By using the Website, You agree to be bound by, and comply with, these Terms and Conditions which form a legally binding contract between You and Fruitezy ABN: 29 750 625 870 (“Us” or “We” or “Our”). If You do not accept these Terms and Conditions, You must cease using the Website immediately.
In these Terms and Conditions, unless a contrary intention appears:
“Business Day” means a day that is not a Saturday, Sunday or public holiday in New South Wales;
“Contact Hours” means Monday to Wednesday 8:00am to 5:30pm, Thursday 8:00am to 9:00pm, Friday 8:00am to 5:30pm, Saturday 8:00am to 5:00pm and Sunday 10:00am to 5:00pm Australian Eastern Daylight Time;
“Contract of Sale” means a contract between You and Us for the sale of a Product;
“Delivery Address” means the address to which the Products are to be delivered as stated in each Order;
“Fruitezy” means Fruitezy ABN 29 750 625 870;
“Deli Products” means speciality food Products and fine food Products;
“Delivery Agent” means any third party delivery or shipping company nominated by Us;
“Delivery Fee” means the fee charged by Us, or a Delivery Agent, for the delivery of Your Products as provided to You at the time of placing Your Order;
“Delivery or Collection Window” means the time for the delivery or collection of Your Products as selected by You at the time of placing Your Order;
“GST” means goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999;
“Listed Sale Price” means the price at which a Product is listed for sale in a Listing;
“Listing” means a listing on the Website through which We offer to sell a Product to You;
“Order” means an offer by You to Us to purchase a Product at the Listed Sale Price;
“Party” means Us and / or You as the context requires;
“Personal Information” means information or an opinion about an individual as defined in section 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by Us for the purposes of the Agreement;
“Product” or “Products” means any produce, goods, products or items listed by Us for sale to a customer on the Website;
“Returns Policy” means Our returns policy available on the Website;
“Terms and Conditions” means these terms and conditions of use of the Website;
“Website” means the internet site owned by Us and operating under the URL www.fruitezy.com.au and:
“You” and “Your” are a reference to you, the customer.
If You are under 18 years of age, then You must obtain Your parent or guardian’s consent before using the Website or placing an Order.
3.1. In order to place an Order, You will first be required to create an account by following the instructions on the Website (“Account”).
3.2. Your username will be the email address You provide when creating an Account (“Username”). You can only have one Account per email address. Your Username must not be one that in Our opinion is inappropriate or offensive and must not infringe upon the rights of any third party. We can require You to immediately change Your Username if We think it is inappropriate for use in relation to the Website.
3.3. If You choose to use an email address supplied to You by an employer, then You are solely responsible for ensuring that You comply with the rules, policies or protocols that apply to the use of that email address.
3.4. Your Account is non-transferable. You must keep Your Account details safe and must not disclose them to any third party. The Account may be used only by the individual who created it and not by anyone else. We reserve the right to terminate Your Account if We have reason to believe that Your Account details are being used by anyone other than You.
3.5. You shall be liable for all activities that are undertaken using Your Account together with the associated password and shall compensate Us for any and all losses We may suffer as a result of any failure by You to keep Your Username and password strictly secure at all times.
4. PLACING AN ORDER
4.1. You may order Products by selecting and submitting Your Order through the Website in accordance with these Terms and Conditions.
4.2. An Order submitted by You is an offer by You to purchase a Product for the Listed Sale Price (plus any Delivery Fee and any other charges and taxes detailed in these Terms and Conditions or on the Website).
4.3. We may ask You to provide additional information or require You to confirm Your details to enable Us to process any Orders.
4.4. You agree to provide in each Order complete and accurate information as to Your personal details to enable the processing and delivery of Your Order. This information will also be used by the Delivery Agent to fulfil delivery of Your Order. We will not be liable to You for Your loss or that of any third party for a delay in processing or failure to process an Order or delay in delivery of a Product to You to the extent to which that delay or failure is directly or indirectly due to inaccurate or incomplete personal details provided by You with respect to an Order.
4.5. If You place an Order for delivery to someone other than yourself (“Nominated Recipient”) each reference in clause 4.4 to “Your personal details” is to be read as a reference to the personal details of the Nominated Recipient.
