TERMS OF SERVICE

Terms of Sale

These terms of sale (terms) govern each quotation and agreement formed on acceptance of an order placed by a customer (you) with MEDION Australia Pty Ltd ACN 106 611 330(we, us, etc) for the supply of our ERAZER branded goods and/or services (products). By placing an order for products with us, you agree to these terms.

Please read these terms carefully before placing your order. They contain important information about the ordering, processing, fulfilment and delivery of products.

1. Definitions

In these terms:

(a) Account means a personal account created by you on the ERAZER Website.

(b) Commercial electronic message means the same as in the Spam Act 2003.

(c) Delivery options means the delivery options available for an order which are listed on the website, as updated from time to time.

(d) Erazer website or website means erazer-australia.myshopify.com.

(e) Extended warranty means a voluntary warranty of a product, provided by us or a third party, giving you rights and/or benefits over and above those which you have under the consumer guarantees (where they apply).

(f) Order means an order for products, placed on the ERAZER website.

(g) Password means the password needed to access your account.

(h) Premises means the premises specified by you for delivery of products.

(i) Rejection period – see clause 14.1(d).

(j) Restricted products means products which are only intended to be viewed, played, listened to otherwise utilised by a person of at least a certain age.

(k) Selected delivery option means the delivery option you select in connection with an order.

(l) Website means the ERAZER Website.

2. Australian Consumer Law and consumer guarantees

2.1 Legal rights that cannot be excluded

Our goods and services come with consumer guarantees that cannot be excluded under the Australian Consumer Law, but some exceptions apply under the Australian Consumer Law itself.

You can find more information about the consumer guarantees, your remedies under them, and any exceptions that may apply at:

www.accc.gov.au/consumers/buying-products-and-services/consumer-rights-and-guarantees

Nothing contained in these terms excludes, restricts or modifies the consumer guarantees or your rights and remedies under them (except as permitted by the Australian Consumer Law).

2.2 Consumer guarantee rights in relation to goods

Major failures

Subject to clause 2.4, if:

(a) we fail to comply with a consumer guarantee in relation to goods; and

(b) the failure is a major one or cannot be remedied –

then you can choose to:

(c) reject the goods and get a refund of what you paid for them (and, if you wish, cancel any contract for services that are linked with the goods and claim a refund of any unused service credit that you have paid for); or

(d) reject the goods and get replacement goods of the same type and similar value (if available to us); or

(e) keep the goods and claim compensation for the reduction in their value below their price.

You may also claim damages for any reasonably foreseeable loss or damage you suffered because of the failure.

Non-major failures

Subject to clause 2.4, if:

(a) we fail to comply with a consumer guarantee in relation to goods; and

(b) the failure is not a major one and can be remedied –

then we must choose to:

(c) repair the goods; or

(d) replace the goods with identical goods; or

(e) refund what you paid for the goods –

and if we do not do so within a reasonable time, or we refuse, then you may choose to:

(f) have the failure remedied elsewhere, and claim from us all reasonable costs of doing so; or

(g) reject the goods and get a refund or what you paid for them (and, if you wish, cancel any contract for services that are linked with the goods and claim a refund of any unused service credit that you have paid for); or

(h) reject the goods and get replacement goods of the same type and similar value (if available to us).

You may also claim damages for any reasonably foreseeable loss or damage you suffered because of the failure.

2.3 Consumer guarantee rights in relation to services

Major failures

Subject to clause 2.4, if:

(a) we fail to comply with a consumer guarantee in relation to services; and

(b) the failure is a major one or cannot be remedied –

then you can choose to:

(c) cancel the contract for the services (and claim a refund of any unused service credit that you have paid for) and return for a refund any goods that are linked with the services; or

(d) claim compensation for any reduction in the value of the services below their price.

You may also claim damages for any reasonably foreseeable loss or damage you suffered because of the failure.

Non-major failures

Subject to clause 2.4, if:

(a) we fail to comply with a consumer guarantee in relation to services; and

(b) the failure is not a major one and can be remedied –

then:

(c) you may require us to remedy the failure within a reasonable time; and

(d) if we do not do so, then you may choose to:

(i) have the failure remedied elsewhere, and claim from us all reasonable costs of doing so; or

(ii) cancel the contract for the services (and claim a refund of any unused service credit that you have paid for) and return for a refund any goods that are linked with the services.

You may also claim damages for any reasonably foreseeable loss or damage you suffered because of the failure.

