Terms of service

BLKWD Apparel Website Terms of Sale

1.     Introduction

1.1.  The BLKWD Apparel website (www.blkwd.com.au) (Website) is owned and operated by North Swell Agencies Pty Ltd (ACN 665 116 441) (we, us or our).

1.2.  These terms and conditions of sale (together with our Privacy Policy) comprise the terms of a legal agreement between you and us for the purchase, fulfilment and delivery of goods (Goods) to you on, or via, the Website (Agreement).

1.3.  You acknowledge that you have read, understood and agreed to be bound by the terms of this agreement. The placement of an order for Goods on, or via, the Website constitutes your acceptance of this agreement.

2.     Your Account

2.1.  To order and purchase Goods on, or via, the Website, you must register with us and setup an account (Account). Your Account will be operated by a username and password (Password) which can be changed any time by you by emailing us at online@blkwd.com.au, or an alternate email address advised by us for this purpose from time to time.

2.2.  To order and purchase Products on, or via, the Website, you must either:

(a)     purchase the Products as a guest (on a one-off basis); or

(b)     register with us and setup an account (Account). Your Account will be operated by a username and password (Password) which can be changed at any time by you by emailing us at online@blkwd.com.au, or an alternate email address advised by us for this purpose from time to time.

2.3.  You are responsible for:

(a)     maintaining control over, and the confidentiality of, your Account and Password;

(b)     keeping your Account registration information current, complete, accurate and truthful;

(c)     notifying us in writing of any unauthorised access to, or use of, your Account or Password; and

(d)     for all activities or transactions that happen under your Account. We are not liable for any loss or damage arising out of, or in connection with, any unauthorised access or use of, your Account or Password, including any misuse, stolen or hacked Accounts or Passwords.

3.     Legal capacity

3.1.  To setup an Account and to order or purchase Goods on, via the Website, you must be over 18 years of age, and legally able to enter into contractual relations. If you are under the age of 18 years you must immediately cease and refrain from accessing or using the Account and/or ordering or purchasing Goods from the Website, unless and until your parents or guardians have agreed to abide by this agreement. Your continued use of the Account constitutes an acknowledgement by you that you are over 18 years of age, or your parents or guardians have agreed to abide by this agreement.

4.     Information provided on this website

4.1.  We do not warrant the accuracy or completeness of the information and material provided on, or via, the Website and we are under no obligation to update this information or material nor notify you of any changes unless required by law. We assume no responsibility or liability for any inaccuracies, errors or omissions in the information or materials contained on, or via, the Website.

4.2.  Any reliance on, and use of, the information and material contained on this Website is at your own risk.

5.     Placement of orders

5.1.  You may purchase Goods on, or via, the Website by selecting and placing your order in accordance with this agreement and as directed on the Website. Any order placed by you in the manner displayed on the Website is an offer by you to purchase a particular Goods for the price (including Additional Charges) specified on the Website at the time you place your order.

5.2.  You should take care when submitting an order to purchase Goods on, or via, the Website. To the maximum extent permitted by law and subject to our refund and returns policy, once you have placed an order for Goods, your order cannot be altered or cancelled.

5.3.  You warrant that:

(a)     all details you provide to us when placing an order are current, correct and complete;

(b)     you are an authorised user of the credit card, debit card, or any other financial account or method used to place your order; and

(c)     that your nominated credit card, debit card, or any other financial account or method of payment will cover the full cost of the purchase.

5.4.  Placing an order for Goods does not constitute a legally binding agreement until we confirm that payment has been made on the order and you receive a written order confirmation from us to your nominated e-mail address that payment has been received and the order has been accepted.

5.5.  If we are unable to successfully process your credit card, debit card, or any other financial account or method for your order, we may cancel your order.

5.6.  Each order to purchase Goods constitutes a separate agreement for the supply of Goods, on the terms and conditions of agreement and is subject to your compliance with any specific limitations or terms displayed on the Website.

5.7.  We may, at our absolute discretion, accept or decline any order for Goods (or part thereof) for any reason (or no reason), including an error in the advertised price for, or description of, the Goods on the Website, or an error in your order. Any order for Goods (or part thereof) not accepted is automatically deemed cancelled.

5.8.  If your order details or billing information are incorrect, incomplete or suspicious, we may, at our absolute discretion, require you to provide additional billing verification or order information before accepting any order.

5.9.  If you place an order for Goods on, or via, the Website for someone else to receive the Goods, you warrant that you have the authority to:

(a)     provide us, or otherwise make available to us, the other person’s personal information and you have obtained their consent for us to collect, use, store or disclose their personal information in accordance with our Privacy Policy; and

(b)     bind that person as the principal to this agreement, and to the extent you do not have such authority you agree to be bound to this agreement.

