CherryHill Orchards Pty Ltd (ACN 653 630 365 ABN 62 653 630 365)

Events

Terms and Conditions of Ticket Purchase and Attendance of CherryHill Orchards Events

All Tickets to all CherryHill Orchards Events are issued subject to these Terms and Conditions. By purchasing Tickets and/or attending any Event you and any Other Event Attendees agree to be bound by and comply with these Terms and Conditions.

DEFINITIONS

In these Terms and Conditions, the following terms have the following meaning:

1. “Australian Consumer Law” means Div I of Part 3-2 of Schedule 2 of the Competition and Consumer Act 2010 (Cth).

• “Claims” means any and all legal proceedings, actions, suits, causes of action, proceedings, claims, accounts, demands, debts due, costs payable and expenses whether or not currently known or made and whether or not presently in existence.

• “Event” means the CherryHill Orchards event(s) to which these Terms and Conditions relate.

• “Event Fee” means the applicable price of the Ticket, and any other fee or fees that you are required to pay to us in order to be able to attend an Event.

• “Event of Force Majeure” means any act, event or cause not reasonably within the control of the Parties and which, by the exercise of reasonable diligence, the Parties are unable to prevent or overcome including, but not limited to, acts of God, strikes, lockouts and other industrial disturbances,  acts of the public enemy, acts of terror, sabotage, wars, blockades, military action, insurrections or riots, public health pandemics and/or epidemics (including, but not limited to, due to coronavirus), lockdowns ordered by the government or any governmental authority as a result of any public health pandemics and/or epidemics (including, but not limited to, due to coronavirus), landslides, subsidence, lightning, earthquakes, fires, storms or storm warning, crevasses, floods or washouts, civil disturbances, explosions, inability of any party to obtain necessary materials, supplies, rights of way or permits after the exercise of reasonable diligence or any action or restraint by any government authority (so long as the party claiming relief has not applied for or assisted in the application for, and has opposed where and to the extent reasonable, such action or restraint, and as long as such action or restraint is not the result of a failure by the claiming party to comply with the applicable law).

• “Other Event Attendees” means any and all group members, guests, invitees and/or any other persons who also attend the Event with you.

• “Property” means the property on which the Event is held.

• “Terms and Conditions” means these terms and conditions of sale and entry.

1. “Ticket” means your ticket for the Event.

• “You” and “Your” are a reference to you, the customer.

TICKETS

Payment of the applicable Event Fee must be made prior to the Event to secure your registration, unless you are an ITO with a registered account. The applicable Event Fee for all Events is priced in Australian dollars and includes GST.

CANCELLATION BY CHERRYHILL ORCHARDS

CherryHill Orchards reserves the right to:

• Cancel/alter scheduled dates for any events where minimum attendance numbers are not reached.
• Cancel/alter scheduled dates for any events likely to be affected by adverse weather conditions.

If circumstances dictate an event requires cancelling, we will notify registered attendees via email, prior to the event date to offer either an alternative event (at an alternative date) or to refund, in full, the event fee. If your payment is received after maximum numbers are reached, CherryHill Orchards will contact you and a full refund will be made.

CherryHill is not liable for any additional costs incurred from cancellations outside of the ticket price.

CANCELLATION OF BOOKED EVENT BY ATTENDEES

If you are unable to attend a booked Event, a substitute attendee may be sent as a replacement (subject to approval being granted by CherryHill Orchards, such approval which Cherryhill Orchards may give or withhold in its absolute discretion).

If you wish to cancel your booking for an Event more than 3 days before the date of the Event that is stated on your Ticket, we will refund the full Event Fee paid. Refunds for any Event Fees paid can be processed through your CherryHill Orchards member login. If you require assistance please email your request to info@cherryhill.com.au

If you wish to cancel your booking for an Event less than 3 days before the date of the Event that is stated on your Ticket, no Event Fees which you have paid will be refunded.

If you wish to cancel your booking for an Event after the Event has started (as per the time and date stated on your Ticket), no Event Fees will be refunded. No partial refunds will be offered for any reason

CHANGES TO DATE OR TIME OF BOOKED EVENT BY ATTENDEES

If you wish to change your entry day or time for an Event, changes can only be made up to 3 days prior to the time and date that is stated on your Ticket. Date changes are subject to availability, so it is not advised to make last minute changes. CherryHill Orchards make no promise, representation or warranty that it will be able to accommodate any date change that is requested by you.

Date and time changes can be processed via your CherryHill Orchards member login. If you require assistance, please email your request to info@cherryhill.com.au

GROUP BOOKINGS

Group bookings are offered for Inbound Tour Operators only. Applicants must register for an account on our website.

CONDITIONS OF ENTRY

Safety Guidelines

As we are a working farm, we have some guidelines that we require all visitors to adhere to in the interest of safety:

• Children must be supervised by a responsible adult at all times;

• Please wear appropriate footwear, we recommend comfortable closed shoes;

• No climbing;

• No fires or BBQ’s;

• No smoking or vaping in the orchard or picnic areas;

• Beware of water hazards on site;

• Beware of moving vehicles;

• Only alcohol purchased on the premises may be consumed;

• Alcohol may only to be consumed within designated areas;

• Drones are not permitted;

• Only registered assistance animals are permitted;

• Please help us keep our orchard beautiful and use the bins provided;

• Please remain in designated picking lanes and do not enter restricted areas such as workshops and orchard sheds.
  

