Terms & Conditions

1. GENERAL CONSIDERATIONS AND SCOPE

1.1 TheGourmet.com.au Pty Ltd (ABN 73 146 068 699) Level 12, 201 Kent Street, Sydney, NSW 2000, Australia (hereinafter “The Gourmet”) operates on the Internet portal www.TheGourmet.com.au, a shopping community (hereinafter “TheGourmet.com.au”). References to “we”, “our” and “us” are references to The Gourmet and TheGourmet.com.au.

1.2 On TheGourmet.com.au members of the shopping club (hereinafter referred to as “members” “member” and “you”) will be offered goods. The offering on this site is only directed at end users of legal age. By accepting these Terms and Conditions and becoming a member of our shopping club and you warrant that you are 18 years old or over and that you can form legally binding contracts under applicable law. If you do not qualify, you must not use our services.

1.3 Items will only be sold in what The Gourmet deems to be normal household quantities. The offers are made as part of a sales event, which means they are limited in time and quantity. These terms and conditions are applicable to all contracts entered into between The Gourmet and members as well as to all general business relationships between The Gourmet and its members. The Gourmet does not accept any other terms and conditions unless explicitly stated otherwise. If periods are stated in business days, these include all weekdays except Saturday and Sunday and all statutory holidays.

1.4 The Gourmet reserves the right to cancel orders to islands and remote areas or to request further shipping fees are paid to cover the cost.

2. MEMBERSHIP OF THEGOURMET.COM.AU

2.1 Offers on TheGourmet.com.au are available only to members who register on TheGourmet.com.au. Membership is free of charge and can be cancelled at any time upon the member giving written notice to The Gourmet via email to support@thegourmet.com.au.

2.2 Every member will receive password-protected direct access to TheGourmet.com.au. Only members have the right to access the online offers on TheGourmet.com.au.

3. USE OF THEGOURMET.COM.AU

3.1 When registering as a member of TheGourmet.com.au, you will be asked to submit personal data in accordance with clause 14.1 below. You are responsible for ensuring that the data is complete and correct. After you have completed the registration process, you will receive confirmation of your registration by email and a password, which will provide you with access to the online services on TheGourmet.com.au. You are obliged to treat this password and any other access data as confidential and protected from access by unauthorised third parties. The Gourmet reserves the right to refuse registration without giving reasons.

3.2 You have the opportunity to publish your own content on TheGourmet.com.au (e.g. ratings). You guarantee that your own content does not interfere with or violate the rights of third parties (such as privacy or intellectual property rights). In this regard, you fully indemnify The Gourmet against any claim by third parties. By publishing content on TheGourmet.com.au, you grant The Gourmet exclusive rights of use over such content without restriction, including transfer to a third party. The Gourmet is entitled to store or release content, and reserves the right of cancellation, reduction, modification or correction of such content.

3.3 You may not use TheGourmet.com.au other than for its intended purpose or disrupt or manipulate any technical processes. If you do anything that is to the detriment of The Gourmet or other members, your membership will be immediately revoked.

3.4 You are only permitted to register and use one membership account at a time. The Gourmet will delete multiple registrations.

3.5 In the password-protected area on TheGourmet.com.au you can access your recently shipped and/or completed orders. In this area you can also change, administer and save your own data and potential subscriptions of newsletters.

3.6 The Gourmet reserves the right to issue a warning, to terminate your membership or to modify or delete content you have submitted if you violate any of the provisions of this clause 3. Any claims for damages by The Gourmet remain unaffected.

4. CONTRACTUAL PARTNERS, LANGUAGE AND CONCLUSION OF CONTRACT

4.1 All contracts entered into on TheGourmet.com.au are between you and The Gourmet.

4.2 TheGourmet.com.au is operated in English; TheGourmet.com.au contracts are concluded exclusively in English.

4.3 The offer of goods on TheGourmet.com.au is not a binding offer but merely an invitation to make an offer. By submitting an order by clicking "order" you make a binding contract offer. After submitting your order, you will receive a confirmation email from The Gourmet.

4.4 While we work hard to fulfil all your orders, accepting your order is not a legally binding obligation for us to fulfil the order. The confirmation email does not constitute acceptance of the contract, which is only deemed accepted once goods have been shipped. When ordering multiple items, the acceptance of the contract applies only to goods actually shipped.

4.5 In cases where prices are displayed incorrectly on TheGourmet.com.au due to technical errors, The Gourmet reserves the right to cancel any contract in relation to the incorrectly priced items. The burden of proof regarding an error lies with The Gourmet. Payments already made will be refunded immediately.

