TERMS OF SERVICE
Permission to use the Website and to make a Purchase is conditional upon you, the Customer, agreeing to the Provisions set out below. Making a Purchase is only offered to the Customer on condition that the Customer has read and accepts all the Provisions of this Agreement and wishes to make a Purchase. By clicking " PURCHASE" at the Checkout on our Website, you will be deemed to have accepted the following Provisions. If you do not wish to accept the Provisions, you must not click "PURCHASE".
1 WEBSITE PROVISIONS OF SALE
1.1 This Agreement covers the Transaction. Importantly, the Customer should read this Agreement carefully and contact Rubyberry with any questions before completing the Transaction. Rubyberry is available on firstname.lastname@example.org
2 PURCHASE & USE
2.1 Upon confirming a Purchase the Customer agrees to make the payment of the Price to Rubyberry.
2.2 The Customer agrees to use the Cubes for their Common Purpose.
2.3 Risk and title is transferred to the Customer upon Despatch to the Customer.
3.1 Upon Confirmation of the Purchase, Despatch will occur either on the same day or by the end of the following working day. For the removal of doubt, a Purchase made on a Friday at 2pm, maybe despatched on the next working day, Monday.
3.2 The costs associated with a Despatch are included in the total Price of the Cubes.
3.3 Failed Delivery. Purchases that are returned to Rubyberry due to incorrect or incomplete address, will have the Purchase terminated and the cost of the product refunded.
4 RETURN POLICY
4.1 During the Warranty Period, Rubyberry offers a full refund of any Purchase. The details of the Return Policy are available at https://www.rubyberry.com/return-policy.
5 OPERATION OF THE WEBSITE
5.1 The Customer may access and use the Website (including any incidental copying that occurs as part of that use) in the normal manner and may also print one copy of any page within the Website for the Customer’s own personal, non-commercial use.
5.2 The Website contains links to other websites as well as content added by people other than us. Rubyberry does not endorse, sponsor or approve any such user generated content or any content available on any linked website.
5.3 The Customer acknowledge and agree that:
(a) Rubyberry retains complete editorial control over the Website and may alter, amend or cease the operation of the Website at any time in our sole discretion; and
(b) the Website will not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes).
6.1 This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible, Rubyberry's limits its liability in respect of any Claim to, at Rubyberry's option and cost the replacement of the Miracle Fruit Cubes; or the payment of the cost of replacing the Miracle Fruit Cubes.
6.2 Rubyberry acknowledges that Rubyberry goods come with guarantees that cannot be excluded under the Australian Consumer Law (ACL). The Customer is entitled to a replacement or refund for a Major Failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a Major Failure.
6.3 Upon Notification, the Customer:-
(a) may activate the Warranty;
(b) must immediately cease using the Defect.
6.4 The Customer accepts responsibility to return any Defect to Rubyberry in accordance with this Agreement.
6.5 Supplier & Manufacturers. Nothing in this Agreement excludes, restricts or modifies any rights or remedies of the Customer against any other manufacturer or supplier who provide the Miracle Fruit Cubes to Rubyberry;
7 EXCLUSION FROM LIABILITY
7.1 Rubyberry warrants and acknowledges to the Customer that the provisions of Clause 7 do not purport to exclude or modify the application of the statutory guarantees in Section 64 or Section 259 of the ACL.
7.2 Exclusion. Notwithstanding any other provision of this Agreement, Rubyberry will not be liable to the Customer for:
(i) any indirect loss, loss of revenue, loss of profit, loss of goodwill, lost opportunity, financial penalties imposed by any governmental agency or any other indirect or consequential loss arising from or in relation to this Agreement and notwithstanding termination of this Agreement by either party; or
(ii) any liability in negligence for acts or omissions of Rubyberry arising out of or in connection with this Agreement; or
(iii) any act completed by the Customer in the provision of the Miracle Fruit Cubes to a third party;
(iv) any allergic reaction to Miracle Fruit Cubes (miraculin); or
(v) any liability in respect of loss of data, interruption of business or any consequential or incidental damages from the use of the Website; or
(vi) any Claim suffered or incurred by the Customer in connection with the Customer's use or modification of the Cubes; and the Customer releases Rubyberry from such Liability.
7.3 Limitation. Rubyberry is not liable for any Defects if, and to the extent that, it is due to, or comprises:-
(a) damage or defects from after the Miracle Fruit Cubes has been Despatched to the Customer for reasons not related to their state or condition at the time of Despatch;
(b) defects or liabilities for Defects of which the Customer was aware or ought reasonably to have been aware of at the time of contracting for the sale or supply of the Cubes or in respect of which adequate instructions or warnings (including safety warnings) are given at or before the sale or supply of the Miracle Fruit Cubes;
(c) failure by the Customer to immediately notify Rubyberry when the Defect first occurs;
(d) superficial marks that do not impact the Miracle Fruit Cubes;
(e) damage or deterioration that occurs after Despatch;
(f) the expiry of the use-by-date of the Miracle Fruit Cubes;
(g) misuse or abusive use of the Miracle Fruit Cubes;
(h) the incorrect or improper storage of the Miracle Fruit Cubes at temperatures other than at room temperature or by excessive exposure to heat or moisture;
(i) exposure to abnormal conditions; adverse external conditions such as extreme weather events, acts of God, vermin or insect infestation, water damage (liquid spillage or ingression) or acts of terrorism;
(j) any attempt to extend or reduce the life or increase the performance of the Miracle Fruit Cubes, whether by physical or chemical means or otherwise without the express written consent of Rubyberry.