4.6. You agree to obtain the consent, from any Nominated Recipient of a Product, to the provision to Us of Personal Information belonging to Your Nominated Recipient of Products.
5. PICTURES AND IMAGES
You acknowledge and agree that:
a) All pictures and images of Products displayed on the Website are for illustration purposes only, and the sizes, dimensions and appearance of the actual Products may be different; and
b) You have read any corresponding written description of the Products prior to submitting Your Order.
6. PRICE ESTIMATION
6.1. You agree that listed weights (if any) for Product items are estimates based on the average weight of Products. The weight estimate displayed in a Listing may vary from the actual weight at the time the Order is completed.
6.2. Weight variation occurs due to seasonal variations in the size, or volume, of fresh produce which cannot be accounted for on a daily basis.
6.3. Due to variations in weight of items of fresh produce, a variation between the estimated price and the actual price can occur. In these instances, the purchase price of the Product ordered may be rounded up, or down, at the time the order is picked and packed, to account for the actual weight of the Product.
6.4. Whilst a rounding up or down may occur, the actual per kilogram price of a Product will be no greater than the price per kilogram quoted in a Listing.
7. ACCEPTANCE OR REJECTION OF AN ORDER
7.1. We reserve the right to accept or reject Your Order for any reason, including if the requested Product is not available, if there is an error in the Listed Sale Price or in the Product description posted on the Website or an error in Your Order.
7.2. Each Order that We accept results in a separate Contract of Sale. For each Order accepted by Us, We will supply the Products to You in accordance with these Terms and Conditions.
7.3. If We reject an Order, or part thereof, We will attempt to notify You of that rejection at the time You place the Order or within a reasonable time after You submit Your Order.
8. MINIMUM PURCHASE AMOUNT
The minimum purchase amount for each Order is $25.00 excluding the Delivery Fee (if applicable).
9. DELIVERY OF PRODUCTS
9.1. Delivery is limited to the defined delivery area, as identified and acknowledged by You on the Website popup prior to completing an Order. If You live outside of the defined delivery area, You may opt to order online and pick up in store.
9.2. An estimated delivery time frame will be provided at the time You place the Order. We will endeavour to deliver within that delivery time frame, as close to Your preferred time as possible. Delays can occur and in those cases no refund applies. If You cancel an order due to late delivery, full charges for the Produce will apply, in addition to the restocking fee.
9.3. We will deliver the Products to the front door at the Delivery Address. If You ask Us to deliver inside a premise or building at the Delivery Address and We agree to do so, then You are responsible for all loss or damage suffered by Us in connection with our delivery of the Products beyond the front door of the Delivery Address.
9.4. You agree to comply with certain delivery requirements specified below and such other requirements that We notify to You when You place Your Order.
9.5. It is standard practice to deliver the Order to the door and if no one is home, to leave the Order unattended at the door. For standard unattended deliveries, We recommend You leave a cooler bag at the door, with sufficient shade and cooling blocks supplied to keep the Produce fresh and cool.
9.6. If You specify that an Order must be attended on delivery, We will require the person accepting the delivery of Your Order to provide Us with proof of that person’s identity (including photographic identification) and, where relevant, age. If the Order has been paid by credit card, then We may also ask You to show Us the credit card for Us to conduct Our verification checks.
9.7. If You specify that You are required to be present at the time of delivery and You are not present at that time, then:
a) We will not deliver the Products You have ordered; and
b) We may charge You a restocking fee of up to $30.00 and the charges for any perishable Products in Your Order; and
c) We will attempt to contact You or You may contact Us to arrange for delivery at a different time, and We may charge You an additional Delivery Fee for that replacement delivery (plus the cost of any replacement Products).
9.8. You acknowledge and agree that any person at the Delivery Address who receives the Products is authorised by You to receive Your Order and, where relevant, make payment for that Order.
9.9. You acknowledge that We may record the details of any identification provided in relation to delivery of Products.
10. BUY ONLINE PICK UP IN STORE ORDERS
10.1. An estimated collection time will be displayed at the time Your Order is placed.
10.2. You agree to comply with the following collection requirements and such other requirements that We notify to You when You place Your Order:
a) You must collect Your Order from the store when You place a pickup in-store Order;
b) Photographic identification and a signature must be provided if requested when You collect Your Order; and
c) The card used for payment may be required to be shown when You collect Your Order.
