terms and conditions
Welcome to www.esmi.com.au (this Website). These Terms and Conditions apply to (a) your use or access to this Website; (b) the supply of our Products ordered by you; and (c) the provision of our Services to you via this Website or other methods or platforms (e.g. via text message, email or social accounts).
Please review these Terms and Conditions carefully, if you do not agree to these Terms and Conditions, please do not use the Website, place any Orders for our Products on this Website or request our Services. Your use of this Website, the placing of any Orders of our Products, or your request of our Services, constitute your acceptance to these Terms and Conditions.
We offer a wide range of goods and services, and sometimes additional terms may apply. These are posted on the Website. When you purchase Products or request our Services where additional terms apply, you will be subject to those terms in addition to these Terms and Conditions, as applicable.
1.1 In these Terms and Conditions, unless the contrary intention appears:
Accepted Order means an Order accepted by us and for which payment has been received by us and an order confirmation notice is provided to you for such Order.
ACL means the Australian Consumer Law being Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales, Australia or, for deliveries of Products, at the place of delivery.
Contract means a contract of sale referred to in clause 2.4.
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Order means an order for the Products placed by you.
Price means the price of the Products inclusive of GST listed on the Website.
Product means the goods listed on the Website, or the goods purchased or to be purchased by you which are the subject of a Contract.
Returns Policy means the returns policy for the Products purchased from us, as amended from time to time, and available at www.esmi.com.au/returns-policy/
Service means the services offered by us, including the “Skin Advice Service” offered on the Website or via other methods of platforms (e.g. via a text message, email or social account) referred to in clause 7 below.
We, us or our means Makeup Cartel Pty Ltd (ABN 48 165 704 932) and its associated entities as defined in the Corporations Act 2001 (Cth).
2.1 You may place an Order for our Products by completing and submitting to us an online order and completing the checkout procedures on the Website. You must not order Products from us if you are under eighteen (18) years of age. We may, at our discretion, treat any order by a person under eighteen (18) years old as void.
2.2 All Orders are subject to our acceptance at our discretion. This Website and the information on it constitute an invitation to treat and not an offer by us to supply any Products. Your Order represents an offer from you to purchase the Product in accordance with these Terms and Conditions. Our acceptance of a particular Order will not imply that we will accept any of your future Orders.
2.3 Orders placed on a weekend or public holiday will not be processed until the next Business Day. If we accept your Order, we will acknowledge and accept your Order by providing you with an order confirmation number via email once your payment for the Products in your Order has been validated. If we do not accept your Order, we will provide a full refund of the amount paid by you and received by us for that Order.
2.4 Once your Order is accepted by us, a binding contract will come into existence between you and us in relation to the ordered Products. The Contract will comprise the Accepted Order and these Terms and Conditions. If there are any inconsistencies between these Terms and Conditions and another provision in the Contract, the provision in these Terms and Conditions will prevail to the extent of inconsistency. No other terms or conditions (including any terms or conditions printed on or referred to in your Order) will be binding on us unless we agree in writin.
3. Order Acceptance and Cancellation
3.1 You may cancel an Order any time prior to the time we send out the order confirmation notice to you. You may not cancel any Accepted Orders unless we agree to your cancellation, in which case you will be required to pay a cancellation fee, currently AUD$9.00.
3.2 You agree that we may not accept your Order, or we may cancel any Accepted Orders due to any of the following:
(a) the Products you order are not, or no longer available;
(b) we are not able to receive payment for the Products, or any payment was subsequently revoked; or
(c) where a Product has been listed or advertised with an incorrect price or inaccurate information by mistake,
in which case, you acknowledge and agree that we are under no obligation to sell you any Products. If you have made a payment and submitted your Order which is cancelled or rejected by us, or if we cancel your Accepted Order, we will provide you with a full refund for the amount you have paid and received by us for that Order or Accepted Order.
4. Price and Payment
4.1 Subject to clause 3, the price payable by you for the Products in an Accepted Order will be the Price for the Products at the time your Order is submitted. We may update or vary the Price from time to time without notice to you. Any changes will be effective once they are published on the Website.
4.2 All Prices are inclusive of GST. In the event that GST is not payable, such as when the Products are to be delivered outside of Australia, the GST will be deducted from the Price. All Prices do not include insurance or any other tax, tariff or duty unless expressly stated otherwise. You are required to pay (where applicable) these charges in addition to, and at the same time as, payment of the Price for the Products. If we are required to pay any additional tax, tariff, duty, fee or charge (in addition to GST), you must reimburse us with the amount paid.
