Terms and Agreements
This page (together with the documents referred to) contains the Terms & Conditions (the “Terms & Conditions”) on which we supply any of the products (“Product”) listed on our website www.freshtone.com.au(the “Site”) to you. Please read these Terms & Conditions carefully before ordering any Products from the Site. You should understand that by ordering any of our Products, you agree to be bound by these Terms & Conditions. You can find and download these Terms & Conditions here at all times.
Freshtone is an American Company trading under Freshtone USA.
“Account” means the account that you will need to register for on the Site if you would like to submit an Order on the Site;
“Breach of Duty” means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
“Business Day” means a day which is neither (i) a Saturday or Sunday, nor (ii) a public holiday anywhere in Australia;
“Contract” means your Order of a Product or Products in accordance with these Terms & Conditions;
“Customer” means individual who places an Order on the Site;
“Liability” ” means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with these Terms & Conditions, including, without limitation, liability expressly provided for under these Terms & Conditions or arising by reason of the invalidity or unenforceability of any term of these Terms & Conditions;
“Order” means the order submitted by you to the Site to purchase a Product from us;
“you” means the Customer who places an Order.
These Terms & Conditions are our copyrighted intellectual property. Use by third parties – even of extracts – for the commercial purposes of offering goods and/or services– is not permitted. Infringements may be subject to legal action.
By placing an order through the Site, you warrant that you are at least 18 years old and for prescription glasses and contact lens purchases in possession of a valid eye prescription.
These Terms & Conditions shall apply to all Orders and Contracts made or to be made by us for the sale and supply of Products. When you submit an Order to us, give any delivery instruction or accept delivery of the Products, this shall in any event constitute your unqualified acceptance of these Terms & Conditions. Any conditions that you submit, propose or stipulate in whatever form and at whatever time, whether in writing, by email or orally, are expressly waived and excluded. No other terms or changes to the Terms & Conditions shall be binding unless agreed in writing signed by us.
How a Contract is Formed :
Irrespective of any previous price you have seen or heard, once you select a Product that you wish to Order, you will then be shown or told (on the Site) the charges you must pay including GST, if applicable, and any applicable delivery charges.
You shall pay for the Product in full at the time of ordering by supplying us with your credit or debit card details from a credit or debit card company acceptable to us or by Paypal, which we require in order to process your Order.
Alternatively, you may pay by any method that we have said is acceptable to us, but in any event we shall not be bound to supply before we have received cleared funds in full. Depending on the results of a credit check we reserve the right not to offer certain forms of payment and to refer you to our other forms of payment. You undertake that all details you provide to us for the purpose of purchasing the Product from us will be correct, that the credit or debit card, or account or other payment method which you use is your own.
When you submit an Order to the Site, you agree that you do so subject to these Terms & Conditions current at the date you submit your Order. You are responsible for reviewing the latest Terms & Conditions each time you submit your Order.
Your Order remains valid as an offer until we issue our Confirmation of Order or, if earlier, when we receive your notice revoking your Order.
We shall not be obliged to supply the Product to you until we have accepted your Order. Unless expressly stating that we accept your order, an email, letter, fax or other Acknowledgement of your Order by us is purely for information purposes and does not constitute the Confirmation of Order. In that Acknowledgement, we may give you an Order reference number and details of the Product you have ordered.
We may in our discretion refuse to accept an Order from you for any reason, including unavailability of supplies or we may offer you an alternative Product (in which case we may require you to re-submit your Order first).
A Contract shall be formed and we shall be legally bound to supply the Product to you when we accept your Order. Acceptance shall take place when we expressly accept your Order by email to you, in the of a document called a “Confirmation of Order” stating that we are accepting your Order.
Our Confirmation of Order shall be deemed to come into effect when it has been dispatched by us. Without affecting your obligation to pay us earlier, we may send an invoice to you at any time after we have accepted your Order. Until the time when we accept your Order, we reserve the right to refuse to process your Order and you reserve the right to cancel your Order. If we or you have cancelled your Order before we have accepted it, then we will promptly refund any payment already made by you or your credit or debit card company to us for the order of the Product.
