If you have any particular questions, please contact us by email via [email protected]
(a) confidential information relating to the technology and design of our Site including, but not limited to, algorithms, manuals, designs, diagrams and training videos of the Site;
(b) the Data;
(c) information relating to our personnel, policies or business strategies;
(d) information relating to the terms upon which the Site or any of the Products are provided to you;
“Device” means any type of device including a computer, mobile phone, tablet or console.
“Delivery Provider” means a third party person or entity who conducts a delivery business or provides delivery services.
“GST” has the meaning given by section 195-1 of the GST Act.
“GST Act” means the A New Tax System (Goods and Services) Tax Act 1999 (Cth) as amended or replaced from time to time.
“Intellectual Property Rights” means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
“Moral Rights” has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
“Products” means any and all of the Products (as the case may be) that can be purchased on the Site.
“Site” means the website operating from the domain at https://wholekids.com.au/.
“User” means any person, and where the context permits, includes any entity on whose behalf that person who uses (whether as a registered or unregistered user) or accesses the Site on any Device.
“you” means the User, and where the context permits, any person you authorise to use the Site on your behalf or consume any of the Products purchased by you.
“your” has a corresponding meaning.
3. USE OF SITE AND PURCHASE OF PRODUCTS
We reserve the right to change, suspend, remove, or disable access to any part of the Site or any of the Products at any time without notice. In no event will we be liable for the removal of or disabling of access to any such part of the Site or any of the Products. We may also impose limits on the use of, or access to, the Site or the Products in any case and without any notice or liability.
As a condition of your using and accessing the Site and purchasing the Products, you represent and warrant that you:
(a) are aware and comply with all relevant and applicable laws regarding the purchase and consumption of the Products;
(b) will only provide Data and other information that is complete, accurate and up to date;
(c) will not falsify any of your Data or other information;
(d) will only maintain one account at any given time, and if your account is ever suspended or terminated for any reason, you will not create another account;
(e) are not currently prohibited or otherwise restricted from using or accessing the Site or purchasing any of the Products;
(f) are not a competitor of us, and are not using or accessing the Site or the Products for the purposes of competing with our business;
(g) will not violate any of our or any other person’s rights, including but not limited to, Intellectual Property Rights; and
5. YOUR OBLIGATIONS
5.1. You must not:
(b) use the Site or the Products in any way that could damage our reputation or the goodwill or other rights associated with the Services; or
(d) attempt to undermine the security or integrity of our computing systems or networks or, where the Site are hosted by a third party, that third party’s computing systems and networks;
(e) use, or misuse, the Site in any way which may impair the functionality of the Site, or other systems used to deliver the Site or impair the ability of any other user to use the Site;
(f) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the Device on which the Site is hosted;
(g) transmit, or input into the Site, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use); and/or
(h) unless you have our prior written consent, rent, lease, lend, sell, redistribute or sublicense the Site, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Site, any updates, or any part thereof or any computer programs used to deliver and/or operate the Site (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Site).
5.3. You must ensure you protect the Site and the Products at all times from unauthorised access, use or damage and you must ensure that all usernames and passwords required to access the Site or the Products are kept secure and confidential. You must immediately notify us of any unauthorised use of your passwords or any other breach of security and you must reset your password and you must take all other actions that we reasonably deem necessary to maintain or enhance the security of our computing systems and networks and your access to the Site.
5.6. You will be responsible for providing your own Device and other access facilities (including terminal, software, internet access, modem and telecommunications facilities) necessary for utilising the Site and to purchase the Products. You must ensure that any Device on which the Site and purchase the Products is used are in good, up to date working order and operating condition. We accept no responsibility or liability for any deficiency relating to your Device and other access facilities. Additionally, you acknowledge and agree that you will be solely liable for any fees or other charges incurred by you in connection with using or accessing the Site and purchasing the Products, including but not limited to software, hardware, equipment and internet usage charges.
6. USAGE LIMITATIONS
Use of the Site or the Products may be subject to limitations. Any such limitations will be advised.
7. SUITABILITY OF GOODS
You agree and acknowledge that:
(a) save for any express representations and warranties, we make no representations as to the suitability, quality or acceptability of any Products generally and/or with regard to your particular needs (including any allergies or illnesses you may have);
(b) if there are any issues with regard to the suitability, quality or acceptability of any Products provided to you, you will contact us directly in respect of such issues;
(c) where the Products are not suitable and we agree to refund you in respect of any payments you have made, you will be eligible for a refund. You accept and acknowledge that any agreement in respect of the provision of a refund is to be between you and us.
