Terms

Welcome to the website of DRINK NIMBUS PTY LTD (ABN 59 654 425 340) ("we", "us" or the "Company"), provider of plant-based milk products.

This website is located on the web via the domain www.drinknimbus.co and includes all of the files located in that domain ("this site").

Agreement to these Website Terms of Use

By accessing this site, you agree to be bound by these terms ("Terms"). These Terms constitute a binding agreement between you and the Company and its related bodies corporate and associates (as defined in the Corporations Act 2001 (Cth)). These Terms govern your access to this site, including all information, tools, and products available from this site to you. These Terms apply to all users of the site, including without limitation, users who are browsers, vendors, customers, merchants, and/or contributors of content.

Privacy Policy

As part of these Terms, your use of this site is also subject to our Privacy Policy which is incorporated by reference into these Terms.

Legal capacity to transact

If you are under 18 years of age, you cannot place orders through this site. By using this site you represent and warrant to the Company that you are over the age of 18 years. Should the Company suffer any damage or other losses as a result of a transaction entered into by a minor, we reserve the right to seek compensation for such losses from their parents or guardians.

Restrictions on use

Prohibited conduct

Your use of this site is subject to the rules set out in Schedule 1 below.

Violations of these Terms 

Without limiting any other remedies available to the Company at law or in equity, the Company reserves the right to, without notice:

• temporarily or indefinitely suspend, or terminate, your access to this site or refuse to provide products to you if:
• you breach any provision of these Terms;
• the Company is unable to verify or authenticate any information that you provide to us; or
• the Company believes that your actions may cause damage and/or legal liability to the Company, any of its customers or suppliers or any other person; and
• remove or block access to any information and/or materials (in whole or in part) that the Company, at its sole and absolute discretion, regards in any way to be objectionable or in violation of any applicable law, any person's intellectual property rights or these Terms.

Indemnity

You indemnify and hold harmless the Company and its officers, employees, agents, consultants, licensors, partners and affiliates from and against any losses, liabilities, costs, expenses or damages (including actual, special, indirect and consequential losses or damages of every kind and nature, including all legal fees on a solicitor-client basis) suffered or incurred by any of them due to, arising out of, or in any way related to (directly or indirectly):

• any material or information that you submit, post, transmit or otherwise make available through this site;
• your use of, or connection to, this site; or
• your negligence or misconduct, breach of these Terms or violation of any law or the rights of any person.

Registration and account security

Requirement for registration and/or subscription

The Company reserves the right to make any parts of this site accessible only to users who have registered and/or subscribed.

Username and password

Upon registration with this site, you will be issued with a username and password to access your account. You are responsible for maintaining the security of your password for this site. The Company will not be liable for any loss or damage arising from or in connection with your failure to comply with this security obligation. You agree that the Company will be entitled to assume that any person using this site with your username and password is you or your authorised representative.

You must notify the Company immediately of any known or suspected unauthorised use of any password or any other breach of security.

User information

In order to register an account with this site, you must agree to these Terms and provide the Company with:

• a valid email address;
• accurate billing and contact information (including your street address and the name and telephone number of your authorised billing contact and administrator); and
• any other information that may be required by the Company during the registration process.

You must promptly update this information to maintain its accuracy at all times. 

You represent and warrant to the Company that all information provided to the Company by you, including the information provided by you through the account registration process or entered into your account profile, is true and not misleading and does not violate any applicable law or regulation or any person's intellectual property or other rights.

Multiple accounts and automated account opening

One person may not maintain more than one account with this site. Accounts registered by "bots" or other automated methods are not permitted.

Approval of registrations

The Company reserves the right to accept or reject any application for registration of an account with this site at its discretion.

Orders

Order constitutes offer

By placing an order through this site, you make an irrevocable offer to us to purchase the products that you have selected pursuant to these Terms. Information contained in this site constitutes an invitation to treat only. No information in this site constitutes an offer by us to supply any products to you – however, the Company will endeavour to supply your selected products to you.

We will not commence processing any order made through this site unless and until:

• payment for the order has been received by us in full; and
• the order has passed our internal validation procedures, which are undertaken in order to verify the bona fides of each order for the purpose of preventing credit card and other fraud.

We reserve the right at our discretion to:

at any time prior to your order being accepted in accordance with these Terms, cancel all or part of your order;

at any time:

• modify or discontinue a product (or any part or content thereof) without notice;
• refuse to provide products to you;
• terminate your access to this site; and/or
• remove or edit any content on this site.