2.4 Rights and remedies for certain non-PDH products

If we supply you with goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption (non-PDH) and cost no more than $100,000, you still have important rights under the Australian Consumer Law including consumer guarantees but:

(a) in relation to these goods, our liability for failure to comply with a consumer guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:

(i) replacing the goods or supplying equivalent ones;

(ii) repairing the goods;

(iii) paying the cost of replacing the goods or of acquiring equivalent ones; or

(iv) paying the cost of having the goods repaired; and

(b) in relation to these services, our liability for failure to comply with a consumer guarantee is limited to:

(i) supplying the services again; or

(ii) paying the cost of having the services supplied again.

(c) If we supply you with non-PDH products that cost no more than $100,000 and are subject to an extended warranty, your rights under the extended warranty are in addition to, and not instead of, your rights under the Australian Consumer Law.

3. Our liability to you

3.1 Australian Consumer Law applies

Nothing in this clause affects your rights under the consumer guarantees in clause 2.

3.2 Specific exclusions – subject to Australian Consumer Law

Except to the extent caused by our negligence or breach of these terms, or as otherwise required by law, we shall not be liable to you for any loss that is caused by:

(a) your account information being incomplete or inaccurate;

(b) any unauthorised use of your password or account which takes place before you notify us;

(c) the order information you submit being incomplete or inaccurate;

(d) being unable to change or cancel your order once we have accepted it;

(e) your order not being received, or being lost, misdirected or delayed as a result of issues with the website beyond our reasonable control;

(f) cancellation of your order by you or someone else using your account;

(g) delay in delivery of the products to you, or delay in the availability of products for pick up in-store, beyond our reasonable control;

(h) any delay in you receiving any refund due to you beyond our reasonable control;

(i) any late, lost or misdirected deliveries of products beyond our reasonable control;

(j) products being delivered or left in accordance with any instructions given by you,

(k) any breach of these terms by you; or

(l) any other loss to the extent resulting from something outside of our reasonable control and within your reasonable control.

3.3 General limitations – subject to Australian Consumer Law

(a) Nothing in these terms excludes, restricts or modifies any non-excludable condition, warranty, guarantee, right or liability, where to do so would be unlawful, including under the Australian Consumer Law.

(b) Subject to clause 3.3(a), these terms state our entire liability in respect of the supply, use or performance of products and there is no warranty, condition, guarantee or other term binding on us except as expressly stated in these terms.

(c) Subject to clause 3.3(a), any warranty, guarantee, condition or other term concerning the supply of products implied by law or otherwise is expressly excluded.

(d) Subject to clause 3.3(a), we will not be liable to you for any loss of revenue, income, profit, opportunity or data or any indirect, consequential or exemplary loss or damage in respect of or arising out the supply use or performance of a product, or otherwise.

(e) Subject to clause 3.3(a), our maximum aggregate liability to you in respect of or arising out of the supply, use or performance of a product will not exceed the amount you have for the product.

4. Pricing & taxes

(a) Prices for products are as shown on the website.

(b) Except in the case of a publishing error, the price applicable to an order is the price displayed when we receive the order.

(c) Subject to clause 4(c), we reserve the right to change the prices of products at any time without notice to you.

(d) All promotional prices are final and cannot be combined with other existing promotional offers.

(e) In addition to the price for the products, you will also need to pay the any listed delivery charge for your selected delivery option. Any delivery charge will appear in your shopping cart.

(f) In addition to the price for the products and the delivery charge (if any) you may also need to pay any additional delivery charges which are not shown in your shopping cart but which we incur because you live in an area where light aircraft or barge transport is required, or to which our national courier company does not provide a door-to-door service (‘additional delivery charge’). Such charges may apply even where the item is shown on the Website as having ‘free delivery’, ‘free freight’ or something similar. If you live in an area to which an additional delivery charge will apply we will contact you before accepting your order and provide you with a quote for the additional delivery charge. If, within the timescale specified, you do not agree to accept the additional delivery charge, we will cancel your order. We will not take payment for your order until you have confirmed your acceptance of the additional delivery charge.

(g) By placing an order you agree to pay the price for the products, any delivery charge, any additional delivery charge and any international delivery charge.

(h) All prices and delivery charges, additional delivery charges and international delivery charges are in Australian dollars and are inclusive of GST.

5. Your account for orders placed on the ERAZER website

(a) If you do not already have an account you will need to create one before placing an order on the website, unless you utilise the ‘Guest Checkout’ feature of website. If you wish to create an account, additional website functionality may be available to you – for example, order history, order status, address book and receipt of additional marketing communications.