We try very hard to ensure that the price given to you is accurate, but the price of your Order will need to be validated by us as part of our acceptance procedure. If the price for the Order changes before we accept your Order, we will contact you and ask you to confirm that you wish to proceed at the amended price.
A Contract will relate only to those Products whose dispatch we have confirmed in the Confirmation of Order. We will not be obliged to supply any other Products which may have been part of your Order until we have sent a Confirmation of Order in relation to those Products.
You must only submit to us or the Site information which is accurate and not misleading and you must keep it up to date and inform us of changes.
We shall deliver the Product to you at the place of delivery requested by you in your Order and within the time indicated by us at the time of your Order. We reserve the right to amend the indicated time frame, shall any circumstances arise that delay the delivery time.
We shall let you know if we expect that we are unable to meet our estimated delivery date, but, to the extent permitted by law, we shall not be liable to you for any losses, liabilities, costs, damages, charges or expenses arising out of late delivery.
On delivery of the Product, you may be required to sign for delivery. You agree to inspect the Product for any obvious faults, defects or damage before you sign for delivery. You need to keep receipt of the delivered Product in case of future discussions with us about it.
All risk in the Product shall pass to you upon delivery, except that, where delivery is delayed due to a breach of your obligations under a Contract, risk shall pass at the date when delivery would have occurred but for your breach. From the time when risk passes to you, we will not be liable for loss or destruction of the Product. You must take care when opening the Product so as not to damage it, particularly when using any sharp instruments.
You shall ensure that you are ready for safe receipt of the Product without undue delay and at any time reasonably specified by us. If you are not available to take delivery or collection, we may leave a card giving you instructions on either re-delivery or collection from the carrier.
If delivery or collection is delayed through your unreasonable refusal to accept delivery or if you do not (within three days of our first attempt to deliver the Product to you) accept delivery or collect the Product from the carrier, then we may (without affecting any other right or remedy available to us) do either or both of the following:
charge you for our reasonable storage fee and other costs reasonably incurred by us; or
no longer make the Product available for delivery or collection and notify you that we are immediately cancelling the applicable Contract, in which case we will refund to you or your credit or debit card company as applicable any money already paid to us under the applicable Contract, less our reasonable administration charges (including for attempting to deliver and then returning the Product, and any storage fees).
It is your responsibility to ensure that the Products are sufficient and suitable for your purposes and meet your individual requirements. We do not warrant that the Products will meet your individual requirements. You acknowledge that the Products are standard and not made bespoke to fit any particular requirements that you may have and, when not, that fitting is subject to imperfections and misspecifications from your side.
We may cancel a Contract if the Product is not available for any reason. We will notify you if this is the case and return any payment that you have made.
Irrespective of your other rights for faults with the product, you may cancel a contract and return any delivered product to us for any reason at all if you are not happy with it, (Unless the product is used).provided that you must have notified us in writing within 30 days of delivery of the product that you wish to cancel the applicable contract and to return the product at our risk. The notice must be sent in writing to email@example.com or through the account section (RMA) on our Site. Your notice shall be deemed to have been given on the day on which it was sent.
Once you are in the possession of the goods you are under the duty to retain them and take reasonable care of them. The product must be returned to us in its original condition. Should you want to return the goods directly to us without using the carrier service, please post them to our address
Once you have notified us that you wish to cancel the contract, any sum debited to us will be refunded to you as soon as possible and in any event within 30 days of your cancellation.
In the case of a product purchased with gift vouchers or promotional vouchers, we reserve the right to refund any amounts due to you for cancelled and returned products by providing you store credit in the value of the order.
Faulty Products :
We warrant that the Product will be delivered undamaged in the quantities ordered; and the Product will conform with the manufacturer’s latest published information as set out on the Site or in our Product material at the time of your Order. Minor differences in material, colour, weight, measurements, design and other features might occur to the extent that they are reasonable.
The product is intended to be used strictly in accordance with the manufacturer’s latest published instructions as set out on the site or as on the product itself.
It is your responsibility to ensure that you use the product strictly in accordance with those instructions.
We try very hard to deliver Products in excellent condition. However, if you tell us that the Product is faulty, you agree to keep the Product in its current condition available for us (or our agent) to inspect within a reasonable time.
