Terms and Conditions
Standard Terms and Conditions of Sale
1. Standard Terms and Conditions of Sale
1.1 These Terms are incorporated into and form part of any Contract between the Supplier and the Customer for the supply of Goods, and, or Services by the Supplier.
1.2 Any Orders placed on the Website will be subject to these Terms.
1.3 By accessing the Website or placing an Order on the Website, the Customer represents and warrants that the Customer:
1.3.1 is capable of entering into binding contracts in the Commonwealth of Australia;
1.3.2 in the case of a natural person, is at least 18 years of age; and
1.3.3 agrees fully with these Terms.
1.4 If a person accesses or places Orders on the Website on behalf of any entity, that person represents and warrants that:
1.4.1 they are authorized to accept these Terms on such entity’s behalf; and
1.4.2 the entity will be the Customer for the purposes of these Terms.
1.5 These Terms do not alter in any way the terms or conditions of any other agreement or arrangement the Customer may have with the Supplier in respect of any products, services or otherwise.
1.6 The Supplier reserves the right to change or modify these Terms at any time at its absolute discretion. If the Supplier changes or modifies these Terms, the Supplier may, but is under no obligation to, provide Customers with notice of such changes or modifications. Notice of such changes or modifications may be made by email, SMS, EDM, by notice on the Website, or by such other means as determined by the Supplier in its absolute discretion.
1.7 The Customer confirms its acceptance of any changes or modifications to these Terms by doing any of the following after the changes or modifications are made:
1.7.1 accessing the Website or placing an Order on the Website;
1.7.2 receiving the Goods and, or Services.
1.8 If a Customer does not accept any changes or modifications to these Terms, then that Customer may not access the Website, place an order on the Website or receive the Goods and, or Services.
2. Definitions In these Terms unless the contrary intention appears:
2.1 ‘Associate’ has the same meaning as the meaning ascribed to that term by section 318 of the Income Tax Assessment Act 1936 (Cth);
2.2 ‘Australian Consumer Law’ means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth);
2.3 ‘Billing Cycle’ means the times at which the Supplier will process payments by the Customers for Orders, which will be determined by the Supplier in its absolute discretion from time to time;
2.4 ‘Business Day’ means any day that banks are generally open for business in Adelaide but not a Saturday, Sunday or a public holiday pursuant to the Holidays Act 1910 (SA);
2.5 ‘Contract’ means the contract referred to in clause 3.1, being the contract formed between the Supplier and the Customer for the supply of Goods and, or Services;
2.6‘Customer’ means the party or parties entering into the Contract with the Supplier:
2.7 ‘Goods’ means:
2.7.1 the meal kits or other goods or products to be assembled and, or delivered by the Supplier to the Customer; and
2.7.2 other various products including kitchen, cookware, bakeware and pantry products which may be made available from to time for purchase by the Customer on the Website;
2.8 ‘Member’ means those Customers who are subscribe for status as a ‘Member’ and are granted the status of ‘Member’, subject to any conditions of the Supplier, in the Supplier’s absolute discretion;
2.9‘Orders’ means any orders placed by Customers on the Website for the Goods and, or Services, which are in a form approved by TFK;
2.10 ‘Service Areas’ means those areas set out on the Website being in the states of South Australia, Victoria, New South Wales and Queensland in the Commonwealth of Australia which the Supplier will deliver the Goods;
2.11 ‘Services’ means any services provided by the Supplier to the Customer;
2.12 ‘Supplier’ means TFK and any Associates of TFK;
2.13 ‘Terms’ means these standard terms and conditions;
2.14 ‘TFK’ means Thomas Farms Kitchen Pty Limited ACN 164 871 783; and
2.15 ‘Website’ means the websites, mobile applications and blogs of TFK that link to these Terms.
3. Interpretation In these Terms unless the contrary intention appears:
3.1 the singular includes the plural and vice versa;
3.2 a gender includes all other genders;
3.3 where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
3.4 a reference to a person includes any corporation, partnership, joint venture, trust, association, government, or public authority and vice versa;
3.5 a reference to a clause or annexure is to a clause of or annexure to these Terms;
3.6 a reference to a request or notice means a request or notice in writing;
3.7 a reference to any party to this or any other document includes the party’s successors and permitted assigns;
3.8 a reference to a document is to that document as amended, novated, supplemented, varied or replaced from time to time and includes any annexures, schedules and appendices to that document, except to the extent prohibited by that document;
3.9 a reference to any legislation or legislative provision includes any statutory modification, substitution or re-enactment and any subordinate legislation issued under that legislation or provision;
3.10 a reference to conduct includes any act, omission, representation, statement or undertaking whether or not in writing;
3.11 mentioning anything after include, includes or including does not limit what else might be included;
3.12 a reference to a person that comprises two or more persons means those persons jointly and severally;
3.13 the headings are for convenience only and do not affect the interpretation of these Terms;
3.14 a reference to a month means a calendar month;
3.15 a reference to dollars means Australian dollars; and
3.16 a reference to time means South Australian time.