4.3 We accept payment for any Accepted Orders by PayPal, Afterpay or credit or debit card only. We will not be responsible for any loss or damage (whether direct or indirect) suffered by you if your PayPal, Afterpay, credit or debit card is fraudulently used or used in an unauthorised manner by a third party.
4.4 Unless expressly stated to the contrary, all payments must be made in the currency specified in the Price on the Website for your transaction. Where conversion from foreign currency is required, such currency conversion will be performed by PayPal, AfterPay, Brain Tree or the debit card company and may be subject to a fee charged by them.
4.5 We will process PayPal, credit and debit card payments as soon as you submit your Order.
4.6 If your payment is declined or reversed for any reason, we reserve the right to reject your Order or cancel any Accepted Orders. We reserve the right to keep or sell the Products.
4.7 Your tax invoice will be sent to you when the Products are delivered. Please keep your tax invoice safely as it is your proof of purchase.
5. Delivery, Duties and Taxes
5.1 There will be no delivery charges for standard shipping within Australia of each Accepted Order where such order has a total value of more than AUD$28.00 (inclusive of GST and any other taxes). Delivery charges will apply to each Accepted Order of a total value of AUD$28.00 (inclusive of GST and any other taxes) or less, or an Accepted Order with a total value of more than AUD$28.00 (inclusive of GST and any other taxes) where any delivery option other than standard shipping is requested (for example, express post within Australia, shipping or express courier for international deliveries). For all delivery options, (including standard shipping within Australia) whether provided to you with or without charges, you will continue to be liable for any insurance, tax, tariff or duty (where applicable).
5.2 We will deliver the Products once full payment of the Price and all applicable charges (including charges for delivery, insurance or any other tax, tariff or duty) have been received. Any timeframes quoted by us for delivery of the Products are estimates only and will not be of the essence of the Contract; or otherwise confer any right of cancellation of an Accepted Order on you. We will not be liable for any loss or damages (directly or indirectly) sustained by you as a result of our failure to deliver by a particular delivery date.
5.3 We deliver Products within Australia and internationally. All Products will be delivered by a postal service or courier selected by you at the time your Order is submitted. If you provide specific delivery instructions (including to the postal service or courier), for example, for your Product to be to be left at your nominated address without acknowledgment of receipt, we will not be liable or responsible for any loss or damage to your Products once the delivery is made in accordance with your instructions. We are also not liable or responsible for any loss or damage to your Products that occurs as a result of the handling of Products by the postal service or courier in the process of delivering such products to you.
5.4 If the Products are to be delivered outside of Australia, you must comply with all laws and regulations of the country where the Products of your Accepted Order is shipped. You will be listed as the “importer” of the Product. All taxes, duties and tariffs will be your sole responsibility. We have no control over such taxes, duties and tariffs and do not have any obligation to ensure any Accepted Order will clear customs. You should contact relevant customs authority to determine if your Products under an Accepted Order will be charged any taxes, duties and tariffs or subject to any laws and regulations.
5.5 We do not take any responsibility where the Products of your Accepted Order are opened for inspection by customs authorities. In order to facilitate customs clearance and comply with local laws, we may disclose personal information, such as your name and address and other information such as the Price and description of the Products and shipment and carrier information.
5.6 You acknowledge that any delays caused by custom clearance are beyond our control. Our original estimated delivery timeframes do not take into account custom clearance. We are not liable for any loss or damage you suffer due to custom clearance delays.
5.7 Unless otherwise agreed, the Products are not insured by us and you will bear any risk of loss or damage to the Products when delivered to you.
6. Intellectual Property
6.1 All intellectual property rights in and to this Website and all information, contents and photographs published on this Website, whether in relation to our Products or otherwise, belongs or is otherwise licensed to us. You acquire no right, title or interest in or to our intellectual property by virtue of these Terms and Conditions. Nothing on the Website should be construed as granting any licence to use any intellectual property right, including any trade mark, without our permission.
6.2 In particular, you must not use any trade marks appearing on or in relation to the Products, our photographs of the Products, or any information or contents published on this Website in relation to the Products:
(a) to promote or market the Products in any way;
(b) in connection with goods or services that do not belong to us;
(c) in a manner that may be confusing, misleading or deceptive; or
(d) in a manner that disparages us, our Products, Services or the Website.
