EMU Online Terms and Conditions of Sale

 

1.    Introduction

The website at [www.emuaustralia.com] (the “Website”) is operated by Emu Australia (USA) Inc. (the “Company”), a Michigan corporation, of 44 Grandville Avenue, SW Suite 270 Grand Rapids, MI 49503.

For any questions please contact our customer call centre via email at support@emuaustralia.com or by telephone on +1 844 249 9076.

References to “we”, “us”, “our” and “EMU” in these terms refers to the Company and, to the extent of protections provided by indemnifications, releases, covenants to hold harmless, and other similar rights, such references shall include the Company’s, shareholders, directors, officers, employees, contractors, and other agents.

References to “you”, “your” or similar words used in these terms refers to the individual consumer shopping for, ordering, or entering into a Contract to purchase Products on the Website or otherwise using the Website.

 

2.    Terms and Conditions

These terms and conditions set out:-

The terms and conditions upon which we sell and supply any products (“Products”) listed on our Website;

The terms and conditions upon which you may use the Website.

Please ensure that you read these terms and conditions of sale and use (the “Terms”) carefully before you place an Order, purchase a Product, or start to use the Website.   

By placing an Order, purchasing a Product and/or using our Website, you indicate that you accept the Terms and that you agree to abide by them.   If you do not agree to the Terms, please refrain from placing any Orders, purchasing any Products, or using our Website.

Any sale of Products via the Website will be on the basis of these Terms.  You may wish to print a copy of these Terms and retain them for your records.

 

3.    Serviced countries

This Website is only intended for use by people resident in the United States of America (‘Serviced Countries”).

 

4.    Purchase of products

By placing an order on our Website (an “Order”) you warrant and represent that you are:

legally capable of entering into binding contracts;

at least 18 years old;

resident in one of the Serviced Countries;

accessing the Website from that country; and

agreeing to be bound by these Terms.



5.    Formation of contract

After placing an Order you will receive an email from us acknowledging that we have received your order (“Order Acknowledgement”).  This does not mean that your order has been accepted.  Your order constitutes an offer to us to buy a Product.  All orders are subject to acceptance by us and we will confirm such acceptance to you by sending you an email that confirms that the Product has been dispatched (“Dispatch Confirmation”).  

The contract (“Contract”) between us will only be formed when we send you the Dispatch Confirmation and will only relate to those Products for which dispatch has been confirmed in the Dispatch Confirmation.  The terms and conditions of the Contract will include those contained in your Order, as modified by the Order Acknowledgement and Dispatch Confirmation, and subject, in all instances, to these Terms (including any policies or other documents or provisions referenced in these Terms).  We will not be obliged to supply any Products which may have been part of your Order until the dispatch of such Products has been expressly confirmed in a Dispatch Confirmation.   You should check all emails, including the Order Acknowledgement and the Dispatch Confirmation, and ensure that the details in such emails are consistent with your intentions in placing your Order.  Such Order Acknowledgement and Dispatch Confirmation will become part of the Contract and will be deemed to amend your Order to the extent inconsistent therewith.

Non-acceptance of an Order may be a result of one of the following:

The Product that you ordered being unavailable from stock;

Our inability to obtain authorisation for your payment;

The identification of a pricing or Product description error;

You not meeting the eligibility criteria set out in these Terms; or

Any other reason in our sole discretion.

Without limitation, we reserve the right to reject or otherwise refuse to accept any Order for any reason or no reason at all and no Order shall be deemed accepted unless and until (and only to the extent that) we provide an Order Acknowledgement and Delivery Confirmation regarding the subject matter of the Order.

If there are any errors in your order, or if you require further information, please contact our customer services at support@emuaustralia.com

 

6.    Returns policy

You can return unwashed and unworn Products bought on this Website by mail within 30 days of your Order date.

Please send back your Products in to us in their original condition and unworn condition, in the original packaging with all tags still attached with the appropriate purchasing documentation.  Failure to do this may result in delays in processing any exchange or refund.

All costs associated with the return of Products are the sole responsibility of you except in the case that we reasonably determine that the Product was defective at the time the risk of loss passed to you as provided in Section 9 below.

We reserve the right to reject any attempt to return Products to the extent that we determine, in our reasonable discretion, that such Product is not defective or that any defect in the Product was caused by how it was used or otherwise handled after the risk of loss passed to you as provided in Section 9.