10.3 If You will not be the person collecting Your Order then Your representative must provide Us with proof of their identity (including photographic identification) and, where relevant, age, and the card used for payment.
10.4 If You do not supply the appropriate identification requested:
a) We will not allow collection of the Products You have ordered; and
b) We may charge You a restocking fee of [$30.00] and the charges for any perishable Products in Your Order.
10.5 If You do not collect Your Order within the booked collection window then We may charge You a restocking fee of [$30.00] and the charges for any perishable Products in Your Order. In this instance, We will attempt to contact You or You may contact Us to arrange for collection at a different time, and We may charge You an additional fee for that replacement Order.
10.6 You acknowledge that We may record the details of any identification provided in relation to collection of Products.
11. FRAUD AND RISK ASSESSMENT
We have processes in place to assist in detecting transactions that may be illegal or in breach of these Terms and Conditions. We may contact You by telephone or email to confirm Your payment and information details. If We are unable to confirm these details, We may cancel Your Order. If You are unsure whether the person contacting You is authorised, please contact Fruitezy on (02) 9411 5367 or contact the store via our contact us form.
12. RISK AND TITLE
Any risk associated with the Products passes to You on the date and time of delivery to the door of the Delivery Address (or for in-store pickup, at the time of collection). Title to the Products passes to You on the later of the date and time:
a) That full payment is made for those Products;
b) Of delivery of those Products to the Delivery Address; and
c) For in-store pick up Orders only, of collection of those Products from the store.
13. CANCELLING AN ORDER
13.1. We may cancel an Order (including an Order that has been accepted by Us) without any liability to You for that cancellation at any time if:
a) The requested Products in that Order are not available; or
b) There is an error in the Listed Sale Price or the Product description posted on the Website in relation to a Product in that Order; or
c) the Order has been placed by You in breach of these Terms and Conditions.
13.2. If We cancel an Order in accordance with:
a) Clause 13.1(a) or 3.1(b), We will provide You with reasonable notice of that cancellation, and will not charge You for the cancelled Order. If any payment has been made for the cancelled Order, then the full payment amount, including any Delivery Fee and other fees and charges, will be refunded to the account from which Your payment was made (“Bank Account”);
b) Clause 13.1(c), We will provide You with reasonable notice of that cancellation. If Your Order is cancelled before the day of delivery or collection, then the full payment amount, including any Delivery Fee and other fees and charges, will be refunded to Your Bank Account. If Your Order is cancelled on the day of delivery or collection, provided We are not also in breach of these Terms and Conditions, then We may charge You a cancellation fee of the lesser of $30 or the value of the payments made, in addition to the charges for any perishable Products that were ordered. If any payment has been made in excess of $30 plus the charges for any perishable Products that were ordered, We will refund that excess amount to Your Bank Account.
13.3. You may cancel an Order:
a) Through the Website up to [X hours] before the Delivery or Collection Window closes. In this case, no fees or charges will apply to that cancellation; or
b) In all other circumstances, by contacting Us on (02) 9411 5367 during Contact Hours. In this instance, if You cancel an Order that has been accepted by Us:
i. Before the day of delivery or collection, then no fees or charges will apply to that cancellation; and
ii. On the day of delivery or collection, then We may charge You a cancellation fee of the lesser of $30.00 or the costs to Us arising from the cancellation plus the charges for any perishable Products that were ordered.
13.4. If You cancel an Order in respect of which We have taken payment, then the full payment amount, including any Delivery Fee and other fees and charges other than any fee payable under clause 13.3(b)(ii), will be refunded to Your Bank Account.
14. FEES AND CHARGES
14.1. We will charge You, and You agree to pay, the following fees and charges in relation to an Order that We accept (as applicable):
a) The Listed Sale Price;
b) The Delivery Fee;
c) Any credit/debit card fees;
d) The restocking fee for an Order that is cancelled as set out in clause 13.3(b)(ii); and
e) Any other fees and charges set out in these Terms and Conditions.