8.1 The Customer. The Customer indemnifies Rubyberry against all:-
(a) liabilities which Rubyberry suffers; and
(a) claims made by any third party against Rubyberry in relation to, by reason of, or in connection with any failure by the Customer to fulfil their obligations under this Agreement;
provided that Rubyberry has not contributed to the circumstances under which the Claim or Liability has arisen against Rubyberry.
9 FORCE MAJEURE EVENTS
(a) Rubyberry will not be liable for any failure to perform, or delay in performing, an obligation under this Agreement if the failure or delay arose from a cause beyond its reasonable control. Rubyberry must give the Customer notice of the cause as soon as possible after becoming aware of it and must take all reasonable steps to mitigate the consequences of the failure or the duration of the delay.
(b) For the purposes of this clause 9 a cause beyond the reasonable control of Rubyberry includes an act of God, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, medical pandemic, flood, fire, earthquake, explosion, embargo, strike, trade dispute, industrial action, delay in transportation, accident of any kind, default or delay by any supplier to Rubyberry, damage to stoppage or breakdown of or machinery or shortage of any labour or material because of a cause related to the Cubes independent of human control that occurred to the Cubes after they left the control of Rubyberry.
10.1 Neither party may start court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has first complied with this clause.
10.2 A party claiming that a Dispute has arisen must notify the other party in writing of the event occurring that has given rise to the Dispute.
10.3 If a Dispute is not resolved within a 20 day working period (or if the parties agree a longer period, that longer period), of a Dispute being notified under clause 10.2, the Dispute must be referred:-
(a) for mediation, in accordance with the Australian National Mediation Standards; and(b) to a mediator agreed to by the parties, or if the parties do not agree on a mediator, a mediator nominated by the then current President of the Queensland Law Society.
11 INTELLECTUAL PROPERTY
11.1 Nothing in this Agreement constitutes a transfer of any intellectual property rights. The Customer acknowledge and agree that, as between the Customer and Rubyberry, Rubyberry's own all intellectual property rights in the Website, brand and those rights in the supply of the Miracle Fruit Cubes.
12.1 Rubyberry may Terminate this Transaction immediately by written notice to the Customer if the Customer is in breach of its obligations under this Agreement which breach undermines the benefit of this Agreement to Rubyberry and the Customer does not remedy the breach (to the extent that it can be remedied) for 14 days after receiving a written notice from Rubyberry specifying the breach and requiring it to be remedied;
12.2 Upon Termination:
(a) the Customer must pay Rubyberry the Price for the Miracle Fruit Cubes if Despatched; and
(b) each party retains its rights under this Agreement and at law in respect of any breach of this Agreement by the other party.
13.1 Clauses survive end of Agreement. The provisions of this Agreement which by their nature survive the Termination of the Transaction continue in force after the expiration or Termination of this Transaction including without limitation clause 8 (Indemnity) and this clause 13 (Survival).
14.1 In this Agreement, unless the context otherwise requires, the following expressions will have the meanings as ascribed to them below:-
The legislation contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), and 'CCA' will have a corresponding meaning;
The legally binding agreement between Rubyberry and the Customer in respect of the Transaction inclusive of these Provisions and the Checkout;
Between 9:00am and 5:00pm on a day other than a Saturday, Sunday or Queensland, Australia public holiday.
That function on the Website whereby the Customer is able to input purchase information such as their name, address and payment details in order to make a Purchase;
Includes a notice, demand, action, cause of action, proceeding, litigation, arbitration, investigation, verdict, judgement, debt due, or Liabilities however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or under the provisions of any statute (except for those non-excludable provisions under the ACL), award, order or determination, whether involving a third party or a party to this Agreement, and whether or not known at the date of Purchase;
That purpose for which the Miracle Fruit Cubes are sold, namely as a taste-modifying freeze dried cube for the Customer that contains miraculin;
That confirmation after the Purchase has been confirmed by Rubyberry Pty Ltd through an email being sent to the email address specified at the Checkout;
The Corporations Act 2001 (Cth).
That packaged Rubyberry® Miracle Fruit Cubes product distributed by Rubyberry in accordance with this Agreement;
That Customer who has completed the details on the Website at the Checkout and confirmed the Purchase;
In relation to the Miracle Fruit Cubes, mean that they:
(a) have problem that would have stopped someone from buying it if they had known about the problem;
(b) are significantly different from the sample or description;
(c) are substantially unfit or do not work for its Common Purpose and cannot easily be replaced within a reasonable time;
(d) are unsafe;
(e) have an error, defect or malfunction; or
(f) are not of merchantable quality;
and Defect has a corresponding meaning.