4.1 The Customer may place Orders for the Goods on the Website.
4.2 The Customer must include sufficient information in an Order to ensure that the Supplier can process the Order and arrange for the relevant Goods to be delivered to the Customer, including:
4.2.1 the type and quantity of Goods;
4.2.2 the date for the first delivery of the Goods;
4.2.3 the frequency of delivery of the Goods;
4.2.4 the address for delivery of the Goods, which address must be in an area to which the Supplier is prepared to deliver in its absolute discretion;
4.2.5 the contact details for the Customer including mobile phone number and email address;
4.2.6 confirmation of the price payable for the Goods;
4.2.7 all information necessary for the Supplier to be paid for the Goods; and
4.2.8 any other information required by the Supplier in its absolute discretion.
4.3 The Supplier reserves the right to request further information from the Customer, at any time, in relation to an Order.
4.4The Customer may only place Orders for those Goods set out on the Website. The Goods available to Order:
4.4.1 may vary from time to time at the absolute discretion of the Supplier;
4.4.2 are subject to the availability of the Goods; and
4.4.3may be subject to quantity limits.
4.5 Any Order for Goods that includes meal kits, must include a minimum of three meal kits.
4.6 The Customer may elect whether the Goods will be delivered on either a weekly, fortnightly or monthly basis. The Customer may change its election on the Website, subject to any notice and timing requirements of the Supplier which may be set out on the Website from time to time.
4.7 The Customer may request the Supplier to provide other delivery arrangements. The Supplier may, but is under no obligation to, agree to other delivery arrangements.
4.8 All Orders will be for an ongoing and regular delivery of the Goods on either a weekly, fortnightly or monthly basis.
4.9 Orders will only cease if:
4.9.1 the Supplier notifies the Customer that it is unable to process an Order for any reason;
4.9.2 the Customer pauses the requirement for the delivery of the Goods set out in an Order, which the Customer may do on the Website ; or
4.9.3 the Customer terminates the requirement for the delivery of the Goods set out in an Orders, which the Customer may do by providing four weeks’ notice on the Website.
4.10 Orders must be placed on the Website by no later than 11.30 EST pm on the Tuesday of the week prior to the date of the delivery of the Goods.
4.11 With respect to amending an Order, the Customer may only amend:
4.11.1 the delivery address for the Goods;
4.11.2 date of the next delivery of the Goods; and
4.11.3 the frequency of the delivery of the Goods, by 12.01am Eastern Standard Time on the Thursday of the week prior to the existing delivery date for the Goods.
5.1 In order to place Orders on the Website, the Customer may be required to create an account.
5.2 In order to create an account, the Customer:
5.2.1 must be capable of entering into binding contracts in the Commonwealth of Australia;
5.2.2 in the case of a natural person, must be at least 18 years of age; and
5.2.3 must agree fully with these Terms.
5.3 The Customer cannot transfer an account.
5.5 The Customer may place Orders for other people through their account (‘Gifts’).
5.6 The Supplier may offer various specials in relation to Gifts from time to time.
5.7 If a Customer orders a Gift for another party, then:
5.7.1 the Supplier will email the Gift recipient that the Gift recipient can redeem the Gift;
5.7.2 the Gift recipient will be required to create an account on the Website in order to receive the Gift.
5.8 Gifts are not refundable or redeemable for cash, unless otherwise required by applicable law. The unused balance of any Gift will be placed in the Gift recipient’s account.
6.1 An Order by a Customer for the delivery of the Goods should be construed as an offer and not as an acceptance of an offer previously made by the Supplier.
6.2 The Customer and the Supplier will have a binding agreement on these Terms and on the terms of the relevant Order (together, ‘the Contract’) once:
6.2.1 the Customer has placed an Order on the Website, which satisfies all relevant criteria set out in clause 4; and
6.2.2 the Supplier accepts the Order.
6.3 The Supplier may accept an Order by email, SMS, EDM, by notice on the Website, or by such other means as determined by the Supplier in its absolute discretion.
6.4 The Supplier is under no obligation to deliver the Goods set out in an Order until the Order is accepted by the Supplier.
6.5 The Supplier is under no obligation to accept an Order.
6.6 The Supplier may reject an Order for any reason in the Supplier’s absolute discretion.
6.7 Once formed, the Contract will constitute the entire agreement between the Supplier and the Customer. All prior negotiations, agreements, arrangements,representations, understandings and correspondence are superseded by the Contract and these Terms.
6.8 The Contract will in all circumstances prevail over the Customer’s terms and conditions (if any).
6.9 To the extent that there is any inconsistency between the terms of an Order and these Terms, these Terms prevail to the extent of the inconsistency unless the inconsistency is agreed in writing.
