Conditions of Sale
This page (together with the documents referred to on it) tells you the terms and conditions on which we supply any of the products ("Products") listed on our site to you. You should understand that by using our site or ordering any of our Products, you agree to be bound by these terms and conditions. If you refuse to accept these terms and conditions, you will not be able to order any Products from our site.
1. Information about us
Our site is operated by Penguin Group (Australia), a division of Penguin Australia Pty Ltd ("us" or "we"). We are registered in Victoria, Australia under Australian Company Number ACN 162 605 745 with our registered office at 707 Collins Street, Melbourne, Victoria, Australia 3008.
2. Service availability
We will take reasonable efforts to ensure that availability of the website will be uninterrupted and that transmissions will be error-free. However, due to the nature of the Internet, this cannot be guaranteed. Also, your access to the website may also be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services.
3. Your account
If you use our site, you are responsible for maintaining the confidentiality of your password and/or account and for restricting access to your computer to prevent unauthorised access to your account. You agree to accept responsibility for all activities that occur under your account or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should immediately inform us if there is any reason to suspect that your password has compromised, or if the password is being, or is likely to be, used in an unauthorised manner. Please ensure that the details you provide us with are correct and complete and inform us immediately of any changes to the information that you provided when registering. We reserve the right to refuse access to our site, terminate accounts, remove or edit content, or cancel orders at our discretion. If we cancel an order, it will be without charge to you.
4. Your status
By placing an order through our site, you warrant that: (a) You are legally capable of entering into binding contracts; and (b) You are at least 18 years old; We do not sell products for purchase by children. We sell children's products for purchase by adults. If you are under 18, you may use our site only with the involvement of a parent or responsible guardian.
5. How the contract is formed between you and us
5.1 Your order constitutes an offer to us to buy a Product. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an e-mail that confirms that the Product has been ordered (the "Order Confirmation"). The contract between us ("Contract") will only be formed when we send you the Order Confirmation.
5.2 We reserve the right to cancel orders that we believe to be fraudulent or constitute a misuse of a promotional or marketing activity or where an error has occurred including but not limited to errors relating to pricing.
6. Availability and delivery
We will endeavour to deliver your Products within the delivery times as set out in the Order Confirmation or, if no delivery date is specified, then within a reasonable time of the date of the Order Confirmation, unless there are exceptional circumstances. If a product is found to be incorrectly addressed by us then we will be responsible for the re-delivery, replacement or refunding of the product. If you are found to have given an incorrect or insufficient address, then we will not refund or resend the product and all responsibility for correcting the delivery will be borne by you.
7. Risk and title
7.1 The Products will be at your risk from the time of delivery.
7.2 Ownership of the Products will only pass to you when we receive full payment of all sums due in respect of the Products, including delivery charges.
8. Price and payment
8.1 The price of any Products will be as quoted on our site from time to time, except in cases of obvious error.
8.2 These prices include GST but exclude delivery costs, which will be added to the total amount due. We charge a flat fee of $5 for delivery anywhere in Australia.
8.3 Prices are liable to change at any time, but changes will not affect orders in respect of which we have already sent you an Order Confirmation.
8.4 Our site contains a large number of Products and it is always possible that, despite our best efforts, some of the Products listed on our site may be incorrectly priced. We will normally verify prices as part of our dispatch procedures so that, where a Product's correct price is less than our stated price, we will charge the lower amount when dispatching the Product to you. If a Product's correct price is higher than the price stated on our site, we will normally, at our discretion, either contact you for instructions before dispatching the Product, or reject your order and notify you of such rejection.
8.5 We are under no obligation to provide the Product to you at the incorrect (lower) price, even after we have sent you an Order Confirmation, if the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mis-pricing.
8.6 Payment for all Products must be by credit card. We accept payment with Visa or MasterCard. We will not charge your credit card until we despatch your order.
9. Our refunds policy
9.1 You can return a product in its original condition with 30 days of purchase for a full refund (less delivery charge) by requesting a Returns Authorisation Number from Customer Service. When you return a Product to us we will examine the returned product and will usually process the refund due to you as soon as possible and, in any case; within 30 days of the day you returned the product. Digital products, including ebooks and access codes, videos and opened software cannot be returned.
9.2 We will usually refund any money received from you using the same method originally used by you to pay for your purchase.
10. Our liability
10.1 To the maximum extent permitted by law and save for the express written terms in this Agreement, all other express or implied terms, conditions, warranties, statements, assurances and representations in relation to the Goods or arising from this Agreement are expressly excluded. If any of the exclusions or limitations set out in this clause are declared illegal or void or if there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by this Agreement, then, to the extent permitted by law, our entire liability and your exclusive remedy is limited to, at our discretion, the replacement of the goods or the supply of equivalent goods.
10.2 To the maximum extent permitted by law our liability for losses you suffer as a result of us breaking this agreement is strictly limited to the purchase price of the Product you purchased and any losses which are a foreseeable consequence of us breaking the agreement. Losses are foreseeable where they could be contemplated by you and us at the time your order is accepted by us.
10.3 We are not responsible for indirect losses (even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable) however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of our performance or non-performance of this Agreement, such indirect losses including but not limited to: (a) loss of income or revenue (b) loss of business or business interruption (c) loss of profits or contracts (d) loss of anticipated savings (e) loss of data (f) or waste of management or office time however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable;
provided that this clause 10.3 shall not prevent claims for loss of or damage to your tangible property that fall within the terms of clause 10.1 or clause 10.2 or any other claims for direct financial loss that are not excluded by any of categories (a) to (f) above.
11. Written communications
Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
All notices given by you to us must be given to Penguin Australia Pty Ltd at 707 Collins Street, Melbourne, Victoria, Australia 3008 . We may give notice to you at either the e-mail or postal address you provide to us when placing an order, or in any of the ways specified in clause above. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee. For contractual purposes, you consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
13. Transfer of rights and obligations
13.1 The contract between you and us is binding on you and us and on our respective successors and assigns.
13.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent.
13.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.
14. Events outside our control
14.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).
14.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following: (a) Strikes, lock-outs or other industrial action. (b) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war. (c) Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster. (d) Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport. (e) Impossibility of the use of public or private telecommunications networks. (f) The acts, decrees, legislation, regulations or restrictions of any government.
14.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
15.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
15.2 A waiver by us of any default shall not constitute a waiver of any subsequent default.
15.3 No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of these terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
17. Entire agreement
17.1 These terms and conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
17.2 We each acknowledge that, in entering into a Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these terms and conditions.
17.3 We intend to rely upon these terms and conditions and any document expressly referred to in them in relation to the subject matter of any Contract. While we accept responsibility for statements and representations made by our duly authorised agents, please make sure you ask for any variations from these terms and conditions to be confirmed in writing.
18. Our right to vary these terms and conditions
18.1 We have the right to revise and amend these terms and conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities.
18.2 You will be subject to the policies and terms and conditions in force at the time that you order products from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Order Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven working days of receipt by you of the Products).
19. Law and jurisdiction
19. Contracts for the purchase of Products through our site and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by the law of the State of Victoria. Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) shall be subject to the non-exclusive jurisdiction of the courts of Victoria.