6.     Price

6.1.  Prices shown on the Website are in Australian Dollars (AUD) and are inclusive of GST.

6.2.  Prices displayed on the Website are current at the time of issue. Prices and availability of Goods are subject to change effective immediately upon posting to the Website. You agree to pay the price current at the time of payment.

6.3.  Prices for our Goods displayed on third party websites may not be correct and we are not bound by them.

6.4.  In addition to the price for Goods as displayed on the Website, you agree to pay:

(a)     any other taxes and government charges, levies or fines in relation to the purchase of the Goods;

(b)     delivery and handling fees in relation to the delivery (or re-delivery) of the Goods, packaging costs, transport insurance and all other costs, charges or expenses incurred in relation to delivery (or re-delivery) of the Goods;

(c)     surcharges for payments made by credit card; and

(d)     charges incurred in connection with the cancellation or variation of an order at our prevailing rates at the time (Cancellation Fee),

(collectively, Additional Charges).

7.     Payment

7.1.  Once payment is made your tax invoice will be sent to you. Your tax invoice is your proof of purchase and may be required for any warranty claim.

7.2.  You must pay for Goods by credit card (Visa or Mastercard) or debit card.

7.3.  We use a third party payment processors (Shopify,Stripe, Google Pay and Apple Pay) to process payments made to us. By making payment for the Goods, you agree to provide our third party payment processors with accurate and complete billing information, and you authorise us to share your billing information with our third party payment processors for the purpose of processing your payment

7.4.  We may, at our absolute discretion and without notice, change third party payment processors or the payment methods that can be used to purchase Goods on, or via, the Website, at any time.

7.5.  Our third party payment processor may, at its absolute discretion, decline your payment at any time for any reason, including, but not limited to:

(a)     where our fraud detection systems detect possible irregularities; or

(b)     because your financial institution has declined payment or there are insufficient funds in your nominated account to cover the full cost of the purchase.

7.6.  If our third party payment processor is unable to successfully process your payment, your order will be cancelled, unless you pay for the Goods using another payment method accepted by us.

8.     Delivery

8.1.  Purchases will not be dispatched to you until we confirm payment has been made.

8.2.  We (or our third party providers) shall use reasonable endeavours to:

(a)     dispatch orders within 24 hours of you receiving a written order confirmation from us; and

(b)     effect delivery at the delivery address nominated by you in the order and by the scheduled delivery date displayed on our Website or on your order confirmation (as the case may be). Delivery dates and shipping times are estimates only and are not binding on us or our third party providers.

8.3.  Estimated standard shipping times are as follows:

(a)     1 - 3 days in Australia; and

(b)     5 – 10 days in New Zealand and Fiji.

8.4.  Estimated express shipping times are as follows:

(a)     1 – 2 days in Australia; and

(b)     1 – 5 days in New Zealand and Fiji.

8.5.  If you need to change a delivery date or the delivery address, please contact us as soon as possible before the scheduled delivery date. If you are not available to take delivery on the scheduled delivery date, you will be charged a delivery and handling fee for each additional attempt for delivery.

8.6.  If you are not available to take delivery on the scheduled delivery date, we may, at our absolute discretion, either:

(a)     leave the parcel containing your Goods in a safe and suitable place at the delivery address (such front door/porch, mailbox, under the carport or veranda or bind a side gate); or

(b)     not the leave the parcel containing your Goods at the delivery address if we consider the delivery address to be unsafe for delivery. If we are required to re-deliver the Goods, you will be charged a delivery and handling fee for each additional attempt for delivery.

8.7.  If the delivery of Goods is delayed for any reason, we will not be liable to you or anyone else for any losses, damages, costs or expenses arising out of, or in connection with, any delay in delivery of the Goods. We shall use reasonable endeavours to promptly notify you of any delays in delivery of the Goods.

8.8.  We will not deliver Goods:

(a)     outside of Australia, New Zealand or Fiji; or

(b)     to a post office box.

8.9.  You will ensure that any person who collects or takes delivery of the Goods on your behalf is authorised by you to do so. Acceptance of delivery by such representative will constitute conclusive evidence that you have examined the Goods and found them to be in good condition, complete in every way for the purpose for which it is intended. If required, the duly authorised representative shall sign a receipt confirming acceptance.

8.10. The risk of the Goods, including from loss, theft, damage or destruction of the Goods, shall pass to you on and from delivery to your nominated delivery address.

