Terms and Conditions for Cherry Active Australia web site
Cherry Active Australia (“CAA”) ABN 25 138 616 571 is the authorised distributor in Australia of CherryActive branded products (the “Products”) supplied by the UK company, Cherry Active Limited. This web site (the “Site”) is provided by CAA for Australian residents to browse and to order these Products.
By accessing and using this Site, including ordering Products through this Site, you agree to be bound by and comply with the following terms and conditions. CAA may amend these terms and conditions and your continued use of this Site will be regarded as acceptance of these amendments. These terms and conditions are effective from 16 April 2014.
1. Ordering Products
Any order for the supply and delivery of Products (the “Ordered Products”) is an offer by you to purchase the Ordered Products for the displayed price (which is in Australian currency inclusive of GST) plus the displayed delivery charge at the time of submitting your order. CAA reserves the right to accept or reject any order for any reason. Each accepted order constitutes a separate contract between you and CAA for the supply and delivery of the Ordered Products. If your order is rejected, CAA will notify you within a reasonable time after you submit your order. CAA also reserves the right to limit quantities after you have submitted your order. We may also require additional information or verification before accepting any order.
2. Delivering Ordered Products
If your order is accepted, CAA will arrange for Australia Post or other delivery service provider to deliver the Ordered Products to the delivery address nominated on your order within a reasonable period of time, subject to the availability of all Ordered Products. It may be necessary to arrange more than one delivery for your order.
3. Passing of title and risk
All risk in the Ordered Products passes to you on delivery to your nominated delivery address.
Title to the Ordered Products passes to you following receipt by CAA of payment for the Ordered Products or the delivery of the Ordered Products to your nominated delivery address, whichever is the later.
4. Payment methods
You must pay the full amount for the supply and delivery of the Ordered Products using PayPal, credit card, debit card or other online payment means indicated on this Site. CAA may cancel your order if we are unable to successfully process payment for your order and will notify you within a reasonable time.
5. Cancelling an order
CAA may cancel an order, or part of an order, which we have accepted at any time and without any liability to you if some or all of the Ordered Products are not available or if there is an error in the price, description or delivery charge displayed on this Site.
If CAA cancels any order, or part of an order, we will give you reasonable notice of cancellation and not charge you for the cancelled order. If payment has been taken for the cancelled order, then we will refund the full price paid through your online payment means or some other alternative means.
6. Returns and refunds
You must notify CAA within a reasonable time if, because of a failure to meet a consumer guarantee under the Australian Consumer Law, you intend to reject some or all of the Ordered Products delivered to you (the “Rejected Products”) and explain why. In that case, you must promptly return the Rejected Products to CAA with proof of purchase.
CAA is not obliged to give you a refund if you simply change your mind about any or all of the Ordered Products. However, CAA will offer a refund (excluding the delivery charge), supply and deliver a replacement product, or arrange a credit note if you are not satisfied with an Ordered Product for any reason. You must notify us within 7 days of delivery and promptly return it to us, at your expense, unopened and in the original packaging with proof of purchase. The returned product must be received by CAA in re-saleable condition and not be used or damaged.
Under the Australian Consumer Law there are certain consumer guarantees which cannot be excluded. These include guarantees from CAA, as a supplier, that the Ordered Products are of acceptable quality and correspond with the description shown and ordered on this Site. These guarantees may not apply if you use an Ordered Product abnormally, cause the quality of an Ordered Product to become unacceptable, or fail to take reasonable steps to avoid the quality of an Ordered Product becoming unacceptable.
These consumer guarantees include your entitlement to a replacement or refund. If there is a major failure, you also have the option of requesting compensation for any drop in the value of an Ordered Product. There is also an entitlement to compensation for consequential loss if such loss was reasonably foreseeable and could have been expected to result from a failure to meet a consumer guarantee.
Without excluding, restricting or modifying any rights and remedies to which you may be entitled or CAA’s liabilities under the consumer guarantees of the Australian Consumer Law, you acknowledge and agree as follows:
(a) This Site is provided on an “as is” basis and CAA does not make any warranty or representation as to the suitability of the Products for any purpose or that the Products will meet your requirements;
(b) CAA excludes all other implied terms, conditions and warranties, whether statutory or otherwise, relating to the Site or the sale of Ordered Products. The liability of CAA for any breach of an implied term, condition or warranty is limited, to the extent possible, at CAA’s option to the supply and delivery of an Ordered Product again, the repair of an Ordered Product, or the payment of the cost of having an Ordered Product supplied and delivered again or repaired;
(c) CAA will not be liable to you for any indirect or consequential loss in contract, tort or arising under any statute, regulation or code, unless such loss arises due to CAA’s negligence or wilful misconduct;
(d) Any liability of CAA to you for loss or damage of any kind is reduced to the extent that you cause or contribute to the loss or damage; and
(e) Your access and use of this Site is at your own risk. CAA does not make any warranty or representation that the information on or linked to this Site is complete and/or accurate, or as to the results that may be achieved from the use of this Site or use of any Products that may be ordered through this Site. This information is not to be regarded as medical advice, diagnosis, treatment or prevention of any disease, illness or other medical condition. It is not a substitute for advice from a health care professional or any information contained on or in any Product packaging or labels. You should always read the label and use a Product only as directed. If symptoms persist, you should seek the advice of a health care professional. You agree to take full responsibility for what you do with the information on this Site and any outcomes resulting from your actions.