LIMITATION OF LIABILITY

(1) To the fullest extent permitted by law, CherryHill Orchards  and its employees, agents or contractors, will not be liable to you or any Other Event Attendees for any loss and/or damage of any nature (howsoever caused) or any damages (including, but not limited to, any special, consequential, incidental, exemplary, punitive and/or indirect damages) arising from, in respect of or in any way related to the Event and/or the use of the Property and any items or facilities on the Property however caused, however liability is asserted (including, but not limited to, in tort (including in negligence), in contract and/or under statute and/or general law) and irrespective of whether you have been advised of, or otherwise might have anticipated the possibility of, any loss or damage.

(2a) Except as provided in this contract, all express and implied warranties under statute or general law as to merchantability, description, quality, suitability or fitness of the services rendered by CherryHill Orchards for any purpose or otherwise are expressly excluded to the fullest extent permitted by the applicable law.

(2b) All other conditions and warranties, statutory or otherwise and whether express or implied,are hereby excluded to the fullest extent permitted by the applicable law, and no guarantee, other than that expressly herein contained and the statutory guarantees that cannot be excluded or limited under the applicable law, apply to the services rendered by CherryHill Orchards to which the applicable guarantee relates, or any accessory or part thereof.

(3) To the fullest extent permitted by law, any liability of CherryHill Orchards for any Claims under these Terms and Conditions and/or for a breach of or failure to comply with a guarantee under the Australian Consumer Law (other than section 51, 52 or 53) is expressly limited to the a refund of all monies paid in relation to the Event.

(4) To the fullest extent permitted by law, CherryHill Orchards is not responsible for the consumption of alcohol at the Event by to you or any Other Event Attendees. The relevant person is at all times solely responsible for their own personal consumption of alcohol at the Event.

Without limiting the generality of this clause, to the fullest extent permitted by law CherryHill Orchards is not responsible for ensuring that you or any Other Event Attendees who attend the Event comply with the applicable drink driving laws. This is at all times solely the responsibility of the relevant person.

(5) Other than any rights which you and the Other Event Attendees have under these Terms and Conditions, to the fullest extent permitted by the applicable law you and all Other Event Attendees hereby release and discharge CherryHill Orchards from all present, past and future Claims which the you and all Other Event Attendees may have or may have had but for these Terms and Conditions against CherryHill Orchards arising out of or in connection with the Event, the use of the Property and/or any items or facilities on the Property and all matters that directly and/or indirectly touch and concern these matters.

(6) Other than in respect of any rights which you and the Other Event Attendees have under these Terms and Conditions, to the fullest extent permitted by the applicable law you and the Other Event Attendees undertake to and do hereby indemnify and forever hold harmless the CherryHill and all Directors, other Company Officers and/or employees of the Cherryhill against any Claims initiated by you and/or any Other Event Attendees any future proceedings brought by you and/or any Other Event Attendees arising out of or in connection with the Event, the use of the Property and/or any items or facilities on the Property and all matters that directly and/or indirectly touch and concern these matters.

ENTIRE AGREEMENT

These Terms and Conditions supersede and extinguish all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between you and us relating to the Event, any other matter dealt with in these Terms and Conditions and all matters that directly and/or indirectly touch and concern these matters.

CherryHill Direct (Online Store)

Definitions and interpretation

Definitions

In these Terms and Conditions, unless a contrary intention appears:

• “Agreement” means these Terms and Conditions and all materials referred to or linked to in these Terms and Conditions including, but not limited to, the privacy policy and the returns policy;

• “Australian Consumer Law” means Div I of Part 3-2 of Schedule 2 of the Competition and Consumer Act 2010 (Cth);

• “Business Day” means a day that is not a Saturday or Sunday or public holiday in Australia;

• “Cancellation Fee” means the amount that is the lesser of $20 (twenty dollars) or the value of the payments which you have made to us at the time your Order is cancelled;

• “CherryHill” means by Cherryhill Orchards Pty Ltd (ACN 653 630 365 ABN 62 653 630 365)

• “Claims” means any and all legal proceedings, actions, suits, causes of action, proceedings, claims, accounts, demands, debts due, costs payable and expenses whether or not currently known or made and whether or not presently in existence;

• “Contact Hours” means Monday to Friday 9:00am to 5:00pm, Australian Eastern Daylight Time;

• “Contract of Sale” means a contract between you and us for the sale of a product;

• “Delivery Address” means the address to which the products are to be delivered as stated in each Order;

• “Delivery Agent” means any third party delivery or shipping company nominated by us;

• “Delivery Fee” means the fee charged by us, or a delivery agent, for the delivery of your products as provided to you at the time of placing your Order. Without limiting the generality of this definition, the applicable Delivery Fee includes the delivery fee provided to you at the time you selected the relevant delivery window when placing your Order on the Website or the delivery fee shown on the Website and displayed when you place your Order using our Delivery Now service;

• “Delivery Window” means the time for the delivery or collection of your products as selected by you at the time of placing your Order;

