1. Welcome to our Website
We set out below the terms and conditions of your use of, and access to, our Products. Please read these terms and conditions carefully, as they impose rules, obligations and other responsibilities on you in respect of your use of the Products.
1.1 Parties to this Agreement
This Agreement is a contract between you (‘you’ or ‘your’) and Erik Sawaya ABN 93459952619 (‘Erik Sawaya’, ‘we’, ‘us’, ‘our’). It sets out the terms and conditions that apply to your use of our Products. You agree that your acceptance of these terms and conditions, and ongoing use of our Products, shall constitute your acceptance of this Agreement.
If you do not want to be bound by this Agreement, you must not make a purchase using Erik Sawaya Products.
1.2 Changes to this Agreement
(a) Erik Sawaya may amend this Agreement at any time for any reason including, for example, if we change the functionality of our Products, introduce new products, or as required by law. We will post the amended Agreement on our Website. Please read this Agreement carefully each time you agree to its terms when placing an Order. If you do not agree with the changes, do not place any further Orders using the Erik Sawaya Products.
(b) We will not change any terms and conditions for an existing Order that has been accepted by us; the terms and conditions that will apply to an accepted Order are the terms and conditions that applied at the time you made the Order.
2.2 Your Consumer Rights
As a consumer, you have certain rights under consumer protection legislation (Consumer Rights). These Consumer Rights include:
(i) statutory guarantees under the Australian Consumer Law that goods will be of acceptable quality, match their description and be fit for any purpose made known to the supplier, and that services supplied will be provided with due care and skill and be reasonably fit for any specified purpose. When a statutory guarantee is breached, consumers are entitled to a range of remedies including, in some cases, damages for reasonably foreseeable losses; and
(ii) non-excludable implied warranties that financial services will be provided with due care and skill and that the services and any materials supplied in connection with them will be fit for any specified purpose.
Nothing in this Agreement is intended to exclude, restrict or modify any of your Consumer Rights, including by limiting our liability or imposing liability on you in a manner which would be considered unfair under the relevant consumer protection laws.
2.3 Your eligibility
(a) To be eligible to use our Products you must:
(i) be an individual who is at least 18 years old;
(ii) be capable of entering into a legally binding contract;
(iii) have a valid and verifiable email address and mobile telephone number;
(iv) provide a valid delivery address in Australia; and
(v) have access to a Payment Method, for example by being the holder of a Card.
(b) By entering into this agreement, you represent and warrant that you are eligible to use our Products.
2.4 Transfers or assignments
(a) You cannot transfer or assign any rights you may have under this Agreement without our prior written consent, which must not be unreasonably withheld.
(b) We may transfer or assign this Agreement, and any right under this Agreement, to a third party without notice to you or your consent unless the assignment will detrimentally affect your rights under the Agreement (in which case we will seek your consent prior to assignment, which consent must not be unreasonably withheld). You agree that we may appoint third party collections agencies to collect any amounts owing to us under this Agreement without your consent. For the avoidance of doubt, you acknowledge that no assignment by us to another person of any amount you owe to us will require your consent or notice to you.
4. Orders, payments and billing
4.1 Order Confirmation and Payment Schedule
(a) All Orders which you place with Erik Sawaya are subject to approval by Erik Sawaya, in our reasonable discretion. We may choose not to approve an Order or provide a Product to you, or may cancel an approved Order before the goods or services are delivered or supplied, if:
(i) we reasonably consider this necessary in order to:
(A) protect the integrity of our systems or the Products;
(B) prevent fraud;
(C) limit the risk of money laundering or terrorism financing; or
(D) otherwise protect us against legal, regulatory or non-payment risk;
(ii) you do not pass our verifications or checks, including those described in clause 6;
(iii) we reasonably suspect, or are aware, that you have breached this Agreement in a material respect (including by failing to make any payment due under this Agreement on the payment due date); or
(iv) we otherwise reasonably consider the Order to be suspicious.
