1.1. The terms (herein referred to as the “Terms” and or the “Agreement”) is an agreement between you (herein referred to as "you", "your" or the "Customer") and Sun Kitchen F&B (Melbourne) Pty Ltd (ACN 164 863 825) (herein referred to as "Sun Kitchen", "we" or "us" or "our").
1.2. Please read these terms carefully.
1.3. When purchasing any Products on the Website or by using any services made available to you through the Website or by transacting through the Website, you are agreeing to these Terms.
1.4. By trading with Sun Kitchen the capacity referred to in cl.1.3 of these Terms, you agree that you accept these terms and you have had an opportunity to consider these Terms and that you are satisfied with the Terms contained herein.
1.5. We reserve the right to amend these Terms at any time without notice to you. The most current version of the Terms will be published on the Website. Use of the Website or purchase of any Products or Services after an amendment to the Terms will be a deemed acceptance of the change to the Terms.
1.6. As a consumer, nothing in this Agreement affects your statutory rights which cannot be excluded by law.
1.7. Sun Kitchen supports the Responsible Service of Alcohol. It is an offense for a person under the age of 18 years of age to falsely represent themselves to be of, or over 18 years of age.
1.8. We reserve the right to refuse to enter into the Agreement or accept an Order or Purchase to serve, sell, make available or supply Alcohol Products to any person we suspect to be under 18 years of age, or who is unable to satisfy us that they are 18 years of age or over, or who we reasonably suspect is going to supply Alcohol Products to a person under 18 years of age. By purchasing Alcohol Products from us, you acknowledge and agree that you understand the prohibition on the sale and supply of liquor to Minors and you confirm that you are at least 18 years of age.
2. Definitions and Interpretation
2.1. In this Agreement, capitalised words, unless defined elsewhere in this Agreement, have the following meaning:
"Acceptable ID" means Australian driver licence, Victorian learner permit, Proof of age card, Keypass card, Australian or Foreign passport. No other form of identification will be accepted.
“Alcohol Products” means any Products which contain alcohol and which Sun Kitchen is prohibited under applicable laws to sell to a Minor.
“Content” means any material, information, data, text, editorial content, design elements, look and feel, formatting, graphics, images, photographs, videos, music, sounds and other content contained in or delivered via the Website or otherwise made available by Sun Kitchen in connection with the Services.
"Consumer" means any users who use the Website or the Services to consume information about or purchase Products or Events or to attend Events or
for any other reason.
"Delivery Fee" means the delivery fee which may be applicable for delivering any Products.
"Delivery Hours" means the delivery hours operated by Sun Kitchen.
“Delivery Partners” means all third-party courier services, drivers and delivery companies engaged by the relevant Vendor transporting Products purchased on the Website to you.
"Minor" means a person younger than 18 years of age.
“Events” means the events made available by Organisers through the Website, including virtual or in-person events.
"Order" means a commitment by you to purchase the Products.
"Order Price" means the total of the Product Price, any Delivery Fees and any Payment Processing Fees of the Products you purchase through the Website.
"Organiser" means event creators that use the Services to make events available to Consumers through the Website.
"Product Price" means the price charged by the relevant Vendor for the Products.
"Product(s)" means the food, beverage, alcohol and merchandise items, the Events and the delivery services made available by us on the Website.
"Payment Processers" means payment processing third parties including Shopify Payments, Stripe, Braintree, Square, Paypal, Hyperwallet, Apple Pay and Google Pay or any other payment processors which we may utilise on the Website.
"Payment Processing Fees” means any fees payable to Payment Processers in connection with an Order.
“Product Vendor” means any third party/parties that uses the Services to make Products other than Events available to Consumers through the Website.
"Purchase" means an Order that we have accepted.
"Restricted Events” means any Events to which only attendees aged 18 years or older are permitted entry.
“Service(s)” means all or any of the services provided via the Website (or via other electronic or other communication) including the information services, content and transaction capabilities on the Website (including the ability by you to Order and Purchase).
“Vendor” means Organisers and Product Vendors.“Website” means the website and or the websites bearing the domain name www.sun-kitchen.com and or sun-kitchen.myshopify.com.
