In these Conditions:
1.1 Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.
1.3 Buyer means the purchaser of the Product from SAN LUEUR and includes any servants, agents, or contractors acting on behalf of the Buyer where the context permits.
1.4 Conditions means these terms and conditions of sale.
1.5 Consequential Loss includes any loss of data or profits, loss of anticipated savings, economic loss, or interruption of business or any other indirect or consequential loss.
1.6 Consumer means a “consumer” as that term is defined in Section 3 of the Australian Consumer Law.
1.7 Consumer Guarantees means the consumer guarantees under the Australian Consumer Law.
1.8 Contract means a contract for the supply of Product in accordance with these Conditions, as evidenced by the acceptance of any Order from the Buyer to SAN LUEUR.
1.9 Effective Date means 26 August 2022.
1.10 Product means the goods supplied by SAN LUEUR to the Buyer from time to time and which are the subject of an Order.
1.11 Implied Terms means any guarantees, conditions, warranties, or other terms implied by any Australian Commonwealth, State or Territory laws (excluding the Australian Consumer Law), or the laws of any other jurisdiction.
1.12 SAN LUEUR means Meraki Capital Pty Ltd and ABN 67 642 299 367.
1.13 Order means any order for the supply of Products from SAN LUEUR to the Buyer from time to time in a form acceptable to SAN LUEUR.
1.14 PPSA means the Personal Property Securities Act 2009.
2.1 These Conditions apply to all Product supplied by SAN LUEUR as from the Effective Date and the Buyer is deemed to have read and agreed to these Conditions prior to the placing of any Order.
2.2 These Conditions shall prevail over all inconsistencies in an Order and Quotation, unless SAN LUEUR expressly agrees otherwise and that agreement is acknowledged in writing.
2.3 SAN LUEUR reserves the right to vary, add, or substitute to these Conditions from time to time and any such variations to these Conditions will have effect from the date of publication of such changes to SAN LUEUR’s customers.
3. NON-CONFORMING SUPPLY
3.1 SAN LUEUR will endeavour to ensure that the Product conforms with the descriptions contained in relevant catalogues, drawings, literature, and advertising materials.
3.2 SAN LUEUR reserves the right to supply Product which do not conform with descriptions referred to in clause 3.1 or the Buyer’s order for the Product provided that such non-conformity is not material.
3.3 The Buyer waives any claim for failure to supply Product conforming with the Order if a claim for failure to supply Product conforming with the Order has not been lodged with SAN LUEUR within 7 days from the date of delivery of Product by the Buyer. Any claim must be submitted in writing in a form approved by SAN LUEUR.
4.1 The delivery times made known to the Buyer are estimates only and SAN LUEUR is not liable for late delivery or non-delivery.
4.2 The Buyer may cancel an order for Product purchased if SAN LUEUR is unable to deliver the Product within 14 days of any specified delivery date.
4.3 Except where clause 4.2 applies:
4.3.1 SAN LUEUR is not liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of Product;
4.3.2 Late delivery or non-delivery does not vary these Conditions or relieve the Buyer from its obligations to accept and pay for Product.
4.6 Delivery of Product will be taken to have occurred when either the Product is:
4.6.1 Collected by the Buyer or the Buyer’s agent; or
4.6.2 Delivered at the Buyer’s nominated place of delivery.
4.7 Product is at the risk of the Buyer after delivery.
5. AUSTRALIAN CONSUMER LAW
5.1 Where the Buyer purchases Product as a Consumer:
5.1.1 The Product is supplied subject to the Consumer Guarantees;
5.1.2 If the Product fails to meet any Consumer Guarantee, the Buyer will be entitled to such rights and remedies as are permitted or provided in the Australian Consumer Law for such failure, to the extent that such rights and remedies cannot be lawfully excluded;
5.1.3 The Buyer may only exercise any right or remedy for breach of a Consumer Guarantee strictly in accordance with the rights and responsibilities of the Buyer under the Australian Consumer Law;
5.1.4 Where Product is not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, unless SAN LUEUR is the manufacturer of the Product under the Australian Consumer Law, SAN LUEUR’s liability for breach of a Consumer Guarantee subject to the Australian Consumer Law, is limited at SAN LUEUR’s option to repairing or replacing the Product, supplying equivalent goods or paying the costs of the repair or replacement of the Product or of acquiring equivalent goods.
5.2 Where the Buyer resupplies Product to a Consumer and the Product is not ordinarily acquired for personal, domestic, or household use or consumption, SAN LUEUR’s liability to the Buyer in connection with any breach of a Consumer Guarantee in respect of the Product is subject to the Australian Consumer Law, is limited to paying to the Buyer an amount equal to the cost of replacing the Product, supplying equivalent product, or having the Product repaired, whichever is the lower amount.