4.6 In some cases a product photo displayed may reflect a suggestion of how the product could be used/displayed, and this will be specified in the product description.

4.7 Due to screen resolution, the image of a product may vary slightly in colour to the actual colour of the product.

5. PRICES AND SHIPPING FEES

5.1 For orders on TheGourmet.com.au, the prices that are listed at the time of your order on the product page apply. The prices are final prices inclusive of GST (where applicable) and all other price components excluding shipping costs. The shipping costs will be indicated on the product page and are determined mainly by the size and weight of the goods and shipping method you choose.

5.2. For orders where a one-time shipping fee is charged and 10 or more items are ordered, The Gourmet reserves the right to contact the customer with a new shipping quote.

6. FAULTY ITEMS

6.1 The Australian Consumer Law ("Law") which forms part of the Competition and Consumer Act 2010 (Cth) implies into consumer contracts certain statutory conditions and warranties that cannot be excluded, restricted or modified. These are in addition to any voluntary warranties offered by the manufacturer or supplier. Where there is a breach of such a warranty relating to goods or services, and the breach is in terms of the Law, a "major" failure, then the remedy will be limited to a refund, repair or replacement (subject to availability) at your election.

6.2 As supplier, we provide the following express warranties subject to the following terms and conditions:

  • We will refund or offer a purchase, if, for the purchase as the case may be (with us or you deciding and determining the action to be taken according to whether the failure is major or non-major, as stated above) in the circumstances and to the extent required under the Law if the item you receive does not match the sample or description, is substantially unfit for its intended or disclosed purpose or is not of acceptable quality (as defined in the Law), is unsafe, or if the alleged issue with the product is such that a reasonable consumer aware of the issue would not have acquired the product.
  • Where a refund is to be provided under the terms of this warranty, we may, to the extent permitted under the Law, require the return of the item to us before refunding it. We will pay for, or reimburse you for, any shipping costs to return the original item to us, provided there is fault with the item.
  • Refunds will be issued in the form of shop credit, by direct deposit or via the credit card used in original purchase at our discretion.

6.3 In order to obtain these remedies:

  • You must notify us within 7 days of supply of the goods and provide images of damaged or incorrect goods to be returned. Please contact us at support@thegourmet.com.au. Once contacted we will advise the next course of action. Images will be required. We will not accept products returns for no valid reason and when no prior contact has been made with us.
  • Except if and to the extent the Law requires otherwise, refund and reimbursement of freight costs will not be made until the original product is received by us and your claim verified.
  • We aim to process refunds within 14 days of receipt by us of the original product.
  • We will not refund or replace a product where, in our reasonable opinion, the product has, following sale to you, become of unacceptable quality due to fair wear and tear, misuse, failure to use in accordance with manufacturers instructions, using it in an abnormal way or failure to take reasonable care.

6.4 Limitation of Liability: Where any law implies a warranty into this agreement which may not be lawfully excluded then to the extent allowed by law, our liability for breach of the warranty will at our option be limited to:

  • 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.

7. PAYMENTS

7.1 Payments may be made by credit card (Visa and Mastercard) or PayPal. The Gourmet reserves the right to exclude a particular payment method for individual products or to require payment by one payment method only.

7.2 The Gourmet will charge credit card payments to your credit card immediately after receipt of an order.

7.3 With the prepayment method, you receive the account data of The Gourmet with your order confirmation.

7.4 Unless otherwise stated, charges and other expenses payable are exclusive of GST but inclusive of any other applicable taxes, duties, imposts and other similar charges payable in respect of the Product and Services.

8. VOUCHERS AND PROMOTIONS

Terms and conditions for current promotions are published on this page.

8.1 The following provisions apply to all vouchers of The Gourmet. The vouchers include specifically the welcoming vouchers for registering with TheGourmet.com.au, vouchers as a result of purchase of an invited friend of TheGourmet.com.au and vouchers individually assigned to individual members at TheGourmet.com.au.

8.1.1 Vouchers are only valid for the period announced at issue for a particular sales campaign. An extension or a transfer to a different sales event is not possible.

8.1.2 Vouchers are non-transferable.

8.1.3 Vouchers cannot be deducted from shipping costs.

8.1.4 Vouchers can be tied to a minimum order value. For administrative reasons it is not possible to refund remaining funds.

8.1.5 Should the price of your order exceed the balance in a voucher, you can compensate the difference through the payment methods available.