• “Event of Force Majeure” means any act, event or cause not reasonably within the control of the Parties and which, by the exercise of reasonable diligence, the Parties are unable to prevent or overcome including, but not limited to, acts of God, strikes, lockouts and other industrial disturbances,  acts of the public enemy, acts of terror, sabotage, wars, blockades, military action, insurrections or riots, public health pandemics and/or epidemics (including, but not limited to, due to coronavirus), lockdowns ordered by the government or any governmental authority as a result of any public health pandemics and/or epidemics (including, but not limited to, due to coronavirus), landslides, subsidence, lightning, earthquakes, fires, storms or storm warning, crevasses, floods or washouts, civil disturbances, explosions, inability of any party to obtain necessary materials, supplies, rights of way or permits after the exercise of reasonable diligence or any action or restraint by any government authority (so long as the party claiming relief has not applied for or assisted in the application for, and has opposed where and to the extent reasonable, such action or restraint, and as long as such action or restraint is not the result of a failure by the claiming party to comply with the applicable law);

• “GST” means Goods and Services Tax as defined in the (Goods and Services Tax) Act 1999;

• “Intellectual Property Rights” means:

• All Plant Breeders Rights that apply pursuant to the Plant Breeder’s Rights Act 1994 (Cth), or alternatively (if applicable) any successor legislation that may be enacted from time to time;

• trademarks, logos, service marks, brand names, certification marks, assumed names, trade names and other indications of origin;

• trade secrets and other confidential or non-public business information including ideas, formulae, compositions, inventions, discoveries, improvements, know-how, processes and techniques, research and development information (whether patentable or not);

• drawings, specifications, designs, plans, proposals and technical data;

• financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information;

• patents, inventors’ certificates and invention disclosures;

• writings and other works of authorship, whether copyrightable or not, including computer programs, data bases and documentation, and all copyrights to any of the foregoing;

• rights, title and interest in know-how, technical information, processes, practices and systems, whether or not protectable by patent, copyright or trade secret law;

• moral rights;

• rights to limit the use or disclosure of confidential information by any person;

• any similar tangible or intangible intellectual property or proprietary rights, information and technology;

• registrations of, and applications to register, any of the foregoing with any governmental agency or authority and any renewals or extensions thereof;

• the goodwill associated with each of the foregoing; and

• any claims or causes of action arising out of or related to any infringement or misappropriation of any of the foregoing.

• “Listing” means a listing on the Website through which we offer to sell a product to you;

• “Listed Sale Price” means the price at which a product is listed for sale in a listing;

• “Marketing Materials” means marketing materials of any nature including, but not limited to, commercial electronic messages and tailored advertising (which include marketing communications advertising goods and services);

• “Order” means an order placed by you through the Website to purchase a Product;

• “Party” means us and / or you as the context requires;

• “Personal Information” means information or an opinion about an individual as defined in section 6 of the Privacy Act 1988 (Cth) which is collected, used, disclosed, stored or handled by us for the purposes of the Agreement;

• “Privacy Policy” means our privacy policy available on the Website;

• “Product” or “Products” means any produce, goods, products or items listed by us for sale to a customer on the Website;

• “Terms and Conditions” means these terms and conditions of use of the Website, and include our Privacy Policy;

• “Us” or “We” means by Cherryhill Orchards Pty Ltd (ACN 653 630 365 ABN 62 653 630 365)

• “Website” means the internet site owned by us and operating under the URL www.cherryhill.com.au and;

• “You” and “Your” are a reference to you, the customer.

Interpretation

In these Terms and Conditions, unless a contrary intention appears:

(a)          the singular includes the plural and vice versa;

(b)          a gender includes the other genders;

(c)           the headings are used for convenience only and do not affect the interpretation of this Agreement;

(d)          a reference to a document includes the document as modified from time to time and any document replacing it;

(e)          if something is to be done on a day which is not a Business Day then it must be done on the next Business Day;

(f)           the word “person” includes a natural person and any body or entity whether incorporated or not;

(g)          a reference to a thing includes a part of that thing;

(h)          a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re‑enacted or replaced from time to time;

(i)            wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”;

(j)           money amounts are stated in Australian currency unless otherwise specified; and

(k)          a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body.

1. General 

1.1.         This Website (www.cherryhill.com.au) is a shopping website on which you can browse, select and order products advertised by Cherryhill Orchards Pty Ltd (ACN 653 630 365 ABN 62 653 630 365) hereon (“CherryHill”, “us” or “we”).

1.2.        Your access to and use of the Website, including your Order of Products through the Website, is subject to these Terms and Conditions.

1.3.        Please read these the Terms and Conditions of this Agreement before accessing or using the Website. If you are under 18 years of age, then you must obtain your parent or guardian’s consent before accessing and using the Website.

2. Your agreement to the terms and conditions 

2.1.        By accessing and using the Website, including placing Orders of Products through the Website, you agree that you will be subject to and will comply with these Terms and Conditions when;

(a)          completing your registration through the Website; and

(b)          using the Website to purchase Products from us.

3. Registration 

3.1.         You must complete your registration through the customer registration process on the Website before placing an Order for Products through the Website.

3.2.        You may not have more than one active account, and your account is non-transferable. You may update, edit or terminate your account at any time through the Website. You must keep your account details safe and must not disclose them to any third party. The account may be used only by the individual who created it and not by anyone else.