6. GENERAL LIMITATION ON LIABILITY
6.1 This clause 6 does not limit the liability of SAN LUEUR under the Australian Consumer Law.
6.2 SAN LUEUR shall not be liable for any guarantee, warranty, or representation as to the quality, performance, and fitness for purpose or otherwise of any Product unless expressed in writing and any such warranty or representation shall be limited to its express terms.
6.3 None of the Implied Terms apply to any Contract except to the extent that they cannot be lawfully excluded.
6.4 SAN LUEUR’s liability for breach of any provision of any such Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any such Contract is limited at the option of SAN LUEUR to repairing or re-supplying Product which have been found defective, or, paying the cost of repairing or re-supplying Product which have been found defective.
6.5 SAN LUEUR is not liable in tort for any loss or damages suffered by the Buyer or by any third party.
6.6 In no circumstance whatsoever shall SAN LUEUR be liable to the Buyer or to any third party for any Consequential Loss arising out of the late delivery of Product or any failure to perform or observe SAN LUEUR’s obligations under any Contract or Implied Terms and the Buyer will keep SAN LUEUR fully indemnified against any claim made against SAN LUEUR by a third party for Consequential Loss.
7. PRICES AND GST
7.1 Unless otherwise stated all prices quoted by SAN LUEUR are net, exclusive of Goods and Services Tax (GST).
7.2 GST applied to all supplies of Product made by SAN LUEUR and the amount payable by the Buyer will be increased by a percentage equal to the prevailing GST rate at the time of delivery of the Product.
9.1 All amounts payable to SAN LUEUR by the Buyer must be paid in Australian dollars in any manner required by SAN LUEUR in writing and in full without set-off on or before the due date for payment.
9.2 Any costs or charges incurred by SAN LUEUR in collecting or attempting to collect overdue amounts must be paid by the Buyer to SAN LUEUR on demand.
9.3 SAN LUEUR reserves the right to charge interest at the rate of 12% per annum on all overdue amounts owing to it. Such interest will accrue daily and is payable on demand.
10. ADMINISTRATION FEE
SAN LUEUR reserves the right to charge the Buyer a reasonable administration fee for issuing duplicate invoices, statements, or other documents requested by the Buyer.
11. TITLE TO PRODUCT
11.1 Subject to the law, title to and property in the Product will not pass until the Buyer has paid all moneys owed to SAN LUEUR on any account whatsoever.
11.2 Until the Buyer has paid all moneys owed to SAN LUEUR:
11.2.1 The Buyer must indemnify SAN LUEUR against any loss, theft or damage to the Product arising after delivery to the Buyer;
11.2.2 SAN LUEUR retains a purchase money security interest in the Product and the proceeds of the sale of the Product under the PPSA;
11.2.3 The relationship of the Buyer to SAN LUEUR is as a fiduciary in respect of the Product and accordingly:
(i) The Buyer must store the Product in such a way that can be recognised as the property of SAN LUEUR;
(ii) Upon any resale of the Product by the Buyer SAN LUEUR will have the right to trace the full proceeds of sale; and
(iii) The Buyer must account to SAN LUEUR for such proceeds of sale and SAN LUEUR may recover from such proceeds of sale any moneys then owing to SAN LUEUR on any account whatsoever;
11.2.4 Subject to the law, SAN LUEUR reserves the right to enter upon any premises for the purpose of repossessing the Product without prejudice to any other rights of recovery available and the Buyer grants SAN LUEUR a licence to enter such premises for the purpose of exercising such right.
11.3 The Buyer must do all things reasonably required by SAN LUEUR in respect of the registration of SAN LUEUR’s interest in the Product under this clause or the enforcement of SAN LUEUR’s rights under the PPSA in respect of the Product.
11.4 To the extent permitted under the PPSA, the Buyer waives any right the Buyer has to:
11.4.1 Receive notices and statements from SAN LUEUR under the PPSA;
11.4.2 Claim damages against SAN LUEUR under Section 271 of the PPSA;
11.4.3 Redeem the Product under Section 142 of the PPSA; and
11.4.4 Reinstate SAN LUEUR’s security interest in the Product under Section 143 of the PPSA.
11.5 To the extent permitted under the PPSA:
11.5.1 The enforcement of SAN LUEUR’s security interest in the Product shall be governed by the Contract; and
11.5.2 SAN LUEUR and the Buyer contract out of the provisions of the PPSA in respect of the enforcement of such security interest.