8.1.6 The Gourmet reserves the right to accept only one coupon per order.

8.1.7 Vouchers are not paid in cash and cannot earn interest.

8.1.8 Vouchers will not be refunded, should you return the goods wholly or partly, or if goods can only be delivered in part.

8.1.9 Lost or, in particular, stolen vouchers will not be refunded. The Gourmet assumes no liability for lost vouchers.

8.1.10 The Gourmet reserves the right to provide alternative payment methods in accordance with clause 6.1, and to refuse delivery and/or to terminate member accounts should there be a reasonable suspicion of abuse in connection with the use of vouchers.

9. DELIVERY

9.1 Deliveries will be made only within Australia to the shipping address provided by you. It is your responsibility to ensure that it is possible to ship to the shipping address during normal business hours. If you change your address after you place your order, we cannot guarantee that your goods will be shipped to this new address and cannot cover any additional postage fees incurred. For non-couriered deliveries (ie non-fresh items), if you are not at home to accept your delivery or no access to a business address and it gets returned to us, we will contact you and charge a re-delivery fee for the order to be sent out again. The Gourmet uses a mix of couriers to deliver non-fresh orders, and delivery to the nearest Australia Post Office cannot be guaranteed.

9.2 The Gourmet normally ships non-fresh items a few weeks after the sales event has ended once our account has been credited with the full invoice amount. Earlier shipping is not usually possible since the shipping date depends on suppliers. Individual shipping times are stated on the product pages. Note that unless anything else is stated, delivery will usually take around two weeks from the latest ending sale of your order.

9.3 The Gourmet does not assume any sourcing risk especially with reference to a purchase by description. The Gourmet is only obliged to ship from existing stock or from stock ordered from suppliers. The Gourmet’s shipping obligations cease to exist if The Gourmet, through no fault of its own, does not receive goods in full or on time from suppliers, as long as The Gourmet informs you as soon as practicable.

9.4 In cases of force majeure, shipping duration may increase within reason. Force majeure shall include strike, exclusion, official intervention, energy or resource scarcity, shipping difficulties, business complications such as fire or water damage to machinery, lightning or any other unforeseeable business complications for which The Gourmet cannot be held responsible. Starting and ending points of such shipping impediments will be communicated to you as soon as practicable by The Gourmet.

9.5 The Gourmet reserves the right to cancel the contract should delivery fail three times due to the fault of the member. Payments already made will be refunded, excluding shipping costs.

9.6 The Gourmet asks you to immediately inform the deliverer and The Gourmet about obvious transport damage. Damage reported more than 7 days from receipt of items will not be recognised. Doing so has no influence on your warranty rights, but will help The Gourmet to make its own claims against the supplier.

9.7 If an incorrect or incomplete address is entered into the system and your order is returned to us, a re-delivery fee will apply to ship out the order again.

9.8 In cases where you have provided authority to leave a parcel without your signature, The Gourmet shall not be liable for any direct or indirect loss or damage caused. The Gourmet absolves all risk from the point that the parcel/s arrive at your nominated delivery address.

10. RIGHT OF CANCELLATION - RETURNS

10.1 Right of withdrawal: For non-fresh items only, you may cancel your contract in writing (e.g. by letter or email) without specific reason if the campaign is still live. Fresh items such as meat or seafood are unable to be cancelled after purchase.

10.2 Notice of cancellation is to be directed to:
support@thegourmet.com.au

11. RETENTION OF TITLE

Ownership of the goods is transferred to the member upon full payment.

12. LIABILITY

The Gourmet is liable only for intent and gross negligence, unless there are fraudulently concealed damages, damages for loss of life, limb or health or damage arising from any infringement of essential contractual obligations. The same applies to violations by The Gourmet’s agents.

13. SERVICE AND COMPLAINTS

The satisfaction of our members is close to our hearts. Therefore we endeavour to deal with your concerns as quickly as possible and always provide you with our feedback after receiving your input. For service inquiries, please contact our customer service department:

The Gourmet
Level 12, 201 Kent Street
NSW, Sydney, 2000 Australia
E-Mail: support@thegourmet.com.au

14. DISCLAIMER FOR HYPERTEXT LINKS

The website TheGourmet.com.au includes hyperlinks to other Internet sites. The Gourmet has no control over the content of these sites, nor does it endorse them or take responsibility for their content. Once The Gourmet becomes aware of illegal content, The Gourmet will remove the corresponding links from TheGourmet.com.au.