3.1. We reserve the right to prevent you using the Website and or utilising the Service (or any part of them) and to prevent you from making any Order and Purchase.
3.2. Alcohol Products
3.2.1. You must be at least 18 years of age to use the Website, the Service when you are using it to make any Order and Purchase of Alcohol Products.
3.2.2. We reserve the right to decline or cancel any Order and Purchase by you of Alcohol Products if we reasonably believe that such Order or Purchase is or may be in breach of the applicable laws and regulations, including in relation to the sale and supply of alcohol. You agree and acknowledge that we abide by the Responsible Service of Alcohol regulations and we have the right to enforce such regulations.
4. Purchase of Products
4.1. You may only place an Order if you meet the following requirements:
4.1.1. in respect of Alcohol Products, you are not a Minor;
4.1.2. in respect of Alcohol Products, you are not Purchasing on behalf of, or with the intention to supply to a Minor;
4.1.3. you agree to meet all costs associated with the delivery of the Products regardless of the nominated place of delivery which the Products are to be delivered;
4.1.4. the nominated delivery time of the Products is within the Delivery Hours; and
4.1.5. you agree to make payment to us for the Order Price, comprising of the Product Price, the Processing Fee and any Delivery Fee.
4.2. You agree that the Delivery Fee and Payment Processing Fees are not refundable in any circumstances, but subject.
4.3. When you click the "check out" button, you make a commitment to purchase the Products at the Order Price ("Order"), we will email you, as soon as reasonably possible during Delivery Hours or if outside Delivery Hours then as soon as reasonably possible during the next Delivery Hours:
4.3.1. if we accept your order whereupon the purchase is completed; or
4.3.2. if we decline or is unable to accept your Order.
4.4. Should your selection not be available, we will make all reasonable efforts to contact you to offer a suitable substitution. Should you not be contactable, we reserve the right to refund your order.
4.5. We will take payment of the Order Price once your Purchase is complete.
4.6.1. We will use our reasonable endeavours to have the Products delivered to you by the time and date selected by you and otherwise in accordance with the delivery hours permitted by our Vendors Liquor Licenses.
4.6.2. Where the relevant Product that has been Purchased is admission to an Event, we will e-mail the tickets to that Event to the e-mail address nominated by you for such delivery in your Order.
4.6.3. Our Delivery Partners reserve the right to refuse to deliver the Products for any reason whatsoever and including but not limited to refusing delivery to a person/s who they reasonably believe are intoxicated, drunk or disorderly, refusing delivery to specific buildings for access or safety reasons, or, in the case of Alcohol Products, refusing delivery because they reasonably believe that the Alcohol Products will, may or are likely to be supplied to persons under 18 years of age following delivery.
4.6.4. In the event that our Delivery Partners are unable to deliver the Products or complete the Order as a result of your failure to comply with this "Clause 4.6 or to complete the delivery will or may cause us to contravene the conditions of Vendor Liquor Licenses or the relevant legislation or regulations relating to the sale and supply of alcohol", the Delivery Partner will immediately discontinue the delivery and return the Products to the Sun Kitchen.
4.6.5. Our Delivery Partners will use their reasonable endeavours to complete the delivery in one attempt, however our Delivery Partners reserve the right to complete the delivery in more than one attempt depending on the size of the Order.
4.6.6. Our Delivery Partners will wait for a reasonable period of time (although not exceeding 20 minutes) at the nominated place of delivery. If you or your authorised representatives are not present within this time to accept delivery of the Products, they shall return the Products.
4.6.7. Once our Delivery Partners have completed delivery, the responsibility of the safety of goods is transferred to you.
4.6.8. In the event of unsuccessful delivery pursuant to clauses, the Order shall be deemed cancelled and the Order Price less Delivery Fee and less Payment Processing Fee will be refunded to you within 72 hours of the delivery date.
4.7. By making an Order, you acknowledge that the Order and the Purchase is made subject to this Agreement.
5. Refunds & Returns
5.1. To the extent permitted by law and except as otherwise set out in this Agreement, you acknowledge and agree that all Orders and Purchases are final and non-refundable and that you cannot change or cancel an Order or Purchase once payment has been confirmed.
