Terms of Service - Houghnuts

1. HOUGHNUTS – the basics

(a) “HOUGHNUTS™” and its related bodies corporate. This document explains how the agreement is made up, and sets out the terms of our agreement with you.

(b) HOUGHNUTS™ operates an online goods delivery business delivering food and groceries straight to residences.

(c) Your use and/or purchase of HOUGHNUTS™’s products (“Goods”), services and websites (including affiliated websites and pages, and including but not limited to the website at www.HOUGHNUTS.com.au (referred to collectively, including where Goods are supplied, as the “Services” in this document) is subject to the terms of a legal agreement between you and HOUGHNUTS™.

(d) Unless otherwise agreed in writing with HOUGHNUTS™, your agreement with HOUGHNUTS™ will always include the terms and conditions set out in this document (“Main Terms”).

(e) Your agreement with HOUGHNUTS™ will also include the terms of any additional notices we send you or post on any website owned or operated by HOUGHNUTS™ applicable to the Services, in addition to the Main Terms (“Additional Terms”). Where Additional Terms apply to a Service, these will be accessible for you to read either within, or through your use of, that Service.

(f) The Main Terms, together with the Additional Terms and the HOUGHNUTS™ Privacy Policy, form a legally binding agreement between you and HOUGHNUTS™ in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this agreement (embodying all of these terms) is referred to below as the “Terms”.

(g) If there is any contradiction between what the Additional Terms say and what the Main Terms say, then the Additional Terms shall take precedence in relation to that Service.

2. Accepting the Terms

(a) In order to use the Services (including purchasing any Goods), you must first agree to the Terms. You may not use the Services if you do not accept the Terms.

(b) You can accept the Terms by:

(i) clicking to accept or agree to the Terms, where this option is made available to you by HOUGHNUTS™ in the user interface for any Service (whether through a web browser, mobile app or otherwise); or

(ii) by actually using the Services. In this case, you understand and agree that HOUGHNUTS™ will treat your use of the Services as acceptance of the Terms from that point onwards.

(c) You may not use the Services or buy the Goods and may not accept the Terms if you are not of legal age or capacity to form a binding contract with HOUGHNUTS™, or you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

3. Provision of the Services by HOUGHNUTS™

(a) HOUGHNUTS™ will use all reasonable endeavours to provide the Services and supply the Goods to you as represented on the HOUGHNUTS™ website, or any instructional or promotional material provided by or on behalf of HOUGHNUTS™.

(b) You acknowledge and agree that the form and nature of the Services or Goods which HOUGHNUTS™ provides may change from time to time without prior notice to you, and you shall remain bound by the Terms when using the Services in any updated or amended version.

(c) You acknowledge and agree that HOUGHNUTS™ may refuse to allow you to access the Services or buy the Goods at its sole discretion, and/or may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at HOUGHNUTS™’s sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform HOUGHNUTS™ when you stop using the Services. HOUGHNUTS™ is not required to act in good faith or reasonably.

(d) You acknowledge and agree that if HOUGHNUTS™ disables access to the website or any Services, you may be prevented from accessing the Services, your account details or any files or other content which is contained therein.

4. Supply of HOUGHNUTS™ Services

What is HOUGHNUTS™?

(a) HOUGHNUTS™ is an online food delivery business.

(b) In providing the Services, HOUGHNUTS™ utilises and in all instances (except where otherwise expressly identified) provides access to third party products and services (including food products and access to third party websites). In this instance, HOUGHNUTS™ acts merely as an intermediary to facilitate your access to products and services of those third parties, and HOUGHNUTS™:

(i) relies on representations made by those third parties and other suppliers, and will not be liable to you for any misrepresentation made, if we reasonably relied upon such representation in sourcing any supplying the Services, to the extent allowed by law;

(ii) does not warrant the accuracy or functionality of any such third-party product or service and will not be liable for any fault or misdescription;

(iii) does not make any other warranty regarding the third party service or product, and you agree to rely on your own investigations and will indemnify HOUGHNUTS™ against all claims and loss in connection with your use of any third party service; and

(iv) does not warrant that any such product or service will be virus free, or free from any other error or defect, and will not be liable for any damage suffered as a result to the extent allowed by law.