7.1 The Customer acknowledges that the Goods displayed on the Website are indicative only and that the Goods delivered may vary from those displayed.
7.2 Any images set out on the Website are for illustrative purposes only. The Supplier does not guarantee that any image will reproduce in true colour nor that any given image will reflect or portray the full design or options relating to the Goods.
7.3 All Goods are subject to availability. The Supplier reserves the right to:
7.3.1 impose upper and lower quantity limits on any Order;
7.3.2 reject all or part of an Order;
7.3.3 discontinue offering certain Goods;
7.3.4 substitute Goods (including, but not limited to, specific meal ingredients or entire meals) without prior notice.
7.4 The Customer acknowledges that:
7.4.1 the Supplier intends to deliver high-quality Goods to the Customer;
7.4.2 given the perishable nature of certain Goods and market conditions beyond the Supplier’s control, the Supplier may be required to make substitutions from time to time.
7.5 If the Customer is dissatisfied with the quality of the Goods, the Customer may contact the Supplier on any of the contact details set out on the Website. The Supplier may require the return or photo documentation of the Goods, before any action is taken.
8.1 The price for:
8.1.1 the Goods;
8.1.2 the delivery of the Goods;
8.1.3 the Services (if any); and
8.1.4 any special offers in relation to the Goods, the delivery of the Goods or the Services, (together, ‘the Quotation’), will be set out on the Website, except in the case of an obvious or manifest error.
8.2 The Quotation should not be construed as an offer or obligation to deliver the Goods or provide the Services (if any) and the Supplier reserves the right to accept or reject any request or Order from the Customer to provide the Goods, deliver the Goods or provide the Services (if any).
8.3 Unless otherwise stated:
8.3.1 the price for the Goods, the delivery of the Goods and the Services (if any) agreed in the Contract and any other amount payable under the Contract or these Terms shall be exclusive of any tax payable pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST’); and
8.3.2 the Customer will be required to pay to the Supplier an amount equal to the GST in addition to the price or relevant amount.
8.4 The Supplier may increase the price of Goods, the delivery of the Goods and, or the Services (if any) if the price increase results from the introduction of any legislation, regulation or government policy.
8.5 The Supplier may increase or decrease the price of the Goods, the price for the delivery of the Goods and, or the price for the Services (if any) at the Supplier’s absolute discretion, by providing notice to the Customer by email, SMS, EDM, by notice on the Website, or by such other means as determined by the Supplier in absolute discretion no less than 14 days before the increase or decrease.
8.6 If the Supplier increases the price of the Goods, the price for the delivery of the Goods and, or the price for the Services (if any):
8.6.1 in accordance with clause 8.4, then the Customer agrees that the Contract remains on foot notwithstanding the amendment to the price; and Standard Terms and Conditions of Sale
8.6.2 in accordance with clause 8.5, then the Customer will be taken to agree to the price increase, unless the Customer cancels its Orders in accordance with the Contract.
8.7 The current delivery prices are as follows:
8.7.1 for Orders of Goods less than $75 will incur a delivery fee of, $11 + GST (a total of $12);
8.7.2 for Orders of Goods more than $74.99 will get free delivery.
8.7.3 for Orders of those Goods set out in clause 2.7.2 (‘the Pantry Goods’):
(a) if the total amount for the Pantry Goods in the Order is $75 or less (exclusive of GST), then the delivery fee will be $11 plus GST(a total of $12);
(b) if the total amount for the Pantry Goods in the Order is more than $74.99 (exclusive of GST), then there will be no charge for the delivery of the Pantry Goods.
8.8 Those Customers who are also Members:
8.8.1 will be able to purchase Goods for a 10% discount;
8.8.2 will not receive a 10% discount for any delivery charges; and
8.8.3 may be invited to access certain exclusive events and promotions which may include further discounts to Goods and access to other information and offers.
9.1 Delivery Terms
9.1.1 The Customer will bear the cost of delivery and handling of the Goods.
9.1.2 The Customer will pay any delivery and handling charges at the time of purchase of the Goods.
9.1.3 The Supplier may, at its absolute discretion, increase, decrease, add or eliminate delivery and handling charges from time to time. The Supplier will provide notice of the charges applicable to the Customer before the Customer purchases the Goods.
9.1.4 The Customer acknowledges and agrees that:
(a) the Goods may be delivered by a third party courier;
(b) the date that the Goods are delivered may vary;
(c) the Customer will not obtain, or direct shipment of, the Good for export;
(d) risk in, the Goods passes to the Customer upon the delivery of the Goods by the Supplier; and
(e) the Supplier will not be liable for the Goods upon the delivery of the Goods by the Supplier.
9.2 Delivery Date
9.2.1 The Supplier will make all reasonable efforts to have Goods delivered to the Customer by the date agreed between the parties, but the Supplier will not be liable for:
(a) any failure to deliver, or delay in delivery, of Goods or Services (if any) for any reason;
(b) any failure to provide, or any delay in providing the Goods for any reason;
(c) any damage or loss due to unloading or packaging of Goods;
(d) any damage to property caused upon entering premises to deliver the Goods; and
(e) any damage to property caused upon entering premises to supply Services (if any).
9.2.2 The Customer agrees that in the case of inclement weather or other events beyond the control of the Supplier which interfere with the Supplier’s ability to deliver the Goods:
(a) the Supplier will attempt to deliver the Goods as soon as reasonably possible;
(b) delivery of the Goods may occur prior to the scheduled delivery date;
(c) the Supplier may cancel the relevant delivery of Goods for the period so affected and issue the Customer a credit or refund of the purchase price for the relevant delivery.
9.3.1 The Customer will inspect all Goods upon delivery or collection.
9.3.2 If any Goods or Services (if any) are damaged, wrongly supplied or not in accordance with the Contract, the Customer may reject or return those Goods in accordance with clause 11.
9.3.3 The Customer will be deemed to have accepted the Goods or Services (if any) supplied in the following events:
(a) failure by the Customer to reject or return those Goods and, or Service Results in accordance with clause 11; or
(b) use of the Goods in any way by the Customer.
9.3.4 The Customer indemnifies the Supplier against any losses, costs or expenses incurred by the Supplier due to any failure by the Customer to accept the Goods at the time of delivery or the Services (if any) at the time of performance.
9.3.5 Except as required by law, and subject to clause 11, the Supplier will be under no obligation to accept Goods returned for any reason, or to resupply Services, which are not satisfactory to the Customer for any reason.
9.4 Location and Time of Deliveries
9.4.1 The Supplier will only deliver Goods to addresses within the Service Areas.
9.4.2 The Supplier may refuse to deliver Goods to any address, irrespective of whether the address is within the Service Area, at the Supplier’s absolute discretion.
9.4.3 The Supplier will deliver the Goods to the address provided by the Customer. If no person is at the address at the time of delivery, then the Customer authorises the Supplier to leave the Goods at the address.
9.4.4 The Customer agrees that the Supplier does not need to obtain a signature from the Customer as evidence of delivery of the Goods.
9.4.5 Delivery of the Goods set out in Orders will ordinarily be made between 7.00am and 6.00pm on Monday's each week, unless another day, or another arrangement, is nominated by the Supplier in its absolute discretion.
9.4.6 The Customer acknowledges that where a delivery of Goods may be on a public holiday, that delivery will be postponed until after the public holiday.
9.5 Following Delivery The Customer acknowledges and agrees that:
9.5.1 the Goods are often packaged with insulated liners and gel packs and will typically remain cold and fresh for several hours;
9.5.2 depending on the season and temperature in the Service Area at the time of delivery, advance planning by the Customer should be made for proper storage of the Goods prior to consumption;
9.5.3 the Customer should ensure that the Goods are delivered to a place which is appropriate for goods of the type of the Goods to be delivered and stored;
9.5.4 as set out above, the Supplier will not be liable for any damage or deterioration of the Goods once the Goods have been delivered including as a result of:
(a) the Goods being delivered to a place or address which is not appropriate; or
(b) the Goods being delivered to a place or address and then not being collected by the Customer; or
9.5.5 subject to the Supplier’s absolute discretion, the Customer may provide additional delivery instructions if the Customer is not available to receive the Goods in person, such as requesting that the Goods are delivered to a doorman or neighbour;
9.5.6 If a person is at the address, nominated by the Customer, at the time of delivery, the Goods will either be:
(a) handed to that person; or
(b) left at the address.
9.5.7 any individual at the delivery address who accepts a delivery from the Supplier is authorised to receive such delivery; and
9.5.8 in cases where the Supplier authorises the Customer to have a designated alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had the Customer accepted the delivery itself.
9.6 Cardboard Boxes
9.6.1 The Customer acknowledges that, from time to time, the Goods may be delivered to the Customer in cardboard boxes.
9.6.2 The Supplier will not collect cardboard boxes (or contents inside) previously delivered to a Customer.
10. Cancellation of Orders
10.1 The Customer may cancel its future Orders by giving notice on the Website prior to the next Billing Cycle.
10.2 If the Customer purports to cancel its Orders during a Billing Cycle, then
10.2.1 the Supplier may, but is under no obligation to, accept such cancellation;
10.2.2 if the Supplier does not accept such cancellation, then the Orders in respect of the next Billing Cycle will be cancelled;
10.2.3 if the Supplier does accept such cancellation, then:
(a) the Supplier is under no obligation to refund any money paid by the Customer;
(b) the Supplier may, but is under no obligation to, provide a refund in circumstances where the Customer has received Goods subject to the cancelled Billing Cycle, and the Customer returns those Goods to the Supplier in their original condition at the Customer’s expense.