Acceptance of orders

Acceptance of each order will take place if and when the Company ships the requested items to you, at the time at which the items are despatched by the Company. Title to, and risk in, the items will pass from the Company to you at that time. After the items have been sent, we will send you an email confirming that shipment has taken place.

Shipment of orders

Shipping costs will depend upon the location for delivery and the products purchased and are shown separately during checkout.

Orders will usually be despatched within 1-2 business days of us receiving your order, and or payment.  While we use reasonable endeavours to effect delivery by the estimated delivery times shown on the site, we make no warranty as to the time of delivery or the availability of any products and are not responsible for any delays in delivery. 

We will notify you by email once your order has been despatched to you.

Subscriptions

Selected products may be available for subscription (“Subscription Products”). Once you are subscribed, the Subscription Products will be delivered to you at your chosen delivery frequency. 

If a Subscription Product is not available at the time of delivery, we may delay the delivery of the relevant Subscription Product or delivery of the whole order until the relevant Subscription Product becomes available.

Before we despatch a Subscription Product order to you, we will send an automatic courtesy email to notify you of your upcoming subscription charge. It will contain instructions for cancelling or modifying your order. We cannot guarantee the arrival of this email, and we recommend you check your spam folder and mark [email protected] as a safe sender.

Your subscription will continue until it is cancelled. You can cancel your subscription at any time by logging into your account. 

The price of each Subscription Product order (including all delivery fees and taxes) will be charged to the payment method used to create your subscription. If we are unable to charge the payment method we have on record for you, we will email you to advise the payment has failed. We will retry the failed payment every six days for a maximum of six tries. Once you update your payment details, we will retry the failed payment the next day. We will deactivate your subscription if you fail to update your payment method within the six payment retries. If your subscription is deactivated, you will lose all associated loyalty discounts that have been applied to that subscription. You can update your payment method or provide new payment details within your account, or you can contact us at [email protected]. 

Subscription loyalty discounts are applied to individual subscriptions for individual products made by you. If you have two or more subscriptions, these may be at varied levels of discount for each product. In order to initiate the discount, you must click 'subscribe', agree to all applicable subscription and other terms and complete your first purchase. The first purchase of an individual subscription of a given product made by you receives a 10% discount from the RRP. The second purchase of an individual subscription of a given product made by you receives a 15% discount from the RRP. The third purchase and all subsequent purchases of the individual subscription of a given product made by you receive a 20% discount from the RRP. Subscription Loyalty discounts apply to a single SKU only (for example, a 5L pouch only, or a traveller pack only) and cannot be transferred between variants of a single product. If a subscription is cancelled, the loyalty discount will be lost and any new subscriptions will begin at the 10% discount or other loyalty discount level in force at that time. Subscription loyalty discounts can be changed or withdrawn at any time, without any further obligation to you. One-off purchases are not eligible Subscription Loyalty discounts. Subscription loyalty discounts may not be combined with any other offer. Subscription loyalty discounts are personal to you and your email address only and may not be transferred.     

Prices

The Company reserves the right to change the prices for products displayed in this site at any time before you place an order. Each order (including orders for Subscription Products) will be subject to the then-current iteration of the prices and the then-current iteration of these Terms immediately prior to despatch to you. 

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of a product.

GST

Unless otherwise expressly stated, all amounts payable through your use of this site are expressed to be inclusive of GST. For these purposes, the term "GST" has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Payment methods

Payment for orders placed through this site may be made by credit card processed online using the secure Shop Pay payment gateway.

Shop Pay secure payment gateway

The Company uses the third-party payment gateway provided by Shopify (Australia) Pty Ltd (ABN 67 608 159 860) trading as "Shop Pay" for its secure online payment transactions. Payments made through Shop Pay are subject to Shop Pay’s own terms and conditions and privacy policy. For more information about Shop Pay, see the Shop Pay website (https://shop.app/).

Unless you expressly consent otherwise, we do not see or have access to any personal information that you may provide to Shop Pay, other than information that is required in order to process your order and deliver your purchased items to you (eg, your name, email address and billing/postal address).

Credit and debit card payments

All major credit cards and debit cards are accepted. Please note that we may be unable to accept credit cards issued by banks outside of Australia in some cases. Additional transaction fees may apply if paying by credit card, in which case the additional charges will be specified at checkout.

Refunds and other remedies

Except as expressly provided otherwise in these Terms, all amounts paid through this site are non-refundable and as most products are perishable goods, we do not accept returns unless products are faulty or damaged. Further information on the steps that the Company will take to remedy any breach of any non-excludable condition or warranty/guarantee is provided under the heading "Remedies limited" in these Terms below.