8. Intellectual property
The CHERRYACTIVE word mark and logo shown below are registered trade marks in Australia owned by Cherry Active Limited and used by CAA with the authority of the owner.
All copyright subsisting in this Site, including the CHERRYACTIVE logo, text, graphics and layout, are owned or licensed by CAA and protected under Australian law. You must not reproduce or otherwise use any of the material on this Site without obtaining prior written consent from CAA.
This Site may contain links to web sites of other persons. These links are provided for your convenience and do not represent any approval or endorsement of those web sites or the information provided on those web sites. Such information is to be accessed and used at your own risk.
10. Your obligations
(a) You warrant that all information provided through this Site is true, accurate and current;
(b) You must notify CAA immediately on becoming aware of any unauthorised order, payment or other security breach submitted to CAA with any of your personal information or account details;
(c) You are responsible and liable for any other person who uses any of your personal information or account details to submit an order through this Site and agree that CAA can charge you for all Ordered Products using your personal information or account details;
(d) You must not use the personal information or account details of another person without their permission to submit an order through this Site;
(e) You warrant that any person receiving delivery of the Ordered Products at your nominated delivery address is authorised by you to accept delivery on your behalf;
(f) You must notify CAA if there is any specific purpose for which any of the Ordered Products are to be used. If not, you agree that you have not relied on the skill or judgement of CAA when submitting an order;
(g) You should read the labels on all Ordered Products before consumption and use the Ordered Products only as directed. If symptoms persist, you should seek the advice of a health care professional;
(h) You must not post or transmit any content on this Site that may contravene the rights of others or give rise to civil or criminal proceedings;
(i) You warrant that you are the owner of, or have permission to use, any content which you post or transmit on this Site which is covered by copyright or other intellectual property rights. CAA reserves the right to monitor, edit or delete content posted or transmitted on this Site;
(j) You give CAA a non-exclusive, transferable, sub-licensable, royalty free and worldwide license to display, use, reproduce, modify, adapt, publish, create derivative works from, and distribute any content you post or transmit on this Site which is covered by copyright or other intellectual property rights;
(k) You may create a link only to the front page of this Site and must not re-format or create any link to, or frame, a specific webpage within this Site. When a link to the front page of this website is created, you must ensure the front page is shown in full and the URL of this Site is displayed in the address bar of the user’s web browser. Your use of and link to this Site is at your own risk. You must not create or use a link to falsely represent that CAA sponsors, endorses, is affiliated or otherwise associated with you or any other person, or that you are supplying or are the source of the Products supplied by CAA;
(l) You must not use this Site for any activity that breaches any law or contravenes the rights of another person; and
(m) You must not attempt to gain unauthorised access to this Site, use this Site to violate the security of CAA or any other person, or engage in any activity that imposes an unreasonably large burden on the infrastructure of this Site.
11. Information security
Any information you transmit to CAA is sent at your own risk. Transmission of personal information and other data over the internet cannot be guaranteed as totally secure. CAA will use its best endeavours to protect such information, but does not make any representation or warranty that information you transmit to us will remain secure.
12. Viruses and other computer malware
CAA will use its best endeavours to maintain the integrity of this Site, but does not make any representation or warranty that this Site is free from computer viruses, trojan horses, worms or other defects.
You agree to indemnify and hold CAA and its employees harmless from any and all liabilities, costs and expenses relating to any breach by you of these terms and conditions.
CAA may terminate or suspend your access to and use of this Site, without notice to you, for any conduct which we believe is in breach of these terms and condition, is contrary to law, or contravenes the rights of other persons. The other terms and conditions, including those under Liability, Your obligations and Indemnity will survive termination.
Any provision of these terms and conditions of use which is found by a court to be illegal, invalid or otherwise unenforceable will be severed to the extent permitted by law without affecting any other provision and, if reasonably practicable, will be replaced by another equivalent provision which is not so illegal, invalid or unenforceable.
16. Governing law
These terms and conditions of use are governed by and construed in accordance with the laws of New South Wales, Australia and you submit to the exclusive jurisdiction of the courts in Sydney.