(c) By purchasing any third party product or service using the Services, you acknowledge that HOUGHNUTS™ is in no way liable to you in respect of any such product or service and that any claim is against that third party. You hereby release HOUGHNUTS™ from all claims in connection with any loss or damage you suffer based on your purchase or use of such products or services, to the fullest extent permitted by law.

Payment of fees

(d) You agree to pay all fees charged based on HOUGHNUTS™’s pricing, charges, and billing terms notified to you. For the avoidance of doubt, this may include any charges contained on our website.

Delivery of Goods

(e) HOUGHNUTS™ will deliver Goods ordered in accordance with delivery terms set out on our website or other material provided to you.

(f) We will not be responsible for any goods lost or damaged at the point of or after delivery. Risk in the Goods will pass to you immediately upon delivery.

(g) In the event that your delivery address is unattended, we will attempt to call you on your nominated phone number twice. After that, unless instructed otherwise, we will leave the Goods at the address provided for delivery. We will not be responsible for any Goods lost, damaged or stolen from that point onwards, and you release us from any claim in relation to Goods that are damaged, lost or stolen once left at your nominated address.

Click & Collect

If you do not collect your order on the date nominated by you at the time of checkout, we will endeavour to contact you using the details you provided at checkout, or you may contact us to arrange for collection at a different time. If a new date has been agreed on for collection, there will be no replacement of perishable stock items in your order to compensate for potential spoilage of the perishable goods packed for dispatch as per your originally nominated date of collection.

Orders which are not collected on the date of the nominated collection window (including revised date windows nominated by you), will be considered cancelled by you and no longer available for collection after the expiry of that date. You will not be entitled to a refund or credit for such orders nor entitled to a replacement order on a different date.

If you cancel your HOUGHNUTS Order on the day of delivery or collection, you may have to pay a cancellation fee of no more than $25 plus the charges of any perishable Products. Before HOUGHNUTS processes any such fees or charges HOUGHNUTS will provide notice to you of the additional fees or charges payable and make contact you via the details provided at the time of checkout.

No changes can be made to the order at pick up point and no resolutions, refunds or exchanges will be available at the time of collection.

General

(h) Information provided by you will be relied upon for the purposes of delivery of the Services. We will not be liable to you for incorrect information provided by you.

(i) HOUGHNUTS™ attempts to be as accurate as possible. However, HOUGHNUTS™ does not warrant that the Goods and Services supplied by HOUGHNUTS™ are accurate, complete, reliable, current or error-free. If a Good or Service offered by HOUGHNUTS™ is not as described, our liability to you shall be limited an HOUGHNUTS Gift Card for that Good or Service or provision of the Service again, alone.

(j) You expressly acknowledge that all Services supplied to you from HOUGHNUTS™:

(i) are priced in Australian Dollars; and

(ii) will be charged, unless expressly stated otherwise, as exclusive of Goods and Services Tax pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth). We will issue a tax invoice for all purchases, delivered to your nominated email account and that you will make no objection or claim in relation to any of these matters unless such restriction is prohibited by law.

5. Your Use of the Services

(a) In order to access certain Services, you will be required to provide information about yourself (identification, payment and contact details) as part of the registration process for the Service, or as part of your continued use of the Services. You agree that any registration information you give to HOUGHNUTS™ will always be accurate, correct and up to date, and will be provided in accordance with the HOUGHNUTS™ Privacy Policy and other applicable privacy policies.

(b) HOUGHNUTS™ will rely on the accuracy of the information you provide. All Services will be provided in accordance with the information you have provided as at the date of provision of the Services. HOUGHNUTS™ will not be liable to you in any respect or for any amount for any loss suffered by you) if you have not provided accurate information.

(c) Any data you provide to HOUGHNUTS™ will be error free, legible (or audible) in a manner that will reasonably be considered to allow us to provide the Services. We will not be liable to you in any respect for any amount for any loss suffered by you if you have not provided information of such quality.