10.3 The Supplier may cancel the obligation to fulfil future Orders at any time.
10.4 The Supplier may send the Customer promotional communications about the Supplier notwithstanding the cancellation of any Orders. The Customer must opt out of receiving those communications by following the unsubscribe instructions provided in those communications.
11. Refund for Rejection of Goods
11.1 The Customer may reject any Goods or Services (if any) only in accordance with this clause.
11.2 If any Goods or Services (if any) are damaged, wrongly supplied or not in accordance with the Contract, the Customer must notify the Supplier:
11.2.1 by providing full particulars of the claim in writing by the next Business Day of the receipt of those Goods or Services (if any); or
11.2.2 where the claim relates to non-delivery of Goods or non-performance of Services (if any), by providing full particulars of the claim on the Website by the next Business Day of the agreed date of delivery of the Goods or agreed date of completion of the Services (if any) in the Contract.
11.3 All Goods returned or rejected are subject to assessment by the Supplier.
11.4 To the extent permitted by the Australian Consumer Law or any other law, the Supplier may at its sole discretion refuse to accept the return or rejection of the Goods or dispute or reject any claim made under this clause.
11.5 Unless the Supplier and the Customer otherwise agree in writing, the Customer will bear the costs of returning any Goods.
11.6 The Customer agrees to keep the Goods until the Supplier can arrange the inspection or collection of the Goods.
11.7 Subject to the Customer’s rights under the Australian Consumer Law, the If the Supplier accepts that the Goods or Services (if any) are damaged, wrongly supplied or not in accordance with the Contract, then the Supplier may give the Customer a full refund for the relevant amount spent by the Customer for the Goods or Services.
12.1 The Customer will pay for the Goods and, or Services (if any) in accordance with the Billing Cycle or within the time specified in any invoice or account issued by the Supplier to the Customer.
12.2 Payment for the Goods, the delivery of the Goods and, or the Services (if any) must be by:
12.2.1 a credit or debit card accepted by the Supplier; or
12.2.2 any other payment method accepted by the Supplier and set out on the Website.
12.3 By providing payment details on the terms set out in clause 12.2 including credit card details, the Customer:
12.3.1 represents and warrants that the Customer is authorized to use the designated payment method;
12.3.2 authorises the Supplier (and any third party payment processor of the Supplier or such other person nominated by the Supplier from time to time) to charge the total amount (including any applicable taxes and other charges) in respect of the Goods, the delivery of the Goods and, or the Services (if any) to the payment details provided by the Customer on the terms set out in clause 12.2.
12.4 If the payment details provided in accordance with clause 12.2 cannot be verified, are invalid or are otherwise not acceptable to the Supplier, the Customer’s Order may be suspended or cancelled. The Customer must resolve any payment issue in order to proceed with the Order.
12.5 Payment is only received by the Supplier when the proceeds of payment are credited and cleared to the Supplier’s bank account.
12.6 The Customer may not assert or exercise any right of set-off against monies payable by it to the Supplier.
12.7 The Customer acknowledges that the amount charged by the Supplier may vary from time to time, including due to:
12.7.1 special or promotional offers;
12.7.2 changes to the Goods; and
12.7.3 changes in applicable taxes or other charges.
12.8 The Customer authorizes the Supplier (and any third party payment processor of the Supplier or such other person nominated by the Supplier from time to time) to charge to the Customer’s payment details provided in accordance with clause 12.2 the varied amount due in accordance with clause 12.7.
13.1 The legal and equitable title to the Goods will only be transferred from the Supplier to the Customer when the Customer has met and paid all that is owed to the Supplier on any account whatsoever.
13.2 The Customer acknowledges that until the Customer has met and paid all that is owed to the Supplier on any account whatsoever, the Customer holds the Goods as bailee for the Supplier and that a fiduciary relationship exists between the Customer and the Supplier.
13.3 The Customer will store the Goods safely and in such manner to ensure that they are capable of being clearly identified as the property of the Supplier.
13.4 If required, the Customer shall deliver the Goods which are subject to this clause to the Supplier at the Customer’s cost.
13.5 If the Customer defaults as contemplated by clause 14.1, then in addition to clause 14.2, the Supplier may, without notice, take possession of the Goods and the Customer agrees that representatives of the Supplier may enter the Customer’s premises for that purpose.
13.6 Notwithstanding this clause, the Customer is still required to pay the Supplier for:
13.6.1 Goods already delivered; and
13.6.2 Services performed (if any).
14.1 The Customer will be in default if:
14.1.1 the Customer breaches any of the Terms or the Contract;
14.1.2 payment for the Goods and, or Services (if any) has not been received by the Supplier in accordance with clause 12;
14.1.3 the Customer being an individual commits an act of bankruptcy; or
14.1.4 the Customer being a body corporate becomes insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth).
