9.1 The Customer acknowledges and agrees that:
- the Goods are of a size, quality, nutrition, description, manufacture, and material suitable to the Customer;
- the Customer is fully satisfied that the Goods are suitable for all the Customer's purposes;
- the Customer in ordering the Goods has relied entirely on its own judgment and not on any statements, written or oral, made by Fodbods, its employees or agents;
- all promises, warranties, and conditions express or implied by law or otherwise with respect to the Goods are hereby expressly negated and extinguished to the extent permitted by law; and
- Fodbods will not be liable to the Customer for any liability, claim, loss, damage or expense of any kind (direct or indirect) suffered by the Customer or any third party in connection with the Goods or any inadequacy or deficiency in the Goods.
9.2 Where the Customer on-sells the Goods the Customer must not:
- misrepresent to anyone the specifications, performance or purpose of the Goods; or
- make or give any warranties, guarantees or representations in relation to the Goods whatsoever without Fodbods' prior written consent.
10) Limitation of Liability
10.1 The liability of Fodbods is limited, to the extent permissible by law and at the sole option of Fodbods:
- in relation to Goods, to;
- replacing the Goods or the supply of equivalent goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
- the payment of the cost of having the Goods repaired; and
- in relation to services, to:
- the supply of the services again; and
- the payment of the cost of having the services supplied again.
10.2 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms or in specific warranties accompanying the Goods, are excluded and Fodbods is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
- any increased costs or expenses;
- any loss of profit, revenue, business, contracts or anticipated savings;
- any loss or expense resulting from a claim by a third party;
- any loss or damage whatsoever in connection with any information, written or oral, or assistance given to the Customer, whether by way of advice, instruction, technical information, demonstration or otherwise; or
- any special, indirect or consequential loss or damage of any nature whatsoever in connection with the Customer's purchase, on-sale or use of the Goods in any way.
11.1 To the full extent permitted by law, Customer will indemnify Fodbods and keep Fodbods indemnified from and against any liability and any loss or damage Fodbods may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by the Customer or its representatives.
12) Entire Agreement
12.1 These Terms apply (unless otherwise previously agreed in writing) to the supply of Goods by Fodbods to a Customer from time to time. Any supply of Goods by Fodbods to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by Fodbods and any such supply does not give rise to a new or separate agreement.
12.2 The Customer and Fodbods acknowledge and agree that these Terms supersede any prior agreement, arrangement or understanding between the Customer and Fodbods. No local, general or trade custom will affect in any way the Terms.
12.3 No waiver or variation of these Terms will be binding on the Customer or Fodbods unless signed by both the Customer and Fodbods.
13.1 In respect of any matter or thing which must be done by the Customer within a stipulated time frame, time shall be of the essence, consequently, the Customers failure to comply with such time frame shall constitute a breach by the Customer of an essential term of these Terms.
13.2 If any provision of these Terms is held to be illegal, unenforceable or void then to the extent of such illegality, unenforceability or invalidity that provision will be considered independently of and severable from the other provisions.
13.3 A certificate by an employee of Fodbods as to any act or omission of the Customer shall be accepted by the Customer in all courts and at all times to be prima facie evidence of the matters stated therein.
13.4 These Terms shall be construed and interpreted in accordance with the laws of Victoria and the Customer irrevocably agrees to submit to the non-exclusive jurisdiction of the courts of that state.
13.5 All notices given under these Terms must be in writing. A notice given by Fodbods to the last known place of business of the Customer will be deemed received on delivery or the business day in Victoria following posting, whichever is the earlier.
13.6 Fodbods shall not be liable for any failure of or delay in the performance of these Terms for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or industrial disputes, embargoes, government orders or any other force majeure event.
Unless We obtain your written consent, We will not sell, disclose, licence or rent your personal information to a third party for that third party's marketing purposes.
"Personal Information" means information that can be associated with a specific person and can be used to identify that person and includes your information. Information that has been made anonymous or aggregated so that it cannot be used, whether in combination with other information or otherwise, to identify a specific user is not personal information.
We collect personal information in a number of ways, including:
- when you provide information directly to us in person, by phone or in writing (whether electronic, via our communication tools or otherwise);
- when you visit and/or use Our website, in which case, We record information sent to us by your computer, mobile device or other access device; and
- from third parties such as Our related entities, service providers to Us, operators of linked websites, applications and advertising on Our website.
- your name, user ID's and passwords, phone number, mobile telephone number, email address, physical address and other contact information;
- financial information such as credit card or bank account numbers;
- records and content of communications with us or any other person including when using any website communication tools;
- personal information based on your activities on Our website;
- personal information you provide to us through any correspondence, or shared by you from other social media applications, services or other websites;
- to the extent permitted by law, other personal information provided by or obtained from third parties;
- personal information from your interaction with Our website and its content, such as your website usage information and IP address.
