Terms of Use

Version 1, August 2020

Welcome to our OPTIFAST App (“App”). We hope that you will enjoy your online experience. The terms below govern your use of our App (these “Terms”). By using our App you accept and agree to comply with these Terms; if you do not agree, please do not use our App.

In these Terms, the terms “we”, “us”, “our” and “Nestlé” refer to Nestlé Australia Limited, our affiliates, subsidiaries, assigns, successors, licensors, licensees, and/or agents, and “you” refers to you.

Other terms also apply to your use of our App and they are incorporated herein by this reference. These include separate terms which will apply to contests, sales promotions and other features which may be made available on our App from time to time. You agree to comply with such terms. You can print a copy of these Terms if needed.

Privacy and Cookies

Our Privacy Notice applies to any personal data shared on our App. Find out more here. Our Cookies Policies applies to the use of cookies and similar technology on our App. Find out more here.

If anything is unclear to you or you wish to discuss these Terms or our App with Nestlé please see How to contact us below.

Nutrition, Health & Fitness Information

The information on our App is intended to impart general nutrition, health & fitness information, and it is not intended for diagnostic or treatment purposes. Nestlé is not engaged in rendering medical advice or services. You should consult your doctor for medical advice or services, including seeking advice prior to undertaking the OPTIFAST Program or any new diet or exercise program. Advance consultation with your doctor is particularly important if you are pregnant, breastfeeding, have health problems or are over the age of 65 years. Never disregard professional medical advice or delay in seeking it because of something you have read on this App.

Nutrition information included on this App, including calories in recipes and food, are approximate values only. Actual calories may vary and the nutrition information included on this App is subject to change. Please check nutrition information, ingredients and allergen declarations on all food packaging to ensure they are suitable for you.

Your Use of our App

In order to use our App you must be at least 18 years of age.

If you choose or are required to register on our App you must do so accurately and honestly and update us of any changes. We may grant, withhold or change your username, password or other access information at any time at our sole discretion. You must keep your password and other access information secret. If you think someone has discovered it you must tell us immediately, please see How to contact us below.

Please feel free to explore our App and, where available, contribute material to it, such as your information, questions, comments, posts, ratings and reviews, information and multimedia content (e.g. pictures, videos, music, sounds, artwork) (“User Content”).

Your use of our App and your User Content must be lawful and comply with these Terms.

Your use of our App and your User Content must not:

(a) harm, harass or hurt other people or breach another person’s rights, including privacy, image and likeness;

(b) misuse or infringe any intellectual property rights, or contain anything confidential or proprietary to you or any other person or entity, or that you do not have the right to disclose generally to the public;

(c) be unlawful, defamatory (including towards Nestlé), obscene, vulgar, threatening, abusive, racist or xenophobic, promote or incite intolerance, hatred or violence, or otherwise offensive, objectionable or inappropriate;

(d) include commercial or other advertising or promotions;

(e) be false, fraudulent, misleading or malicious, impersonate any other person or misrepresent your identity or any other information about you;

(d) distribute virus, worm or other harmful computer code, test the vulnerability of our App, lead to security issues, damage, disable or overburden our App, or otherwise jeopardize, disrupt, overload, harm, impair or interfere with the functioning or integrity of our App or systems or networks connected to our App or with any other person’s use of our App.

You must not nor try to: (a) make mass, automated or systematic extractions from our App or use it within, or to create, another site, service or database, or try to re-sell it or re-distribute it; (b) decompile, reverse engineer, disassemble or otherwise reduce the code used in any software on our App into a readable form; or (c) use any deep-link, page-scrape, spider robot, crawl, index, Internet agent or other automatic device, program, algorithm or any similar or equivalent methodology to use, access, copy, acquire information, generate impressions, input information, store information, search, generate searches or monitor any portion of our App or Content.

Please note that Nestlé may immediately and without prior notice remove any of your User Content and/or suspend or terminate your use of our App if we believe that you have not complied with these Terms. We may, but are not obliged, to monitor and review as well as edit, remove or refuse to post any of your User Content at our sole discretion at any time.

In any event, you are responsible for and should take all reasonable care when creating and providing your User Content. You promise that you will comply with these Terms. You may have legal liability to us and third parties if you do not. We may but not are obliged to report relevant breaches of these Terms to regulatory and law enforcement bodies.