14.2. All fees and charges identified in these Terms and Conditions and all prices for the Products include GST where applicable.
14.3. The Listed Sale Price for each Product is shown on the Product list on the Website at the time You place Your Order. The Listed Sale Price of a Product will correspond to the price for that Product in Our store at the time that You place Your Order.
14.4. You acknowledge that the Listed Sale Price for Products will change from time to time and We do not provide any notice of these changes. Subject to these Terms and Conditions, once We have accepted Your Order, We will not change any prices that apply to the Products in that Order.
15. PAYMENT METHODS
15.1. You must pay the fees and charges online using the online payment methods.
15.2. We accept the following payment methods:
a) Visa and Visa Debit;
b) MasterCard and MasterCard Debit;
16. PAYMENT PROCESSING
16.1. If We are unable to successfully process Your credit card payment for Your Order, then We will attempt to notify You to obtain an alternative payment method.
16.2. If We are unable to process a card and no alternative payment method is supplied, We will cancel Your Order. A restocking fee of $30.00 may be incurred.
16.3. You authorise Us to debit the amount that is payable for an accepted Order from Your nominated credit card to pay for the fees and charges.
16.4. You must not pay, or attempt to pay, for Products through any fraudulent or unlawful means.
16.5. We will provide You with a receipt at time of delivery or collection (as applicable) which specifies the total fees and charges for the Products in the Order and the out of stock Products including the dollar value refunded to Your Bank Account.
17. SUBSTITUTION OR MISSING PRODUCTS IN DELIVERY
17.1. You acknowledge that a Product that You Order may be out of stock or temporarily unavailable. If this occurs, We will not be able to provide You with that Product.
17.2. Subject to clause 17.3, if You select a substitute option for some or all of Your Products in an Order (“Substitute Option”), then We will attempt to provide You with a substitute Product (“Substitute Product”):
a) When the Product You have selected is not available; or
b) If We are not able to supply to You the Product that You have selected.
17.3. We may provide You with a Substitute Option for most Products. However, We may not provide a Substitute Option for Deli Products.
17.4. We (subject to clause 17.6) reserve the right not to provide You with a Substitute Option even if a suitable Substitute Product is available.
17.5. We aim to select Substitute Products that are of a similar nature, value and quality to the Product You have selected. Where the Substitute Product is of greater value, We will only charge You the price of the Product You have selected in Your Order rather then the price of the Substitute Product.
17.6. If there are Product items missing from Your Order upon delivery, then You should check the receipt that We provided to You to determine if the missing Product is marked as “out of stock”. If this is the case, We will provide You with a refund to Your Bank Account.
17.7. In circumstances other than as described in clause 17.6, You may contact Us during Contact Hours within 24 hours after the delivery or collection time and We will take steps to verify and confirm any such missing Product items. Once We are reasonably satisfied that the Product item was not delivered to You, We will provide You with a refund to Your Bank Account within 3-5 business days (for the Products for which You were charged but were not delivered to You).
18.1. The Returns Policy applies to all purchases of Products using the Website and forms part of these Terms and Conditions.
18.2. If You wish to return a Product in accordance with Our Returns Policy, then You may:
a) Return the Product to Our store; or
b) Contact Us by telephone to make arrangements to return that Product. In this instance, You may return the Product to Us at the time We deliver Your next Order. Upon confirmation from the person making the delivery that the Products have been received We will provide a refund to Your Bank Account.
18.3. The Returns Policy applies in addition to any other rights to which You may be entitled under the consumer guarantee provisions of the Australian Consumer Law. Our liability to You under the Agreement is otherwise limited as set out in clause 23 below.
19. QUALITY GUARANTEE
19.1. We offer a quality guarantee on all fresh Products. If You are not satisfied with one of Your fresh Products, You can take the items back to the store with Your online invoice and the store will refund the Product item and/or replace it for You.
19.2. We do not refund any Delivery Fees or other fees (if applicable).
20. YOUR OBLIGATIONS
a) Must ensure that Your Username and password that is used to access the Website and the details of Your Account are kept in a safe and secure manner;
b) Must notify Us if You become aware that there is or has been an unauthorised use of Your Username and password or Account or any other security breach relating to Your Account;
c) Must promptly advise Us of any changes to Your information provided to Us as part of the customer registration process;
d) Are responsible for any costs associated with Your access to or use of the Website, including Internet access fees;
e) Are responsible and liable for any person that uses Your Username and password to order Products through the Website;
f) Agree that We may charge You for all Products that We agree to supply to You that have been ordered using Your Username and password through the Website;
g) Are responsible for checking the label on each Product before consumption or use;
h) Acknowledge that the Website will be hosted and managed by Fruitezy pursuant to an independent agreement between Fruitezy and Us;
i) Authorise Us to disclose Your Personal Information to Fruitezy to the extent reasonably required in order to facilitate the provision of its services referred to in clause 20(h) and for such other reasonable purposes; and
j) Release Fruitezy from any action or claim You may have against Fruitezy arising out of or in connection with Your use of the Website or the Agreement.
21. GENERAL RESTRICTIONS
You must not:
a) Use the Website for any activities that breach any laws, infringe a third party’s rights or are contrary to any relevant standards or codes;
b) Use the Website in a manner or way, or post to or transmit to or via the Website any material, which interferes with other users or Our other customers or defames, harasses, threatens, menaces or offends any person or which prevents any other person from using or enjoying the Website;
c) Make fraudulent or speculative enquiries, purchases or requests through the Website;
d) Use another person’s details without their permission or impersonate another person when using the Website;
e) Post or transmit any obscene, indecent, inflammatory or pornographic material or any other material that may give rise to civil or criminal proceedings;
f) Tamper with or hinder the operation of the Website;
g) Knowingly transmit any viruses, worms, defects, Trojan horses or similar disabling or malicious code to the Website;
h) Use any robot, spider, site search and retrieval application or other mechanism to retrieve or index any portion of the Website;
i) Modify, adapt, translate or reverse engineer any portion of the Website;
j) Remove any copyright, trade mark or other proprietary rights notices contained in or on the Website;
k) Reformat or frame any portion of the web pages that are part of the Website;
l) Create Accounts by automated means or under false or fraudulent pretences;
m) Use the Website to violate the security of any computer or other network or engage in illegal conduct;
n) Take any action that imposes or that would, in Our reasonable opinion, result in an unreasonable or disproportionately large load on Our infrastructure;
o) Use the Website other than in accordance with these Terms and Conditions; or
p) Attempt any of the above acts or engage or permit another person to do any of the above acts.
You warrant that:
a) All information and data provided by You to Us through the Website (including as part of the customer registration process) or otherwise is true, accurate, complete and up to date;
b) The person receiving the Products at the Delivery Address or collecting the Products on Your behalf is authorised by You to do so; and
c) You have and will comply with all relevant laws relating to Your use of the Website and Your placement of any Order.
23.1. Our Products come with guarantees that cannot be excluded under the Australian Consumer Law. You may be entitled to a replacement or refund and compensation for reasonably foreseeable loss or damage. You are also entitled to have the Products replaced if the Products fail to be of acceptable quality. You may also be entitled to remedies that cannot be excluded under the Australian Consumer Law if any services supplied by Us to you fail to meet a consumer guarantee under the Australian Consumer Law.
23.2. Without excluding, restricting or modifying the rights and remedies to which You may be entitled under the consumer guarantee provisions of the Australian Consumer Law or Our liabilities under those provisions:
a) You acknowledge that the Website is provided “as is” and that We do not make any warranty or representation as to the suitability of the Website or a Product for any purpose;
b) We exclude all other implied terms and warranties, whether statutory or otherwise, relating to the Website, the Products or the subject matter of the Agreement; and
c) We will not be liable to You for indirect and consequential loss arising from or connected with the Agreement in contract, tort, under any statute or otherwise (including, without limitation, for loss of revenue, loss of profits, failure to realise expected profits or savings, loss or corruption of data and any other commercial or economic loss of any kind) unless such loss arises as a result of Our own negligence or wilful misconduct.
23.3. Our liability to You for loss or damage of any kind arising out of the Agreement or in connection with the relationship established by it is reduced to the extent (if any) that You cause or contribute to the loss or damage. This reduction applies whether Our liability is in contract, tort (including negligence), under any statute or otherwise.