8.11. If you sell the Goods before title in, and to, the Goods has passed to you, you acknowledge that you sell the Goods as our fiduciary agent provided that such sales shall not give rise to any obligations on our part. You shall hold the proceeds of sale on trust for us in a separate account.

8.12. To the maximum extent permitted by law, if any dispute arises concerning any order (and including any measurement, quality, quantity, identity, or authority or any telephone, e-mail, or Website order) our records will be conclusive evidence of what was ordered.

9.     Cancelled or varied orders  

9.1.  At any time before the Goods have been dispatched, we may, at our absolute discretion, cancel any order that has been previously accepted. Where we cancel your order before delivery, we will send you an email notifying you of the cancellation.

9.2.  We, may, at our absolute discretion, consider a request by you to cancel or vary any previously accepted order. All requests to cancel or vary an order must be in writing before the Goods have been dispatched to your nominated delivery address. To the maximum extent permitted by law, we may, at our absolute discretion, charge you, by way of liquidated damages, any loss, cost or expenditure incurred by us in relation to any cancellation or alteration of your previously accepted order (including, but not limited to, charging you a Cancellation Fees).

9.3.  In the event either party cancels an order after payment has been accepted, we will refund any amount paid in respect of that order (less a Cancellation Fee in the event you cancel the order), using your original payment method.

9.4.  To the maximum extent permitted by law, we will not be liable to you or anyone else for loss, damage, cost or expense arising out of, or in connection with, the cancellation of your order (whether by you or us and regardless of whether payment had previously been accepted by us).

9.5.  You will not be entitled to a refund if the Goods you purchased are delayed or lost as a result of you providing us with incorrect or insufficient delivery details.

10.  Refunds and returns

10.1. We may, at our absolute discretion, consider a request by you to refund or exchange Goods. All requests for refunds or exchanges must be made within 30 days of the purchase date to be eligible.

10.2. To the maximum extent permitted by law, a refund, exchange or repair will be subject to BLKWD Apparel’s approval in the following circumstances:

(a)         where the Goods are damaged through misuse, accident or abnormal use;

(b)         normal wear and tear;

(c)         insignificant minor imperfections or superficial blemishes;

(d)         insignificant minor variations in dimension, colour, size or finish;

(e)         damage to external or product packaging only; or

(f)          where the Australian Consumer Law.

 

10.3. If the wrong Good is delivered, contact us as soon as possible, but not later than 30 days after purchase date. We will offer to send you the correct Good and arrange for the collection and return of the incorrectly delivered Good at no cost to you.

10.4. If Goods arrive that are missing accessories, are faulty, are defective or have been damaged during manufacturing or delivery, please take photos or video clearly illustrating the problem and contact us as soon as possible, but not later than 30 days after purchase date.

10.5. To the extent that you acquire Goods from us as a consumer within the meaning of the Australian Consumer Law, your purchase of Goods will come with certain consumer guarantees that cannot be excluded and are in addition to any manufacturer’s warranties or extended warranties purchased or given to you. In accordance with Australian Consumer Law, if the Goods you purchased has a major failure, you may reject the Goods and seek a refund or exchange, or you may keep the Goods and seek compensation for any drop in the value of the Goods. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

10.6. When returning Goods to us, you must:

(a)         provide us with your proof or purchase;

(b)         return them in the condition received by you with all original packaging, accessories and/or labels; and

(c)         comply with any other direction given by us in relation to returning the damaged, faulty or defective Goods.

10.7. It is your responsibility to ensure that returned Goods are returned safely and within a reasonable period of time. We accept no responsibility for Goods lost in transit.

10.8. Where you are returning Goods to us because of our failure to comply with a consumer guarantee, you must return the Goods to us at our cost. If you are entitled to a refund, we will provide you with a full refund within 30 days.

11.  Access and use of this website

11.1. We will not be liable to you or anyone else if for any reason the Website is unavailable (wholly or partly) at any time or for any period.

11.2. Access to the Website is permitted on a temporary basis, and we reserve the right to withdraw or amend the products or, information and content we provide on, or via, the Website at any time without notice. From time to time, we may restrict access to some parts of the Website (wholly or partly).

11.3. When accessing and using the Website, you must not misuse, disrupt, impair or undermine the security or integrity of the website or our computing systems or networks, or any computing systems or networks involved in maintaining this Website, or gain unauthorised access to any systems or materials other than those you have been given express permission to access.

11.4. You must not use this Website to post, distribute or transmit any files that may damage any other person’s computing devices or software (including any virus, worm, Trojan, or other harmful software or component), content or material that may be offensive, or material or data in violation of any law. 