Let us know immediately if you have any complaints about any User Content, see How to contact us below.

Intellectual Property

All content on our App, including without limitation, text, photographs, graphics, artwork, trademarks (including Trademarks), brands, logos, videos, sound, music, user interfaces, and code (collectively, “Content”), as well as look-and-feel of the Content, is owned by us or our licensors and is protected by copyright, trademark, patent, trade dress, sui generis/database rights and other intellectual property rights.

The trademarks, logos, characters and service marks displayed on our App or used as a domain name (collectively “Trademarks”) belong to Société des Produits Nestlé S.A which licenses such use to us or are used with permission.

Nothing on our App and these Terms shall be construed as granting any license or right to use any Trademark. You are advised that Nestlé will vigorously enforce its intellectual property rights to the fullest extent of the law.

You may access and reproduce extracts from our App solely for your own private and non-commercial use provided that in all cases you respect the integrity of the Content and you retain (and do not remove) any copyright notice on such Content (e.g.© 2019 Nestlé. All rights reserved.) as well as the trademark notice below:

No part of our App and no Content may be used, copied, reproduced, republished, uploaded, posted, publicly displayed, broadcasted, published, encoded, translated, transmitted or distributed in any way to any other device, computer, server, App or any other medium for commercial purposes, without Nestlé’s express prior written consent.

All other rights are reserved. Except as expressly provided in these Terms, any use of our App, Trademarks or Content is strictly prohibited. You must obtain our prior permission for any other use of our App or the Content, including any commercial use, which we may grant, withhold or condition at our sole discretion.

Your User Feedback

Any feedback, suggestions, information, data, suggestions, ideas, materials, questions or comments you provide to us about our App or its functionality shall be deemed to be non-confidential and non-proprietary. Anything you transmit or post becomes our property and Nestlé shall be free to use such feedback and material on an unrestricted basis for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Specifically, we are free to use any ideas, concepts, know-how, or techniques contained in any communication you send to us about the App for any purpose whatsoever, including, but not limited to, developing, manufacturing, advertising and marketing products using such information. Any such use is without compensation to those providing the information, nor anyone else. Please note that Nestlé is free to decide whether or not to use your User Content and that Nestlé may already have developed (or may in the future develop) similar content or have obtained such content from other sources, in which case all intellectual property rights in this content remains with Nestlé and its licensors.

Accessibility

Nestlé is committed to making our App as accessible as possible for all users including those with disabilities. Your browsing experience may improve by altering your software and device settings (e.g. to alter text size) or installing additional assistive technologies. [If you have questions about accessibility please let us know.]

Links

OurApp may contain links to third-party Apps, social media platforms, mobile apps, and other products and services (“third party platforms”). We have no control over such third party platforms, do not necessarily endorse them and we accept no responsibility for them, including as to their content, accuracy or function. As a result, you must carefully review the legal and privacy notices of such third party platforms, including keeping yourself informed of any changes to them. Your interaction with these linked platforms is at your own risk. Nestlé has no responsibility or liability for such third party platforms and their terms and conditions.

If you operate a third party platform and wish to link to our App, you may include a hyperlink on your own App to the home page of our App (using the plain text name of our App); provided that you do so in a manner compliant with these Terms, and you do not: (a) suggest in any way that you are affiliated with or endorsed or sponsored by Nestlé, (b) display the hyperlink or our App in any way that is disparaging to Nestlé, (c) deep-link to any other page of our App, or (d) frame our App or any Content, or otherwise cause our App or Content to appear in a window with any other material. We may withdraw any linking permission at any time at our sole discretion. You shall not use Nestlé’s name, logo, slogans, trademarks or any other words or codes identifying Nestlé as a hyperlink button, in a metatag or in any manner without Nestlé's express written consent.

Disclaimer

We may change all or any part of our App including by adding, removing or altering any Content, including User Content, at any time at our sole discretion. We may give prior notice to you but do not have to do so.

Our App will not be available at all times. We may modify, suspend or withdraw operation of or access to our App at any time at our sole discretion whether on a temporary or permanent basis including for maintenance and other technical reasons. We may give prior notice to you but do not have to do so.