(b) When you create an account, you agree to subscribe to our marketing communications. You can unsubscribe at any time by selecting the ‘unsubscribe’ option in the relevant communication, for example, clicking on the unsubscribe link in an email you receive, or texting the stated response word e.g. “STOP” or ‘UNSUB’ or ‘REMOVE’ to the mobile number in an SMS you receive. Otherwise, you may opt-out of receiving marketing communications by sending a written request to The Privacy Officer, ERAZER C/O MEDION Australia Pty Ltd, by email to support@erazer.com.au

(c) You may not set up an account for someone else.

(d) You must enter all information carefully when creating an account. You warrant to us that all information you provide in relation to your account is complete, true and accurate

(e) You must notify us immediately if you become aware of any actual or potential unauthorised use of your password or account.

(f) We may, in our sole discretion, terminate or suspend your account if we believe, acting reasonably and in good faith, that this is necessary to protect you or us from fraud or other unlawful or unauthorised use.

6. Order process

(a) You can place an order by following the instructions on the website.

(b) An order submitted by you is an offer by you to purchase the products for the price in accordance with clause 4(b) plus the delivery charge as shown at the time of submission of your order and any applicable additional delivery charge or international delivery charge. We may accept or reject your offer in our absolute discretion. In particular, but without limitation, we may reject orders for commercial quantities of products. If you wish to order commercial quantities of products please contact 1300 220 811.

(c) If we accept your order, there is a separate and binding agreement between us and you for the sale and purchase of of the relevant products, in accordance with these terms.

(d) If you place an order for delivery of products to someone else, you warrant that they have consented to:

(i) receive the products; and

(ii) our collection of their personal information in connection with the delivery.

(e) You must enter all information carefully when placing an order. You warrant that all information you provide in relation to an order is complete, true and accurate. You must pay all charges of re‑deliveries required as a result of inaccurate information you supply.

(f) The website will display the total charges for an order including shipping and handling charges, before you submit it.

(g) You must check your order and selected delivery option carefully (including the quantities ordered) before submitting it as an orders may not be able to be changed or cancelled once we have accepted it. At your request, we will use reasonable endeavours to cancel or change an order if it has not already been shipped but we make no representation that we will be able to do this.

(h) Where you place separate orders the products will be delivered separately and a separate delivery charge (and additional delivery charge / international delivery charge if applicable) will apply to each order. We cannot consolidate separate orders into one delivery.

(i) Where you order more than one item in one order, all products for which your order is accepted at the same time will be dispatched together where practicable. However, in some cases products may be dispatched separately, for example: where the goods are being dispatched from different locations; where the products are of different types (e.g a mixture of hardware and software); or where the products have different availability statuses. Please note that a delivery charge is calculated based on several factors including the product’s weight, dimensions, packaging, the number of delivery shipments required and the selected delivery option.

(j) The internet can be an unstable, and sometimes insecure, medium. At times the facility to place orders may not be available; your order might not be received; your order may be lost or misdirected; or your order might be delayed due to issues with the website beyond our reasonable control.

(k) You must take your own precautions to ensure that the process which you employ for accessing the website does not expose you to risk of viruses, malicious computer code or other forms of interference which may damage your computer system, and contains appropriate protection to prevent damage to your computer system caused by viruses, malicious computer code or other forms of interference.

7. Restricted products

(a) Sale of Restricted Products is regulated by state and federal laws.

(b) If you:

(i) order products that are classified R18+, you warrant that you are at least 18 years old; and

(ii) order products that are classified MA15+, you warrant that you are at least 15 years old; and

in any case, you warrant that you are not ordering Restricted Products for a person that themselves is not eligible to purchase the Restricted Products.

8. After you have submitted an order/payment

(a) When you submit an order, you will receive an order reference number via email.

(b) We will process payment for your order when, or shortly after, you place your order (except to the extent set out in clause 4(e)). Your order is deemed to be accepted when we do this. Your account will be charged for the full order to reserve the product and price, however:

(i) we may in certain circumstances cancel your order after acceptance as set out in these terms. In the event that we cancel your order after processing payment, we will refund the payment in accordance with clause 13; and

(ii) you may cancel an order within four hours of submitting it, and we will then refund the payment in accordance with clause 13.

(c) When we accept an order, we agree to supply the product(s) to you in accordance with your order subject to these terms.

(d) You must pay for products by credit card, certain prepaid payment cards, or PayPal account, available on the ERAZER Website.

(e) You must not pay, or attempt to pay, for products through any fraudulent or unlawful means. If the name on the credit card/payment card/account does not match the name on the order, we may refuse to accept your order or ask you to provide additional information (for example, proof of identity documents) in accordance with our fraud detection processes. By providing your credit card/payment card/gift card or selecting one of the other available payment methods you authorise us to deduct the price and the applicable delivery charge(s) from such card or payment methods.

(f) We reserves the right to change the payment methods that can be used for orders at any time in our absolute discretion.

(g) We may not be able to, or may decline to, accept payment from you by your nominated payment method:

(i) where our fraud detection systems detect possible irregularities;

(ii) because your financial institution or other payment provider has declined payment;

(iii) because your payment card has expired;

(iv) where technical difficulties impact our ability to process payment; or

(v) in any other situation if we believe, reasonably and in good faith, that this is necessary to protect you or us from fraud or loss.

Where this is the case, we reserve the right to cancel or suspend your order and request you to provide additional information (for example, proof of identity documents) or arrange payment by another method.

(h) When you submit an order, we may complete a pre-authorisation of the full value of the order. A pre-authorisation is a practice of validating electronic transactions by holding the value of the order unavailable until either the merchant charges the account or the transaction is cancelled. If an order is cancelled (for example, because our fraud detection system has detected a possible irregularity), any pre-authorisation may still appear in your account as a pending transaction for a period of time, which will vary depending on your financial institution (e.g. 7 to 30 days). After such time, the funds will become available again for you to use.

(i) Products that you have ordered will not be dispatched to you until your payment for the products has cleared. If your payment cannot be processed, your order will be rejected and we will notify you by email.

(j) Orders will only be dispatched once all items are available. If any items become unavailable due to changes in stock, they will be placed on back order. We will strive to fulfil your backorder as quickly as possible and will keep you updated with estimated times of arrival (ETAs) for your items. If the product is also unavailable from our suppliers, you may opt for a modification, refund, or store credit, and/or request the shipment of the available parts of your order.

9. Cancellation of orders

(a) We reserve the right to cancel, at any time before delivery, an order that it has previously accepted where:

(i) we, acting in good faith, are unable to obtain sufficient quantities of stock to fulfil your Order within a reasonable time;

(ii) an event beyond our control, such as storm, fire, flood, earthquake, terrorism, power failure, war, strike, pandemic, governmental action or failure or problems with the internet or third party computer systems, means that we are unable to supply the products within a reasonable time;

(iii) products ordered were subject to an accidental error on the website, for example, in relation to a description, price, reward or image;

(iv) you ask us to cancel your order; or

(v) in the circumstances set out in clauses 4(e) or 8(g).

(b) You may cancel your order where we are not able to fulfil your order within a reasonable time of the estimated delivery time listed on the website for the applicable selected delivery option, other than a result of any delay for which you are responsible, such as a failure to provide the correct delivery address or to pay for the products.

(c) Where we cancel your order after acceptance, we will send you an e-mail notifying you of cancellation.

(d) In the event of your Order being cancelled after payment has been processed, we will refund any money paid in respect of that order. Clause 13 of these terms sets out further information about refunds.

10. Delivery

(a) When you place an order for Goods to be delivered, you will be required to select one of the available delivery options for your order. An estimated delivery date will be listed for your selected delivery option. We will use reasonable endeavours to deliver the products in your order by that date. If certain products in your order are out of stock, the selected delivery option will list different estimated delivery times for those out of stock products. The estimated delivery time for your selected delivery option is an approximate delivery time only and is not a guaranteed delivery time for your products.

(b) Risk and title in a product passes to you on the date and time of delivery of the product to the delivery address provided in your order.

(c) Products will generally only be delivered to addresses within Australia. We are unable to deliver to certain parts of Australia and where this is the case you will not be able to process your order. We may, in our absolute discretion, agree to accept orders for software products for delivery outside Australia but are under no obligation to do so.

(d) Following dispatch of your products, we will email you with confirmation of dispatch and an invoice for your order.

11. Shipping methods and times

(a) Delivery costs for your product are based on your location and will be shipped via Toll or another contractor we engage.

(b) After your order is processed, we will prepare it for shipment. The general handling time for most orders is 1 to 2 business days, as an indicative estimate.

(c) Once fulfilled, your order should arrive within 2 to 5 business days for premises in metropolitan areas and up to 7 business days for premises in non-metropolitan or regional areas, as indicative estimates.

12. Delay in availability or delivery of products

You agree and acknowledge that:

(a) we do not guarantee the dispatch or delivery or availability of products by an assured date;

(b) stock availability and events outside our control (including adverse weather conditions, traffic conditions and governmental action) may cause delays, or in some circumstances, prevent your products from being delivered or available for pick-up;

(c) delays are particularly likely to occur during busy sale periods such as those around Black Friday, Christmas, Easter and public holidays.