(b) If we cancel an approved Order:(i) we will apply a full refund of any amounts you have paid to us to your Nominated Payment Source or (if that is not possible) to any other Card that you have provided us details of, and will cancel any future payments related to that Order. In the event the approved Order is cancelled because a chargeback has been incurred by Erik Sawaya in relation to a payment for the approved Order, that payment will not be refunded by Erik Sawaya. Any return of funds in that event will be as between you and your issuing bank. The Retailer will not be obliged to deliver the goods (or provide the services) the subject of the Order, unless required to do so by law;
(ii) you will have no obligation to make any further payments to us, or any other ongoing relationship with us, with respect to that Order; and
(iii) if you wish to proceed with the purchase from the Retailer, the Retailer may accept an alternative payment method in its discretion, or if required to do so by law.
(c) Once we approve your Order, you will receive an email from us with confirmation of receipt of your Order and a Payment Schedule.
(d) You agree to ensure that payment(s) are made in accordance with the Payment Schedule. You may make early payments through your Erik Sawaya Account, otherwise Erik Sawaya will automatically process payments in accordance with the due dates stated on the Payment Schedule. You authorise Erik Sawaya to process such payments using the Payment Method details provided by you. If an Automatic Payment fails on any of the dates specified in your Payment Schedule, Erik Sawaya reserves the right to re-attempt to process the payment at a later time or date.
4.2 Automatic Payments
(a) An ‘Automatic Payment’ is a payment, through the Payment Method you have chosen, that we will automatically charge directly to your nominated Card (‘Nominated Payment Source’) on a one-time or regular basis in agreed upon amounts as outlined in your Payment Schedule. You will have the option to select a preferred Payment Method and Nominated Payment Source when your Erik Sawaya Account is being created. You can update or change your preferred Nominated Payment Source or Payment Method at any time via your Erik Sawaya Account.
(b) Subject to the other terms of this Agreement, You hereby expressly consent to, authorise and instruct Erik Sawaya to deduct Automatic Payment amounts from your Nominated Payment Source for the amounts and on those scheduled dates set out in your Payment Schedule. You acknowledge that you are giving us the ability to collect or reverse variable payment amounts from or to your Nominated Payment Source, in accordance with your Payment Schedule and the terms of this Agreement.
(c) You are responsible for ensuring that you have sufficient funds in your Nominated Payment Source available to make Automatic Payments on the dates specified in your Payment Schedule. You are liable for any fees or charges imposed by your Nominated Payment Source, except to the extent that such fees or charges arise as a result of our error or system failure. If any fees or charges are imposed as a result of our error or system failure, please provide us with a copy of the relevant records, and we will reimburse you for the relevant fees or charges.
(d) If an Automatic Payment fails (for example, if your Nominated Payment Source is a credit or debit card which has expired), Late Payment Fees may apply unless you otherwise make the scheduled payment on or before the relevant due date. You authorise us to satisfy any monetary liability you owe us by:(i) Debiting your Nominated Payment Source at a later time or date;
(ii) Debiting any other Card which you have provided details of;
(iii) Offsetting the payment amount against any amounts we may owe to you; or
(iv) Any other legal means.
Please see clause 4.3 below for more information regarding Late Payment Fees.
4.3 Late Payments
(a) If you fail to pay any amounts according to the Payment Schedule, Late Payment Fees will apply on each payment that is due but not received. For the avoidance of doubt, Late Payment Fees will not be applied until the day immediately following the day that the payment is due.
(b) We may, at our sole discretion, reasonably delay the application of, or waive wholly or partly, any Late Payment Fee. If Late Payment Fees are or may be incurred as a result of Erik Sawaya’s error, please let us know, and we will waive or refund such fees, as relevant.
(a) Charges or Fees, payable by you for the use of our Products are set at 4% and are calculated into your checkout.
(a) No interest charges are payable by you for the use of our Products.
4.6 No set off
Notwithstanding any other provisions of this Agreement, you must make all payments in accordance with the Payment Schedule and pay all other amounts in full to us under this Agreement without any set-off, withholding or reduction for any reason whatsoever, including any existing or future act, omission or default by us.
5.1 Once your order has been processed, your images are sent to our retoucher and work begins. We cannot re-stock or re-sell your order therefor no refunds are granted. All sales are final.