(d) You agree to use the Services only for purposes that are agreed at the time of using the Services (including in relation to any Content), and that are permitted by these

Terms and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.

(e) You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by HOUGHNUTS™, unless you have been specifically allowed to do so in a separate agreement with HOUGHNUTS™. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the Services, and you agree not to access the content directly from Contributors without the direct written agreement of HOUGHNUTS™.

(f) You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).

(g) Unless you have been specifically permitted to do so in a separate agreement with HOUGHNUTS™, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. You must keep all aspects of the Services, including any source code, completely confidential and will not provide any such information to any other party. You will indemnify and hold harmless HOUGHNUTS™ for any loss it suffers if you breach this obligation.

(h) Unless you have been specifically permitted to do so in a separate agreement with HOUGHNUTS™, you agree that you will not alter, modify, remove or otherwise obscure any content that you access by using the Services.

(i) You agree that you are solely responsible for (and that HOUGHNUTS™ has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which HOUGHNUTS™ may suffer) of any such breach. You agree to indemnify HOUGHNUTS™ for any loss suffered by reason of any breach of your obligations under the Terms (including any consequential damages).

6. Your account security and data security

(a) You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services.

(b) Accordingly, you agree that you will be solely responsible to HOUGHNUTS™ for all activities that occur under your account, and HOUGHNUTS™ will not be responsible for any loss suffered by you or any other person by reason of unauthorised use of your account.

(d) We will supply you with a generic password upon registration, however you must change your password prior to your first use of the Services.

(e) If you become aware of any unauthorised use of your password or of your account, you agree to change your account password and notify HOUGHNUTS™ immediately using the contact details at www.HOUGHNUTS.com.au.

(f) We will take all reasonable steps to ensure the security of any data you provide to us. We will also use reasonable endeavours to ensure that any company to which we outsource or allocate the provision of Services will comply with our Privacy Policy and Australian law. So long as we take reasonable steps to do so, we shall not be liable to you for any unauthorised disclosure of any information unless we have not notified you as required by our Privacy Policy or by law.

7. Privacy and personal information

(a) For information about HOUGHNUTS™’s data protection practices, please read HOUGHNUTS™’s Privacy Policy. This policy explains how HOUGHNUTS™ treats your personal information, and protects your privacy, when you use the Services.

(b) You agree to the use of your data in accordance with HOUGHNUTS™’s Privacy Policy.

8. Proprietary rights

(a) HOUGHNUTS™ has the right to use the “HOUGHNUTS™” and “HOUGHNUTS™ intellectual property.

(b) You acknowledge and agree that HOUGHNUTS™ (or HOUGHNUTS™’s licensors) own all legal right, title and interest in and to the Goods and Services, including any intellectual property rights which subsist in the Goods and Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by HOUGHNUTS™ and that you shall not disclose such information without HOUGHNUTS™’s prior written consent.

(d) Unless you have agreed otherwise in writing with HOUGHNUTS™, nothing in the Terms gives you a right to use any of HOUGHNUTS™’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features (whether owned or licensed by HOUGHNUTS™).

(e) You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Goods or Services.

(f) Unless you have been expressly authorised to do so in writing by HOUGHNUTS™, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos. You agree to wholly indemnify HOUGHNUTS™ for any loss or damage suffered by HOUGHNUTS™ by reason of any breach by you of this Clause.

9. Indemnity

(a) To the fullest extent permitted by law, you agree to fully and promptly indemnify HOUGHNUTS™ against any loss (either direct or indirect) damage or expense whatsoever which HOUGHNUTS™ may suffer or incur in respect of:

(1) Any breach by you of the provisions of the Terms;

(2) Any claim in connection with your use of the Goods or the Services by any person;

(3) Any claim by any person in connection with your infringement of any intellectual property rights arising from your use of the Goods or Services; and/or

(4) Any claim by any person against you arising out of or in respect of the exploitation of the intellectual property in the Goods or Services by HOUGHNUTS™.

(b) You irrevocably release HOUGHNUTS™ and waive all claims which you may have in the future against HOUGHNUTS™, in respect of any action, claim or remedy whatsoever in any way attributable to the exploitation of the intellectual property in the Services by HOUGHNUTS™.