13. Refunds of your money

Where we refund your payment pursuant to these terms, we aim to initiate your refund to your original payment method(s) within 2 business days (Monday – Friday 9am to 5pm Eastern Australian time). The additional time that it takes for you to actually receive your refund will depend upon how quickly your financial institution or other payment provider processes the refund. Where products have been purchased using an ERAZER gift card, the applicable refund will be processed back onto the ERAZER gift card (unless the refund is to be made under clause 2, in which case we will offer you the option of a cash refund). Please note that if we are obliged to provide you a partial refund of your payment for specific products, we will only refund the component of the delivery charge relating to the products which are subject to the refund.

14. Rejection of a consumer guarantee claim or a warranty claim

14.1 Consumer guarantee claims

(a) We may reject a consumer guarantee claim if:

(i) acting reasonably, we request proof of purchase of a product from us; and

(ii) you have not then given us satisfactory proof of purchase.

(b) We may reject a claim for compensation under clause 2.2 or 2.3 if the failure to comply with the consumer guarantee occurred only because of a cause independent of human control that occurred after the goods left our control.

(c) You may not reject goods under clause 2.2 or 2.3 if:

(i) the rejection period for the goods has ended; or

(ii) you have lost, destroyed or disposed of the goods; or

(iii) the products were damaged after being delivered to you for reasons not related to their state or condition at the time of supply; or

(iv) the products have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.

(d) The rejection period for goods is the period from the time of the supply of the goods to the you within which it would be reasonable to expect the relevant failure to comply with a consumer guarantee to become apparent having regard to:

(i) the type of goods; and

(ii) the use to which you are likely to put them; and

(iii) the length of time for which it is reasonable for them to be used; and

(iv) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.

14.2 Requests and claims that are not consumer guarantee claims

We reserve the right to reject a return or refund request, or a warranty claim (that is not, in each case, a consumer guarantee claim) if your request or claim arises because:

(a) you simply changed your mind about an order. This includes when you have found a cheaper product elsewhere, or have bought a product as a gift that proves unsuitable (in circumstances where there has been no breach of a consumer guarantee)), or your circumstances have changed and you no longer require the products;

(b) you damaged the product by using it in an unreasonably abnormal way. (Such a use may be noted in an extended warranty as rendering it void, or it may be a use that you wouldn't reasonably expect the product to perform.)

(c) you damaged the product by making alterations not performed or authorised by us;

(d) you damaged the product by not following any product care instructions that were provided; or

(e) the product is damaged by any factors beyond our control;

(f) you are unable to provide satisfactory proof of purchase upon our reasonable request.

15. Restocking products

In our sole discretion, we may accept a conditional courtesy return you want to exchange a product purchased incorrectly provided that:

(a) you make your request within 7 days of receipt of delivery of the product;

(b) the product is not opened, not used and still in pristine condition;

(c) you pay a restocking fee as we notify you at the time;

(d) you pay the costs of returning the products to us, and we actually receive them;

(e) if we receive the products but find that they have been opened or used, or that there is significant damage to their packaging, we may reject the return and return the products to you at your expense.

16. Privacy and Marketing

Our privacy policy at PRIVACY POLICY– ERAZER Australia is incorporated in these terms.

17. Terms of use of the website

Our website use terms at Terms of Use – ERAZER Australia are incorporated in these terms.

18. General

(a) We reserve the right to amend these terms at any time. Any amendment will take effect from the time it is published on the website. Amendments are never retrospective and will only apply to an existing order if:

(i) we notify you individually about the amendment; and

(ii) you reconfirm your order.

If you do not reconfirm your order, we may cancel it and refund any amount that you have paid.

(b) Any provision in this agreement which is invalid or unenforceable in any jurisdiction is to be read down for the purpose of that jurisdiction, if possible, so as to be valid and enforceable, and otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of these terms or affecting the validity or enforceability of that provision in any other jurisdiction.

(c) These terms are governed by:

(i) if your premises are in Australia – the laws of the state or territory in which your premises are located; and

(ii) if your premises are not in Australia – the laws of New South Wales, Australia.

19. Commercial electronic messaging

(a) Subject to this clause, we may send you commercial electronic messages regarding our products, and ancillary goods and services, and you consent to us doing so.

(b) Your consent under clause 19(a):

(i) is in addition to any other consent that you may give, or which may be inferred, for the purposes of section 16(2) of the Spam Act 2003; but

(ii) terminates five business days after if you notify us that it is withdrawn.

(c) Any commercial electronic message we send you does not have to comply with section 18(1) of the Spam Act 2003.