3.3.        If you choose to use a workplace email address for your account or to access the Website, you are solely responsible for ensuring that you comply with the workplace rules, policies or protocols that apply to the use of that email address, and your workplace facilities more generally.

3.4.        You will be liable for all activities that are undertaken using your account, together with the associated password. You must keep your username and password strictly secure at all times. You must indemnify and hold us harmless for any and all losses of any nature that we may suffer as a result of any failure to comply with these requirements.

4. Marketing Materials

4.1.        You agree that we may send you Marketing Materials via various channels and media (including, but not limited to, by email, SMS, phone and mail) where you have not opted out of receiving such Marketing Materials from us. Your agreement to receive Marketing Materials from us will be effective and will continue until you opt out in the manner set out in clause 4.2.

4.2.        You may opt out of receiving Marketing Materials from us by using the unsubscribe facility in the footer of any message containing Marketing Materials which you receive from us. After you opt out of receiving Marketing Materials from us in this manner, you will only receive information that we are required to provide you with by law or factual information directly about your account. Such information includes, but is not limited to, information about changes to these Terms and Conditions, Privacy Policy and/or our collection notice from time to time, information about transactions entered into from your account and other relevant information in relation to Products that are the subject of an Order.

5. Pictures and Imaging 

5.1.        You acknowledge and agree that:

(a)          All pictures and images of Products displayed on the Website are for illustration purposes only, and that the sizes, dimensions and appearance of the actual Products may be of different sizes, dimensions and/or appearance; and

(b)          You have read any corresponding written description of the Products prior to submitting your Order.

6. Placing an Order for Products 

6.1.        You may Order Products by selecting and submitting your Order through the Website in accordance with these Terms and Conditions.

6.2.        We may ask you to provide additional details or require you to confirm your details (for example, verbally or in email form) to enable us to process any Orders which you place through the Website.

6.3.        We may also supply any information which you provide pursuant to clause 6.2 to the relevant delivery agent, in order to enable the delivery agent to fulfil delivery of your Order.

6.4.         We will not be liable to you or any third party for any Claims that arise as a result of and/or that touch and concern any delay in processing your Order or delivering a Product to you, to the extent to that such delay or failure is caused (either directly or indirectly) by inaccurate or incorrect personal details or an inaccurate Delivery Address provided by you.

6.5.         You acknowledge that we cannot guarantee uninterrupted, timely, secure and/or error free access to the Website. In particular, this is the case because the operation of the Website may be adversely effected by a number of factors that are outside of our control from time to time.

7. Acceptance or rejection of an Order 

7.1.         Any Order for a Product which you place through this Website has the status of an offer made by you to purchase the particular Product for the price notified on the Website (including the delivery and other charges and taxes) at the time you place the Order.

7.2.        After you have made your offer to us in accordance with clause 7.1, we reserve the right to accept or reject your Order for any reason (at our absolute discretion). Without limitation, we may reject your offer if the requested Product is not available, if there is an error in the price of the Product and/or the description of the Product that is published on the Website, if there is an error in your Order and/or on any of the grounds specified in clauses 8.2, 8.3 and/or 12.1.

7.3.        Each Order placed for Products through the Website which we accept results in a separate binding agreement between you and us for the supply of those Products. For each Order accepted by us, we will supply the Products in that Order to you in accordance with these Terms and Conditions.

7.4.        If we reject an Order placed through the Website, then we will endeavour to notify you of that rejection at the time you place the Order. Otherwise, if this is not practicable we will notify you of the rejection within a reasonable time after you submit your Order.

8. Minimum Purchase Amount 

8.1.         The minimum purchase amount for each Order will vary depending on the zone that applies. Please refer to the delivery times that are displayed on the Website for more information.

8.2.        You are not permitted to purchase any Products for the purpose of resale to a third party or for trade purposes. If we have any concerns about the quantity of Products that you have ordered we may, at our absolute discretion, refuse to accept your offer made in accordance with clause 7.1, or alternatively contact you when you place the Order or within a reasonable time thereafter to discuss further.

9. Delivery of Products 

9.1.        We will only deliver Products ordered through the Website to a location to where we provide delivery services.

9.2.        You may obtain further information about our delivery timeframes and how we deliver Products to you on the Website. At the time you place an Order for your Products you will be given an option to select a date for delivery. Although we will endeavour to deliver the Products on the date selected by you, the dates are indicative only and we cannot guarantee that we will be able to do so. Without limitation, delivery times may be delayed due to an Event of Force Majeure, traffic or other unforeseen circumstances.

9.3.         CherryHill will not be liable for any Claims that arise as a result of and/or that touch and concern the late delivery of any Products that are the subject of an Order to you (either directly or indirectly). Without limitation, we will not provide any refund or discount on your Order or Delivery Fee for any late deliveries.

9.4.        We will deliver your Order using a “contactless delivery service”. We will deliver the Products to the front door at relevant Delivery Address, knock on your door or take any other steps that are reasonable in the circumstances to notify you of your delivery. We will also take a photo of the Products that we have delivered to the Delivery Address to confirm delivery.

