Terms & Conditions - Buyer
1. ACCEPTANCE
1.1 These Terms and Conditions are entered into between Upcoming Pty Ltd ACN: 654 661 711 (we, us, or our) and you, together the Parties and each a Party.
1.2 You accept these Terms and Conditions on the earlier of:
(a) ticking a box indicating you accept the Terms and Conditions; or
(b) placing an Order on the Website.
1.3 You acknowledge that the Website constitutes a marketplace to facilitate your purchase of products directly from Brands. We do not offer to sell any products or services on the website and are simply facilitating the transaction through the Website. If products on the Website are being sold by a third party, the Brand is responsible for delivery of those products, and we will display delivery details specific to those products at the checkout. All products listed on Upcoming are generated by Brands, and as such Upcoming does not guarantee the accuracy or products listed.
2.1 Orders
(a) You may place an Order at any time on the Website.
(b) Orders may be Pre-Orders or In-stock Orders, which will be reflected on the product information page.
(c) An Order will be confirmed by us via email when the Order is placed, however confirmation does not constitute acceptance of an Order.
(d) An Order is accepted by the Brand , as evident when the Order status on the Website changes to ‘In Progress’.
(e) [A4] [A5] [A6] If the Brand does not accept the Order or cancels the Order, we will cancel the Order and refund any Price paid.
(f) If you have queries about your order, please contact the Brand directly[A7] [A8] via the Platform by accessing the "Shop Contact” button on the Brand’s page. The Brand will provide a response within one (1) business day.
3. PROVISION OF GOODS AND SERVICES
3.1 Delivery of Goods
(a) We will arrange for the Brand to deliver the Goods to you at the Delivery Address within the time indicated on the Website if possible, or as otherwise agreed with you (including if the Brand allows for pick-up of the Goods).
(b) Despite clause 3.1(a), we cannot guarantee that your Order will be delivered within the time specified, as Orders are dispatched by the Brand and are therefore outside of our control.
(c) The anticipated dispatch date provided for Pre-Orders is:
(i) Set by the Brand and therefore we are not responsible for any inaccuracy or delay;
(ii) an indication only, until the Brand provides you with shipping tracking information; and
(iii) subject to change by the Brand, including but not limited to as a result of delays with manufacturing, shipping or other external factors.
(d) If your Order includes multiple Goods with different Brands and/or different delivery timeframes, each Good will be sent separately by the relevant Brand within the relevant delivery timeframe as indicated on the product information page on the Website.
(e) You will provide such access and facilities to enable the Brand to deliver the Goods without delay or disruption, and free from harm or injury.
(f) Anyone at the Delivery Address who receives the Goods will be treated as authorised by you to receive the Goods.
(g) The Goods will be deemed delivered when the Brand delivers the Goods to the Delivery Address.
(h) We or the Brand may, in our sole discretion, decide not to deliver the Goods where we reasonably believe that the Goods are likely to be stolen or damaged, or deem the Delivery Address to be unsafe for any reason. In this case, we or the Brand will contact you to arrange alternative delivery options.
(i) If your Order has not arrived within the expected time frame, you must notify the Brand.
(a) We will, as soon as practical, notify you of any actual or anticipated delay in respect of an Order.
(b) If we are unable to provide the Goods within the agreed timeframe, we will (at our election):
(i) arrange another time with you; or
(ii) cancel the Order and refund any Price paid.
We provide free shipping in accordance with our Shipping Policy.
(a) You will pay the Price as follows:
(i) In relation to Pre-Orders:
A. when your Order is placed, your credit card details are stored with our Payment Processing Partner.
B. One (1) day before the Pre-Order is to be dispatched by the Brand to you, the full Price will be deducted from your credit card by our Payment Processing Partner.
C. If your Pre-Order includes multiple Goods with multiple dispatch dates, you may have multiple deductions of your credit card. The total amount deducted will not exceed the total Price.
(ii) In relation to In-stock Orders:
A. The Price will be deducted from your credit card by our Payment Processing Partner when you place the Order on our Platform.
(b) Prices displayed on the Website are subject to change without notice. Pricing is supplied by third-party Brands and is not controlled by us or our employees. Negotiation of the price is not possible.
(c) We do not offer price matching, as the Price is set by the Brand and is therefore outside of our control.
In addition to your rights under the Australian Consumer Law, you may return Goods in accordance with our Refund Policy, provided the Goods are in the same condition as they were when they were delivered.
Subject to Australian Consumer Law, the Brand will honour all warranties, as listed in the Warranties Policy.
5. GENERAL WARRANTIES & OBLIGATIONS
5.1 Each Party continually warrants and represents to the other that:
(a) it is able to pay its debts as and when they fall due;
(b) it has all necessary rights, licenses, permits, and consents to perform its obligations under these Terms and Conditions and will comply with all applicable laws in doing so; and
(c) it will not do anything that may adversely affect the other Party’s goodwill, brand, or reputation.
