the Warehouse.

Price means the total price payable by You for the Goods Ordered, set out in the Tax Invoice.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Policy means Our privacy policy, set out on the Website.

Redelivery Fee means the reasonable redelivery fee that We may charge You pursuant to clauses 3(b), 6(l) and 11(k).

Services means the delivery and/or installation of any Goods provided by Us to You.

Store means the store located at 82 Main Road Moonah, Tasmania, 7009 and the store located at 79 Collins Street, Hobart, 7000.

T&Cs means these terms and conditions.

Tax Invoice has the meaning given in clause 6(k).

Term means the period from the Commencement Date and subject to clauses 8, 9 and 19.4, continues until the Expiry Date.

Warehouse means the warehouse located at 51-53 Hopkins Street, Moonah, 7009.

We, Us or Our means W. Coogan & Co Pty Ltd (ABN 77 009 475 923);

Website means www.cooganstores.com.au.

You or Your means the person, entity or organisation that purchased the Goods or related Services from Us on the Website.

 

1.2      Interpretation

(a)      A reference to:

(i) the singular includes the plural and the plural includes the singular;

(ii)   a person includes a body corporate or unincorporate;

(iii)  a party includes the party’s executors, administrators, successors and permitted assigns;

(iv)  a statute, regulation or provision of a statute or regulation (Statutory Provision)includes:

(A)   that Statutory Provision as amended or re-enacted from time to time;

(B)   a statute, regulation or provision enacted in replacement of that Statutory Provision; and

(C)   another regulation or other statutory instrument made or issued under that Statutory Provision; and

(v)   money is to Australian dollars, unless otherwise stated.

(b)      The expression “these T&Cs” includes the deed, covenants, agreement, arrangement, understanding or transaction recorded in these T&Cs.

(c)      “Including” and similar expressions are not words of limitation.

(d)      A reference to a clause or schedule is a reference to a clause of or a schedule to these T&Cs.

(e)      A reference to T&Cs (including, without limitation, a reference to these T&Cs) is to those T&Cs as amended, novated or replaced.

(f)       Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a

corresponding meaning.

(g)      Headings and any table of contents or index are for convenience only and do not form part of these T&Cs or affect its interpretation.

(h)      A provision of these T&Cs must not be construed to the disadvantage of a party merely because that party was responsible for the preparation

of these T&Cs or the inclusion of the provision in these T&Cs.

(i)       If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.