15. DATA SECURITY

As part of your registration as a member on TheGourmet.com.au you will be asked to provide personal data. This data is required by The Gourmet to process the contracts concluded on TheGourmet.com.au. All personal data is confidential and will be treated by The Gourmet in accordance with relevant legislation and in accordance with our privacy policy. To safeguard your privacy in online payment transactions The Gourmet uses the latest encryption techniques, such as the Secure Socket Layer (SSL). The SSL is an accepted standard protocol that ensures secure data exchange. All data used for your orders is submitted to The Gourmet encrypted.

16. IMAGE RIGHTS AND INTELLECTUAL PROPERTY

16.1 All rights to use imagery on TheGourmet.com.au lie with The Gourmet or our partners. The use of the material - in whatever form - is prohibited unless explicit permission from The Gourmet has been granted.

16.2 You acknowledge and agree that all material and information (such as data files, written text, computer software, music, audio files or other sounds, designs, photographs, drawings, videos or other images (hereafter referred to as the “Content”) that you may have access to on TheGourmet.com.au is owned or controlled by The Gourmet, except where stated otherwise.

16.3 You may not modify, adapt, rent, lease, loan, sell, distribute, or create derivative works based on the Content (either in whole or part) unless you have the express written consent of The Gourmet. You should be aware that, in addition to the Content, other content on TheGourmet.com.au, including sponsored content or advertising content, may be protected by intellectual property rights which are owned or controlled by the people or corporations who provided that content to The Gourmet for inclusion on TheGourmet.com.au (the “Supplier Content”). You may not modify, adapt, rent, lease, loan, sell, distribute, or create derivative works based on the Supplier Content (either in whole or part) unless you have the expressed written consent of The Gourmet or by the owners of the Supplier Content, either in these Terms and Conditions or otherwise.

17. PURCHASE OF ALCOHOL

17.1 It is against the law to sell or supply alcohol to, or to obtain alcohol on behalf of, a person under the age of 18 years.

17.2 By law - the delivery of alcohol must be accepted by an adult being either the person who placed the order, or another adult who is able to accept the delivery on behalf of the person who placed the order.

17.3 TheGourmet.com.au Liquor License No: 36123474

18. GENERAL PROVISIONS

18.1 Should any provision of this agreement be legally void, this does not invalidate the whole contract. Instead, the invalid provision shall be replaced with an effective provision with the same economic purpose. The same applies to possible gaps in this contract.

18.2 The Gourmet reserves the right to amend these terms and conditions for future business. Excluded from this are unreasonable changes, especially pertaining to essential contract elements, such as the main benefits owed, which would be subject of a contract modification. The Gourmet will publish any amended Terms and Conditions in a timely fashion on TheGourmet.com.au.

18.2.1 In this clause 19.3:

18.2.1.1 The following expressions have the meanings given in the GST Act: “adjustment note”, “consideration”, “GST”, “supply”, “tax invoice”, "supplier", “recipient” and “taxable supply”; and

18.2.1.2 For the avoidance of doubt, “GST” excludes any penalties or additional tax imposed in relation to the GST.

18.2.2 If GST is imposed on any supply made under this Deed by one party (“the supplier”) to another party (“the recipient”) and the consideration payable or to be provided for the supply under any other clause in this Deed is not expressed to be inclusive of GST the receiving party must pay, in addition to and at the same time as any GST exclusive consideration is payable or to be provided for the supply, an additional amount calculated by multiplying the value of that GST exclusive consideration (without deduction or set off) by the prevailing GST rate.

18.2.3 The recipient is not required to pay any amount of GST to the supplying party unless the supplier has made demand for payment by means of a tax invoice.

18.2.4 If the amount of GST recovered by the supplier from the recipient differs from the amount of GST payable at law by the supplier in respect of the supply, the amount payable by the recipient to the supplier will be adjusted accordingly.

18.2.5 Where one party (“the payer”) is liable to reimburse another party (“the payee”) for any expenditure incurred by the payee (“expenditure”), the amount reimbursed by the payer will be the GST exclusive expenditure plus any GST payable by the payer to the payee pursuant to clause 16.3.

18.3 This Deed is governed by the laws of New South Wales. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and any courts, which have jurisdiction to hear appeals from any of those courts in respect of any proceedings in connection with this Deed.

18.4 No provision of this Deed merges on execution, completion or termination.

18.5 These terms and conditions embody the entire agreement between the parties with respect to their subject matter and supersede any prior negotiations, arrangement, understanding or agreement with respect to the subject matter or any term of these terms and conditions.

July 2016

The Gourmet