In order to provide you with any remedies for a faulty Product, we may need your assistance and prompt provision of certain information regarding the Product, including, you specifying with reasonable detail the way in which it is alleged that the Product is damaged or defective; and you providing us with the delivery note number and such other information as we reasonably require.
If you would like us to repair, replace or provide a refund for the Product where it did conform to the applicable Contract, and we find that the Product has:
been misused, abused or subjected to neglect, improper or inadequate care, carelessness, damage or abnormal conditions; or,
been involved in any accident or damage caused by an incorrect attempt at modification or repair; or
been dealt with or used contrary to our or the manufacturer’s instructions for the Product; or
deteriorated through normal wear and tear,
after delivery by us, we may at our discretion decide not to repair, replace or refund you for the Product and/or we may require you to pay all reasonable carriage costs and servicing costs at our current standard fees and costs and charge this to your credit or debit card, or the payment details that you provided to us when you made your Order, and, to the extent permitted by law, we shall not be liable to you for any losses, liabilities, costs, damages, charges or expenses as a result.
You may use promotional vouchers as payment for Products on the Site. If you have a promotional voucher, that voucher can be used by someone other than you and you can assign your rights to use that voucher. In the event of fraud, an attempt at deception or in the event of the suspicion of other illegal activities in connection with a gift voucher purchase or redemption of that voucher on the Site, we are entitled to close your Account and/or require a different means of payment. We assume no liability for the loss, theft or illegibility of promotional vouchers.
Conditions for the redemption of promotional vouchers:
From time to time we may release promotional vouchers that may be used on the Site, which we will send to you by email. Promotional vouchers can only be redeemed on the Site.
Promotional vouchers are valid for the specified period stated on them only, can only be redeemed once and cannot be used in conjunction with other promotional vouchers. Individual brands may be excluded from voucher promotions.
The credit of a promotional voucher cannot be used to pay for products from third parties other than us.
If you place an Order for a Product less than the value of the promotional voucher, no refund or residual credit will be returned to you.
The credit of a promotional voucher does not accrue interest nor does it have a cash value.
If the credit of a promotional voucher is insufficient for the Order you wish to make, you may make up the difference through payment.
Limitations and Liabilities :
This clause prevails over all other clauses and sets forth our entire Liability, and your sole and exclusive remedies, for:
the performance, non-performance, purported performance or delay in performance of these Terms & Conditions or a Contract or the Site (or any part of it or them); or
otherwise in relation to these Terms & Conditions or the entering into or performance of these Terms & Conditions.
Nothing in these Terms & Conditions shall exclude or limit:
our Liability for (i) fraud; (ii) death or personal injury caused by our Breach of Duty; or (iii) any other Liability which cannot be excluded or limited by applicable law; or
your statutory rights as a consumer.
We do not warrant and we exclude all Liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the Site; and we exclude all Liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever nature; and
You should not rely on any information accessed using the Site to make a purchasing decision – you should make your own enquiries before forming your own opinion and taking any action based on any such information.
We do not accept and hereby exclude any Liability for Breach of Duty other than any such Liability arising pursuant to the provisions of these Terms & Conditions.
We shall have no Liability for: loss of revenue; loss of actual or anticipated profits; loss of contracts; loss of the use of money; loss of anticipated savings; loss of business; loss of operation time; loss of opportunity; loss of goodwill; loss of reputation; loss of, damage to or corruption of data; any indirect or consequential loss.
Guarantee and Complaints Management :
We shall perform our obligations under these Terms & Conditions with reasonable skills and care.
We place great value on our customer satisfaction. You may contact us at any time using the contact details given in these Terms & Conditions. We will attempt to address your concerns as soon as reasonably possible and will contact you on receipt of any relevant enquiry or complaint. In guarantee cases, the manufacturer frequently must be involved, and as such it may take longer to resolve such an enquiry or complaint.
In the event of a complaint it will help us if you can describe the object of your complaint as accurately as possible and, where applicable, send us copies of the Order or at least the order number that we assign you in the Acknowledgement or Confirmation of Order. Should you not have received any reaction from us within five Business Days, please make further enquiries. In rare cases your emails may be caught up in our spam filters or not reach us, or correspondence that we send to you may otherwise not have reached you.