 

7.    Refunds policy

If you return a Product to us, we may elect to reimburse you or exchange the returned Product for replacement Product in our sole discretion.

If we elect to reimburse you, we will reimburse to you an amount (the “Refund”) equal to the sum of payments we received from you relating to the Product(s) being returned, including the costs of delivery allocable to such Product(s) (except for the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us—which will not be refunded). 

We may make a deduction from any Refund in an amount reasonably equivalent to the loss in the value of any Products you returned, if the loss is the result of damage or other loss caused your handling of the Products.

We are entitled to make any Refund using the same means of payment as you used when you purchased the Products or by any other means to which you otherwise agree. 

We may withhold any Refund or exchange until we have received the Products back and you are not entitled to any Refund or exchange unless and until you have returned defective Products to us.

If you return a Product for any reason other than a material defect in the Product, we are entitled to reject your return and we may notify you of whether your return is being accepted and whether you will receive any Refund or exchange via email within a reasonable period.  If your return is rejected we have no obligation to ship (or pay for shipment of) the returned Product to you, even if we are not going to be providing a Refund or exchange.  Refunds or exchanges will be processed within [30] days of the day you return the Product to us. 

 

8.    Availability and delivery

Although we endeavour to complete delivery within 7 business days, delivery times may vary and we do not guarantee delivery by any particular date. All deliveries can be tracked online and this tracking information will be sent to you in the Dispatch Confirmation once your Products have left our warehouse.  However, no such tracking information shall be deemed a representation or warranty that delivery will be completed by any particular time.

If you order multiple items, these may be dispatched in separate packages and may arrive at different times.  If this occurs, please refer to the applicable Dispatch Confirmation and tracking information and, in any event, wait at least one extra day for the remaining Products to arrive before contacting EMU with a delivery inquiry.

It is your responsibility to ensure correct delivery details are provided.  We are not responsible for reshipping orders that were mis-directed based on incorrect shipping or delivery details that you provided and you will be required to pay any shipping expense arising from incorrect details provided by you.

Our responsibility to deliver shall be deemed completed when we tender the Products that are the subject of your Contract to the carrier in accordance with your shipping selection, at our docks.  The Products are your responsibility (including the risk of any loss or damage) from and after that time.

 

9.    Risk and Title

The Products purchased from us will be at your risk from the time of delivery.  Delivery is deemed to be completed when we tender the Products that are the subject of your Contract to the carrier in accordance with your shipping selection, at our docks. Ownership of the Products passes to you from the time of delivery as well. 

Risk in relation to Products being returned to us passes from you to us only after you have tendered the returned Products to the carrier to whom we directed you in our return instructions. 

 

10.    Price and Payment

The price of any Products will be as quoted on our Website in United States Dollars from time to time, except in cases of error as reasonably determined by us. Without limitation, we reserve the right to reject an Order based on our determination that the pricing displayed on our Website is incorrect.  We are not required to honor pricing indicated on our Website that we determine is erroneous and we reserve the right to cancel any Order if we reasonably determine that the pricing was in error, even after an Order Acknowledgement or Dispatch Confirmation has been transmitted.

Prices on our Website do not always include applicable taxes (including, without limitation, sales taxes).  It is your responsibility to confirm the applicability of sales taxes and you agree to indemnify, defend, and hold us harmless from and against any Loss arising from the failure to pay or otherwise remit any taxes that are due and owing and that arise out of your transaction with us.  

We may modify our prices at any time, but changes will not affect Orders in respect of which we have already sent a Dispatch Confirmation, except as otherwise provided herein.

In order to process your Order, we will need to share your payment details with third party service providers. This will be done in accordance with our privacy policy. By providing us with payment information, you specifically authorise us to share that information with such third parties.

You must make payment for Products in advance by credit or debit card.  We will not credit or debit your card until we tender the Products to a carrier in accordance with your Order.

 

11.    Our Liability

The Products have a warranty of six (6) months beginning from the date of purchase. This warranty is against defects in workmanship and materials and is effective only if the Products have been used in accordance with their normal intended use. This warranty is not transferable. This warranty constitutes our sole liability to you, and we make no other or further warranty, express or implied, including any warranty of fitness for a particular purpose or warranty of merchantability.    With respect to “consumer products” as defined under the Magnuson-Moss Warranty Act (“MMWA”), the following statements are made: (a) Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. If any implied warranty is provided under the mmwa, it is limited to the duration of the warranty provided herein. (b) Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. (c) This warranty gives you specific legal rights and you may also have other rights which vary from state to state.