8. DELIVERY OF PRODUCTS
8.1. We will endeavour to process and dispatch any orders of the Products within two (2) Business Days from the date that the order is received and payment is made in full for the Products.
8.2. The delivery of any of the Products will be subject to and conditional upon us having those Products in stock at the time that you order the Products.
8.3. We will endeavour to arrange the delivery of the Products within Australia only and within the following timeframes from the date that the Products are dispatched by us:
(a) Melbourne (metro): 1-2 Business Days;
(b) Victoria (regional): 2-3 Business Days;
(c) Sydney or Adelaide (metro): 2-4 Business Days;
(d) Brisbane, Perth or Hobart (metro): 2-5 Business Days;
(e) Western Australia, Queensland, Northern Territory or Tasmania (regional): 3-6 Business Days; and
(f) all other areas within Australia (other than Christmas Island): 3-7 Business Days.
8.4. If the total cumulative value of an order of the Products exceeds $80, the costs of the delivery of the Products will be included in the price for the Products. Otherwise, the price of the delivery will be:
(a) Melbourne (metro): $9.75; and
(b) all other locations: $12.95.
8.5. You acknowledge that the above delivery prices are subject to change without notice.
8.6. You acknowledge and agree that:
(a) where you have used our Site to place an order with respect to any Products which is to be delivered to you, the delivery service is provided to you by a third party Delivery Provider (and is not delivered by us);
(b) the Delivery Provider may require a signature and a person available at the delivery address to accept and sign for the delivery;
(c) If no one is available at the time of delivery and a signature is required, the Delivery Provider may leave a note at your delivery address and your package will be taken to another location for collection by you at a later time;
(d) we will not be responsible for or be held liable for any claims, loss or damage incurred, sustained or suffered by you or any other third party for any packages that are undelivered or lost for any reason whatsoever including (without limitation) you providing an incorrect address for delivery or if an unauthorised person has accepted and signed for the delivery;
(e) you agree to be bound by any policies and terms applicable to that Delivery Provider with respect to the delivery;
(f) we make no representations as to the suitability, quality or acceptability of the conduct of the delivery driver, the timeliness of the delivery or generally in regard to the delivery by a Delivery Provider;
(g) if there are any issues with regard to the suitability, quality or acceptability of any Products delivered to you by a Delivery Provider, you will contact us directly in respect of such issues and will hold us harmless in respect to any claim, loss or damage arising from such issues (including any health outcome or illness associated with such issue); and
(h) if there are any issues with regard to the conduct of a delivery driver, the timeliness of the delivery or generally in regards to the delivery by a Delivery Provider, you will contact that us directly in respect of such issues and will hold us harmless in respect to any loss or damage arising from such issues.
9. FEES AND PAYMENTS
9.1. You acknowledge that where you purchase any Products through our Site, you will be responsible for payment in respect of those Products in full (without any set-off or deduction) before the order can be processed and the Products can be dispatched.
9.2. Where such payments are taken through the Site, you acknowledge and accept that such payments are not processed or taken by us and instead are processed by a third party payment gateway (and you agree to be bound by any policies and terms applicable to that payment gateway).
10. RETURNS POLICY
10.1. If you are a consumer for the purposes under Australian Consumer Law, items are sold with consumer guarantees prescribed by the Competition and Consumer Act (Cth) 2010. Subject to the requirements set out in the legislation, where there is a failure that amounts to a breach of such consumer guarantees, Nourish Foods will:
(a) if the failure is a major failure, either arrange for a replacement with an identical or comparable item(s) or issue a refund of the price (at your option); or
(b) if the failure is not a major failure, (at our discretion), replace the item(s) or issue a refund.
10.2. You acknowledge and agree that you are not entitled to any refund or replacement of any of the Products if you have changed your mind about the Product.
10.3. You must make any request for a refund, return or exchange of a Product within seven (7) days from the date you submitted your order.
10.4. To return an item or request a refund, you are required to contact us by email ([email protected]) or phone (1300 099 744) between the hours of 9:00am and 5:00pm AEST (Monday to Friday) and provide the following details:
(a) your name and address;
(b) date of the order of the Products;
(c) sales invoice number; and
(d) brief description of the problem you are experiencing.
11.1. Unless the relevant party has the prior written consent of the other or unless required to do so by law:
(c) you shall take all reasonable steps to ensure that your employees, agents, subcontractors or related entities, do not make public or disclose our Confidential Information. If you become aware that any of your employees, agents, sub-contractors or related entities passed on any Confidential Information to any other party, then you shall notify us in writing immediately.
11.2. The provisions of this clause shall not apply to any information which:
(a) is or becomes public knowledge other than by a breach of this clause;
(b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
(c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
(d) is independently developed without access to the Confidential Information.
