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Terms & Conditions
Acceptance of terms (a) These Terms, as amended or replaced from time to time, apply to any Goods supplied or to be supplied by The Index LCP Pty Ltd ACN 653 960 608 (We, us) to you.
(b) By accessing our Website or placing an Order with us, you agree to comply with and be bound by these Terms.
(c) We reserve the right to amend these Terms at any time at our sole discretion. Any subsequent Order by you constitutes your acceptance of the changes.
Orders (a) Any price on our Website or displayed in our Store is an invitation to treat, not a contractual offer.
(b) By placing an order for Goods on our Website or at our Store, you make an offer to purchase the Goods for the price specified. We may in our sole and complete discretion, accept or reject any offer made by you for any reason.
(c) Each accepted Order incorporates these Terms, our Shipping & Returns Policy and our Privacy Policy.
(d) Any additional terms contained in any document (including hand amendments) provided by you to us will not form part of the Order unless agreed by us in writing.
(e) All pictures, descriptions and/or specifications contained on the Website, in catalogues or brochures, or any other media are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. Unless expressly agreed in writing by us, they will not form part of the Order.
Supply of Goods 3.1 Goods We will supply the Goods to you subject to these Terms.
3.2 Proof of Age (a) We may require you to provide satisfactory proof (in the form of an Australian Drivers Licence or other equivalent government-issued card) that you are at least 18 years of age before we supply any Goods to you.
(b) You agree that you will use the Goods strictly in accordance with any relevant tobacco laws. Without limitation, you agree that you will not provide any Goods to individuals who are under 18 years of age.
3.3 Instructions You must: (a) give us clear instructions in relation to the Goods and respond to any questions we may have; and
(b) respond in a timely manner if we bring an issue to your attention that affects the Goods.
3.4 Suitability To the extent permitted by law, we make no representation or warranty as to the suitability of the Goods for your purposes. It is your responsibility to satisfy itself as to such suitability.
3.5 Cancellation of Orders (a) An Order may only be cancelled in accordance with these Terms.
(b) If an Order for Goods is cancelled before the Goods are dispatched, we reserve the right, at our absolute discretion, to charge you a restocking fee 20% of Order value. We may apply any Deposit before refunding the remainder (if any) to you.
(c) Orders may not be cancelled after we dispatch the Goods to you. Once delivered, our Shipping & Returns Policy shall apply.
Delivery and Risk 4.1 What will be delivered and when (a) We will endeavour to supply the Goods to you as soon as possible, subject to our Shipping & Returns Policy.
(b) Goods will be deemed to be delivered when the Goods arrive at the delivery address specified in the Order. You are not entitled to reject delivery of any Goods on the basis of any minor deviation from description or quantity.
(c) We reserve the right to deliver Goods in multiple instalments.
(d) Risk in Goods passes to you upon delivery.
4.2 Delays in Delivery (a) Any delivery times made known to you are estimates only.
(b) We will notify you at the earliest practicable date if we believe that the delivery of Goods will be delayed. We will notify you of the new anticipated delivery date.
4.3 Delay or prevention of Delivery If we or our delivery provider are unable to deliver Goods to you because of your act or omission: (a) the risk in the Goods will pass to you;
(b) the Goods will be deemed to have been delivered; and
(c) we may store the Goods until actual delivery is possible and you will be liable for any Claim related to our storage of the Goods, including but not limited to the costs of redelivery, storage fees incurred and insurance.
4.4 Collection Where you collect an Order in person, delivery of the Goods will be deemed to have taken place at the time of collection.
4.5 Delivery Costs You are responsible for the costs of delivery as specified in our Shipping & Returns Policy. Unless otherwise specified, the price of any Goods is exclusive of delivery.
Payment 5.1 Invoices and Time for Payment (a) We will invoice you and you must pay the amount due on the invoice in accordance with the Payment Terms as set out in an Order.
(b) Without limitation, the Payment Terms may require you to pay for Goods: (i) in full before delivery; (ii) in instalments; or (iii) with an initial Deposit and the remainder within a specified time after delivery.
(c) If you are required to make payment in instalments, and such instalments are not received by us by their due date, we reserve the right to: (i) halt any further delivery of Goods until such time as the outstanding payment is made; and (ii) claim reimbursement from you for our reasonable costs incurred as a result of the delay.