Data Protection :
Circumstances Beyond our Control :
We shall not be liable to you for any breach, hindrance or delay in the performance of a Contract attributable to any cause beyond our reasonable control, including without limitation any Act of God, actions of third parties (including without limitation hackers, suppliers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil commotion, war, hostilities, warlike operations, national emergencies, terrorism, piracy, arrests, restraints or detainments of any competent authority, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, weather conditions, earthquake, natural disaster, accident, mechanical breakdown, third party software, failure or problems with public utility supplies (including electrical, telecoms or Internet failure), shortage of or inability to obtain supplies, materials, equipment or transportation ( “Event of Force Majeure” ), regardless of whether the circumstances in question could have been foreseen.
Either you or we may terminate a Contract forthwith by written notice to the other in the event that the Event of Force Majeure lasts for a period of two Business Days or more, in which event neither you nor we shall be liable to the other by reason of such termination (other than for the refund of a Product already paid for by you and not delivered).
If we have contracted to provide identical or similar Products to more than one Customer and are prevented from fully meeting our obligations to you by reason of an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
Default or Winding up :
If you If you are (i) in breach of any of your obligations under a Contract; or (ii) give notice to any of your creditors that you have suspended or are about to suspend payment or an order is made or a resolution is passed for your winding-up or an administration order is made or an administrator is appointed to manage your affairs, business and property or a receiver and/or manager or administrative receiver is appointed in respect of all or any of your assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or you take or suffer any similar or analogous action in consequence of debt in any jurisdiction;
We may terminate the applicable Contract immediately on giving notice in writing and retain any advance payment and you shall indemnify us against all claims, losses, damages, liabilities, costs and expenses of whatsoever nature resulting from any such termination and all sums due to us from you shall become immediately payable.
Termination of a Contract shall be without prejudice to any accrued rights or remedies of either you or us. Termination of a Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
Any notice under a Contract shall be in writing and may be served by personal delivery or by pre-paid or recorded delivery letter or by email addressed to the relevant party at the address or email address of the relevant party last known to the other.
Any notice given by post shall be deemed to have been served two Business Days after the same has been posted if the recipient address is in Australia. Any notice given by email shall be deemed to have been served when the email has been proved to be received by the recipient’s server.
In proving such service it shall be sufficient to prove that the letter or email was properly addressed and, as the case may be, posted as a prepaid or recorded delivery letter or despatched or a delivery report received.
Advertising on Site :
We shall use our reasonable endeavours to comply with any relevant regulations relating to the Site published by the Advertising Standards Authority.
We shall keep a record of your Order and these Terms & Conditions until six years after we have accepted your Order. However, for your future reference, we advise you to print and keep a copy of these Terms & Conditions, your Order, the Acknowledgement and the Confirmation of Order.
No failure or delay by us or you in exercising any right under these Terms & Conditions or a Contract shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish our or your rights under these Terms & Conditions or a Contract.
If any clause in these Terms & Conditions or a Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other clause or part of any clause, all of which shall remain in full force and effect, so long as these Terms & Conditions or a Contract shall be capable of continuing in effect without the unenforceable term.
You shall not assign, transfer, novate, charge, sub-contract, create any trust over or deal in any other manner with these Terms & Conditions or a Contract or all or any of your rights or obligations under these Terms & Conditions or a Contract.
Nothing in these Terms & Conditions or a Contract shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between you and us.
No person who is not a party to these Terms & Conditions or a Contract shall acquire any rights under it or be entitled to benefit from any of its terms even if that person has relied on any such term or has indicated to any party to these Terms & Conditions or that Contract its assent to any such term.
These Terms & Conditions and a Contract (and all non-contractual obligations arising out of or connected to them) shall be governed and construed in accordance with Australian Law. Both we and you hereby submit to the non-exclusive jurisdiction of the English Courts. All dealings, correspondence and contacts between us shall be made or conducted in the English language.
Amendment to the General Business Terms & Conditions
We reserve the right to amend these Terms & Conditions at any time. All amendments to these Terms & Conditions will be posted on-line. However, continued use of the Site will be deemed to constitute acceptance of the new Terms & Conditions.
Version : February 2018