12. INTELLECTUAL PROPERTY
12.1. Title to, and all Intellectual Property Rights in the Site and the Products and any documentation relating to the Site and the Products remain our (and/or our licensors) sole property.
12.3. Nothing transfers to you ownership of the Site or the Products or our Intellectual Property Rights in relation to the Site or the Products.
12.4. You acknowledge that we (and/or our licensors) own all the Intellectual Property Rights in the Site or the Products.
12.5. We retain full legal rights in and title to the Site and the Products whether in its original form or as modified by you or us.
12.6. You will not directly or indirectly do anything that would or might invalidate or put in dispute our title in the Site and the Products.
12.7. If any person makes any claim alleging that any of the Site or the Products infringes any Intellectual Property Rights or Moral Rights of any person, you must:
(a) promptly notify us in writing; and
(b) co-operate with, assist and act at all times in accordance with our reasonable instructions, in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
12.8. You must not:
(a) permit any person to link to any page containing any part of the Site (including via a hyperlink or RSS feed) without our prior written consent;
(c) reproduce, make error corrections to or otherwise modify or adapt the Site or the Products or create any derivative works based upon the Site or the Products;
(d) de-compile, disassemble or otherwise reverse engineer the Site or the Products or permit any third party to do so; or
(e) modify or remove any copyright or proprietary notices on the Site or the Products.
13.2. You acknowledge and agree that:
(a) where you create a user account or user profile, we may collect information from you (including personal information) in support of your registration. You authorise us to retain such inputted information;
(b) where you interact with our Site, without a user account or profile, we may cache any transmitted data for a period of up to 24 hours (following which such data will be erased); and
13.3. You agree that we may collect and use the Data and other technical and related information, including but not limited to information about your Device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Site or the Products. We may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.
14. THIRD PARTY APPLICATIONS AND YOUR DATA
14.1. If you enable third party applications for use in conjunction with the Site or the Products, you acknowledge that we may allow the providers of those third party applications to access your Data as required for the interoperation of such third party applications with the Site or the Products.
14.2. You agree that where you use any third party applications or services to interact with our Site or the Products in any way, you do so at your own risk and on the understanding that we are not responsible for any claims or loss arising out of, or in any way related to, your use of such third party applications or services and/or the interaction of such third party applications or services with our Site or the Products.
15. WARRANTIES AND ACKNOWLEDGEMENTS
15.1. We do not warrant that the use of the Site will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Site, including public telephone services, computer networks, the internet and any Device, can be unpredictable and may from time to time interfere with or prevent access to the Site. We are not in any way responsible for any such interference or prevention of your use of or access to the Site.
15.2. You warrant and acknowledge that:
(a) you are authorised to use and access the Site and the products and to access the information and Data that you input into the Site, including any information or Data input into the Site by any person you have authorised to use the Site.
(b) you are authorised to access the processed information and Data that is made available to you through your use of the Site (whether that information and Data is your own or that of anyone else);
(d) you are responsible for authorising any person who is given access to information or Data, and you agree that we have no obligation to provide any person access to such information or Data without your authorisation and may refer any requests for information to you to address; and
(e) the provision of, access to, and use of, the Site is on an “as is” basis and at your own risk;
(f) it is your sole responsibility to determine that the Site and the Products meet your personal needs and requirements and are suitable for the purposes for which they are used;
(g) you remain solely responsible for complying with laws applicable to you; and
(h) it is your responsibility to check that storage of and access to your Data via the Site will comply with laws applicable to you (including any laws requiring you to retain records).
15.3. You acknowledge and warrant that if you use our Site on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise):
(a) you are responsible for ensuring that you have the right to do so;
(d) the provision of, access to, and use of, the Site is on an “as is” basis and at your (and that person’s) own risk.
16. OUR LIABILITY
16.1. You acknowledge and agree that the Site and the Products cannot be tested in every possible combination, operating condition or application, and how and for what purpose the Site and the Products are used by you is not within our control.
16.2. To the maximum extent permitted by law:
(a) we exclude all warranties and representations as to the correctness, accuracy, adequacy, completeness, currency, reliability, timeliness or usefulness of any information or other content posted on the Site;
(b) we do not guarantee that the Site, or the server supporting the Site, is free from defects, viruses or other harmful components, or will be uninterrupted or error free;
(c) we do not guarantee that the Products are free from any defects or contamination;
(d) we accept no liability for the loss of Data where such loss is wholly or partly caused by factors beyond our reasonable control including, but not limited to, failure or fault in the hosted environment of the Site, defective network or internet connections, defective equipment utilised by you or incorrect operation by you of your own Device or other access facilities;
(e) we shall not be responsible for any disclosure, use, modification or deletion of your Data resulting from any access by third party application providers; and
(f) neither us, nor our directors, officers, employees, contractors or agents, will be liable for any direct, indirect, consequential or other loss or damage to any person or entity, however caused (whether by negligence or otherwise), arising in connection with your use of, or inability to use, the Site or the Products, or reliance upon any of the content or other information posted on the Site or the Products.