9.5.         CherryHill will not be liable for any Claims that relate to and/or touch and concern any loss or damage caused to the property of the Delivery Address or suffered by you that arises as a result of or that touches and concerns our delivery of the Products to the Delivery Address (either directly or indirectly).

9.6.        You agree to comply with the delivery requirements that are specified in clauses 9.7 and 9.8 below and such other delivery requirements that we notify you of when you place your Order through the Website and from time to time thereafter.

9.7.         If we cannot access the Delivery Address, or if we cannot access your nominated spot or determine a suitable spot to deliver the Products that are the subject of your Order (for unattended deliveries), then:

(a)           we will not deliver the Products you have ordered to the Delivery Address; and

(b)          we may charge you a fee of up to $25 (twenty five dollars) and the charges for any perishable Products in your Order that we have accepted, at our absolute discretion.

In this instance, we will endeavour to contact you or you may contact us to arrange for delivery at a different time, and we may charge you an additional Delivery Fee for that replacement delivery.

9.8.        You acknowledge and agree that:

(a)           any person at the Delivery Address who receives the Order is authorised by you to receive your Order and, where relevant, make payment for that Order; and

(b)          we may record the details of any identification provided in relation to delivery of Products to the Delivery Address.

10. Fraud and risk assessment 

10.1.      We have various processes in place to assist in detecting transactions that may be illegal and/or in breach of these Terms and Conditions. We may vary these processes from time to time at our absolute discretion, and without notice to you.

10.2.      Without limiting the generality of clause 10.1, after we have received an Order from your account we may contact you by telephone or by email to confirm your payment and information details. If we are unable to confirm these details, we may cancel your Order.

If you are unsure whether the person contacting you is from CherryHill, please contact our Customer Service number on 1300 243 779 or email orders@cherryhill.com.au

11. Risk and title 

11.1.      Risk in the Products passes to you on the date and time that we deliver the Products to the Delivery Address (including unattended deliveries at the Delivery Address).

11.2.      Title to the Products passes to you on the later of the date and time when we:

(a)           receive payment for the Products in full; or

(b)          deliver the Products to the Delivery Address (including unattended deliveries at the Delivery Address).

12. Cancelling and amending an Order 

12.1.      We may cancel any Order or part of an Order (including any Orders that we have accepted) without any liability to you for that cancellation at any time if:

(a)          the requested Products that are the subject of the Order are not available;

(b)          there is an error in the price or the product description posted on the Website in relation to any of the Products that are the subject of the Order;

(c)           the Order has been placed in breach of these Terms and Conditions;

(d)          we reasonably believe that you are placing multiple orders, whether under the same or different registration details, for the purposes of circumventing our Order limits; or

(e)          we determine (acting reasonably) that the Order has been placed in a fraudulent, illegal or improper manner.

12.2.      If we cancel an Order:

(a)           In accordance with clauses 12.1(a) or 12.1(b), we will provide you with notice of that cancellation as soon as reasonably practicable, and we will not charge you for the cancelled Order. If any payment has been taken for the cancelled Order, we will refund the full amount paid to you (including any Delivery Fee or other fees and charges). The refund will be made by your original payment method or by an alternative method that is available.

(b)          In accordance with clause 16.1:

(i)            We will provide you with notice of that cancellation as soon as reasonably practicable.

(ii)           If your Order is cancelled on this basis before the day of delivery or collection, depending on the payment method used we will either not charge you, or if we have taken payment for the Order at the checkout then we will refund the full amount paid (including any Delivery Fee and other fees and charges). If applicable, the refund will be made by your original payment method or through an alternative means.

12.3.      If we cancel your Order on the day of delivery or collection, provided we are not also in breach of these Terms and Conditions, we may (at our absolute discretion) charge you a Cancellation Fee.

We will deduct the applicable Cancellation Fee from any payments which you have made to us, and will refund you any excess amount to you. Any refund will be made by your original payment method or through an alternative means.

12.4.      You may amend your Order at any time prior to one hundred twenty (120) hours before the morning on which delivery or collection of the Products that are the subject of the Order is scheduled to occur.

12.5.      If you amend an existing Order, then:

(a)           your original Order and reserved delivery window will be cancelled and items will be placed into your shopping cart for amending and resubmitting through the checkout;

(b)          you will need to select a new delivery date in respect of your amended Order;

(c)           all prices for Products in your amended Order will update to the current Website prices at the time you submit your amended Order and previous pricing in your original Order will not apply;

(d)          any offers or coupons applied or used when you placed your original Order will not be applied to your amended Order and cannot be used for future Orders;

(e)          subject to below clause 12.5(h), if we only pre-authorised payment for your original Order at checkout and the amount payable for your amended Order is more than the amount pre-authorised, your original pre-authorisation will remain and we will either charge you the additional amount or separately pre-authorise the additional amount owing at the time of your amended Order depending on the payment method used for the amended Order;

(f)           if you were charged for your Order at the checkout and the amount payable in respect of your amended Order is less that the amount you have paid in respect of your original Order, we will refund the difference back to your original payment method or alternative means within three (3) to five (5) Business Days of the amended Order being placed;

(g)           if you were charged for your Order at the checkout and the amount payable in respect of your amended Order is more than the amount paid in respect of your original Order, we will either pre-authorise payment or charge you the additional amount at the time you amend your Order, depending on the payment method used; and

(h)          if you amend your Order so that delivery is scheduled to occur seven (7) days after the date of your original Order and we only pre-authorised payment for your original Order, we may ask to take payment for your amended Order at the time you confirm your amended Order and will provide you with a refund for any out of stock items or weight ranged products supplied below the maximum weight once we pick your amended Order.