(d) If you are required to make payment in full or to pay a Deposit, we are under no obligation to supply any Goods until the relevant amount is paid to us.
(e) Payment must be made in a manner approved by us. Where payment is made by credit card, we may charge a credit card surcharge of up to 3% of the total price of the Goods.
5.2 Usual Payment Terms For all standard Orders and unless otherwise stipulated in writing, we require payment in full before delivery.
5.3 Failure to Pay If you fail to pay us any amount under these Terms by the due date for payment, we may (without limiting our other rights) immediately do any or all of the following, without any liability, until all overdue fees are paid: (a) charge you interest on the overdue amount at a rate of interest per annum equal to 2% above the standard contract default rate published by the Queensland Law Society from time to time, calculated on a daily basis;
(b) withhold further performance of any obligations under any Order or other agreement between until the overdue amount and interest has been paid in full;
(c) terminate these Terms without any obligation to refund you any money in respect of the cancellation, even if the contractual term of these Terms has not expired;
(d) initiate proceedings against you to recover the overdue amount (despite any dispute resolution clause in these Terms); and
(e) recover all costs to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.
5.4 GST (a) In this clause 5.4, adjustment note, GST, tax invoice and taxable supply have the meaning given to them in the GST Law.
(b) For each taxable supply under or in connection with any Order: (i) we will be entitled to charge you for any GST payable by us in respect of the taxable supply; (ii) you must pay us the amount of the GST at the same time as the relevant charge applicable to the supply becomes payable under the Order; and (iii) we must provide a valid tax invoice or adjustment note to you in respect of the taxable supply.
(c) The price of all Goods is exclusive of GST unless expressly stated to be inclusive of GST.
5.5 Duties You are responsible for paying all government charges, or duties of any kind incurred in or in connection with our supply of Goods. Such charges include without limitation all stamp duties, financial institution duties, and any other charges or duties of a like kind.
5.6 Set-off rights (a) Where we have demanded payment of any amount overdue in accordance with clause 5.3, may apply any payment paid by you against our costs and disbursements in recovering the amount due, any interest accrued, or the amount overdue.
(b) We may at any time set off any amount you owe to us against any amount we may owe to you.
Warranties and Liability 6.1 Manufacturer’s Warranty Where we supply Goods that are subject to a warranty from the manufacturer (Manufacturer’s Warranty), we warrant to you that the Goods will be free from defects in materials and workmanship on the same terms and conditions including the period of warranty as provided in the Manufacturer’s Warranty.
6.2 Exclusions and Limitations (a) If you are a consumer within the meaning of the Consumer Law, there are certain rights such as the consumer guarantees implied by the Consumer Law, which cannot by law be excluded (Non-Excludable Condition). This clause is subject to those Non-Excludable Conditions.
(b) Subject to clause 6.1 and any Non-Excludable Conditions, and to the maximum extent permitted by law, we: (i) exclude from these Terms all guarantees, conditions and warranties that might but for this clause be implied into these Terms; (ii) exclude all liability to you for any Claim suffered or incurred directly or indirectly by you in connection with these Terms, whether that liability arises under common law, equity or under statute; and (iii) will not, under any circumstances, be liable to you for any Consequential Loss.
(c) Without limiting subclause 6(b)(i) and subject to any Non-Excludable Condition, we shall not be liable for minor variations in quality, taste, colour, shade, or texture of the Goods due to the natural characteristics of the materials used and/or manufacturing processes.
(d) If our liability under these Terms cannot be lawfully excluded, to the maximum extent permitted by law, our liability for breach of any Non-Excludable Condition is limited to (at our option) the replacement of the Goods or the supply of equivalent goods, payment of the cost of replacing the Goods or of acquiring equivalent Goods.
Indemnity 7.1 Customer’s indemnity To the extent permitted by law, you release and indemnify us and our Representatives against all liability arising from Claims for: (a) any personal injury, death, or damage to property arising directly or indirectly out of the use of the Goods by you or any third party;
(b) you breaching these Terms or any law;
(c) any negligent or unlawful act or omission by you or your Representatives in connection with the Goods;
(d) our reliance on an incorrect, incomplete, or misleading representation you make; and/or
(e) us being required under Privacy Law to correct any data, respond to any complaint, or address any other matter raised by a person.