10. Terminating the agreement

(a) The Terms will continue to apply until terminated by either you or HOUGHNUTS™ as set out below.

(b) Subject to the balance of this clause, if you want to terminate your legal agreement with HOUGHNUTS™, you may do so by:

(i) notifying HOUGHNUTS™ at any time using the contact page on our website; and

(ii) closing your accounts for all of the Services which you use, where HOUGHNUTS™ has made this option available to you.

(c) All Goods and Services are non-refundable unless in accordance with these terms or where required by law or otherwise identified in any refund policy published by HOUGHNUTS™ in existence from time to time.

(d) HOUGHNUTS™ may at any time, terminate its legal agreement with you if:

(i) you have breached any provision of this agreement (or have acted in manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this agreement); or

(ii) HOUGHNUTS™ is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); or

(iii) any third party regarding whom HOUGHNUTS™ offered the Services to you has terminated its relationship with HOUGHNUTS™ or ceased to offer the Services to HOUGHNUTS™ or you; or

(iv) you have not made payment as required for the Services;

(v) HOUGHNUTS™ is transitioning to no longer providing the Services to users in the country in which you are resident or from which you use the service; or

(vi) the provision of the Services to you by HOUGHNUTS™ is, in HOUGHNUTS™’s opinion, no longer commercially viable; or

(vii) for any other reason HOUGHNUTS™ in its reasonable discretion thinks fit.

(e) Termination of the agreement will result in an automatic revocation of any licence provided under it in relation to the Goods or the Services, unless otherwise agreed in writing with HOUGHNUTS™.

(f) Nothing in this Section shall affect HOUGHNUTS™’s rights regarding provision of Services under the Terms.

(g) When these Terms come to an end, all of the legal rights, obligations and liabilities that you and HOUGHNUTS™ have benefited from (including any moneys owed for Services provided to you), been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of these Terms shall continue to apply to such rights, obligations and liabilities indefinitely.

11. Exclusion of liability

(a) Nothing in these terms, shall exclude or limit HOUGHNUTS™’s warranty or liability for losses which may not be lawfully excluded or limited by applicable law or otherwise

contained in any warranty identified in any additional terms. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only the limitations which are lawful in your jurisdiction will apply to you and our liability will be limited to the maximum extent permitted by law.

(b) You expressly understand and agree that your use of the services is at your sole risk and that the goods and services are provided “as is” and “as available.”

(i) Your use of the services will meet your requirements,

(ii) All goods and services are in stock and available for purchase;

(iii) Any of the information or content you access using the services is accurate, reliable, or that any particular result or effect will be achieved by using the services or any of the content accessed or downloaded using the services,

(iv) Your use of the services will be uninterrupted, timely, secure or free from error or viruses,

(v) Any information obtained by you as a result of your use of the services will be accurate or reliable, and

(vi) That defects in the operation or functionality of any software provided to you as part of the services will be corrected.

(d) Any material downloaded or otherwise obtained through the use of the services is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or other device or loss of data that results from the download of any such material.

(e) No advice or information, whether oral or written, obtained by you from HOUGHNUTS™ or through or from the services shall create any warranty not expressly stated in the terms.

(f) HOUGHNUTS™ further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.

12. Limitation of liability

(a) You expressly understand and agree that HOUGHNUTS™, its subsidiaries and affiliates, and its licensors shall not be liable to you for:

(i) Any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss;

(ii) Any loss or damage which may be incurred by you., including but not limited to loss or damage as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the services.

(iii) Any changes which HOUGHNUTS™ may make to the services, or for any permanent or temporary cessation in the provision of the services (or any features within the services);

(iv) The deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through your use of the services;

(v) Your failure to provide HOUGHNUTS™ with accurate account information;

(vi) Your failure to keep your password or account details secure and confidential;

(b) The limitations on HOUGHNUTS™’s liability to you above shall apply whether or not HOUGHNUTS™ has been advised of or should have been aware of the possibility of any such losses arising.

