Terms of Service

Welcome to https://www.elmonteapparel.com.au (“the Website”). The Website provides you with an opportunity to browse and purchase products that have been listed for sale on the Website (“the Products”). The Website provides a service by granting you access to the content on the Website (“the Services”). These Products and the Website Services are available in Australia only.

Please read these Terms and Conditions carefully before using the Website to browse and/or make a purchase. Any use of the website will be subject to these terms and conditions. 

Access to and use of the Website, or any of its associated Products or Services, is provided by ow Bout Them ABN 31 987 143 066 or its authorised representatives. By 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 cease viewing, browsing and using the Website, or any of its Services, immediately.   

How Bout Them ABN 31 987 143 066 reserves the right to review and change any of the Terms by updating this page at its sole discretion. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Website following the posting of any changes constitutes acceptance of those changes.

In order to access the Services or continue to use the Services, you may be required to provide personal information about yourself (such as identification or contact details), including name, telephone number, proof of age, mailing/delivery/billing/email address.

Capacity and age: By placing an Order through the Services, you warrant that you are legally capable of entering into binding contracts and you are over the age of 18 years old.

You warrant that any information you give to us in the course of using the Services will always be accurate, correct and up to date. 

You may not use the Services and may not accept the Terms if you are not of legal age to form a binding contract with us or you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are a resident or from which you use the Services.

As a User, you agree to comply with the following:

• you will use the Services only for purposes that are permitted by the Terms and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
• you will use the Products only for purposes in which they were intended;
• 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 us providing the Services; and
• you acknowledge and agree that any automated use of the Website or its Services is prohibited.

You understand that we cannot and do not guarantee or warrant that files available for downloading through the Website will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Website for the reconstruction of any lost data.

In using the Services for the purchase of Product(s), you agree to the payment of the purchase price listed on the Website for the Product(s) (the 'Purchase Price') and any Delivery Fees. You should refer to the Delivery section when accessing the Services for the applicable Delivery Fee. Purchase Prices displayed on the Website are in Australian dollars (AUD) and include GST where applicable. Purchase Prices are subject to change. Images of Products shown without any advertised price beside that image are not offered for sale. Unless otherwise stated, any accessories shown in any image of Products are not included in the Purchase Price. We reserve the right to correct any errors published on the Website.

All payments of the Purchase Price must be in Australian Dollars (AUD) and must have cleared before an order can be processed. Payment of the Purchase Price may be made with payment gateway providers including Mastercard, AfterPay, Visa credit cards or PayPal account via the PayPal website payments (the 'Payment Gateway Provider'). In using the Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Provider, including the Terms and Conditions of Use and Privacy Policies of the Payment Gateway Provider. The name on the credit card used for payment of the Purchase Price must match the name on the personal information provided on the Website Services.

In using the Purchase Services, you agree to provide complete and accurate information as to your personal information (or those of your nominated recipient for gifts) to enable the processing and delivery of your Product(s).

We reserve the right to accept or reject your purchase of Product(s) for any reason at any time. Without limitation, some of our Products may not be available. In the event that we reject your purchase of Product(s) we will notify you of that rejection and the reason for rejection via email within ten (10) Business Days. We will not be liable to you for your loss or that of any third party for the rejection of your purchase of Product(s) via our Services.  Where we reject your purchase of Product(s) via our Services and your payment for the Product(s) has already been processed, we will refund any money paid to us in respect of the Purchase Price and make reasonable endeavours to process the refund within ten (10) Business Days. The receipt evidencing your refund will depend on the period of time it takes your financial institution to finalise the refund. We are not liable with respect to any loss, damage, cost, expense or injury you or any third party may or may not incur as a result of any delay in processing your refund. If we are unable to contact you in relation to your purchase of Product(s) using the contact details you provide via the Services after having made reasonable attempts to contact you, we will reject your purchase of Product(s) in accordance with this clause.

Our liability obligations for the Product(s) you purchase via the Services are limited to the terms set forth herein. In no event will we be liable for:

• any incidental, consequential, or indirect damages (including, but not limited to, damages for loss of profits, business interruption, loss of programs or information, and the like) arising out of the use of or inability to use the Products or Services, or any information, or transactions provided on the Products or Services, or downloaded from the Services, or any delay in the delivery of any Product purchased even if we have been advised of the possibility of such loss or damage; or
• any claim attributable to errors, omissions, or other inaccuracies in the Product, Services and/or materials or information downloaded through the Services.

You will be entirely responsible for arranging any public liability insurance required for the use of the Products. We or our authorised representatives will not be liable to you or any third party for any claim that has or may arise as a consequence of any use of the Products whatsoever.