Security

While our site hosting providers employ secure technology for transactions with our customers, we will not be responsible for any damages, including consequential losses (whether direct or indirect), that may be suffered by a customer whose credit or debit card or bank account information is used in a fraudulent or unauthorised manner by any person other than the Company.

The Company may request further information from you, such as a copy of your credit card and/or other identification documentation, as part of our internal validation procedures. These procedures help protect bank and credit card account holders from online fraud. Until your order has passed our internal fraud prevention checks, your order will remain on pending status. If further information is requested and you do not provide the requested information within such time as the Company considers appropriate at its discretion, your order will be cancelled and, if your payment has been received, it will be refunded back to you.

Intellectual property

Copyright

In these Terms, the term "Proprietary Content" means:

• this site;

• all of its content (including all of the text, graphics, designs, software, data, sound and video files and other information contained in this site, and the selection and arrangement thereof); and
• all software, systems and other information owned or used by the Company in connection with the products offered through this site (whether hosted on the same server as this site or otherwise).

All Proprietary Content is the property of the Company or its licensors (as applicable) and is protected by Australian and international copyright laws. You must not reproduce, transmit, republish or prepare derivative works from any of the Proprietary Content, except as expressly authorised by these Terms or with the prior written consent of the Company or other copyright owner (as applicable).

You may download and print out content from this site only for your own personal and non-commercial use and provided that you do not remove or modify any copyright, trademark or other proprietary notices.

Trademarks

The Company’s logo and the word "Nimbus” are trademarks of the Company. The look and feel of this site (including all button icons, scripts, custom graphics and headers) are the trademarks, service marks and/or trade dress of the Company. These trademarks, service marks and trade dress may not be used, copied or imitated, in whole or in part, without the prior written consent of the Company.

Third-Party Links

Certain content and products available via our site may include materials from third-parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

User Content

In these Terms, the term "User Content" means any and all content that is submitted, posted or otherwise added to this site by any user, such as reviews, ratings, questions and feedback.

This site contains some features that enable you and other users to upload User Content. The Company reserves the right to display, refuse to display, remove and/or amend all or any part of any User Content at its absolute discretion. In respect of any User Content that you upload, you:

• represent and warranty to the Company that your sharing of that User Content does not infringe any copyright or other legal right of any other person; and
• grant to the Company a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform and otherwise exploit all or any part of that User Content in any way at the Company’s absolute discretion.

Disclaimer of warranties

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY AND ITS OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS, LICENSORS, PARTNERS AND AFFILIATES EXPRESSLY DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES (WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE) IN RELATION TO THIS SITE AND ANY PRODUCTS PURCHASED OR OBTAINED THROUGH THIS SITE, INCLUDING ANY IMPLIED WARRANTY/GUARANTEE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

This site is provided strictly on an "as is" basis. To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates make no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of this site or any of its content, and in particular do not represent, warrant or guarantee that:

• the use of this site will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;
• this site will meet your requirements or expectations;
• anything on this site, including any product descriptions, pricing, and photographs or on any third-party website referred or linked to in this site, is reliable, accurate, complete or up-to-date;
• the quality of any products, information or other material purchased or obtained through this site will meet any particular requirements or expectations;
• errors or defects will be corrected; or
• this site or the servers that make it available are free of viruses or other harmful components.

Limitation of liability

Exclusion of liability

To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates exclude all liability to you or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, these Terms or the use of this site by you or any other person.

Remedies limited

To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates expressly limit their liability for breach of any non-excludable condition or warranty/guarantee implied by virtue of any legislation to the following remedies (the choice of which is to be at the Company's sole discretion):

• in the case of goods, to any of the following:
• the replacement of 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 the case of services:
• the supply of the services again; or
• the payment of the cost of having the services supplied again.

Release

You agree that your use of this site is at your own discretion and risk. You agree to release the Company and its officers, employees, agents, consultants, licensors, partners and affiliates from any claim, demand or cause of action that you may have against any of them arising from these Website Terms of Use or the use of this site by you or any other person. The Company may plead this release as a bar and complete defence to any claims or proceedings.

Force majeure

To the maximum extent permitted by law, and without limiting any other provision of these Terms, the Company excludes liability for any delay in performing any of its obligations under these Terms where such delay is caused by circumstances beyond the reasonable control of the Company, and the Company shall be entitled to a reasonable extension of time for the performance of such obligations.