14.2 If the Customer defaults, the Supplier may:
14.2.1 treat the whole of the Contract as repudiated and sue for breach of contract;
14.2.2 refuse to supply any Goods and, or Services (if any) to the Customer;
14.2.3 refuse to continue to provide the Goods and, or Services to the Customer;
14.2.4 claim the return of any Goods in the Customer’s possession where title has not passed to the Customer; or
14.2.5 without notice to the Customer make all monies owing by the Customer to the Supplier on any account immediately due and payable.
14.3 Notwithstanding any provision in this clause, the Supplier reserves all of its rights to claim any remedy available to it as a result of the Customer’s default.
15. Limitation of Liability
15.1 If under the Australian Consumer Law or any other law any terms which apply to the sale of Goods and, or Services under the Contract cannot be legally excluded, restricted or modified then those terms apply only to the extent required by law.
15.2 All terms, which would otherwise be implied by law or otherwise, are excluded except as stated in these Terms.
15.3 To the extent permitted by law, the Suppliers’ liability for any breach of the terms of the Contract, and any condition or warranty implied by the provisions of the Australian Consumer Law, is limited to and will be completely discharged by any one of the following as determined by the Supplier in its absolute discretion:
15.3.1 the replacement of the Goods or the supply of equivalent Goods;
15.3.2 the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
15.3.3 the re-supply of the Services; or
15.3.4 the payment of the cost of having the Services re-supplied.
15.4 Except as expressly provided in this clause and to the extent permitted by law, the Supplier is not liable to the Customer (and any party claiming through the Customer) for:
15.4.1 any claim made under, or in connection with, the Contract, in tort, under statute, in equity or otherwise in respect of defects whatsoever in Goods and, or Services for the loss or damage to person or property arising from or caused from such defects;
15.4.2 any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods and, or Services performed where such loss or damage includes:
(a) any loss of income, profit or business; or
(b) any loss of goodwill or reputation.
The Customer will indemnify and keep indemnified and hold the Supplier harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Supplier, and from and against all actions, proceedings, claims or demands made against the Supplier, arising from one or more of the following:
16.1 the Customer’s failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods and, or Services, or the use of the Goods and, or Services;
16.2 any negligence or breach of duty by the Customer and its employees, agents or contractors in relation to the Goods and, or Services, or the use of the Good and, or Services;
16.3 the Customer’s use of the Website;
16.4 the Customer’s breach of the Contract; and
16.5 the Customer, or any person to whom the Customer provides the Goods, suffers loss as a result of consuming the Goods.
17. No liability for indirect loss
The Supplier shall not be liable for any consequential, indirect or special damage or loss of any kind whatsoever arising from or in relation to the Customer’s use of, or inability to use, the Website, or the delivery or failure to deliver any Goods.
Whilst all care and consideration is taken by the Supplier in providing advice for the purpose of, or in the course of, providing the Goods and, or Services, to the extent permitted by law and subject to clause 15, the Supplier is not liable to the Customer (and any party claiming through the Customer) for any claim made under, or in connection with, the contract, in tort, under statute, in equity or otherwise in respect of the advice.
Unless agreed in writing the Supplier owns any intellectual property created in the Goods and, or provision of Services to the Customer.
20.1 If the Supplier’s ability to perform its obligations under the Contract is adversely affected by war, strike, trade dispute, damage to plant or machinery, shortage of any material or labour or any cause beyond the Supplier’ control, the Supplier may, if it chooses, end the Contract or suspend it for a period determined by the Supplier by giving the Customer written notice. The Supplier will not be liable for any loss, damage or liability which the Customer incurs.
20.2 The Customer must accept delivery of the Goods and, or Services notwithstanding any delay in delivery caused by any of the events specified in clause 20.1.
21.1 The Customer must not:
21.1.1 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;
21.1.2 use the Website to post or transmit any material which is defamatory, obscene, indecent, inflammatory or pornographic or which prevents any other person from using or enjoying the Website;
21.1.3 make fraudulent requests through the Website;
21.1.4 use another person’s details on the Website;
21.1.5 tamper with or hinder the operation of the Website;
21.1.6 transmit any viruses or defects or similar disabling or malicious code to the Website;
21.1.7 use the Website other than in accordance with these Terms; or
21.1.8 attempt any of the above acts or engage or permit another person to do any of the above acts.
21.2 The Customer acknowledges and agrees that:
21.2.1 the Supplier cannot warrant that the Website is free from any errors, viruses or defects.
21.2.2 the Supplier will not be liable for any loss or damage suffered as a result of any errors, viruses or other defects on the Website;
21.2.3 the Supplier has taken reasonable steps to ensure the accuracy and completeness of the information contained on the Website;
21.2.4 the Supplier will not be liable for any loss or damage suffered as a result of the information not being accurate or complete on the Website;
21.2.5 the Supplier makes no representation or warranty that the Website will be available at all times, that access will be uninterrupted, that there will be no delays, failures, errors or omissions or loss of transmitted information, that no viruses or other contaminating or destructive properties will be transmitted, or that no damage will occur the Customer’s computer system.