Like all software-based services our App cannot be promised to be free from errors or bugs. We shall have no responsibility to maintain the Content and our App or to supply any corrections, updates, or releases in connection therewith.

We strongly recommend that you take care to verify the suitability and compatibility of your device prior to use of our App including reasonable precautions to protect yourself against security issues such as through the installation of anti-virus software. If you choose to download or copy material from our App you do so at your own risk. We assume no liability for any damage or virus which could affect your device or other property by reason of your access to, use or downloading of any material from our Apps or for any illegal intrusion or intervention in our IT systems.

Our App is a dynamic environment and inaccuracies and errors may occur from time to time. We are not responsible for (and do not necessarily agree with and endorse) your or any other User Content on our App and you should apply particular caution when using it. Always take specialist advice when needed. Any reliance upon materials on our App shall be at your own risk.

Our App is not a storage service and you should keep copies of all your User Content.

Our App and its Content is delivered to you on an “as is” and “as available” basis. To the fullest extent permitted by law, we make no representations or warranties of any kind, express, implied, statutory or otherwise, including but not limited to any warranties of accuracy, merchantability and fitness for a particular purpose, non-infringement, any warranties that our App or Content will be complete, accurate, reliable, timely, error-free, uninterrupted, secure or free from viruses, or that any advice or opinion obtained from Nestlé through our App is accurate or to be relied upon, and we exclude all conditions, warranties, representations and terms of any kind that may apply to our App or Content and your use of or reliance on it.

Limitation of liability

Nothing in these Terms excludes or limits our liability in connection with our App and your use of or reliance on it where this is unlawful to do so including for fraud, fraudulent misrepresentation or death or personal injury caused by our negligence. Nothing in these Terms affects your statutory rights as a consumer.

Except as set out in the first paragraph above, we shall have no liability for loss, damage or costs of any kind, howsoever arising (including but not limited to negligence), whether direct or indirect, under or in connection with our App or the Content and your use of or reliance on our App or the Content.

Except where prohibited by law, in no event will we be liable to you for any indirect, consequential, exemplary, special, incidental or punitive damages, costs or losses whatsoever, including without limitation lost data, lost profits or business interruption.

Indemnity

You agree to indemnify and hold Nestlé, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, damages, liability, claims or expenses (including attorneys’ fees), made against Nestlé by any third party due to or arising out of or in connection with your use of our App or your breach of these Terms.

How to contact us

This App is operated by Nestlé Australia Ltd of Building D, 1 Homebush Bay Drive, Rhodes NSW 2138.

If you have any question or comment regarding our App, please feel free to contact us by (i) email at https://www.optifast.com.au/contacts/ , (ii) phone at AU 1800 671 628 and NZ 0800 607 662. (8.30am-5.30pm AEST, Mon-Fri) or (iii) regular mail at Nestlé Consumer Services, Reply Paid 4320, Sydney NSW 2001 or Freepost 64857 Nestle New Zealand Limited PO Box 1784 Shortland Street Auckland 1140.

Changes to these Terms

We reserve the right to make changes to these Terms at any time at our sole discretion. We may give prior notice to you but do not have to do so. You are responsible for regularly reviewing these Terms. Your continued use of our App following the posting of changes to these Terms and such terms will mean that you accept and agree to the changes.

Geographic Scope

Our App and products are for users in Australia and New Zealand only and may not be appropriate for use elsewhere. Please contact our local distributor to obtain more information about the products and services in your country. Nestlé makes no representation that the products, services, and content on our App are appropriate or available in locations other than Australia and New Zealand. If you access our App from another territory, you are responsible for compliance with any applicable laws.

Governing Law, Dispute resolution

You and Nestlé agree that any claim or dispute relating to our App shall be governed by the law of New South Wales, Australia, without regard to its conflicts of laws provisions, and subject to the exclusive jurisdiction of the courts of New South Wales, Australia.

General

These Terms constitute the entire agreement between you and Nestlé with regard to your use of our App and Content, and supersede any and all other written or oral agreements or understandings previously existing between you and Nestlé with respect to such use. If any of the provisions of these Terms are held by a court to be void or unenforceable, such provisions shall be modified or deleted to the extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect. Any failure or delay by Nestlé in enforcing (in whole or in part) any provision of these Terms will not be interpreted as a waiver of Nestlé’s rights or remedies. These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties.