Acceptance of the Terms of Use

Thermos sells food and beverage containers (Products) on its website ( Website), which is owned and operated by Thermos Pty Ltd ACN 000 393 386 (Thermos).

By using this Website and in consideration of Thermos providing you with access to the Website, you confirm that these Terms and Conditions (Terms) govern your access to and use of the Website and purchase of the Products, and you accept and agree to comply with them.

Thermos recommends that you print a copy of these Terms for future reference.

Thermos reserves the right to amend these Terms from time to time. Every time you wish to use the Website or purchase a Product, please check these Terms to ensure you understand the terms and conditions that apply at that time.

1. Order for Products

1. 1. Each Order constitutes an offer by the Customer to acquire the Products from Thermos subject to these Terms.
   2. Thermos may refuse to accept an Order, or part of an Order, for any reason.
   3. The Customer may not, without Thermos’ consent, cancel or vary an Order after it has been placed. In the event that Thermos consents to the cancellation or variation, the Customer is liable for any Loss incurred by Thermos up to the time of cancellation or variation.
   4. Additional costs will apply for a variation of an Order after it has been placed, if the Products or quantity of Products has been varied.

2. Price and Payment

1. 1. All prices quoted are in Australian dollars, inclusive of GST and except as otherwise expressly stated, exclusive of insurance, delivery charges, and any other sales, value added or similar tax which may apply.
   2. The Order will not be confirmed and the Products will not be shipped until payment is received in full.

3. Delivery, title and risk

1. 1. Delivery costs are to be paid by the Customer prior to shipping.
   2. Thermos will deliver the Products to the address provided by the Customer.
   3. Thermos will use all commercially reasonable endeavours to deliver the Products by the date (if any) specified to the Customer however, accepts no liability for late delivery.
   4. Title and risk in the Products purchased by the Customer pass from Thermos to the Customer upon delivery of the Products to the address provided by the Customer in the Order.

4. Descriptions of Products

Thermos Pty Ltd (Australia) warrants Genuine Thermos Brand products to be free from defects in material or workmanship under normal use and service from the date of original purchase. This warranty does not cover ordinary wear and tear or colour fading, or any condition affected by abuse, neglect, alteration, accident or improper use or maintenance.

If the product fails to provide reasonable wear due to defective materials or workmanship, please note that under your consumer statutory rights, you are entitled to a replacement or a refund, providing this is within a reasonable time period and this is usually 12 months from the date of purchase. In addition to your consumer statutory rights, Thermos offer an extended guarantee period for a selection of Thermos brand products.

Extended Warranty

Extended warranty may apply to select Thermos brand products. In this instance, the following warranty statement shall apply;

Thermos Pty Ltd warrants that this Genuine Thermos® Brand product is free from defects in workmanship and materials for 5 years from the date of purchase. If as a result of normal use in compliance with the manufacturer’s instructions the product fails to operate within the warranty period, we will repair or replace the product.

This warranty does not extend to cover any damage or defects in plastic components, such as stoppers, cups, straws etc. which are less durable than steel, and are therefore more susceptible to wear and tear, so their useful life will vary depending upon the amount of usage of the product.

This warranty does not cover ordinary wear and tear or colour fading, or any condition affected by abuse, neglect, alteration, accident, improper use or maintenance, or commercial use.

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or 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.

The benefits given to you in this warranty are in addition to other rights and remedies under the law in relation to the goods or services to which this warranty applies. In the event of product failure, the goods should be returned at your cost to the original place of purchase, with specific details of the complaint, and a copy of the purchase receipt.

The Customer expressly acknowledges that for all purposes whatsoever the Customer has relied entirely on their own knowledge, skills, and judgment in selecting and ordering the Products.

5. Returns

1. 1. Defective Products
      1. If the Product is a Defective Product, the Customer must contact Thermos promptly and notify Thermos of the nature of the defect.
      2. If Thermos determines (acting reasonably) that the Product is a Defective Product, Thermos will pay for the cost of the return of the Defective Product to Thermos and provide a replacement Product.
   2. Non-Defective Products

Unless the Customer has rights under the Australian Consumer Law which cannot be lawfully excluded, restricted or modified, if the Products are not Defective Products:

1. 1. 1. Orders may only be cancelled or Products returned for credit with the prior written approval of Thermos, provided the Products are returned in the same re-saleable condition as when they were originally sold, and the costs of return shall be borne by the Customer;
      2. unless returns are due to an error by Thermos, the Customer may be charged a reasonable fee which constitutes a genuine pre-estimate of Thermos’ Loss arising from the cancellation or return of the Products; and
      3. Thermos is under no obligation to approve the cancellation or return of any Order for Products that have been manufactured, processed or purchased by Thermos to meet the Customer’s specific request.
      4. In any event, the Customer must provide to Thermos a valid proof of purchase and the Products must be in their original condition (where reasonable, as determined by Thermos).