12.6.      Force Majeure

We will not be liable or responsible for any default, failure or delay in performance of any of our obligations under this Agreement if and to the extent that such default, failure or delay is caused, either directly or indirectly, by an Event of Force Majeure, and without any fault or negligence on our part.

If an Event of Force Majeure occurs:

(a)           The requirement that we perform the relevant obligations under this Agreement shall be suspended for the full period that the Force Majeure Event continues;

(b)          We are not required to refund any money paid by you in connection with your Order; and

(c)           Notwithstanding sub-paragraphs (a) and (b) above we may, at our absolute discretion:

(i)            agree to cancel your Order and refund all or some of the money paid by you in connection with your Order; and/or

(ii)           attempt to reach a solution with you which enable us to perform the relevant obligations under this Agreement despite the Event of Force Majeure having occurred.

13. Fees and charges 

13.1.      We will charge you, and you agree to pay, the following fees and charges in relation to an Order that we accept (as applicable):

(a)           the purchase price of each Product that is the subject of an Order;

(b)          the applicable Delivery Fee;

(c)           any applicable Cancellation Fee;

(d)          any other fees and charges that apply pursuant to these Terms and Conditions.

13.2.      All fees and charges identified in these Terms and Conditions and all prices for the Products include GST where applicable.

13.3.      You acknowledge that:

(a)           we are not required or obliged to match any prices for any Products that are offered by any other sellers; and

(b)          all pricing for Products displayed on the Website may differ depending on the postcode you have selected. By way of an illustrative example, the price for a Product in Sydney may differ to the price for that same Product in Melbourne.

13.4.      The prices which we charge for the Products will, or may, change from time to time. We do not, and are under no obligation to, provide you with any notice of such changes in price.

13.5        Notwithstanding clause 13.4, unless otherwise permitted by these Terms and Conditions, once we have accepted your Order we will not change any prices that apply to the Products in that Order.

14. Payment methods 

14.1.      You must pay the fees and charges online using the online payment methods in clause 14.2.

14.2.      We accept the following credit cards:

(i)            Visa and Visa Debit;

(ii)           MasterCard and MasterCard Debit;

14.3.      If we are unable to successfully process your payment for an Order that is accepted by us, then we may notify you of dishonour and cancel your Order.

14.4.      You must not pay, or attempt to pay, for Products through any fraudulent or unlawful means.

15. Missing items in delivery 

15.1.      If we are not able to deliver or make available for collection certain Products that are the subject of an Order because those Products are out of stock (Out of Stock Products), we will provide you with a refund of all amounts paid for all Out of Stock Products. The refund will be made by your original payment method.

Upon delivery or collection of your Order, you should check the receipt that we provide you with to check whether the missing Product is identified as being an Out of Stock Product.

15.2.      In all other circumstances, you may contact Customer Service on 1300 243 779 or email orders@cherryhill.com.au within twenty four (24) hours after the delivery or collection time and we will take steps to verify and confirm any such missing items. If we are reasonably satisfied that the item was not delivered to you, we will provide you with a refund to your method of purchase for the Products or replacement product within three (3) to five (5) Business Days for the Products that were charged but not delivered to you.

16. Complaints about quality of the Products

16.1.      If you are not satisfied with the quality of any of your Products, you must inform us of the relevant issue within twelve (12) hours of delivery or collection being completed, so that we can investigate your Claim.

17. Your general obligations 

You:

(a)          must ensure that your LoginID and password that is used to access the Website and the details of your account are kept in a safe and secure manner at all times;

(b)          must notify us by calling Customer Service on 1300 243 779 during Contact Hours if you are or become aware that there is or has been an unauthorised use of your LoginID and password or account, or any other security breach relating to your account;

(c)           must promptly advise us of any changes to your personal information provided to us as part of the customer registration process;

(d)          are responsible for any costs associated with your access to or use of the Website, including Internet access fees;

(e)          are responsible and liable for any person that uses your LoginID and password to order Product(s) through the Website;

(f)           agree that we may charge you for all Products that we agree to supply to you that have been ordered using your LoginID and password through the Website; and

(g)           should check the labels on the Products before consumption or use; and

(h)          acknowledge that the Website will be hosted by WP Engine (c/o WeWork, 310 Edward St, Brisbane QLD 4000, Australia) and managed by CherryHill to an independent agreement between WP Engine and CherryHill.