21.2.6 the Customer must take its own precautions to ensure that the process which the Customer employs for accessing the Website does not expose the Customer to the risk of viruses, malicious computer code or other forms of interference which may damage the Customer’s computer system or any other computer system;
21.2.7 whilst the Supplier strives to protect all information made available by the Customer on the Website, the Supplier does not warrant and cannot ensure the security of any information which the Customer transmits;
21.2.8 any information transmitted by the Customer is transmitted at the Customer’s own risk;
21.2.9 the Supplier does not accept responsibility for any loss or damage, however caused (including through negligence), which the Customer may directly or indirectly suffer in connection with the Customer’s use of, attempted use of, or inability to use the Website or any linked website;
21.2.10 the Supplier does not accept any responsibility for any such loss arising out of the Customer’s use of, or reliance on, information contained on or accessed through the Website; and
21.2.11 if any law implies any condition or warranty on the Supplier, and that legislation prohibits the Supplier from excluding or modifying the application of, or the Supplier’s liability under, any such condition or warranty, that condition or warranty will be deemed included but the Supplier’s liability will be limited for a breach of that condition or warranty, to the extent permitted by that law, and at the Supplier’s option, to the supplying of the Goods again or refunding the purchase price of the Goods.
22.Third Party Content
22.1 The Website and the Goods may display content, advertisements and promotions from third parties (collectively,‘Third Party Content’).
22.2 The Supplier does not control, endorse or adopt any Third Party Content.
22.3 The Supplier makes no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness.
22.4 The Customer acknowledges and agrees that:
22.4.1 the Customer’s interactions with third parties providing Third Party Content are solely between the Customer and such third parties; and
22.4.2 the Supplier is not responsible or liable in any manner for such interactions or Third Party Content.
23.1.1 The object of this policy is to ensure that the Supplier complies with any applicable obligations under the Australian Privacy Principles contained in schedule 1 of the Privacy Act 1988 (Cth) (‘the Principles’).
23.1.2 This policy outlines the Supplier’s practices in relation to:
(a) the kind of information the Supplier collects and holds;
(b) how the Supplier collects and holds information;
(c) the purposes for which the Supplier collects, holds, uses and discloses it
(d) the Customer’s right to access and seek correction of information held by the Supplier;
(e) how the Customer may complain about a breach of the Principles;
(f) whether the Supplier is likely to disclose information overseas.
23.2 Type of Information the Supplier collects and holds
23.2.1 The personal information collected and held by the Supplier is that information reasonably necessary for:
(a) the conduct of the Supplier’s business functions and activities; and
(b) the performance of the Contract by the Supplier.
23.2.2 Personal information collected and held may include:
(a) Any details provided by the Customer in performing the Contract;
(b) personal details of the Customer such as the Customer’s name, address, telephone number, age and gender;
(c) details of the Customer’s account number and other information provided by the Customer when the Customer registers an account on the Website;
(d) history of Orders placed by the Customer;
(e) whether the Customer has a connection with others whose personal information may be collected or held;
(f) what, how and when the Customer Orders; and
(g) details regarding payment for Goods and, or Services.
23.3 How the Supplier collects and holds the information
23.3.1 The Supplier collects personal information from all correspondence between the Supplier and the Customer including via the Customer’s access of the Website, setting up an account and any telephone calls, emails, mail or facsimile between the Supplier and the Customer.
23.3.2 The Supplier will make a record of all personal information it collects.
23.3.3 The security of Customer’s personal information is important to the Supplier.
23.3.4 All personal information (such as credit card numbers) entered on the Website, is encrypted using secure socket layer technology. When credit card details are collected, the Supplier simply pass them on in order to be processed as required.The Supplier never permanently stores complete credit card details.
23.3.5 The Supplier follows generally accepted industry standards to protect the personal information submitted to the Supplier, both during transmission and once received.
23.4 Purpose for which the Supplier collects, holds, uses and discloses personal information The Supplier collects, holds, uses and discloses the Customer’s personal information:
23.4.1 to sell and promote the Goods and Services and to improve the Supplier’s range of offerings;
23.4.2 to provide a high level of customer service;
23.4.3 to perform the Supplier’s obligations under the Contract;
23.4.4 to assist in the investigation of complaints;
23.4.5 for promotional purposes;
23.4.6 or staff development;
23.4.7 where required by law and where necessary to protect the Supplier’s rights and/or comply with a judicial proceeding, court order or legal process;
23.4.8 for other purposes which are within reasonable expectations or where permitted by law; and
23.4.9 to disclose to third parties who may from time to time provide services to the Supplier. The Supplier does not share any information with third parties for any unknown or unrelated uses.
23.5 Customer may access personal information
23.5.1 The Supplier will provide the Customer with access to any of the Customer’s personal information held by the Supplier (except in circumstances recognised by law).