The date on which Rubyberry posts via a postage service the Miracle Fruit Cubes to the Customer and "Despatched" will have a corresponding meaning;
A dispute arising out of or relating to this Agreement, including without limitation, a dispute about the breach, termination, validity, or subject matter of this Agreement, or a claim in equity or in tort relating to the performance;
Includes any and all intellectual property and industrial property (within the meaning of the term industrial property including but not limiting the foregoing, copyright and trade marks;
Includes all liabilities (whether actual, contingent or prospective), losses, damages, costs and expenses (including any legal costs and expenses) of whatever description and "Loss" will have the corresponding meaning;
Any breach by Rubyberry of either or both of s260 or 268 of the ACL;
That written notice of a Defect by the Customer to Rubyberry:-
(a) Rubyberry – Karen Pereira
(b) PO Box 311 Childers 4660 Queensland
(c) 0410 691 427
during the Warranty Period; and "Notifies" and "Notification" shall have a corresponding meaning;
That payment of the Price by the Customer to Rubyberry made at the time of Purchase for the Miracle Fruit Cubes and 'Pay' shall have a corresponding meaning;
A party's directors, officers, employees, agents, contractors, sub-contractors and their respective Personnel.
The total price of the Miracle Fruit Cubes including GST as nominated on the Website prior to the Customer confirming the Purchase
These terms and conditions of the Agreement between Rubyberry and the Customer for the Transaction;
That act of purchasing at the Checkout for the Miracle Fruit Cubes for the Price;
That policy available on the Website which elaborates on the process to request a return of the Miracle Fruit Cubes to Rubyberry;
That entity being Rubyberry Pty Ltd and its Personnel;
That period of time from execution by both parties of this Agreement until:-
(1) expiration of the Warranty Period; or
(2) an event specified in clause 12 hereto;
whichever is the first to occur, and "Termination" will have a corresponding meaning;
That sales transaction between Rubyberry selling the Miracle Fruit Cubes to the Customer for the Price as specified at the Checkout and confirmed by the Purchase;
That warranty during the Warranty Period provided by Rubyberry to the Customer in clause 6.1 for the Transaction;
That warranty period of the Miracle Fruit Cubes being for thirty (30) days from Despatch;
15.1 For ease of reference headings will not affect the interpretation or construction of this Agreement.
15.2 Any reference to any Act, or any section of any Act of Parliament or any ancillary Statutory Regulation whether in Australia or elsewhere, will be read as though the words 'or any effectual modification or re-enactment thereof' were added to such reference.
15.3 Words denoting the singular number include the plural;
15.4 Assignment. Rubyberry may assign or novate this Agreement and its rights and obligations specified in this Agreement. The Customer must not assign any of its rights or obligations under this Agreement without the prior written consent of Rubyberry.
15.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, arrangements and understandings in respect of the Transaction but does not negate the intended operation of:-
(a) any third party warranties given by other manufacturers or their distributors whose goods are distributed by Rubyberry as the Miracle Fruit Cubes;
(b) the operation of those non-excludable rights under the ACL.
and document issued by or on behalf of the Customer at any time in relation to Transaction made under this Agreement will vary this Agreement.
15.6 Variation. No variation of this Agreement will be of any force or effect unless it is in writing and signed by the parties to this Agreement.
15.7 Further acts. Each party do all things to effect, perfect or complete this Agreement.
15.8 Governing law and jurisdiction. This Agreement is governed by the law of the State of Queensland, Australia. The parties submit to the exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts, either for forum, non conveniens or on any other basis.
15.9 Severability. If any clause makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.
15.10 Waiver. A waiver by a party is only effective if it is in writing. A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
15.11 Costs. Except as otherwise provided, each party undertakes to the other will bear its own costs of and incidental to the preparation, execution and performance of this Agreement.
15.12 Counterparts. The Agreement may be executed in any number of counterparts and all such counterparts when executed and taken together will constitute this Agreement.
15.13 Notices. Any notice given under this Agreement must be:
(a) made in writing; and
(b) addressed to the last known address of the intended recipient, or to agents known to be in communication with the intended recipient, or to a receiver liquidator or other properly appointed person having authority by virtue of their appointment over the affairs of the intended recipient.
A notice sent:
(c) by prepaid, registered mail, will be deemed to have been properly given five (5) Business Days after the date of dispatch;
(d) by email will be deemed to have been properly given:
(i) if transmitted during business hours of the intended recipient - one (1) hour after dispatch;
(ii) if not transmitted during business hours of the intended recipient - at 9:00am on the next business day;
unless actual receipt at an earlier date or time is established by the sender. Proof that:
(e) an email was sent; or
(f) a letter was properly addressed and deposited;
will be sufficient evidence of service on the intended recipient
End of Terms of Service