7.1 We may provide advice or give recommendations to you with respect to skin care and cosmetic products if you use the “Skin Advice Service” on the Website or via other methods or platforms (e.g. via a text message, email or on social accounts). The “Skin Advice Service” or any other information on the Website is provided strictly for general information purposes and should not be construed as specific or medical advice to your particular need.
7.2 The advice and recommendations given via the “Skin Advice Service” are suggestions only based on our experience and understanding of the Products and, where applicable, on the information provided by you. Our advice and recommendations, including with respect to Products, do not come with any guarantee or warranty of success or suitability.
7.3 Our “Skin Advice Service” in not intended to be professional medical advice, diagnosis or treatment. Always seek the advice of your physician or other qualified health professional with any question or issue you may have regarding the condition of your skin, or other medical condition. Do not disregard professional medical advice or delay in seeking it because of something you have read on this Website, or pursuant to using our “Skin Advice Service”.
8. Your Account and Privacy
8.1 You may create a customer account with us by completing and submitting to us a completed online form on the Website.
8.2 By registering a customer account with us, or otherwise submitting an Order for our Products, we may require you to provide your personal information, including details such as your name, your email address, phone number, billing and delivery address. You warrant that all information submitted to us is true, accurate and up-to-date.
8.4 If you register a customer account with us, we will require you to create a password for your customer account. You are must ensure that your username and password are kept secure and confidential. You must not allow your username or password to be used by any third party, or otherwise permit any third party to access your account at any time. You will be solely responsible for any misuse or abuse of your username, password or person details for anything that results from the use of your customer account (including any Orders placed under the account). You agree to indemnify us against any loss or claims arising from the unauthorised use of your username and password.
8.5 You will immediately notify us through our website’s “Contact Us” section of any suspected or actual unauthorised use of your account, disclosure of your username and password or any other security breaches.
8.6 Your account registrations are subject to our acceptance. We reserve the right to deny, restrict, suspend or close any customer accounts at our discretion.
9. Our Website and your use
9.1 We have made reasonable endeavours to ensure that the information and content provided on this Website are accurate and current at the date of publication, and that the photographs of the Products listed on this Website are represented accurately (including the size, colour, texture and overall appearance of the Product and the colour and shades offered by the Products). However, you acknowledge and agree that:
(a) the effect and texture of the Products may appear different in real life in comparison to the images displayed on the Website due to the effect of the Products on different skin tones and the texture of different types of skin on which the Products are applied;
(b) the size of the Products may appear different in real life in comparison to the images displayed on the Website, for example, the Product may appear smaller or bigger than their actual size;
(c) the fill level of the Product may appear higher or lower than the fill level of the Product displayed on the Website (where applicable);
(d) information to certain Products may have been inaccurately described by our suppliers which we have relied upon and undertaken reasonable inspections, which would normally be expected in the course of business to verify the information; and
(e) subject to clause 10 and to the extent permitted by law, we provide no (whether implied, expressed or otherwise) warranties, representations, or guarantees of any kind in relation to information, content and photographs on this Website.
9.2 We have used commercially reasonable efforts to provide you with access to this Website via the internet. You acknowledge and agree that access to and use of this Website may be temporarily suspended for scheduled or urgent server maintenance work or for other reasons beyond our reasonable control.
9.3 Subject to clause 10 and to the extent permitted by law and, except as provided by these Terms and Conditions, we will not be liable for any losses (including through negligence), damage (directly or indirectly), costs or expenses suffered by you or claims made against you in connection with:
(a) your reliance on any information, contents or photographs on this Website, including any errors, omissions, inaccuracies in the information, content and photographs of this Website; and
(b) your use of or inability to use the Website or any defects in the Website.
9.4 To the extent permitted by law, where you believe a Product you have purchased from this Website does not meet your expectations or the description of the Website, your sole remedy is to exercise your rights under clauses 10, 11 or 12.
(a) copy, collect, use, duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rent, lease, loan, trade, rebrand, or otherwise transfer any content, information and photographs found on this Website, except expressly authorised by us;
(b) utilise any content you view on or obtain from this Website to provide any commercial service including any service that is competitive with us;
(c) remove, tamper with, seek to override or otherwise interfere with any security or technological protection measure forming part of this Website;
(d) remove, obliterate, or obscure from view any copyright, trade mark or confidentiality notice or legend appearing on or within this Website;
(e) create a deep-link to this Website for any purpose unless expressly authorised in writing by us;
(f) use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages contained in this Website, and must not use such processes to download or access our contact information or any other user of this Website;
(g) engage in “framing,” “mirroring” or otherwise simulating the appearance or the function of this Website, unless expressly authorised in writing by us;
(h) attempt to or actually access this Website by any means other than through the interfaces provided by this Website;
(i) remove, cover or otherwise obscure any form of advertisement included on this Website; or
(j) interfere with or disrupt the availability of this Website, including but not limited to any servers or networks connected with this Website.