18. General restrictions 

You must not:

(a)           use the Website for any activities that breach any laws, infringe a third party’s rights or are contrary to any relevant standards or codes;

(b)          use the Website in a manner or way, or post to or transmit to or via the Website any material, which interferes with other users or our other customers or defames, harasses, threatens, menaces or offends any person or which prevents any other person from using or enjoying the Website;

(c)           make fraudulent or speculative enquiries, Orders or requests through the Website;

(d)          use another person’s details without their permission or impersonate another person when using the Website;

(e)          post or transmit any obscene, indecent, inflammatory or pornographic material or any other material that may give rise to civil or criminal proceedings;

(f)           tamper with or hinder the operation of the Website;

(g)           knowingly transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Website;

(h)          use any robot, spider, site search and retrieval application or other mechanism to retrieve or index any portion of the Website;

(i)            modify, adapt, translate or reverse engineer any portion of the Website;

(j)            remove any copyright, trade mark or other proprietary rights notices contained in or on the Website;

(k)           reformat or frame any portion of the web pages that are part of the Website;

(l)            create accounts by automated means or under false or fraudulent pretences;

(m)         use the Website to violate the security of any computer or other network or engage in illegal conduct;

(n)          take any action that imposes or that would, in our reasonable opinion, result in an unreasonable or disproportionately large load on our infrastructure;

(o)          use the Website other than in accordance with these Terms and Conditions;

(p)          infringe any of our Intellectual Property Rights which we have in the Website or any Products; or

(q)          attempt any of the above acts or engage or permit another person to do any of the above acts.

19. Suspension of account 

19.1. We reserve the right to refuse service, terminate accounts and/or remove or edit content if we, acting reasonably, deem that you have acted in breach of these terms and conditions or have used the Site in a fraudulent or improper manner. CherryHill Orchards also reserves the right to otherwise cancel Orders in accordance with clause 12. 

19.2. If we lock, suspend or delete your account under clause 19.1, then we will refund all credits that you are entitled to receive under these terms and conditions by direct deposit to your nominated account once we have conducted all our verification and other relevant checks. 

20. Warranties 

You warrant that: 

(a) all information and data provided by you to us through the Site (including as part of the customer registration process) or otherwise is true, accurate, complete and up to date; 

(b) the person receiving the Products at the Delivery Address or collecting the Products on your behalf is authorised by you to do so; and 

(c) you have and will comply with all relevant laws relating to your use of the Site and your placement of any Order to us. 

21. Limitation of Liability 

21.1.      To the fullest extent permitted by law, CherryHill will not be liable for any Claims for any loss and/or damage of any nature howsoever caused (including, but not limited to, any loss of anticipated profit, revenue, contract, opportunity or goodwill) or any damages (including, but not limited to, any special, consequential, incidental, exemplary, punitive and/or indirect damages) that arise as a result of an alleged breach of this Agreement by CherryHill, and/or which touch and concern the subject matter of this Agreement (either directly or indirectly). Such Claims include, but are not limited to, any and all Claims of such nature that are based in contract, tort, equity, statute or any other area of law.

21.2.     

(a)          To the fullest extent permitted by law, except as provided for in these Terms and Conditions, all express and implied warranties under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods and Services for any purpose or otherwise are expressly excluded.

(b)          All other conditions and warranties, statutory or otherwise and whether express or implied,are hereby excluded to the fullest extent permitted by the applicable law, and no guarantee, other than that expressly herein contained and the statutory guarantees that cannot be excluded or limited under the applicable law, apply to the Products to which the guarantee relates, or any accessory or part thereof.

21.3.      To the fullest extent permitted by law, any liability of CherryHill for any Claims under this Agreement and/or for a breach of or failure to comply with a guarantee under the Australian Consumer Law (other than section 51, 52 or 53) is expressly limited to the following, at the absolute discretion of Cherryhill:

(a)           a replacement of the relevant Products;

(b)          if applicable, the rectification of any defects in the Products within a reasonable time; or

(c)           a refund of the purchase price in relation to the relevant Products.

21.4.      Without limiting the generality of clauses 21.1 to 21.3, you acknowledge and agree that each Product is provided to you on an “as is” basis, and that we do not make any warranty or representation as to the suitability of the Product for any purpose.

21.5.      Our liability to you under any Claims that arise out of or touch and concern any alleged breach of this is to be proportionally reduced to the extent (if any) that you cause or contribute to the loss or damage. This reduction applies whether the relevant Claim arises in contract, tort (including negligence), equity, statute or under any other area of law.

22. Release and Indemnity  

22.1.      Other than any rights which you have under this Agreement, to the fullest extent permitted by the applicable law you hereby release and discharge CherryHill from all present, past and future Claims which the you may have or may have had but for this Agreement against Cherry Hill arising out of or in connection with the Website, the Order, the Products, all matters the subject this Agreement and all matters that directly and/or indirectly touch and concern any of these matters.

22.2.      Other than in respect of any rights which you have under this Agreement, to the fullest extent permitted by the applicable law you undertake to and do hereby indemnify and forever hold harmless CherryHill and all Directors, other Company Officers and/or employees of Cherryhill against any Claims initiated by you and any future proceedings brought by you arising out of or in connection with the Website, the Order, the Products, all matters the subject of this Agreement and all matters that directly and/or indirectly touch and concern these matters.

22.3.      You undertake to and do hereby indemnify and hold us harmless for any and all Claims, losses, damages or liabilities suffered or incurred by us arising out of or in connection with your:

(a)          Failure to comply with this Agreement;

(b)          Failure to complete an Order;

(c)           Use of the Website; or

(d)          Infringement of any Intellectual Property Rights, privacy rights and/or confidentiality rights of CherryHill, a service provider or any third party.