7.2 Conditions of indemnity (a) We may make a claim under indemnities in these Terms in relation to a cost before having incurred the cost, or before making a payment in relation to the cost.
(b) The indemnities in these Terms shall be in addition to any damages for breach of contract to which we may be entitled.
(c) Each indemnity in these Terms is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of these Terms for whatever reason.
Intellectual Property (a) Unless otherwise agreed, each party retains ownership of all Intellectual Property rights in material owned or created by that party independently of these Terms. None of that Intellectual Property is assigned or transferred by way of these Terms.
(b) You agree that all Intellectual Property rights in the Goods, any Order, our Website, and any other material, designs methods or content developed by us under these Terms, including modifications, improvements and enhancements, will vest in and are owned by us upon creation, even if based on your request or feedback.
Default & Termination 9.1 When Customer is in Default You will be in default if you: (a) fail to pay any amount to us by its due date; (b) provide us with information which you know or have reasonable grounds to suspect is false, incomplete or misleading; (c) are subject to an Insolvency Event; or (d) breach any provision of these Terms and fail to remedy that breach within 10 Business Days.
9.2 Rights of We if Customer is in Default If you are in default, then subject to any law (including requirements as to notice), we may, without limiting its other rights: (a) demand immediate payment of all money you owe us, whether due for payment or not; (b) withhold further performance of any obligations under any Order or other agreement between the parties; and (c) immediately cancel any Order in effect with you without any obligation to refund you any money in respect of the cancellation.
9.3 Termination We may terminate these Terms or any Order immediately by written notice to you if you: (a) are in material breach of these Terms; or (b) are in default for more than 10 Business Days.
9.4 Termination does not affect obligation to pay Termination of these Terms or any Order shall not affect your obligation to pay any outstanding amounts or other amounts in relation to Goods.
Unforeseen Events We shall not be liable for any Claim relating to a delay in delivery of any Goods, or failure to comply with any of our other obligations under any Order, as a result of a pandemic or epidemic, fire, flood, tempest, earthquake, act of God, riot, civil disturbance, terrorism, theft, crime, strike, lockout, breakdown, war, government restriction, the inability of a supplier to provide us with necessary products or materials, or any other matter beyond our reasonable control.
Sub-contractors We may use subcontractors to deliver the Goods. To the extent permitted by law, you agree to continually indemnify and hold harmless us and our Representatives from any Claim caused by any subcontractor.
Confidentiality (a) A party must not, unless otherwise authorised by these Terms or the prior written approval of the other party, disclose the other party's Confidential Information.
(b) A party will not be in breach of this confidentiality clause in circumstances where it is legally compelled to disclose the other party's Confidential Information.
(c) Each party will take all reasonable steps to ensure that they and their Representatives do not make public or disclose the other party's Confidential Information.
(d) Notwithstanding any other provision of this clause, a party may disclose Confidential Information to their solicitors, auditors, insurers and accountants.
Privacy (a) You hereby authorise us to collect, retain, record, use and disclose commercial and consumer information about you, in accordance with Privacy Law, to persons and/or legal entities, including a solicitor or any other professional consultant engaged by us, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
(b) We may give information about you to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on your credit file. This information may be given before, during or after the provision of credit to you and will be in accordance with Privacy Law.
General 14.1 Communications (a) Communications must be in writing, and may be sent by mail, hand delivery or by email.
(b) Notices must be sent to the addresses of the parties specified in the Order, or as otherwise notified to the other party in writing.
(c) A communication by email will be taken to have been received by the addressee at the earlier of the time stated in a read receipt sent by the recipient’s computer or when the message has been delivered to the email address of the addressee.
(d) A communication that is received after 5pm on a Business Day, or on a non-Business Day, shall be deemed to be received at 9am on the next Business Day.
(e) For the purposes of the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions (Queensland) Act 2001 (Qld), the parties agree to send, receive and execute notices and documents electronically, and agree that any document signed electronically will be binding with the same effect as a physical signature.
14.2 Inconsistency with other documents If these Terms are inconsistent with any other document between the parties, these Terms prevail to the extent of the inconsistency.
14.3 Reliance Neither party has entered into any agreement in reliance on or because of any representation, promise, statement, conduct or inducement by the other otherwise than as set out in these Terms.