10.1 Nothing in these Terms and Conditions excludes, restricts or modifies the application of any legislation which by law of any jurisdiction cannot be excluded, restricted or modified. In particular, without limiting the foregoing, where you are considered a “consumer” within the meaning of the ACL, we give the guarantees to the extent required by the ACL (Consumer Guarantees) with respect to our Products and Services.
10.2 If you are a “consumer” under the ACL, the following notice applies to you:
“Our goods come with warranties and guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
In addition, clause 12 (Returns and Refunds) and clause 10.4 (Product Warranty) (if any) with respect to certain Products apply in addition to (but may overlap with) any rights and remedies you may have under the Consumer Guarantees as a consumer.
10.3 If you are not a “consumer” under the ACL, to the extent permitted by law, the rights under clause 12 (Returns and Refunds) and clause 10.4 (Product Warranty) (if any) are your sole remedies with respect to such subject matter.
10.4 Subject to this clause 10, we may offer a product warranty on certain Products in addition to the Consumer Guarantees. Where available, the product warranty will be granted on the terms and conditions of the relevant warranty card attached to the Products. You acknowledge and agree that not all Products carry a product warranty.
10.5 Subject to this clause 10, and to the extent permitted by law, all representations, warranties, guarantees, terms and conditions which would otherwise be implied in or imposed on these Terms and Conditions in connection with any goods or services supplied by us or otherwise relating to the performance of our obligations under these Terms and Conditions are excluded.
11. Limitation of Liabilities
11.1 Where by law we are unable to exclude terms, guarantees, warranties, representations or conditions but are able to limit them, to the extent permissible by law we limit our liability for any breach (including for any Consumer Guarantees), at our option, to the repair or replacement of Products, or payment of the cost of repairing or replacing the Products, or a refund of the Price paid for the Products.
11.2 We will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Products or these Terms and Conditions, whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
11.3 To the extent permitted by law, our total liability arising out of or in connection with the Products or these Terms and Conditions, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the total Price paid by you for the purchase of Products under these Terms and Conditions.
12. Returns and Refunds
12.1 We offer store credits as refunds for certain Products in accordance with our Returns Policy, available at www.esmi.com.au/returns-policy/. Our Returns Policy sets out our policies and procedures in relation to “change of mind” purchases of certain of our Products ordered by you.
12.2 You must follow the instructions set out in our Returns Policy to return a Product for a refund in the form of a store credit. All Products must be returned to us in the same condition as when they were delivered. Subject to clauses 10 and 11, we will not accept “change of mind” returns of:
(a) any Products that have been altered or customised (including with respect to their packaging and/or labels displayed on such Products);
(b) any Product that has been opened or used; and
(c) any Products on sale, as advertised on our Website.
12.3 If you are entitled to a store credit as a refund under our Returns Policy, we will only give you the store credit once we have received the Product and inspected it and assessed whether it is eligible for a refund under these Terms and Conditions. Any store credit we make will be valid for thirty (30) days and may only be used for purchases via the Website.
13.1 These Terms and Conditions are governed by the laws of New South Wales, Australia. The parties each agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
13.2 We may change any provision in these Terms and Conditions without notice. Any updated Terms and Conditions will be published on the Website and will only apply to orders submitted after the updated Terms and Conditions are published.
13.3 You must not assign any rights and obligations under these Terms and Conditions whether in whole or in part without our prior written consent.
13.4 Any notice in connection with these Terms and Conditions will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given or to such other address or email address as may from time to time be notified in writing to the other party.
13.5 If any provision of these Terms and Conditions is invalid, illegal or unenforceable, these Terms and Conditions Sale take effect (where possible) as if they did not include that provision.
13.6 Any failure by a party to insist upon strict performance by the other of any provision in these Terms and Conditions will not be taken to be a waiver of any existing or future rights in relation to the provision.
13.7 If a dispute arises under these Terms and Conditions, neither of you and us may bring court action against the other (other than proceedings seeking urgent interlocutory relief) without first attempting to resolve the dispute by negotiation for a period of at least 14 days.
If you need to contact us for any reason, please do so using the contact form on our Website at www.esmi.com.au/contacts/