Tonjac Global Hardware - Terms and Conditions
- Application of Terms and Conditions
1.1. These terms and conditions (‘Terms’) provide you with an opportunity to purchase various products ('Products') that have been offered for sale by Tonjac Global Hardware Pty Limited (ABN 73102201794) (‘Tonjac’) either directly or via www.tonjac.com.au (‘Website’).
1.2. Please read these Terms carefully. By purchasing the Products and /or using, browsing and/or reading 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 not purchase the Products and must cease usage of the Website.
1.3. By purchasing Products directly from Tonjac or via the Website, you will be obtaining the purchase services (‘Purchase Services’).
1.4. Tonjac reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Tonjac updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you make a purchase from Tonjac and/or access the Website, we recommend you keep a copy of the Terms for your records.
- Registration to use the Purchase Services
2.1. In order to access the Purchase Services via the Website, you must first register as a user of the Website. As part of the registration process, or as part of your continued use of the Purchase Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(a) an email address
(b) a mailing address
(c) a telephone number
(d) a password
(e) Name and fax number.
2.2. You warrant that any information you give to Tonjac in the course of completing the registration process will always be accurate, correct and up to date.
2.3. Once you have completed the registration process, you will be a registered member of the Website ('Member') and agree to be bound by the Terms. As a Member you will be granted immediate access to the Purchase Services.
2.4. You may not use the Purchase Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with Tonjac; or
(b) you are a person barred from receiving the Purchase Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Purchase Services.
- Your obligations as a Member
3.1. As a Member, you agree to comply with the following:
You will use the Purchase Services only for purposes that are permitted by:
(a) the Terms;
(b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(c) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Purchase Services;
(d) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Tonjac of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(e) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Tonjac providing the Purchase Services;
(f) you will not use the Purchase Services, Products or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(g) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Purchase Services. Appropriate legal action will be taken by Tonjac for any illegal or unauthorised use of the Website; and
(h) you acknowledge and agree that any automated use of the Website or its Purchase Services is prohibited.
- Purchase of Products and Returns Policy
4.1. In purchasing Products from Tonjac, you agree to the payment of the purchase price listed on the Website for the Product or notified to you in writing ('Purchase Price').
4.2. The Purchase Price is GST inclusive unless otherwise stated.
4.3. Payment of the Purchase Price may be made directly to Tonjac or may be made via the Website through ANZ Egate ('Payment Gateway Provider').
4.5. Following payment of the Purchase Price being confirmed by Tonjac, you will be issued with a receipt to confirm that the payment has been received and Tonjac may record your purchase details for future use.
4.6. Tonjac may, at their sole discretion, provide a refund on the return of the Products within 14 days where the Product packaging is unopened and remains in a saleable condition. You acknowledge and agree that you are liable for any postage and shipping costs associated with any refund pursuant to this clause.
4.7. You must not re-sell the Products without Tonjac’s prior written consent.
5.1. We may invite you to purchase Products either directly from Tonjac or via the Website on credit. Where you are granted credit with Tonjac, this clause 5 applies in addition to the other Terms.
5.2. If you owe any amount to Tonjac (whether under these Terms or otherwise), Tonjac may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
(a) withhold all future supplies of Products until that amount has been paid in full;
(b) suspend your access to the Website; and/or
(c) set-off that amount against any amount owing by Tonjac to the you.
(a) title to the Products shall remain with Tonjac;
(b) until payment in full is received, you hold the Products as bailee for Tonjac; and
(c) the Products shall, so far as practicable, be kept separate from other goods so as to be readily identifiable as the property of Tonjac.
5.5. Upon default by you of the due performance or observance of any other obligation under these Terms, including an Insolvency Event, Tonjac may by notice in writing enter upon any premises to remove any of the Products to which Tonjac has retained title and for this purpose and you shall afford Tonjac all reasonable assistance to locate and take possession of the Products.
5.6. Tonjac has or will have a security interest in the Products and the proceeds from the sale of the Products for the purposes of the PPSA, as well as a Security Interest in all of your present and after acquired property until paid in full (‘Security Interest’).
5.7. Tonjac may do anything reasonably necessary, including but not limited to registering its Security Interest on the personal property securities register established under the PPSA in order to perfect this Security Interest and comply with the requirements of the PPSA. You agree to do all things reasonably necessary to assist Tonjac to achieve perfection of this Security Interest under the PPSA.
5.8. You and Tonjac agree that, pursuant to section 115 of the PPSA, the following provisions in the PPSA do not apply in relation to this Security Interest to the extent, if any, mentioned (words in this provision have the same meaning as in the PPSA):
(a) section 117 (obligations secured by interests in personal property and land);
(b) section 118 (enforcing Security Interest in accordance with land law decisions), to the extent that it allows a secured party to give a notice to the grantor;
(c) section 125 (obligation to dispose of or retain collateral);
(d) section 129 (disposal by purchase);
(e) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;
(f) section 132(3)(d) (contents of statement of account after disposal);
(g) subsection 132(4) (statement of account if no disposal);
(h) section 142 (redemption of collateral); and
(i) section 143 (reinstatement of security agreement).
5.10. In these Terms ‘PPSA’ means the Personal Property Securities Act 2009 (Cth).
6.1. Tonjac’s Products may come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure ('Warranty').
6.2. Where you are entitled to make a claim under the Australian Consumer Law (‘Warranty Claim’), you must do so in writing to Tonjac.
6.3. Where the Warranty Claim is accepted or proven, then Tonjac will, at its sole discretion, either repair or replace any defective Products or part thereof with a new or remanufactured equivalent at no charge to you for parts or labour. You acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in facilitating the Warranty Claim.
6.4. The Warranty shall be the sole and exclusive warranty granted by Tonjac (express or implied) and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Products to which this warranty relates.
6.5. To the extent permitted by law, the Warranty does not apply where:
(a) there is a failure to follow Tonjac’s installation instructions, evidence cannot be provided that the Product was installed by a licensed plumber or the Product is used other than in accordance with Tonjac specifications;
(b) repair work is performed on the relevant Product by a person other than Tonjac, its authorised service agents or any plumber who has not received authorisation from Tonjac prior to proceeding with the work;
(c) applicable statutes or regulations relating to public health are not observed;
(d) standards or regulations governing sewerage, plumbing, water supply and gas applicable to the location of the particular plumbing installation are not observed. This includes (without limitation) the Australian Standards (AS/NZ 3500.1-2003, Clause 3.3.4) which specifies that water pressure must be limited to 500 kpa on any new home, extension or renovation. The recommended operating pressure for tapware is between 150-500 kpa (with the maximum pressure to be at 500 kpa);
(e) harsh detergents or abrasive cleaners are used on any finishes of the Product;
(f) the Product is not installed in accordance with the relevant Australian Standards and Plumbing Codes;
(g) the Product has been tampered with or repaired (other than by or on behalf of Tonjac) in any way;
(h) the Product has been damaged by misuse, accident or neglect;
(i) the Product has discolouration, corrosion or rusting from ‘hard’ water and / or other environmental factors.
7.1. You acknowledge that the Purchase Services offered by Tonjac integrate delivery ('Delivery Services') through the use of third party delivery companies ('Delivery Service Providers').
7.2. In providing the Purchase Services, Tonjac may provide you with a variety of delivery and insurance options offered as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that Tonjac is not the provider of these delivery and insurance options and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.
7.3. In the event that an item is lost or damaged in the course of the Delivery Services, Tonjac asks that you:
(a) contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available; and
(b) contact us by sending an email to firstname.lastname@example.org outlining in what way the Products were damaged in transit so we are able to determine if the Delivery Service Provider should be removed from the Purchase Services.
- Copyright and Intellectual Property
8.1. The Website, the Purchase Services and all of the related products of Tonjac are subject to Intellectual Property Rights. The material on the Website is protected by our Intellectual Property Rights. Unless otherwise indicated, all Intellectual Property Rights (including copyright) in the Products, Website content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the 'Content') are owned or controlled for these purposes, and are reserved by Tonjac or its contributors.
8.2. Tonjac retains all rights, title and interest in the content. Nothing you do on or in relation to the Products or Website will transfer to you:
(a) the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of Tonjac; or
(b) the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
(c) a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process); or
(d) any other Intellectual Property Right owned by Tonjac.
8.3. You may not, without the prior written permission of Tonjac and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party contact for any purpose. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.
8.4. In these Terms, ‘Intellectual Property Rights’ means all current and future registered and unregistered rights and all renewals and extension of those rights in respect of copyright, marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.
10. General Disclaimer
10.1. You acknowledge that Tonjac does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.
10.2. Tonjac will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.
10.3. Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
10.4. Subject to this clause, and to the extent permitted by law:
(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
(b) Tonjac will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Purchase Services, the Products or these Terms (including as a result of not being able to use the Purchase Services or the late supply of the Purchase Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
10.5. Use of the Website, the Purchase Services, and any of the Products of Tonjac (including the Delivery Services), is at your own risk. Everything on Website, the Purchase Services, and the Products of Tonjac, are provided to you on an "as is" and "as available" basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Tonjac (including any third party where the Delivery Services are made available to you) make any express or implied representation or warranty about its Content or any Products or Purchase Services (including the Products or Purchase Services of Tonjac) referred to on the Website. 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 Purchase 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 Purchase Services or any of the Products;
(d) the Content or operation in respect to links which are provided for the User's 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.
11. Limitation of Liability
11.1. Tonjac’s total liability arising out of or in connection with the Purchase Services, the Products or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the Purchase Price paid by you under these Terms or where you have not paid the Purchase Price, then the total liability of Tonjac is the resupply of information or Purchase Services to you.
11.2. You expressly understand and agree that Tonjac, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, 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.
11.3. Tonjac is not responsible or liable in any manner for any site content (including the Content and Third Party Content) posted on the Website or in connection with the Purchase Services, whether posted or caused by users of the website of Tonjac, by third parties or by any of the Purchase Services offered by Tonjac.
11.4. You acknowledge that Tonjac does not provide the Delivery Services to you and you agree that Tonjac will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.
12. Termination of Contract
12.1. The Terms will continue to apply until terminated by either you or by Tonjac as set out below.
12.2. If you want to terminate the Terms, you may do so by:
(a) notifying Tonjac at any time; and
(b) closing your accounts for all of the Purchase Services which you use, where Tonjac has made this option available to you.
Your notice should be sent, in writing, to Tonjac via the 'Contact Us' link on our homepage.
12.3. Tonjac may at any time, terminate the Terms with you if:
(a) it provides notice in writing to you;
(b) you have breached any provision of the Terms or intend to breach any provision or suffer an Insolvency Event;
(c) Tonjac is required to do so by law;
(d) Tonjac is transitioning to no longer providing the Purchase Services to users in the country in which you are resident or from which you use the service; or
(e) the provision of the Purchase Services to you by Tonjac is, in the opinion of Tonjac, no longer commercially viable.
12.4. Subject to local applicable laws, Tonjac reserves the right to discontinue or cancel your membership to the Website at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Purchase Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Tonjac’s name or reputation or violates the rights of those of another party.
12.5. When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Tonjac 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. You will be liable to immediately pay Tonjac on demand any amounts owing to it under these Terms or otherwise, including in respect of Products that you have ordered from Tonjac despite whether or not they have been despatched.
12.6. In these Terms ‘Insolvency Event’ means the happening of any one or more of the following events:
(a) in relation to a natural person:
i. that person being unable to pay his or her debts as and when they fall due;
ii. an application and filing for bankruptcy being made in respect of that person; or
iii. a receiver, or receiver and manager, trustee for creditors or trustee in bankruptcy or analogous person being appointed over that person’s assets or undertakings or any of them; or
(b) in relation to a body corporate:
i. that body corporate being unable to pay its debts as and when they fall due;
ii. a receiver, receiver and manager, administrator or liquidator being appointed over that body corporate’s assets or undertakings or any of them;
iii. an application for winding up or other process seeking orders which, if granted, would render that body corporate an externally-administered body corporate being filed and not being withdrawn within 20 Business Days;
iv. that body corporate being or becoming the subject of an order, or a resolution being passed, for the winding up or dissolution of that body corporate; or
v. that body corporate entering into, or resolving to enter into, a deed of company arrangement or an arrangement, composition or compromise with, or proceedings being commenced to sanction such a deed of company arrangement or arrangement, composition or compromise, other than for the purposes of a bona fide scheme of solvent reconstruction or amalgamation.
13.1. You agree to indemnify Tonjac, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(a) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection (directly or indirectly) with the Products, Purchase Services and any Content on the Website;
(b) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so and any breach by you or your agents of these Terms; and/or
(c) any breach of the Terms.
14. Dispute Resolution
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).
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.
On receipt of that notice ('Notice') by that other party, the parties to the Terms ('Parties') must:
(a) Within 14 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, 14 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 Chair of the Resolution Institute (ABN 69 008 651 232) or his or her nominee;
(c) 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;
(d) The mediation will be held in Queensland, Australia.
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.
14.5. Termination of Mediation:
If 2 months 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.
You may not assign your rights under these Terms without Tonjac’s prior written consent. Tonjac may assign its rights under these Terms without your consent.
16. Entire Agreement
These Terms constitute the entire understanding between the parties and supersedes all prior agreements, understandings and communications, whether written or oral.
17. Venue and Jurisdiction
In the event of any dispute arising out of or in relation to the Products, Purchase Services or Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Queensland, Australia.
18. Governing Law
The Terms are governed by the laws of Queensland, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Queensland, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
19. Survival of indemnities
Any payment obligations, confidentiality provisions and indemnities survive termination of these Terms.
20. Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
21. Force Majeure
21.1. Tonjac will not be liable for any loss incurred as a result of delay or failure to observe any of these terms and conditions due to an event of Force Majeure. Tonjac’s obligations under these Terms will be suspended and will resume as soon as the cause of the Force Majeure has ceased to have effect.
21.2. In this clause ‘Force Majeure’ means an act of God, fire, lightning, earthquake, explosions, flood, subsidence, insurrection or civil disorder or military operations or act of terrorism, expropriation, strikes, lock-outs or other industrial disputes of any kind not relating solely to the party affected, and any other event which is not within the reasonable control of the party affected but does not include any act or omission of the other party.
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.