6. Claims and Liability

1. 1. The Customer must promptly notify Thermos of any complaint or claim in relation to the Products.
   2. Except only for those rights and remedies that the Customer has in respect of the Products under the Australian Consumer Law which cannot be lawfully excluded, restricted or modified:
      1. Thermos excludes any liability for Consequential Loss;
      2. all conditions, warranties and Consumer Guarantees, whether statutory or otherwise, are excluded in relation to the Products; and
      3. Thermos is not liable to the Customer for any Loss which the Customer suffers, incurs or is liable for in connection with supply of the Products under the Agreement, including in connection with any third party claim.
   3. To the extent permitted by law, Thermos’ liability in respect of Defective Products or for breach of a condition, warranty or Consumer Guarantee is limited to any one of the following options as determined by Thermos:
      1. replacement of the Products or the supply of equivalent Products;
      2. where possible, repair of the Products;
      3. payment of the cost of replacing the Products or of acquiring equivalent Products; or
      4. payment of the cost of repairing the Products, where possible.
   4. In any event, Thermos’ total liability to the Customer does not exceed the amount paid by the Customer for the Products.

7. Indemnity

1. 1. The Customer agrees to indemnify Thermos and its Affiliates in respect of any liability, loss or damages (including all legal and other costs on a full indemnity basis) suffered or incurred by them arising (in whole or part) out of or in connection with:
      1. the breach of or failure to comply with these Terms, or any other default or wrongful conduct in relation to the subject matter of these Terms , on the part of the Customer or any of its Affiliates; and
      2. any act or omission on the part of the Customer or its Affiliates, including in connection with the storage, handling and dispensing of Products.

8. Intellectual Property

1. 1. All material on the Website, including the text, code, information, graphics, illustrations, photographs, video, music, sound, trading names, service marks, logos, design, layout, downloads, pricing, products and services (Content) is owned by or licensed to Thermos.
   2. You must not reproduce, transmit, adapt, distribute, sell, modify, publish or store Content for any purpose, other than with the prior written consent of Thermos, or as permitted by law. All rights of Thermos are reserved.
   3. The THERMOS logo is a trademark of Thermos.
   4. Trademarks used on the Website to describe third parties and their products are trademarks of those third parties and you are not permitted to use them without the consent of those third parties.

9. Links and Third Party Content

1. 1. You must not link to, frame or mirror any part of the Website without Thermos’s written authorisation.
   2. The Website may contain links to or display the content of third parties (Third Party Content), including links to websites operated by other organisations and individuals (Third Party Websites). Third Party Content and Third Party Websites are not under the control of Thermos.  Thermos does not endorse, approve or make any warranty or claim regarding Third Party Content, Third Party Websites or the products, services or information available on any Third Party Website, or in respect of the owner or operator of a Third Party Website or their conduct.  If you use or rely upon Third Party Content or Third Party Websites, you do so solely at your own risk.

10. Disclaimer and Liability

1. 1. Thermos does not guarantee that the Website will be secure or free from bugs or viruses or function without interruption or errors. The Website is provided on an “as is” and “as available” basis.  You are responsible for configuring your information technology, computer programmes and platform to access the Website.  You should use your own virus protection software.  By accessing  the Website, you assume all risks associated with its use, including but not limited to the risk that your computer, software or data may be damaged by any virus transmitted by the Website or by any Third Party Content or Third Party Website.
   2. To the extent permitted by law, Thermos and its Affiliates excludes all warranties, conditions and representations (whether express or implied) that may apply to the Website or any Content on it. Thermos and its Affiliates will not be liable to you for any loss or damage of any kind, whether in contract, tort (including negligence), even if foreseeable, arising under or in connection with:
      1. your use of, or inability to use the Website; or
      2. your use of or reliance on any Content or material displayed on the Website,

including any direct, indirect, special, incidental, consequential or punitive damages, which includes, but is not limited to, loss of revenue or profits or business or anticipated savings, loss of use or goodwill or reputation, loss of data, even if such loss was foreseeable.

11. Severability

If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable, the relevant provision will be deemed severable from these Terms and will not affect the validity and enforceability of the remaining provisions.

12. Waiver

No failure or delay by Thermos in exercising any right, power or privilege under the Terms will operate as a waiver of such right, power or privilege, nor will any single or partial exercise preclude any other or further exercise of any right, power or privilege under the Terms.

13. Privacy Policy

Thermos’s Privacy Policy is incorporated by reference into these Terms and Conditions.  Thermos will only use your personal information as set out at https://www.thermos.com.au/privacypolicy.aspx

14. Jurisdiction

These terms and conditions are governed by the laws of New South Wales, Australia.

15. Contact

If you have any queries regarding these Terms and Conditions, please contact Thermos at online@thermos.com.au.

 

Definitions

Defined Term	Meaning
Affiliate	means the related body corporates, employees, agents, contractors and officers of a party;
Australian Consumer Law	means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the relevant State and Territory fair trading acts;
Consequential Loss	means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity;
Consumer	has the meaning given to it in section 3 of the Australian Consumer Law;
Consumer Guarantee	means a right or guarantee under the Australian Consumer Law that cannot lawfully be excluded;
Customer	means the person, entity, firm or corporation that acquires Products from Thermos pursuant to the Agreement, the details of which are set out in the Order and includes the Customer’s permitted assigns, successors, employees, servants and agents;
Defective Products	means Products that are defective in design, performance or workmanship;
Loss	means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer’s fees and expenses on a full indemnity basis) whether direct, indirect, special, consequential or otherwise;
Order	means an order for the Products placed by the Customer on the Website.