5.2 You must comply with any instructions from us in respect of the Goods.
6. TITLE AND RISK
6.1 Risk and title in the Goods passes to you on delivery of the Goods.
6.2 Upon title and risk in the Goods passing to you, it is your responsibility to ensure that the Goods are properly handled, maintained, stored, and protected.
7.2 You must not make any representation to the contrary and you must not use or copy ours, or the Brands, Intellectual Property Rights.
7.3 You acknowledge that any trade marks or logos that appear on the Goods are owned by or licensed to us or the Brand, and that you must not do anything to prejudice the rights of the trade mark owner or licensee to such trade marks or logos.
7.4 User Generated Content
(a) From time to time we may encourage you via social media to share your own content featuring our products ("Content ”), by using specific hashtags in conjunction with your Content.
(b) By responding to our post and using the relevant hashtag, you acknowledge and agree that:
(i) You have complied with all relevant terms and conditions of the social media platform the Content is posted on;
(ii) You own all rights relating to your Content, including intellectual property rights, and you have obtained the necessary licenses, rights or consent from any other people featured in the Content;
(iii) Your Content, name and social media identifier may be featured on our social media account and our Website;
(iv) We may enhance, edit, crop or otherwise modify your Content; and
(v)
You are solely responsible for your C
content and indemnify us against all loss resulting from any claim, cost, or damage in relation to our use of the Content in accordance with this clause 7.4.
8.1 Each Party agrees to keep the other Party’s confidential information secret and safe, and not use it or disclose it to any person (or allow anyone else to do so) without the other Party’s written consent, except to the extent necessary to: (a) comply with these Terms and Conditions; (b) obtain professional advice in relation to these Terms and Conditions; or (c) comply with applicable law, provided that the other Party is given reasonable notice of the required disclosure.
9.1 Limitation of liability: To the maximum extent permitted by law, we:
(a) exclude all representations and warranties implied by law, and any and all liability for any loss, damage, or claim (including in negligence) suffered or incurred by you in connection with these Terms and Conditions, you release us from any liability that may arise;
(b) will not be liable for Consequential Loss; and
(c) limit our liability that cannot be excluded by law, to (at our option):
(i) the resupply of the Goods and/or Services subject to the claim or liability;
(ii) a refund of such Goods and/or Services; or
(iii) the cost of you procuring the same goods and/or services from a third party.
9.2 Subject to the Australian Consumer Law, we do not warrant the quality, suitability or fitness of any Goods sold on the Website, as the relevant Brand is the seller and provides all warranties in relation to the Goods.
10. GENERAL
10.1 Compliance with other terms: By using our Website, you have agreed to the other terms on our Website.
10.2 Variation: We may change any of the terms of these Terms and Conditions at any time, and your use of our Website will constitute your deemed acceptance of such changes.
10.3 Force majeure: Neither Party will be liable for any delay or failure to perform its obligations under these Terms and Conditions, except for the obligation to pay, if such delay or failure is due to any circumstances beyond that Party’s reasonable control.
10.4 Notices: Any notice given under these Terms and Conditions must be in writing addressed to the relevant address last notified by the recipient. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
10.5 Governing law: This Agreement will be governed by the laws of Victoria, Australia and the Parties hereby submit to the exclusive jurisdiction of the courts of Victoria in relation to any claim or matter arising from or in connection to this Agreement.
11. DEFINITIONS
11.1 In these Terms and Conditions, unless the contrary intention appears:
Brand means the third-party business that sells and/or manufactures the relevant Goods in your Order.
Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
Delivery Address means the address provided by you in relation to your Order.
Goods means the products set out in your Order.
GST has the meaning given to it in the A New Tax System (Goods and Deliverables Tax) Act 1999 (Cth) or any amending or replacing law.
In-stock Order means an Order for Goods that the Brand has in-stock and can therefore be dispatched within a reasonable period after ordering.
Order means placing an order for Goods or Services on the Website.
Payment Processing Partner means the third-party service provider we use to process your payment and which hold your payment details.
Payment Terms means Full payment required with Order.
Pre-Order means an Order for Goods that the Brand does not have stock on hand, and as such will be dispatched and delivered to you within the timeframe specified on the Website.
Price means the price of the Goods as stated in your Order and any additional costs notified to you.
Refund Policy means the refund policy set out on our Website and accessible at www. upcoming.store/returns .
Services means the services set out in your Order.
Shipping Policy means the shipping policy set out on our Website and accessible at www.upcoming.store/shipping.
Warranties Policy means the warranties as set out on our Website and accessible at www.upcoming.store/returns.
Website means www.upcoming.store.
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