Terms of service

 2. Registration to use the Website

• In order to access the Website, you may wish to register your details and create an account with us (‘Account’), or otherwise continue as a guest.
• As part of the registration process, or as part of your continued use of the Website, you may be required to provide personal information about yourself (such as identification or contact details), including:
  • email address;
  • first and last name;
  • mailing address;
  • telephone number; and
  • password.
• We take your privacy seriously and any personal information provided through your use of the Website is subject to our privacy policy.
• You warrant that any information you give to us in the course of completing the registration process or using the Website as a guest will always be accurate, correct and up to date.
• If you chose to complete the registration process, you will be a registered member of the Website ('Member'). Members and other users of the Website, agree to be bound by the Terms. All users, including Members, will be granted access to the Website.
• In relation to your Account, you undertake that you will:
  • not disclose your password to any third party;
  • take reasonable measures to prevent disclosure of your password to any third party. You are liable for all use of the Website using your Account or password;
  • create only 1 account on the Website, and you will remain responsible for anything that happens through your Account; and
  • not impersonate another account holder or provide false identity information to gain access to or use the Website.
• Please notify us immediately if:
  • you become aware that your Account or password is being used without authorisation; or
  • there is any other security breach relating to your Account or password.

 3. Accessing the Website

• We will not be liable if the Website is unavailable (wholly or partly), for any reason at any time or for any period.
• Access to the Website is permitted on a temporary basis. We reserve the right to withdraw or amend the products and content we provide on the Website without notice.
• From time to time, we may restrict access to some or all of the Website.
• You are responsible for:
  • making all arrangements necessary for you to have access to the Website; and
  • ensuring that all persons who access the Website through your internet connection, mobile device, or otherwise are aware of these Terms, and that they comply with them.
• When accessing and using the Website, you must not:
  • Attempt to undermine the security or integrity of:
    • our computing systems or networks;
    • a third party’s computing systems and networks where the Website is hosted by a third party;
  • Use or misuse the Website in any way which may impair:
    • the functionality of the Website, or other systems used in the course of delivering the Website; and
    • the ability of any other user to the use of the Website.
  • Attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access, or to the computer system on which the Website is hosted.
  • Transmit, download or input into the Website, 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; or
  • Modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Website (or attempt to do so).

4. Your obligations

• You agree to use the Website only for purposes that are permitted by:
  
  • these Terms;
  • any applicable law or regulation. 
• You have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Website.
• Any use of your registration information by any other person is prohibited. You will immediately notify us of any unauthorised use of your password or email address or any breach of security of which you have become aware.
• Access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of us providing the Website.
• You must not use the Website for any illegal or unauthorised uses which include collecting email addresses of other members by electronic or other means for the purpose of sending unsolicited emails or for unauthorised framing of or linking to the Website.
• You must not misuse the Website by introducing viruses, trojans, malware or other material, which is malicious or harmful. You must not gain, or attempt to gain, unauthorised access to the Website, the server on which the Website is stored or any server, computer or database connected to the Website.
• You agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in the termination of your access to the Website. Appropriate legal action will be taken by us for any illegal or unauthorised use of the Website.

5. Purchase of Products and Return Policy

• In using the Website to purchase Products, you will pay the purchase price listed on the Website for the Product ('Purchase Price').
• Payment of the Purchase Price may be made through Shopify (the 'Payment Gateway Provider'). In using the Website, you warrant that you have familiarised yourself with, and agree to be bound by, these Terms, our Return Policy and Privacy Policy, and other relevant legal documentation provided by the Payment Gateway Provider such as Shopify’s terms (collectively, ‘User Terms and Conditions’). You must comply with the User Terms and Conditions as applying from time to time.
• Following payment of the Purchase Price being confirmed by us, you will be issued with a receipt to confirm that the payment has been received and we may record your purchase details for future use.
• We may provide a refund on the return of the Products in accordance with our Return Policy.

6. Returns

• Our Products come with guarantees that cannot be excluded under the Australian Consumer Law. See our Return Policy for further details.
• In order to make a claim under our returns policy, you must send written notice to us:
  • by post to Suite 75, 738 Burke Road, Camberwell, Victoria, 3124; or
  • by email at hello@moodfoodcompany.com.au.