General

Interpretation

In these Terms, the following rules of interpretation apply:

• headings are for reference purposes only and in no way define, limit or describe the scope or extent of any provision in these Website Terms of Use;
• these Terms may not be construed adversely against the Company solely because the Company prepared them;
• the singular includes the plural and vice-versa;
• a reference to a "person" includes an individual, a firm, a corporation, a body corporate, a partnership, an unincorporated body, an association, a government body or any other entity; and
• the meaning of general words is not limited by specific examples introduced by "including", "for example", "in particular" or similar expressions.

Notifications

The Company may provide any notification for the purposes of these Terms by email and/or by adding the notification into the website.

Costs

Except as specifically provided in these Terms, each party must bear its own legal, accounting and other costs associated with these Terms.

Assignment

You may not assign, transfer or sub-contract any of your rights or obligations under these Terms without the Company's prior written consent. Your registration and subscription with this site is personal to you and may not be sold or otherwise transferred to any other person.

The Company may assign, transfer or sub-contract any of its rights or obligations under these Terms at any time without notice to you.

No waiver

Waiver of any power or right under these Terms must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver. 

The failure by us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

Entire Agreement

These Terms and any policies or operating rules posted by us on this site or in respect to a product constitutes the entire agreement and understanding between you and us and govern your use of the product and website, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of these Terms). 

Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.

Severability

The provisions of these Terms are severable and, if any provision of these Terms is held to be illegal, invalid or unenforceable under present or future law, such provision may be removed and the remaining provisions shall be enforced.

Variation

The Company reserves the right to amend these Terms and any other policy on this site at any time in its sole discretion and any such changes will, unless otherwise noted, be effective immediately. Your continued usage of this site will mean you accept those amendments. We reserve the right, without notice and at our sole discretion, to change, suspend, discontinue or impose limits on any aspect or content of this site or the products offered through this site.

You may only vary or amend these Terms by written agreement with the Company.

Governing law and jurisdiction

These Terms and any disputes or claims arising out of or in connection with this website or any products will be governed in all respects by the laws of New South Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from them.

Contact Information

If you have any questions, feedback, complaints or wish to submit a notice about these Terms, please send an email to [email protected].

YOU MUST NOT:

• use any device, routine or software that interferes, or attempt to interfere, with the proper working of this site;
• use this site to decipher passwords or security encryption codes, transmit any worms, viruses or Trojan horses, transfer or store illegal, threatening or obscene material or otherwise violate the security of any computer network;
• use this site to violate any applicable local, state, national or international law, to engage in any misleading or deceptive online marketing practices or for any fraudulent or malicious purposes;
• use any spider, robot or search/retrieval application or any screen scraping, data mining or similar data gathering device, process, program or means to access, retrieve or index any portion of this site;
• use this site by any automated means;
• access, retrieve or index any portion of this site for use in constructing or populating any database that is searchable online or for the purpose of soliciting or sharing reviews;
• interfere with the display of any advertisements appearing on or in connection with this site;
• reverse engineer, decompile, disassemble, adapt, modify, translate, frame or reformat any of the material contained on this site;
• reproduce, duplicate, copy or store any of the material appearing on this site other than for your own personal and non-commercial use;
• falsely imply that any other website is associated with this site;
• do anything that leads, or may lead, to a decrease in the value of the Company's intellectual property rights in this site;
• use or exploit any of the material appearing on this site for, or in connection with, any business or enterprise (whether for profit or otherwise), including any business or enterprise that is in competition with this site;
• release to the public any news release, advertising material, promotional material or any other form of publicity or information relating to the Company without the Company's prior written consent; or
• use this site to transmit any information or material that is, or may reasonably be considered to be:
• abusive, threatening, harassing, harmful, obscene, indecent, lewd, inflammatory, violent, vulgar, profane, racially, ethnically or otherwise objectionable or offensive in any way;
• libellous, defamatory, pornographic, sexually explicit, unlawful or plagiarised;
• infringing upon or violating any copyright, trademark, patent or other intellectual property or proprietary right;
• in breach of any duty of confidentiality by which you are bound, whether by way of a fiduciary or contractual relationship;
• in breach of any person’s privacy or publicity rights;
• a misrepresentation of facts, including the impersonation of any person or entity or a misrepresentation of an affiliation with any person or entity (including any sponsorship or endorsement);
• in violation of any applicable law, statute, ordinance or regulation, or encouraging of others to do so;
• containing any political campaigning material, advertisements or solicitations; or
• likely to bring the Company or any of its staff into disrepute.