Without limitation, we have no liability for defects or damages caused by your failure to comply with specific care or other instructions stated in the Product or within the Product’s packaging.

We are only liable for losses you suffer as a result of us breaching these Terms.  Your exclusive and sole remedy on account of, or in respect of, the furnishing of any Products that do not conform to our Contract will be to (a) replacement Product; or (b) Refund, at our sole option.  In no event will we be liable for incidental, consequential, indirect, special, or punitive damages including, but not limited to, loss of profits, loss of revenue, interest, lost goodwill, increased expenses of operation, or other claims, whether based on contract, warranty, tort, or otherwise.  

In any event, we are not responsible for any indirect Losses of any nature and howsoever arising (whether loss of income, revenue or otherwise), including but not limited to:

Loss of income or revenue;

Loss of business;

Loss of profits or contracts;

Loss of anticipated savings; or

Loss of data.

We will take all reasonable care, insofar as it is in our power to do so, to keep the details of your Order and payment secure, but in the absence of gross negligence on our part, we cannot be held liable for any loss you may suffer if a third party procures unauthorised access to any data you provide when accessing or ordering from the Website.

 

12.    Events Outside Our Control

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by events outside our reasonable control (“Force Majeure Event”).

A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

strikes, lock-outs or other industrial action;

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;

impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

impossibility of the use of public or private telecommunications networks; and

the acts, decrees, legislation, regulations or restrictions of any government.

Our performance under any Contract is deemed to be suspended for the period that a Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring any Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite a Force Majeure Event.

 

13.    Accessing our Site

Access to our Website is permitted on a temporary basis, and we reserve the right to withdraw, deny access to or modify the service we provide on our Website without notice (see below). We will not be liable if, for any reason, our Website is unavailable at any time or for any period.  You have no legal right to use or otherwise access our Website and we reserve the right to exclude any user or preclude any use in our sole discretion.

You are responsible for making all arrangements necessary for you to have access to our Website. You are also responsible for ensuring that all persons who access our Website through your internet connection are aware of these Terms, and that they comply with the Terms.

Access to the Website is always subject to these Terms and your use of the Website constitutes your acceptance of these Terms. These Terms can be updated at any time and it is your responsibility to check this page from time to time to ensure you agree with any amendments. 

Access to the Website is only intended for adults.  Children should request Orders to be placed by a parent or guardian.  You consent to us presuming (and you acknowledge that we may rely on the fact) that any Order we receive was placed by an adult legally competent to enter into the Contract with us.

Our Website may contain links to other sites on the internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of or content located on or through any such third party site.

You must pay, reimburse, indemnify, and hold harmless us and our directors, officers, shareholders, employees, agents, contractors, successors, and assigns from and against any and all claims, suits, actions, assessments, losses, diminution in value, liabilities, taxes, fines, penalties, damages (compensatory, consequential, direct, indirect, and other), costs, and expenses (including reasonable legal fees) (collectively, a “Loss”), including any such Loss that arises in the absence of a third-party claim, in connection with or resulting from your conduct in connection with the Website, other website users, violation of these Terms, or any violation of applicable laws or rights of any other person.

 

14.    Intellectual Property Rights

We reserve all intellectual property rights to our Website and its contents including, without limitation, written material and images published on it and your access or other use of the Website does not entitle you to any such rights, including, without limitation, protections provided by copyright laws and treaties around the world. All such rights are reserved. You must not use any part of the materials on our Website for any purposes without prior written consent of us (or in the case of content displayed by us pursuant to a license from a third party, without consent of our licensors), which consent may be withheld, denied, or conditioned for any reason or no reason at all. We reserve the right to monitor your access and other usage of our Website and to take appropriate action against any person who we believe to be contravening our intellectual property rights or otherwise misusing the Website.

You may print off one copy, and may download excerpts, of any page(s) from our Website for your personal (and non-commercial) reference only.

You must not modify any copies (paper, digital, or otherwise) of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. For the avoidance of doubt all proprietary notices, in particular intellectual property notices such as copyright ©, trademark, ™ and ® must be preserved and displayed intact.

Our status (and that of any identified contributors) as the authors of material on our Website must always be acknowledged.

If you print off, copy or download any part of our Website in breach of these Terms, your privilege to use our Website will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.