24.1. You agree to release, indemnify and keep indemnified Us from and against all actions, claims, costs (including legal costs and expenses), losses, proceedings, damages, liabilities, or demands suffered or incurred by Us arising out of or in connection with Your:
a) Failure to comply with the Agreement;
b) Failure to complete a transaction;
c) Use of the Website; or
d) Infringement of the intellectual property, privacy or confidentiality rights of a service provider or any third party.
24.2. We cannot guarantee uninterrupted, timely, and secure or error free access to the Website, and its operation may be interfered with by numerous factors outside of Our control.
25. SUSPENSION AND TERMINATION
25.1. We may immediately suspend, terminate or limit Your access to and use of the Website and (where relevant) Your Account if You breach these Terms and Conditions and:
a) The breach cannot be remedied; or
b) You fail to the remedy the breach within 10 days of Our notice to You of that breach; or
c) If there is an emergency.
25.2. You may stop using the Website at any time and for any reason.
25.3. We may stop making the Website (or any part of it) available without prior notice. If so, any Orders that We have accepted will not be affected by this unless the Products that have been ordered are no longer available or We are prevented from supplying the Products, in which case, We will notify You and will refund to You all valid payments received by Us for those Products.
27. INTELLECTUAL PROPERTY RIGHTS
a) Acknowledge that the copyright in the Website, the software, design, text and graphics comprised in the Website, the selection and layout of the Website and the content and materials on the Website (together, the “Materials”) are owned by, or licensed to, Us;
b) Must not modify, copy, adapt, store in a retrieval system, reproduce, upload, post, transmit, sell, distribute in any way or communicate to the public a Material; and
c) Must not frame or embed in another website any of the material appearing on this Website.
27.2. You may:
a) Store a reproduction of the content on this Website on Your local computer for the sole purpose of viewing the content and Materials; and
b) Print hard copies of the content and Materials for the sole purpose of viewing and purchasing Products but not for any other use, including commercial use.
27.3. This Website may contain registered trademarks and other trademarks which are protected by law. You must not use any of the marks or trademarks appearing on the Website or our name or the names of Our related bodies corporate without Our prior written consent. You must not use any of the other company, product and services marks on the Website that are owned by other third parties (including Our suppliers) without obtaining the relevant third party owner’s consent.
28. LINKS TO OTHER WEBSITES OR SERVICES
The Website may include links to other websites maintained by third parties which are not under the control of Us (“Linked Sites”). We make available Linked Sites to You solely as a convenience, and the inclusion on the Website of links to Linked Sites does not imply endorsement by Us of the Linked Sites. Linked Sites are not under the control of Us and We are not responsible for the material contained on any Linked Site or the consequences of accessing such sites. You access Linked Sites at Your own risk and by accessing them You leave the Website.
You warrant that where You have placed an Order on behalf of another person or entity, You have the authority to agree to these Terms and Conditions on behalf of that person or entity and agree that by placing an Order You bind the person or entity on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms and Conditions, without limiting Your own personal obligations under these Terms and Conditions.
30. ENTIRE AGREEMENT
The Agreement supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between You and Us relating to the Website and any other matter dealt with in the Agreement.
If We waive any breach of the Agreement by You, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
32. ALTERATION OF TERMS AND CONDITIONS
We reserve the right to change these Terms and Conditions by publishing them on the Website:
a) Without giving You notice; and
b) Without giving You any explanation or justification for such change.
33. GOVERNING LAW AND JURISDICTION
The Agreement is governed by the laws of New South Wales, without giving effect to any principles of conflicts of laws. You agree to the jurisdiction of the courts of New South Wales to determine any dispute arising out of the Agreement.
If any part of the Agreement is found to be void, unlawful, or unenforceable then that part will be deemed to be severed without affecting the validity and enforceability of the remaining provisions.
35.1. You acknowledge and agree that any notice given under the Agreement by either Party to the other must be in writing by email and will be deemed to have been given on transmission.
35.2. Notices to Us must be sent to our contact us form or to any other email address notified by email to You by Us. Notices to You will be sent to the email address which You provided when placing an Order.