16.3. Save for any terms, conditions, guarantees, warranties, indemnities or other rights which may arise under the Australian Consumer Law or other legislation and which cannot be excluded:
(a) all warranties, whether express or implied including warranties as to fitness for any purpose and merchantability are expressly excluded; and
(b) to the extent legally possible any liability that we may have to the User in relation to the Site or the Products which cannot be excluded shall be limited to, at our discretion:
(i) either the supplying of the Products again; or
(ii) the payment of the cost of having the Products supplied again.
16.4. We shall not be liable for:
(a) any injury, loss, expense or damages (including loss of life) of any kind whatsoever or however arising whether directly, indirectly, consequently or contingently to any person or property and without limiting the generality of the foregoing; and
(b) any losses, expenses or damages caused by delays or any other reasons or additional expenses incurred by the User including losses of prospective profits or actual profits incurred by the User.
You agree to indemnify and hold us and our officers, employees and agents harmless (“those indemnified“) from and against any action, liability, claim, loss, damage, proceeding, expense (including reasonable legal costs and expenses) suffered or incurred by any of those indemnified, whether directly or indirectly, in connection with:
(b) your breach of any obligation you may have to us;
(c) any breach or inaccuracy in any of your representations or warranties;
(d) your use or access of the Site or the Products;
(e) your or any third party’s consumption of the Products;
(f) any Data submitted by you;
(g) our possession, processing, use or other handling of the Data or related data, documentation or records;
(i) us making available information or Data to any person with your authorisation.
18. ACKNOWLEDGEMENT AND RELEASE
18.1. You acknowledge and agree that:
(a) you must resolve all disputes directly with the Delivery Provider;
(b) Delivery Providers are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you, in connection with your interaction with or provision of the Products by any Delivery Provider; and
(c) by using or accessing the Site, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use or access the Site at your sole risk and that we shall not have any liability to you for any content that may be found to be offensive, indecent, or objectionable.
18.2. You agree that, to the maximum extent permitted by law, you release us from any and all Claims suffered by you, in connection with:
(a) your interaction with or provision of the Products by any Delivery Provider;
(b) any loss, cost or damage you suffer as a result of (or in any way connected to) any Products;
(c) any loss, cost or damage you suffer as a result of (or in any way connected to) any Products which are (and/or are to be) delivered by a Delivery Provider;
19. FEEDBACK AND REVIEW
19.1. From time to time, we may request that you provide us with feedback or reviews on the Site. You are not obliged to provide such feedback.
19.2. From time to time, we may also request that you provide us with feedback or reviews with respect to the Products on our Site. You are not obliged to provide such feedback.
19.3. You acknowledge and agree that we, at our sole discretion, may determine whether your comment is to be published on our Site.
19.4. You acknowledge and agree that where you intend to post any negative review or comment with respect to the Products on our Site or on any external review site or social media platform, you will contact us and provide us with an opportunity to discuss your concerns before publishing such negative review or comment.
20. SOCIAL MEDIA
20.2. With respect to social media, for the purposes of marketing and/or promotion, you hereby acknowledge and authorise us to:
(a) upload, publish, post or repost any content which directly or indirectly references content that you have uploaded, published, posted or reposted in respect of us and/or our Site or the Products;
(b) upload, publish, post or repost any content which directly or indirectly references content that you have uploaded, published, posted or reposted in respect of any of the Products; and
(c) make use of any publicly available information (including venue information and imagery) for the purposes of any publication, post or repost.
20.3. For the avoidance of doubt, by using the Site or purchasing the Products, you agree and consent to us undertaking any of the activities contemplated by clause 20.2 without the need to obtain any further consent from you.
21.2. Upon termination, you shall cease all use of the Site or any of the Products.
22. ASSIGNMENT AND NOVATION
You may not assign or transfer any rights under these to any other person without our prior written consent.
23. OUR RIGHTS
24. GOVERNING LAW
26.2. Notices must be sent to [email protected] or to any other email address notified by email to you by us.
26.3. Notices to you may be sent via electronic messages, including email, text message/SMS, or mobile push notifications, to the email address or numbers which you provided when setting up your access to the Site.
27. RIGHTS OF THIRD PARTIES
28. VARIATION TO TERMS