 

15.    Description of Products

We disclaim all liability and responsibility for any inaccuracies in the description or depiction of any Products and you rely on any such description or depiction at your sole risk.  

 

16.    Our Site Changes Regularly

We aim to update our Website regularly, and may change the content at any time without notice. If the need arises, we may suspend access to our Website, or close it indefinitely. Any of the material on our Website may be out of date at any given time, and we are under no obligation to update such material.

 

17.    Information About You And Your Visits To Our Site

We process information about you in accordance with our  Privacy Policy.

 

18.    Viruses, Hacking and other Offences

We make every effort to ensure that this Website is free from viruses or defects. However, we cannot guarantee that your use of this Website or any websites accessible through it will not cause damage to your computer. It is your responsibility to ensure that the right equipment is available to you in order to use the Website and screen out anything that may damage it.

You must not misuse our Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which may be malicious or technologically harmful to us or others. You must not attempt to gain unauthorised access to our Website, the server on which our Website is stored or any server, computer or database connected to our Website. You must not attack our Website in any manner whatsoever, including via a denial-of-service attack or a distributed denial-of service attack.

We will report any such breach of these provisions to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your privilege to use our Website will cease immediately.

We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our Website or to your downloading of any material posted on it, or on any website linked to it.

 

19.    Linking To Our Site

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.

Where our Website contains links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. 

 

20.    Written Communications

Applicable laws require that some of the information or communications we send to you should be in writing. When using the Website or ordering Products via the Website, you accept that communication with us will be mainly electronic. 

We will contact you by email or provide you with information by posting notices on our Website. You are deemed to have knowledge and to have received any information that is provided to you on our Website or by email to an address you provided to us.

For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. 

 

21.    Waiver and Rights of Third Parties

If we do not insist upon strict performance of any of your obligations under the Contract or these Terms, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.  Further, unless expressly stated to the contrary in writing, no waiver of any specific provision of these terms and conditions will be deemed a waiver of future breaches of such provision, nor will a waiver of a specific provision be deemed a waiver of any other provision.

No person other than a party to this Contract shall have any rights to enforce any term of this Contract.

 

22.    Assignment

You may not transfer any of your rights or obligations under these Terms without our prior written consent. We may transfer any of our rights or obligations under these Terms without your prior written consent.

 

23.    Severability

If any of these Terms or any provisions of the Contract are determined to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

 

24.    Entire Agreement

The Contract, as defined above, constitutes the entire agreement between us and supersedes any previous arrangement, understanding or agreement between us, relating to the subject matter of any Contract.

These Terms supersede any subsequent terms or conditions included with any Order, whether or not such subsequent terms or conditions are acknowledged by us.  We reserve the right to make changes to these Terms at any time and by using the Website or placing an Order, you agree to be bound to those changes.  The Terms contained herein apply only to direct consumer Orders through our Website.  Other orders (including, without limitation, orders by distributors and retailers) are subject to applicable terms and conditions.

We each acknowledge that, in entering into a Contract, neither of us relies on nor has any remedies in relation to, any statement, representation, assurance or warranty which is not expressly set out in the Order as modified by the Order Acknowledgement and Dispatch Confirmation, together with these Terms and any document expressly referred to in them. 

Nothing in this paragraph shall limit or exclude any liability for fraud.

 

25.    Our Right to Vary these Terms and Conditions

We have the right to revise and amend these Terms from time to time. 

You will be subject to the policies and Terms in force at the time that you place an Order, unless otherwise required by law, or if we notify you of the change to those policies or these Terms before we send you the Dispatch Confirmation (in which case we have the right to assume that you have accepted the change to the Terms, unless you notify us to the contrary within seven working days of your receipt of such notification).

 

26.    Law, Jurisdiction and Language

Contracts for the purchase of Products through our Website and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) or the use of this Website will be governed by, construed, and enforced in accordance with the internal laws of the State of Michigan, United States of America, without reference to its conflict of laws provisions. 

You submit to the exclusive jurisdiction of courts of competent jurisdiction in Kent County, Michigan with respect to any claim or controversy arising out of or relating to your relationship with us or the breach of non-performance of any provision a Contract. 

We retain the right to bring proceedings against you for breach of these provisions in the jurisdiction of your residence or any other tribunal of competent jurisdiction. 

Any contracts for the purchase of Products through our Website and all communications between us will be in the English language.