14.4 Severability Any clause of these Terms, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms.
14.5 No waiver except in writing No part of these Terms will be deemed waived and no breach excused unless such waiver or consent is provided expressly and in writing.
14.6 Governing law The laws of the State of Queensland, Australia govern these Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction in Queensland.
14.7 Amendment These Terms may only be amended in writing by us.
14.8 Assignment (a) You cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms or any Order without the prior written consent of us.
(b) We may assign or transfer any of our rights or obligations under any contract arising from these Terms or any Order to a third party without notice to, or the prior consent of you, but if we require, you will sign any documents to give effect to such assignment.
Definitions & Interpretation 15.1 Definitions The following definitions apply in these Terms: Business Day means a day which is not a Saturday, Sunday or public holiday in the State of Queensland, Australia.
Claim means a claim, demand, remedy, injury, damage, loss, cost, liability, action, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against a person, however arising and whether ascertained or unascertained immediate, future or contingent, or subject of a dispute, litigation or analogous proceeding.
Confidential Information means information that is by its nature confidential, including information related to a party’s internal business operations, customers, or Intellectual Property Rights. It does not include information already rightfully known to the receiving party at the time of disclosure by the other party, or in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under these Terms.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of Goods, loss of opportunity or expectation loss, and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Corporations Act means the Corporations Act 2001 (Cth).
Deposit means any part of the purchase price which we require you to pay in advance.
Goods mean any goods supplied by us to you pursuant to an Order, and where applicable includes services.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means an event that occurs when a party: (a) is insolvent under the definition in the Corporations Act, or is in liquidation or provisional liquidation, under administration or external control, or becomes bankrupt or is affected by any analogous event; (b) fails to comply with a statutory demand; or (c) ceases, suspends or threatens to cease or suspend a material part of its business.
Intellectual Property Rights means all intellectual property rights, including copyright, inventions, patents (including patent applications), trade marks (whether registered or not), designs (whether registrable or not), eligible circuit layout rights, domain names, licences, know-how, trade secrets, and includes the right to register any intellectual property rights.
Liability means any liability (whether actual or prospective), loss, damage, cost or expense of any description, including legal fees on a solicitor and own client basis.
Order means a contract between you and us for the provision of Goods, incorporating these Terms, our Shipping & Returns Policy, and our Privacy Policy.
Payment Terms means the terms and conditions in relation to the amount payable in respect of an Order provided by us to you, including all costs, charges and expenses reasonably and properly incurred by us.
Privacy Law means the Privacy Act 1988 (Cth) and any other law that governs the use, disclosure or management of data or information relating to persons.
Privacy Policy means our privacy policy, located at privacy policy.
Related Body Corporate has the meaning given by the Corporations Act. Representative includes an employee, agent, officer, director, auditor, advisor, researcher, partner, consultant, contractor, sub-contractor, Related Body Corporate, or other related entity of a person.
Shipping & Returns Policy means our shipping and returns policy, located at shipping & returns.
Store means our store located at Shop 1, 57-59 Rosemount Terrace, Windsor QLD 4030.
Terms means these terms and conditions.
Website means our website www.theindex.com.au or any other website we operate.
We, us means The Index LCP Pty Ltd ACN 653 960 608.
You means the person or entity who purchases the Goods pursuant to an Order.
15.2 Interpretation Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise: (a) the singular includes the plural and the opposite also applies;
(b) a reference to one gender includes all other genders and no gender;
(c) if a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning;
(d) mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included;
(e) a reference to a party, clause, schedule, attachment or annexure is a reference to a party, clause, schedule, attachment or annexure to or of these Terms and a reference to these Terms includes all schedules, attachments and annexures to it;
(f) a reference to a document is to that document as varied, novated, ratified or replaced from time to time;
(g) a reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(h) a reference to a party to these Terms or another agreement or document includes that party’s successors, administrators and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives, or a substituted or an additional trustee);
(i) if more than one person is identified as a Customer, that expression refers to them and binds them, jointly and severally; and an obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally;
(j) a reference to a person, individual, the estate of an individual, authority, association, joint venture (whether incorporated or unincorporated), corporation, trust, partnership, unincorporated body or other entity includes any of them;
(k) a reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets; and
(l) a reference to dollars or $ is to an amount in Australian currency.