How personal information is used
Our primary purpose in collecting, using and storing your personal information is for Our general business operations, in order to:
- effectively provide you with our goods and services requested;
- communicate with you;
- respond to your enquiries or complaints;
- supply you with generalised, targeted or personalised marketing, advertising and promotional notices, offers and communications based on your preferences, and measure and improve Our marketing and promotions to you;
- operate, generate content and provide customer support and billing services (including updates and improvements);
Marketing and Opting out
We may use your personal information for:
- promoting and marketing of Our current and future goods and services; and
- informing you of upcoming events and special promotions and offers.
Disclosure to third parties
Notwithstanding the above, you agree that We may disclose your personal information to:
- comply with any applicable laws, request by a governmental agency or regulatory authority or legally binding court order;
- respond to or resolve claims that a member has violated the rights of others;
- protect a person's rights, property or safety;
- Our directors, staff, contractors, professional advisers and related entities;
- outsourced service providers who assist Us to provide Our goods and services such as information technology providers, shipping/delivery providers, Our financial institutions or e-commerce payment providers (including banks and PayPal to collect and receive payment) and marketing advisers (including in relation to fee collection, fraud investigations and website operations);
- third parties to whom you expressly ask us to send, or consent to us sending, your personal information; or
Use of website and Cookies
As with most websites, when you visit or use Our website, We may record anonymous information such as your IP address, time, date, URL, pages accessed and documents downloaded.
Cookies may be used to provide you with Our range of services including identifying you on Our website, remember your preferences, customise and measure the effectiveness of Our website and Our promotions, advertising and marketing, analyse your usage of Our website, and for security purposes.
You also may encounter Cookies used by third parties and placed on certain pages of Our website that We do not control and have not authorised (such as web pages created by another user). We are not responsible or liable for the use of such Cookies.
Accessing and amending your personal information
We acknowledge that you have a general right to access the information We hold about you. However, We may not be required to provide you with access to your personal information to the extent that (amongst other things):
- We reasonably believe that access would pose a serious impact to the life, health or safety of any individual, or to public health or public safety; and
- giving access would have an unreasonable impact on the privacy of other individuals; or
- the information relates to existing or anticipated legal proceedings between the entity and the individual, and would not be accessible by the process of discovery in those proceedings; or
- giving access would be unlawful.
If We refuse your request to access the information We hold about you, We will provide you with Our reason/s for doing so.
If you have access to an online account with Us, you may login to your account and access your personal information.
Accuracy of personal information
We rely on you to provide us with accurate and up to date information about you. If there are any changes to your personal information during the course of dealing with Us, you are responsible for advising Us.
We will take reasonable steps to ensure your personal information is kept up-to-date, accurate, complete and not misleading. If you believe the personal information We hold about you is incorrect or inaccurate, you can request that We update this information by contact Our Privacy Manager (details below).
We will correct information We hold about you if We discover, or you are able to show to a reasonable standard, that the information is incorrect or inaccurate. If you seek a correction and We disagree that the information is incorrect, We will provide you with Our reasons for taking that view within 30 days from your request.
Storage and security
We will take reasonable steps to protect the security of your personal information from misuse, interference or loss by restricting access to the information from unauthorised access or disclosure.
We hold personal information electronically and in hard copy paper format. For information that is stored electronically, We take reasonable security measures to ensure that personal information is protected by firewalls, secure logon processes and encryption technologies. Hard copy information is securely stored in an appropriate and secure filing system.
Any personal information provided to Us may be transferred to, stored by or disclosed to an overseas recipient. For example, We may use a server hosted overseas to store data, which may include your personal information, or engage an organisation located overseas to assist Us in Our general business operations.
Before your information is disclosed to an overseas recipient We will take steps as are reasonable in the circumstances to ensure that the overseas recipient does not breach privacy laws in relation to your personal information ("reasonable steps").
However, the reasonable steps may not apply, if We reasonably believe (when disclosing your personal information to the overseas recipient) that:
- the recipient of the information is subject to a law, that has the effect of protecting the information in a way that, overall, is at least substantially similar to the way in which the Australian Privacy Principles protect the information; and
- there are mechanisms that an individual can access to take action to enforce the protection of their privacy.
We will take reasonable steps to determine whether or not information We receive may be unsolicited information. If We believe that information is unsolicited information, We will destroy the information as soon as practicable or ensure that it is de-identified.
Only where it is practicable to do so, We may allow you the option not to identify yourself when dealing with Us. However not identifying yourself to Us may make it difficult to effectively provide you with Our goods or services.
We do not collect sensitive information unless it is specifically relevant and necessary for the purpose of Our general business operations and your express consent is first obtained.
We will not use government identifiers such as your tax file number or Medicare number to identify you.
We will ensure your concerns or complaints are handled by Our Privacy Manager in an appropriate and reasonable manner.
Postal Address: Level 3, 345 Arden Street, Kensington VIC 3031
Contact: Privacy Manager
If you are unsatisfied with Our response to any complaint, you may refer your complaint to the Office of the Australian Information Commissioner (OAIC). Contact details can be found at the OAIC's website: www.oaic.gov.au.