As some states do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to you. In such states, we or our authorised representative’s liability is limited to the greatest extent permitted by law. 

We make no representations whatsoever about any other website which you may access through the Website or which may link to the Website. When you access a website that is not our Website, please understand that it is independent from our Website, and that our Website has no control over the content on that website. In addition, a link to an AJ Lawson website does not mean that we endorse or accept any responsibility for the content, or the use of such website.  

The Website, Products and Services and all of the related products of ours are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site 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 us or our contributors.

We retain all rights, title and interest in and to the Website and all related content. Nothing you do on or in relation to the Website will transfer to you:

• the business name, trading name, domain name, trademark, industrial design, patent, registered design or copyright of ours or our authorised representative;
• the right to use or exploit a business name, trading name, domain name, trademark or industrial design;
• 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).

You may not, without our prior written permission and the permission of any other relevant rights owners, broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the content of our Products or Services or third party content 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.

You agree to grant to us a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public areas of the Website (such as bulletin boards, forums and newsgroups) or by e-mail to us by all means and in any media now known or hereafter developed. You also grant to us the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your communications to us.

We take your privacy seriously and any information provided through your use of the Website is subject to our Privacy Policy. By using the Website, you are agreeing to the Privacy Policy. You can view our Privacy Policy and read more about why we collect personal information from you and how we use that information via the Website.

We will make every effort to ensure a Product or Service is accurately depicted on the Website, however, you acknowledge that sizes, colors and packaging may differ from what is displayed on the Website.

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.

Subject to this clause, and to the extent permitted by law, we or our authorised representatives 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 Services, Products or these Terms (including as a result of not being able to use the Services or the late supply of the Services or Products), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

Use of the Website, the Services, and any of the Products is at your own risk. Everything on the Website, the Services, and the Products, 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 ours (including any third party where the Products are made available to you) make any express or implied representation or warranty about its content or any Products or Services referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of:

• 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;
• the accuracy, suitability or currency of any information on the Website, Products, Services, or any of their content (including third party material and advertisements on the Website);
• costs incurred as a result of you using the Website, the Services or any of the Products;
• the content or operation in respect to links which are provided for your convenience;
• any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
• any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.

Our total liability arising out of or in connection with the Products or Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase Price, then our total liability is the resupply of information, Products or Services to you.

You expressly understand and agree that we or our 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.

We are not responsible or liable in any manner for any site content (including any third party content) posted on the Website or in connection with the Services, whether posted or caused by users of the Website, by third parties or by any of the Services offered by us.

You acknowledge that we do not always provide the Services to you and you agree that in the event that we do not provide them, we 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 Services.

The Terms will continue to apply until terminated by either you or by us as set out herein. This Agreement may be terminated by either party without notice at any time for any reason. Subject to local applicable laws, we reserve the right to suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts our name or reputation or violates the rights of those of another party. When the Terms come to an end, all of the legal rights, obligations and liabilities that you and us 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 agree to indemnify us and our affiliates, employees, agents, contributors, third party content providers and licensors from and against:

• 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 with any content you post through the Website;
• 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
• any breach of the Terms.

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 process has been complied with (except where urgent interlocutory relief is sought). 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:

• Within 14 days of the Notice endeavor in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
• If for any reason whatsoever, 30 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;
• 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;
• The mediation will be held in Victoria, Australia.

All communications concerning negotiations made by the Parties arising out of and in connection with the Dispute are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.

Our failure to insist upon or enforce strict performance of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the Parties nor trade practice shall act to modify any provision of these Terms. We may assign our rights and duties under these Terms to any party at any time without notice to you. Any rights not expressly granted herein are reserved.

The Services offered by us or our authorised representatives is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Victoria, Australia.

To protect against the risk of liability, we may request, and you agree to authorise the request, that PayPal restrict access to funds in your PayPal account based on certain factors, including, but not limited to, purchase history, performance, returns, or the filing of a case. This may result in PayPal determining to restrict funds in your PayPal account in order to manage PayPal's risk exposure pursuant to PayPal policies.

The Terms are governed by the laws of Victoria, 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 hereunder shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, 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.

If you are a Northern Territory resident or ordering this for delivery to the Northern Territory the listing of a Product on our site does not constitute an offer to sell that Product to you. Prior to any offer or acceptance, additional price checks will be completed and the price of the Product may increase to ensure compliance with the Northern Territory Minimum Unit Price Legislation. This may change the final price calculation for your order.

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.

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.

If you have any questions about these Terms and Conditions of Use please contact us at info@elmonteapparel.com.