(c) We shall not be liable to you for any delay or failure to perform or provide the services by reason of any circumstances beyond our reasonable control.

(d) To the extent permitted by law, in the event that HOUGHNUTS™ is found to be liable to you, our liability shall be limited to an HOUGHNUTS Gift Card of amounts paid by you to HOUGHNUTS™, a replacement of the goods or services supplied, or reperformance of the services supplied.

13. Advertisements

(a) Some of the Services are supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.

(b) The manner, mode and extent of advertising by HOUGHNUTS™ on the Services are subject to change without specific notice to you.

(c) In consideration for HOUGHNUTS™ granting you access to and use of the Services, you agree that HOUGHNUTS™ may place such advertising on the Services.

(d) Without limiting the effect of the above, HOUGHNUTS™ accepts no responsibility and will not be liable to you for any loss suffered by reason of the existence any advertising on the Services.

14. Other content

(a) The Services may include hyperlinks to other web sites or content or resources. HOUGHNUTS™ may have no control over any web sites or resources which are provided by companies or persons other than HOUGHNUTS™.

(b) You acknowledge and agree that HOUGHNUTS™ is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

(c) You acknowledge and agree that HOUGHNUTS™ is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

15. Changes to the Terms

(a) HOUGHNUTS™ may make changes to the Terms from time to time. When these changes are made, HOUGHNUTS™ will make a new copy of the Terms available on any platform through which the Services are accessed. HOUGHNUTS™ shall not be required to otherwise notify you of any changes to the Terms, and you agree to be bound by the Terms as applicable from time to time.

(b) You understand and agree that if you use the Services after the date on which the Main Terms or Additional Terms have changed, HOUGHNUTS™ will treat your use as acceptance of the updated Terms.

16. General

(a) Sometimes when you use the Services, you may (as a result of, or through your use of the Services) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals.

(b) The Terms constitute the whole legal agreement between you and HOUGHNUTS™ and govern your use of the Services (but excluding any services which HOUGHNUTS™ may provide to you under a separate written agreement), and completely replace any prior agreements and/or representations between you and HOUGHNUTS™ in relation to the Services.

(c) You agree that HOUGHNUTS™ may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.

(d) You agree that if HOUGHNUTS™ does not exercise or enforce any legal right or remedy which is contained in the Terms (or which HOUGHNUTS™ has the benefit of under any applicable law), this will not be taken to be a waiver of HOUGHNUTS™’s rights and that those rights or remedies will still be available to HOUGHNUTS™.

(e) If any court of competent jurisdiction rules that any provision of these Terms is invalid, then that provision will be read down or removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.

(f) No agency or partnership shall be construed to have been created by virtue of this agreement.

(g) You acknowledge and agree that each member of any company or entity to which HOUGHNUTS™ is directly affiliated (through whole or part ownership or control) shall be third party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favour of) them. Other than this, no other person or company shall be third party beneficiaries to the Terms.

(h) The Terms, and your relationship with HOUGHNUTS™ under the Terms, shall be governed by the laws of the State of New South Wales (or Australia where applicable). You and HOUGHNUTS™ agree to submit to the non-exclusive jurisdiction of the courts located within the State of New South Wales (or Australia, where applicable) to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that HOUGHNUTS™ shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief, interlocutory or final) in any jurisdiction.

(h) You acknowledge and warrant that you are of legal capacity and have obtained, or had a reasonable opportunity to obtain independent legal advice in relation to the Terms and enter this agreement with an understanding of the legal and practical effect of the Terms. HOUGHNUTS™ shall not be liable for any breach of this warranty.

Liquor Policy

Under the Liquor Control Reform Act 1998 it is an offence: To supply alcohol to a person under the age of 18 years [Penalty exceeds $19,000]; For a person under the age of 18 years to purchase or receive liquor [Penalty exceeds $800]. HOUGHNUTS supplies alcohol to customers over the age of 18 as part of the gift hampers range and are supplied pursuant to the exemption requirements under 6B of the Liquor Control Reform Act. The details of the VCGLR’s Minor Business Exemption can be found here.