7. Third party websites

• The Website may link to other websites, services, products or resources and they may contain links to the Website. In this regard:
  • they are not under our control and are not maintained by us;
  • we are not responsible, and accept no responsibility, for them, or for any loss or damage that may arise from your use of them (notwithstanding anything else);
  • we only provide such links for your information and convenience; and
  • we do not imply any endorsement of them or any association with their owners, operators or advertising material (as the context permits).
• Your linking to or from these sites, or use of, or reliance on, such websites, resources, products or services is at your own risk. You should carefully review the terms and conditions and privacy policies of all off-site pages and other websites or third party suppliers that you visit or transact with.

8. Delivery

• You acknowledge that the Website offered by us integrates delivery ('Delivery Services') through the use of third party delivery companies ('Delivery Service Providers').
• In providing the Website, we may provide you with a variety of delivery and insurance options offered as part of the Delivery Services by the Delivery Service Providers. You acknowledge and agree that we are not the provider of these delivery and insurance options and merely facilitate your interaction with the Delivery Service Providers in respect to them providing the Delivery Services.
• In the event that an item is lost or damaged in the course of the Delivery Services, you should contact the Delivery Service Provider directly to request a refund or to claim on any insurance options available.
• The following aspects of the Website are protected by copyright, trade mark and other intellectual property laws: information, text, materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, databases and control features (collectively the 'Content').
• We retain all right, title and interest in and to the Website and all related Content. Nothing you do on or in relation to the Website will transfer any rights in the Website and Content (and intellectual property in the them) to you.
• You may print off copies, and download extracts, of any pages from the Website for your personal reference and you may draw the attention of others within your organisation to material posted on the Website.
• You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any content separately from any accompanying text.
• Any opinions, advice, statements, services, offers, or other information or content expressed or made available by visitors, users or third parties are those of the respective author, distributor or advertiser, and not us.
• You must not use, copy, modify or reproduce any part of the materials or code on, or contained within, the Website, or any of our social media pages, for commercial purposes without obtaining an express licence to do so from us.
• If you print off, copy or download any part of the Website or any of our social media pages in breach of these Terms:
  • your right to use the Website and our social media pages will cease immediately; and
  • you must, at our discretion, return or destroy any copies of the materials you have made.

9. General disclaimer

• You acknowledge that we do not provide any guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.
• Any products, materials or other information offered by us, or otherwise posted on, or via, our website, does not constitute nor is it a substitute for the provision of medical or health advice. You assume full responsibility for consulting a qualified professional, including where you have any concerns, if you are pregnant, or in relation to a new diet or health program. You are ultimately responsible for all decisions relating to your mental and physical health and those of your dependants. Dietary needs and restrictions are unique to each individual. We are not responsible for adverse reactions, effects or consequences resulting from the consumption of our products or reliance on information published by us.
• We will make every effort to ensure our Products are accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.
• Nothing in these Terms limits or excludes any guarantees, warranties representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
• Subject to this clause, and to the extent permitted by law:
  • all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
  • we will not be liable for any special, indirect or consequential loss or damage, loss of or corruption to data, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Website or these Terms (including as a result of not being able to use the Website or the late supply of the Website), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
• Use of the Website and any of our Products (including the Delivery Services), is at your own risk. Everything on the Website and our Products, are provided to you on an "as is" and "as available" basis, without warranty or condition of any kind. None of our affiliates, directors, officers, employees, agents, contributors or licensors, including any Delivery Service Providers, make any express or implied representation or warranty about any Products or the Website. This includes loss or damage you might suffer as a result of any of the following:
  • failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, or theft, destruction, alteration or unauthorised access to records;
  • the accuracy, suitability or currency of any information on the Website or any Content;
  • costs incurred as a result of you using the Website or any of the Products;
  • the Content or operation in respect to links which are provided for the user's convenience;
  • any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
  • any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.

 10. Limitation of liability

• Our total liability arising out of or in connection with the Website or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase Price, then the total liability of our resupply of the Website or Products to you.
• We are not responsible or liable in any manner for any Website content (including the Content) posted on the Website or in connection with the Website, whether posted or caused by users of our Website or other third parties.
• You acknowledge that we do not provide the Delivery Services to you and you agree that we will not be liable to you for any loss or damage arising out of or in connection with the Delivery Services.
• We will not be liable for any loss or damage caused by a virus, system failures or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material, due to your use of the Website or your downloading of any material or content posted on it, or on any Website linked to it. We recommend that all Internet users ensure they have up to date virus checking software installed.