12.  Warranty disclaimers and liability

12.1. Images, weights, colours, heights and other measurements of the Goods displayed on, or via, the Website are approximate only and may vary slightly from those images or specifications displayed on the Website. We cannot warrant or guarantee that the weight, colour, height or other measurements of the Goods are accurate.

12.2. It is your responsibility to satisfy yourself as to the suitability, condition and fitness for purpose of the Goods without relying upon our skills or judgment. To the maximum extent permitted by law, we make no warranty or representation that the Goods requested by you meet your needs, are suitable for any particular purpose or used under any specific conditions. You purchase the Goods at your own risk on an ‘as is’ and ‘where is’ basis.

12.3. To the maximum extent permitted by law, we are not liable to you or anyone else if your order is decline or not accepted, your payment is not processed or the Goods are not delivered as a result of, or in connection with:

(a)        your failure to provide us with complete or accurate order information or delivery details;

(b)        the disruption to, or unavailability of the Website or any computer or telecommunication systems used in connection with the Website; or

(c)        an Unavoidable Event.

12.4. To the maximum extent permitted by law, we exclude:

(a)            all representations, conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied or imposed by statute, common law or equity;

(b)            all liability to you or anyone else for any:

(i)              indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or

(ii)            loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss of or damage to reputation, downtime costs, loss of use, failure to realise anticipated savings, loss under or in relation to any other contract, loss of opportunity or expectation loss or loss of production; or

(iii)           loss of, or damage to, any property or any personal injury or death to you or anyone else,

arising out of, relating to or connected to, your access and use of our Website, the provision, delivery or use of the Goods and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.

12.5. Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, state or territory legislation where to do so is unlawful.

12.6. Under no circumstances will our aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the price paid by you for the Goods under this agreement in the preceding one month of the claim.

13.  Privacy

13.1. We, or our authorised external service providers (such as our third party payment processors and delivery or courier providers) may collect personal information directly from you when you access or use our Website, setup an Account, when you place an order or purchase Goods on, or via, the Website, or when you contact us for any reason. Personal information we or our authorised external service providers collect and use may include your name, billing address, delivery address, mobile number, email address and payment details.

13.2. Further details of our policy on the collection, storage, use and disclosure of your personal information is set out in our Privacy Policy, which forms part of this agreement.

14.  Intellectual Property

14.1. We are the owner or the licensee of all material and content published on, or via, the Website (including all intellectual property contained therein) (Content). This Website and Content is protected by copyright, trade mark and other intellectual property laws. All such rights are reserved.

14.2. You may download and print Content from this Website for your own personal or internal business purposes only. You are not allowed to modify, adapt, copy, distribute, license, transfer, or sell any of our Content found on or obtained from our Website without our written consent.

15.  Unavoidable Events

We will not be liable to you or anyone else under this agreement or otherwise if we are prevented from or delayed in performing our obligations under this agreement, or from carrying on our business, by acts, events, omissions or accidents beyond our control  including, but not limited to, acts of God, epidemics, pandemics, mandatory government lockdowns or shutdowns, failure of a utility service, transport, banking or telecommunications networks, riots, civil commotion, computer hacking, war, acts of terrorism, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or earthquake, any disaster or adverse weather, governmental actions, default or non-performance of hosting or data centre providers, interruption of the internet or our Website, or other suppliers or sub-contractors, labour disputes, or any other failure, act or omission in our supply chain, including our third party delivery contractors and manufacturers (Unavoidable Events).

16.  Suspension and termination

We may, in our absolute discretion and without notice, terminate, suspend or block your access to your Account or Password, the Website, or any Goods offered, on or via, the Website for any reason (or no reason), including as result of, or in connection with any breach of this agreement by you. We will not be liable to you or anyone else arising out of, or in connection with, any such suspension or termination.

17.  General

17.1. A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

17.2. If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, then the other provisions shall remain in force.

17.3. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, then the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17.4. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangements, understandings or agreements between them relating to the subject matter which they cover.

17.5. You will not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this agreement.

17.6. Nothing in this agreement is to be construed as constituting a partnership, employment relationship, joint venture, or any other form of association between the parties in which 1 party may be liable for the acts or omissions of any other party.

17.7. If there is any inconsistency between this agreement and the term of any other document referred to in this agreement, this agreement shall prevail to the extent of any inconsistency.

17.8. The laws of the state of New South Wales, Australia govern this this agreement. The parties agree to submit to the exclusive jurisdiction of the courts of New South Wales, Australia.