23.5.2 The Customer may contact the Supplier if the Customer wishes to access its personal information.
23.5.3 The Supplier will require proof of identity of the Customer, on terms satisfactory to the Supplier, before the Supplier provides the Customer with access to the Customer’s personal information. The Supplier may charge a reasonable fee for giving access to the personal information.
23.5.4 The Customer may request the Supplier to correct the Customer’s personal information or otherwise update, delete or deactivate its account by emailing the Supplier at firstname.lastname@example.org
23.6 How can the Customer complain about a breach of the Principles
23.6.1 If the Customer wishes to complain about a breach of the Principles or this policy, the Customer may email the Supplier at email@example.com
23.6.2 Any email sent by the Customer to the Supplier must disclose details of any purported breach. The Supplier will then review the email and will investigate the matter and attempt to resolve it in a timely manner.
23.6.3 If the Supplier does not resolve the Customer’s complaint to the Customer’s satisfaction and no other complaint resolution procedures are agreed or required by law, the Supplier will inform the Customer that the Customer’s complaint may be referred to the Privacy Commissioner for further investigation and will provide the Customer with the relevant contact details.
23.7 Sharing of the Customer’s personal information overseas
23.7.1 The Supplier is unlikely to disclose any personal information of the Customer to a party overseas, unless it is required in the performance of the Contract or required to do so at law.
23.7.2 The Supplier’s policy is to require all overseas sharing of personal information (if any) to be done in a way which requires observance of strict privacy and security standards, both during transit and at the overseas destination.
23.7.3 The Supplier may allow the Customer’s personal information to be shared with overseas recipients where the Supplier stores its data with a trusted overseas service provider who is in the business of providing data storage and processing services.
23.8.1 This policy may be updated from time to time by the Supplier, at the Supplier’s sole discretion.
23.8.2 If the Supplier changes this policy, the Supplier will post those on the Website or by email.
23.9 Other terms
23.9.1 There may be additional privacy notices and terms relevant to the Customer depending on the nature of the Customer’s dealings with the Supplier.
23.9.2 More information about privacy law and privacy principles is available from the Privacy Commissioner. The Privacy Commissioner may be contacted at www.oaic.gov.au (email- firstname.lastname@example.org) (Australia).
24.1 The Supplier currently uses the NAB Payment Gateway for its online credit card transactions.
24.2 NAB processes online credit card transactions for thousands of Australian merchants, providing a safe and secure means of collecting payments via the Internet. All online credit card transactions performed on this site using the NAB gateway are secured payments.
24.3 Under NAB:
24.3.1 payments are fully automated with an immediate response;
24.3.2 complete credit card number cannot be viewed by the Supplier or any outside party;
24.3.3 all transactions are performed under 128 Bit SSL Certificate;
24.3.4 all transaction data is encrypted for storage within NAB data centre, further protecting the Customer’s credit card data;
24.3.5 all monies are directly transferred from the Customer’s credit card to the merchant account held by the Supplier.
25. Responsible service of Alcohol
25.1 When placing an order with the Supplier that contains alcohol, the Customer confirms that all the details provided in completing the Order to purchase the alcohol are true and correct.
25.2 It is a condition of purchase of any alcohol that the Customer verifies that the Customer is 18 years of age or over.
25.3 TFK supports the Responsible Service of Alcohol:
25.3.1 New South Wales: Liquor Act 2007. It is against the law to sell or supply alcohol to, or to obtain alcohol on behalf of, a person under the age of 18 years.
25.3.2 Victoria: WARNING: Victoria Liquor Control Reform Act 1998: It is an offence to supply alcohol to a person under the age of 18 years (Penalty exceeds $7,000), for a person under the age of 18 years to purchase or receive liquor (Penalty exceeds $600).
25.3.3 Western Australia: WARNING. Under the Liquor Control Act 1988, it is an offence: to sell or supply liquor to a person under the age of 18 years on licensed or regulated premises; or for a person under the age of 18 years to purchase, or attempt to purchase, liquor on licensed or regulated premises.
25.3.4 South Australia: Liquor Licensing Act 1997, Section 113. Liquor must NOT be supplied to persons under 18.
25.3.5 Queensland: Under the Liquor Act 1992, it is an offence to supply liquor to a person under the age of 18 years. For more specific legislation in each state or territory visit Liquor Licensing Acts page.
25.4 Liquor Licence No. 51407467
26.1 The Customer cannot assign, charge or otherwise deal with its rights and obligations under the Contract and these Terms without the prior written consent of the Supplier.
26.2 The Contract and these Terms are governed by the laws of South Australia and the Commonwealth of Australia. The parties submit to the jurisdiction of the Courts of South Australia and the Commonwealth of Australia. Any proceeding brought in the Federal Court of Australia must be instituted in its South Australia
26.3 Image icons may be from Noun Project; Salmon by parkjisun from the Noun Project, Cow by Anna Bearne from the Noun Project.
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