Conditions of Sale

CONDITIONS OF SALE

(Version: August 2023)

These terms set out the basis upon which Nestlé Australia Ltd and Nestlé New Zealand Limited(“Nestlé”) sells goods and services through our website (these “Terms of Sale”).

1. DEFINITIONS

In these Terms of Sale:
“Goods” means any goods ordered on our website and provided by Nestlé to you. “Nestlé” means Nestlé Australia Ltd, Nestlé New Zealand Limited our affiliates, subsidiaries, officers, employees and/or agents. “Services” means any services provided by Nestlé to you. “You” means the person(s) purchasing Goods and Services from Nestlé which these conditions accompany.

2. APPLICABILITY OF TERMS OF SALE

2.1 Each order placed with Nestlé through our website will be governed by these Terms of Sale. By placing an order, you acknowledge that you accept these Terms of Sale.

2.2 By using this website, you also agree to our Terms of Use, Privacy Policy and Cookies Policy. Nestlé invites you to read them carefully before using the services provided on this website.

2.3 Nestlé may at any time amend these Terms of Sale by posting a new dated version on this website, notice on the website or by email to you. By placing an order after Nestlé has posted a new version of its Terms of Sale, you agree to be bound by that updated version.

3. REGISTRATION

3.1 When you register on this website, you must ensure that the mandatory registration information you provide is correct and complete.

3.2 It is your responsibility to ensure that any changes to your address, contact details or other personal details are updated on this website.

4. PASSWORD

4.1 When registering to use this website, you will be asked to create a password. You must keep this password strictly confidential and not disclose it or share it with anyone.

4.2 You are fully responsible for the use of your password and any orders placed using your password.

4.3 If you know or suspect that someone else knows or has used your password, you should notify Nestlé immediately.

5. ORDERS

5.1 You may place orders for Goods or Services online through our website, provided you are at least 18 years of age.

5.2 All orders are subject to availability of stock and min/max quantities as Nestlé decides from time to time.

5.3 When you place an order through our website, we will confirm receipt of your order by sending an acknowledgement to the e-mail address provided by you. Please note that this is only an acknowledgement that we received your order and not an acceptance of your order. We may at any time after receipt of your order accept or decline your order in whole or in part in our discretion.

5.4 If we do not accept your order for any reason, we will send you an e-mail notification, your order will be cancelled, and any payment refunded.

5.5 If your order has been accepted and your Goods have been dispatched, we will send you an e-mail confirmation.

6. RETURNS

6.1 You must verify your order of Goods upon delivery, and please notify us promptly of receipt of any incorrect order.

6.2 Please notify us promptly on becoming aware of any damaged or faulty Goods. Nestlé reserves the right to decline any returns where a damage or fault is caused by your misuse or neglect.

6.3 If required by Nestlé, Goods forming part of an incorrect order, or Goods that are damaged or faulty, must be returned by you to Nestlé in accordance with any instructions by Nestlé.

6.4 Where the incorrect order is the fault of Nestlé, the costs associated with return delivery will be covered by Nestlé.

6.5 When returns of faulty or damaged Goods are assessed and accepted by Nestlé, and a refund is due to you, Nestlé will reimburse the price of the returned Goods and the invoiced delivery charges within 30 days of receipt of the returned Goods.

6.6 You cannot refuse to accept Goods merely because they are not delivered by any given date or dates.

6.7 Please choose carefully as Nestlé does not accept return of Goods because you change your mind, you decide you have no use for or do not want the Goods, or you find it cheaper elsewhere.

7. DELIVERY AND RECEIPT

7.1 It is your responsibility to ensure you are available to receive the delivery. If you are not at the delivery address to receive the Goods, the driver may at its discretion leave the parcel in a safe place or leave a card with details of an alternate pick up address.

7.2 Nestlé or its nominee will endeavor to provide Goods and Services in a timely manner to the address specified in your order, however, to the extent permitted at law, Nestlé will not be liable for (a) any failure to deliver or delay in delivery for any reason; or (b) any loss or damage incurred that was not directly caused by any breach on our part. Any costs incurred by Nestlé due to any failure by you to accept the Goods at time of delivery must be reimbursed by you to Nestlé.