12.1 SAN LUEUR reserves the right to charge the Buyer for any costs incurred as a result of the Buyer varying its Order or the Contract, correcting any errors or omissions referred to in clause 12.2, or requiring Product urgently.
12.2 SAN LUEUR will supply the Product on the basis of the Order (whether written or oral). SAN LUEUR will not be responsible for any errors or omissions in relation to the Product where those errors or omissions result wholly or partially from incomplete or unclear instructions in the Order.
13. RETURNED PRODUCT
13.1 SAN LUEUR is not under any duty to accept Product returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.
13.2 Nothing in clause 13.1 affects the Buyer’s rights under the Australian Consumer Law or in respect of any breach of Implied Terms.
14.1 SAN LUEUR may cancel any Contract any time before Product is delivered by giving written notice to the Buyer. On giving such notice, SAN LUEUR will repay to the Buyer any sums paid in respect of the Product. SAN LUEUR will not have any other liability in respect of such cancellation.
14.2 Subject to clause 4.2, the Buyer may not cancel a Contract at any time except with SAN LUEUR’s prior written consent.
14.3 In the event that the Buyer cancels a Contract otherwise than under clause 4.2:
14.3.1 SAN LUEUR may retain any deposit or other sums paid on account of the Product; and
14.3.2 if payment is not already made in full, the Buyer will be responsible for any losses incurred by SAN LUEUR in respect of such cancellation (including loss of profits, loss of anticipated savings, economic loss, or interruption of business loss or other incidental, consequential, or indirect damages).
14.4 In the event the Buyer cancels a Contract under clause 4.2, SAN LUEUR will repay to the Buyer any sums paid in respect of the Product. SAN LUEUR will not have any other liability in respect of such cancellation.
15. SUSPENSION OR TERMINATION BY SAN LUEUR
15.1 If the Buyer makes a default in any payment due to SAN LUEUR for any Product supplied by SAN LUEUR or commits any act of bankruptcy or enters liquidation whether voluntary or involuntary, SAN LUEUR may in its absolute discretion, suspend the supply of any Product to the Buyer or cancel any Contract with the Buyer, without prejudice to its rights hereunder.
15.2 Any default by the Buyer or cancellation, suspension or termination by SAN LUEUR shall in no way prejudice any rights of SAN LUEUR against the Buyer whatsoever, including any right to recover any amounts due for Product, or Product previously supplied by SAN LUEUR to the Buyer.
16. PLACE OF CONTRACT
16.1 This Contract is made in Australia.
16.2 The Buyer and Company agree that unless otherwise stipulated by SAN LUEUR all disputes arising between them shall be submitted to the courts of the State of New South Wales and any court competent to hear appeals from those courts of first instance.
17.1 A Contract may be altered in writing and signed by each party.
17.2 Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under a Contract.
17.3 A party must not assign or otherwise deal with a Contract or any right under it without the written consent of the other party.
17.4 A Contract constitutes the entire agreement between the parties about its subject matter and supersedes any prior understanding, agreement, condition, warranty, indemnity, or representation about its subject matter.
17.5 A waiver of a provision of or right under a Contract must be in writing and signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
17.6 The failure, delay, relaxation, or indulgence by a party in exercising a power or right under a Contract is not a waiver of that power or right.
17.7 An exercise of a power or right under a Contract does not preclude a further exercise of it or the exercise of another right or power.
17.8 Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of a Contract, remains in force after the expiration or termination of the Contract.
In these Conditions, unless the context otherwise requires:
18.1 headings do not affect interpretation;
18.2 singular includes plural and plural includes singular;
18.3 a reference to a party includes its executors, administrators, successors and permitted assigns;
18.4 a reference to a person includes a partnership, corporation, association, government body and any other entity;
18.5 an agreement, representation, warranty, or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
18.6 an agreement, representation, warranty, or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
18.7 a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
18.8 a provision is not construed against a party only because that party drafted it;
18.9 an unenforceable provision or part of a provision may be severed, and the remainder of these Conditions continues in force, unless this would materially change the intended effect of these Conditions;
18.10 the meaning of general words is not limited by specific examples introduced by ‘including’, 'for example' or similar expressions.
19. GIFT CARDS
19.1 Gift cards are valid for 3 years from the date of purchase.
19.2 Gift cards cannot be exchanged, are non-refundable and non-transferable.
19.3 Gift cards cannot be redeemed for cash or any other product.
19.4 Gift card purchases are subject to SAN LUEUR's general Terms and Conditions of Sale and applicable policies.
19.5 Gift cards can be used for multiple orders as long as there is outstanding credit remaining on the card it can be used as many times as you like.