11. Termination

• The Terms will continue to apply until terminated by either you or by us as set out below.
• If you want to terminate the Terms, you may do so by:
  • notifying us at any time; and
  • closing your Account, where we have made this option available to you.
• Your notice should be sent, in writing, to us via the 'Contact Us' link on our homepage.
• We may at any time, terminate or suspend access to your Account or your access to all or any portion of the Website if:
  • you have breached any provision of the Terms or intend to breach any provision;
  • we are required to do so by law, regulatory body or enforcement agency;
  • we transition to no longer providing the Website to users in the country in which you are resident;
  • the provision of the Website to you by us is, in our opinion, no longer commercially viable;
  • your conduct impacts our name or reputation, or violates the rights of another party.
• You agree that any suspension or termination shall be made at our discretion, and we will not be liable to you or any third party for any such suspension or termination.

12. Indemnity

You indemnify us, our affiliates, employees, agents, contributors and licensors from and against:

• all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any Content you post through the Website;
• any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so; and/or
• any breach of the Terms.

13. Dispute resolution

• If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
• A party to the Terms claiming a dispute ('Dispute') has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
• On receipt of the notice ('Notice') from the other party, the parties must:
  • within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
  • if for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;
  • the parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The parties must each pay their own costs associated with the mediation; and
  • the mediation will be held in Melbourne, Australia.

• All communications concerning negotiations made by the parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
• If 14 days have elapsed after the start of mediation and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.

14. Force majeure

• We shall not be responsible for any delay, suspension or failure to provide the Website (or any websites linked to our Website) arising out of a Force Majeure Event.
• ‘Force Majeure Event’ means an event or circumstance:
  • that is beyond the reasonable control of a party;
  • which that party is not reasonably able to prevent or overcome; and
  • which prevents that party from performing a material obligation under these Terms,

including, subject to satisfaction of the foregoing:

• • extreme weather events, fire, flood, explosion or natural disaster;
  • acts of war, riots, terrorism or vandalism;
  • failure or shortage of supplies, equipment, materials or essential utility;
  • pandemic, epidemic or other widespread threat to human health (including an outbreak or recurrence);
  • computer hacking, internet interruption or virus or malicious damage;
  • strike, embargo or industrial disturbance; or
  • a change in applicable law.

 15. Customer support

• You acknowledge that we have no obligation to provide you with customer support of any kind.
• However, we may provide you with customer support from time to time provided you submit your enquiries to hello@moodfoodcompany.com.au.

 16. Variations

• We may, but are under no obligation to, update the Website (wholly or partly) at any time. If the need arises, we may suspend or cease access to the Website, our social media pages or any websites linked to third parties.
• Any of the content or information provided on, or via the Website, our social media pages, or any websites linked to the profiles of third parties may be out of date at any given time, and we are under no obligation to update it, unless required to do so by law.
• We reserve the right, in our discretion, to change, modify, add or remove any part of these Terms, in whole or in part, at any time.
• Notification of the changes to these Terms will be posted on the Website. The changes will be effective immediately, unless expressed otherwise.
• It is your responsibility to periodically check these Terms for any changes. If you do not agree with any of the changes to these Terms, it is your sole responsibility to unsubscribe from the Website. Your continued use of the Website will be deemed as your acceptance.
• The current version of these Terms is always available on our Website.

17. Entire agreement

• These Terms, our privacy policy, return policy, and any documents referred to in them, constitute the entire agreement between the parties, and supersede all previous discussions, correspondence, negotiations, previous arrangements, understandings or agreements, between the parties relating to the subject matter.
• Each party acknowledges that, in entering into these Terms, neither of us relies on, and subsequently will have any remedies for, any representation or warranty that is not set out in these Terms.
• We may assign, novate or sublicense any of our rights or obligations under these Terms at any time without obtaining your consent.

18. No waiver

• A failure by us to:
  • insist upon strict performance of your obligations under these Terms; or
  • exercise any of the rights and remedies we are entitled to under these Terms,

at any time, will not constitute a waiver of such rights or remedies and it will not relieve you from compliance with your obligations.

• If we waive a default, this does not constitute a waiver of any subsequent defaults.
• No waiver is effective unless it is expressly stated by us to be a waiver and is communicated to you in writing.

19. Relationship

No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship, is intended or created between you and us by these Terms.

20. Governing law

These Terms are governed by the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the courts of Victoria, Australia.

21. Independent legal advice

Both parties agree and confirm that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice (or waived its right to do so), agree that the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

22. Severance

If any part of these Terms is found to be void, unlawful or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain valid, lawful and in force.

Last updated: 25 October 2021