7.3 Deliveries will only be made to street addresses in Australia or New Zealand. Deliveries will not be made to PO numbers nor to addresses outside Australia or New Zealand.

7.4 Invoices for Goods may include a charge for freight and delivery as specified by Nestlé at checkout.

7.5 Delivery costs may apply. Please refer to the website for further details.

7.6 If you wish to have Goods or Services provided by means other than Nestlé’s usual means, you will need to make all necessary arrangements and pay all costs involved.

8. PAYMENT AND INTEREST

8.1 Nestlé may change the price of Goods and Services and other sales details on our website from time to time without notice to you. For purchases made in Australian dollars (AUD), your payment will be processed by Skincarestore Australia Pty Limited (trading aswww.thehut.com) at G01, 38 Atchison Street, St Leonards, NSW 2065 Australia if using a debit/credit card, and The Hut.com Limited (trading aswww.thehut.com) at Meridian House, Gadbrook Park, Gadbrook Way, Rudheath, Northwich, Cheshire, UK, CW9 7RA if using American Express.

8.2 You must pay the price of Goods and Services current at the time of payment or the time of dispatch of the Goods or provision of the Services, whichever is earlier. We will not apply the new prices or details to orders which have already been accepted, except as otherwise agreed with us.

8.3 In the event a Good or Service is listed at an incorrect price, we reserve the right to refuse or cancel any orders placed for the Good or Service listed at the incorrect price.

8.4 Invoices are payable on or before receipt of Goods or provision of Services. Time is of the essence in relation to all payments of money to Nestlé under this agreement.

8.5 You must pay Nestlé any GST payable for the provision of the Goods and Services, which will be included in the total price at checkout.

8.6 Nestlé reserves the right to charge interest on overdue payments at 2% above the interest rate for overdrafts of $100,000 or more charged by the Commonwealth Bank of Australia, compounded daily from the due date to the date of payment.

8.7 You are responsible for all duties, taxes and clearance charges that may be levied on the Goods or Services where delivery is outside of Australia or New Zealand (as relevant).

9. TITLE AND RISK

9.1 Title in Goods passes to you on the latter of delivery and payment in full for them.

9.2 Risk in Goods passes to you on delivery of the Goods, unless you arrange for delivery under clause 7.6 in which case risk passes when the Goods leave Nestlé’s premises.

10. CONSUMER GUARANTEES, EXCLUSIONS AND LIMITATIONS – AUSTRALIA

10.1 Our Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, you are entitled:

· to cancel your service contract with us; and

· to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with Goods. If a failure with the Goods or a Service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the Goods and to cancel the contract for the Service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Goods or Service. You are also entitled to have the Goods repaired or replaced (at Nestlé’s option) if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

10.2 To the extent permitted by law, Nestlé’s only liability is as expressly stated in these terms and provisions in the Australian Consumer Law that cannot be excluded and all other guarantees, warranties and conditions are excluded.

10.3 To the extent permitted by law, Nestlé will not be liable to you (whether in contract, tort or otherwise) for any consequential, special, incidental or indirect loss or damage including loss of profit or loss of opportunity.

11.CONSUMER GUARANTEES, EXCLUSIONS AND LIMITATIONS – NEW ZEALAND

11.1 The Goods and Services are subject to guarantees that cannot be excluded under the Consumer Guarantees Act 1993 (the ‘CGA’). To the maximum extent permitted by law, and subject always to clause 11.2:

a) Nestlé excludes all implied or statutory representations, warranties or conditions in respect of the Goods and Services;

b) Nestlé’s only liability is as expressly stated in these terms and all other liability is excluded;

c) Nestléwill not be liable to you (whether in contract, tort, or otherwise) for any consequential, special, incidental or indirect loss or damage including loss of profit; and

d) Without limiting the scope of these terms, no claim by you of any kind shall be greater in amount than the purchase price of the Goods or Services in respect of which the claim is made.

11.2 You acknowledge and agree that if you are acquiring the Goods or Services in trade or for the purpose of a business, the provisions of the CGA will not apply to such supply, but nothing in these terms will affect any rights that a person who is a ‘consumer’ for the purposes of the CGA may have under the CGA.