23. Termination 

23.1.      We may immediately suspend, terminate or limit your access to and use of the Website and (where relevant) your account if you breach these Terms and Conditions and:

(a)           the breach cannot be remedied;

(b)          where the breach can be remedied, if you fail to the remedy the breach within ten (10) days of us giving you notice to you of the breach and of the requirement that you remedy the breach; or

(c)           if there is an emergency.

23.2.      You may cease using the Website at any time and for any reason.

23.3.      We may stop making the Website (or any part of it) available without prior notice to you. If we do so, any Orders that we have previously accepted will not be affected unless the Products that are the subject of the Order are no longer available or we are prevented from supplying the Products. In the event that your order is effected, we will notify you as soon as reasonably practicable and will refund to you all payments received by us in relation to the Products that are the subject of the Order.

24. Privacy 

24.1.      Your privacy is very important to us. Our Privacy Policy is available here and forms part of these Terms and Conditions. You acknowledge and agree to our Privacy Policy when you use the Website and the Website’s related services. Such use of our Website includes, but is not limited to, placing an Order to purchase Products from us.

24.2.      We will only use your personal information and sensitive information in accordance our Privacy Policy.

24.3.      We will only provide your personal information and sensitive information to related third parties such as our service providers (including, but not limited to, CherryHills’ credit card providers, processors and delivery agents) and limited personnel within our organisation.

24.4.      If you object to your personal information and sensitive information being transferred or used in the manner specified in clauses 24.1 to 24.3 please do not use the Website.

25. Intellectual property rights 

25.1.      You:

(a)          acknowledge that all Intellectual Property Rights in the Website, the software, design, text and graphics comprised in the Website, the selection and layout of the Website and the content and materials on the Website (together, the “Materials”) are owned by or licensed to us;

(b)          must not modify, copy, adapt, store in a retrieval system, reproduce, upload, post, transmit, sell, distribute in any way or communicate to the public a Material without our prior written consent; and

(c)           must not frame or embed in another Website any of the material appearing on this Website without our prior written consent.

25.2.      You may:

(a)           store a reproduction of the content on this Website on your local computer for the sole purpose of viewing the content and Materials; and

(b)          print hard copies of the content and Materials for the sole purpose of viewing and purchasing Products but not for any other use, including commercial use.

25.3.      This Website contains registered trade marks and other trade marks which are protected by law. You must not use any of the marks or trade marks appearing on the Website or our name or the names of our related bodies corporate without our prior written consent. You must not use any of the other company, product and services marks on the Website that are owned by other third parties (including our suppliers) without obtaining the relevant third party owner’s consent.

26. Links to other Websites or Services 

26.1.      The Website may contain links to external Websites that are not operated by us or our related bodies corporate.

These links are provided for your convenience only and you agree that:

(a)           we make no representations or warranties, or have any responsibility or liability for those Websites; and

(b)          these links do not indicate, expressly or impliedly, that we endorse the site or the products or services that are provided at those sites.

You acknowledge and agree that you access and use the products and services made available at those sites solely at your own risk.

27. Authority  

27.1      If you have placed an order on behalf of another person or entity you:

(a)          warrant that you have full authority to agree to these Terms and Conditions on behalf of that person or entity; and

(b)          acknowledge and agree that, without limiting your own personal obligations under these Terms and Conditions, by placing an Order you also bind the person or entity on whose behalf you act to the performance of any and all obligations that you become subject to by virtue of these Terms and Conditions.

28. Entire Agreement 

The Agreement supersedes and extinguishes all prior agreements, representations (whether oral or written), and understandings and constitutes the entire agreement between you and us relating to the Website, the Order, the Product, any other matter dealt with in this Agreement and all matters that directly and/or indirectly touch and concern these matters.

29. Waiver 

No delay or indulgence by us in enforcing this Agreement will prejudice or restrict our rights, nor will a waiver of any of our rights under this Agreement operate as a waiver of a subsequent breach.

30. Changes to these terms and conditions 

30.1.      We may change these Terms and Conditions at any time, without notice to you. Such modifications will be effective as soon as they are posted on the Website.

30.2.      You acknowledge that, by reason of clause 30.1, the Terms and Conditions may differ for each Order which you place. In these circumstances, we recommend that you read the Terms and Conditions very carefully every time you place an order.

30.3.      If you have an Order that we have accepted, the Terms and Conditions that will apply to the Order are the Terms and Conditions that applied at the time you placed your Order.

31. Severability  

31.1.      If any provision of this Agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down, and otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included.

32. Notices 

32.1.      In the case of CherryHill, notices under this Agreement must be given by way of sending these to our “Contact Us” form, or to any other email address which we notify you of by email.

32.2.      In the case of you, notices must be given to:

                (a)          the last address which you have advised to the us; or

(b)          alternatively, to the address for you that is specified in the Order; or

(c)           alternatively, to the address for you that is specified in your account with the Website; or

(d)          alternatively, as otherwise notified by you to us in writing.

33. General 

33.1.      This agreement is governed by the laws of Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that Victoria.

33.2.      CherryHill attempts to be as accurate as possible and uses its best endeavours to ensure, but does not itself warrant, that any information provided by its suppliers, including in relation to product descriptions or other content of this site, is accurate, complete, reliable, current or error-free.