12.GENERAL

12.1 These Terms of Sale and any invoice referencing these terms govern the provision of the Goods and Services by Nestlé to you and constitute the whole of the agreement between us and supersede any previous dealings, prior representations, statements and agreements in relation to their subject matter.

12.2 Clerical errors are subject to correction without notice.

12.3 Nestlé may sub-contract or otherwise arrange for another person to perform any part of this agreement or to discharge any of Nestlé’s obligations under this agreement, such as delivery of the Goods.

12.4 Nestlé waives a right under these terms only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

12.5 If any provision of these Terms of Sale (for any reason) is held to be unenforceable, illegal or invalid in some way, the unenforceable, illegal or invalid provision will not affect the remainder of these Terms of Sale and they will continue in full force and effect.

12.6 Neither party is liable for any delay or failure to perform its obligations under this agreement (except an obligation to pay money) if such delay or failure is due to any cause outside their reasonable control. If delay or failure to perform its obligations pursuant to this clause occurs, the performance of that party’s obligations are suspended. If such a suspension exceeds 30 days, either party may immediately terminate the agreement by notice in writing to the other party.

12.7 The products, materials, offers and information appearing on this website are intended only for users and/or customers located in Australia and New Zealand including without limitation that delivery will be only to addresses in Australia and New Zealand.

12.8 In Australia, these terms are governed by and must be construed in accordance with the laws of New South Wales, Australia. In New Zealand, these terms are governed by and must be construed in accordance with the laws of New Zealand.

13. SUBSCRIBE & SAVE

13.1 OPTIFAST VLCD is for the dietary management of obesity and overweight and must be used under the supervision of a healthcare professional.

13.2 These terms and conditions apply to any subscription service through www.optifast.com.au, including ‘Subscribe & Save’, subscription orders and recurring orders (Subscription Service). All Subscription Services will also be subject to our Terms & Conditions of Sale (as amended from time to time).

13.3 You may choose to subscribe to a Subscription Service through our subscription plan service. The subscription plan consists of an initial charge followed by recurring periodic charges as agreed to by you. By entering into a subscription plan, you acknowledge that your subscription has an initial and recurring payment feature and that you authorise and accept responsibility for all recurring charges prior to cancellation.

13.4 We will submit periodic charges (for example, every month, 2 months, 3 months) in accordance with the subscription frequency as selected by you without further authorisation from you, unless you cancel the Subscription Services. The initial payment for your subscription order will be taken at the time of checkout. Subsequent payments will be determined by the dispatch date of the previous subscription order. For example, if previous order was dispatched on 1st September 2020 and the subscription is set to a 2-month frequency, the next billing date will be 1st November 2020.

13.5 All orders are subject to availability. If your subscription order is not available, you will be notified by e-mail (or by other means if no e-mail address has been provided) and you will have the option either to wait until the item is available from stock or to cancel your order. This will not affect the frequency of your chosen Subscription Service.

13.6 You have the option to delay your subscription order by a month, provided notice is given at least 5 days before your next billing date. Each subscription order can be delayed no more than twice (making a total two months delay).

13.7 The discount on your initial order may be different from the discount on recurring orders. Special offers will not apply on top of any subscribe and save discount, except where it is relates to meeting a spend threshold.

13.8 The delivery options which you select for your first subscription order will apply for all subsequent subscription orders except that, if your initial order qualified for promotional delivery, all recurring orders will only qualify for standard delivery.

13.9 You can cancel your subscription at any time by raising a request via your “My Account” page. Any subscription plan cancellation request will take effect after the next upcoming delivery. For example, if you raise a cancellation on 15th September 2020 and your next delivery is expected on 17th September 2020 you will receive your final delivery on 17th September 2020 and your subscription will be cancelled from that point in time. Alternatively, you can cancel with immediate effect by contacting the Customer Services team (except for any order that we have already commenced processing, in which case that order will be dispatched by us so you will be required to pay for that order).

14.1 We may cancel the Subscription Service at any time with notice to you.

14.2 We may at any time amend these Subscription Terms and Subscription Services by notice on the website or by email to you. Where an amendment could be reasonably expected to adversely affect you, we will give you reasonable notice of the variation having regard to the nature of the amendment. If you do not want to continue with the Subscription Service with the proposed amendments, then you can cancel your subscription as detailed above.

Nestlé Australia Ltd