6. Warranty Disclaimers
6.1.1. any content or information accessible via the Website or the Services is accurate, complete, uninterrupted, timely, reliable, current or error-free including the Product Price, Delivery Fee, Payment Processing Fee, the Delivery Hours, the Product Descriptions, photos, ingredients, allergens, Content and the Product availability. Such information is subject to change without notice.
6.1.2. products will be delivered or available for pick-up within a certain time frame or that the Products are fit for purpose or of a certain quality;
6.1.3. your use of the Service or the Website will be uninterrupted and we do not warrant that any information (or messages) transmitted via the Service or the Website will be transmitted accurately, reliably, in a timely manner or at all;
6.1.4. the Service or the Website is free from viruses or anything else which may have a harmful effect on any technology; or
6.1.5. the Services or the Products (or any portion of the foregoing) will meet your requirements or expectations.
6.2. We will use reasonable endeavours to correct any errors or omissions on the Website as soon as practicable after being notified of same.7. Suspension and Termination
7.1. If you use the Website or Service in contravention of this Agreement, we may suspend your use of the Service and/or the Website (in whole or in part).
7.2. We shall fully co-operate with any law enforcement authorities or court order requesting or directing us to disclose the identity or locate anyone in breach of this Agreement.
7.3. Our rights to terminate this Agreement shall not prejudice any other right or remedy we may have in respect of any breach or any rights, obligations or liabilities accrued prior to termination.
8.1. You shall indemnify and hold us (and our Related Body Corporate (as defined in the Corporations Act 2001 (Cth)), directors, officers, employees, agents, licensors and the contractors) harmless against any claim, action, demand, loss, damages or expenses (including legal fees) made or incurred by us arising from the use of the Website or Services by you, use or consumption of Products or any breach of this Agreement by you including but not limited to delays in delivery, inaccurate description of Products, and such other matters which are outside of our control.
9. Limitation of Liability
9.1. To the maximum extent permitted by law, Sun Kitchen and any person or entity associated with our provision of the Services (including, an affiliate, vendor, strategic partner or employee), disclaims any all liability and responsibility for loss or damage of any kind (including indirect or consequential damages or damages for loss of profits, loss of opportunity or loss of data) arising out of or in connection with the Services, the Website or the Products or your use of the Services, the Website or the Products including without limitation any liability relating to or arising from:
9.1.1. consumption of alcohol or attendance at Restricted Events by Minors;
9.1.2. any representation of the ingredients contained in Products;
9.1.3. the accuracy, completeness, fitness for purpose, suitability or legality of any Product or information accessed using the Services or Website or otherwise;
9.1.4. where the Product is a non-perishable Product, that the Product is not suitable for consumption, including that the Product has not exceeded or passed any processors used by or best before dates;
9.1.5. the transmission or the reception of or the failure to transmit or to receive any material of whatever nature;
9.1.6. the supply, delivery, use and consumption of the Products.
9.2. You agree that your use of the Services and the Website is at your own risk and you accept that you will not seek to hold us accountable for any loss or damage that you or any third party may suffer as a result of your use of the Services and/or the Website.
9.3. Notwithstanding the above, to the maximum extent as permitted by law, you agree that Sun Kitchen's liability for any loss or damage of any kind shall not exceed your Order Price.
9.4. Services supplied to you by Sun Kitchen come with guarantees that cannot be excluded under the Australian Consumer Law. Nothing in these Terms purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded.
9.5. Where any law implies a warranty into this Agreement which may not be lawfully excluded then to the extent allowed by law, any liability imposed upon Sun Kitchen relating to a breach of warranty will at its option be limited to a refund of the Order Price.
9.6. Sun Kitchen is not responsible for any errors by the Payment Processor or credit card issuer when processing payments.10. Privacy
11. Links to and from Other Sites
11.1. Where the Website contains advertisements or links to third party sites or resources provided by third parties (together "Other Websites"), those Other Websites are merely linked to provide information only and are solely for your convenience. We have no control over and do not accept and we assume no responsibility for Other Websites or for the content or products or services of Other Websites (including, without limitation, relating to social networking sites) and we accept no responsibility for any loss or damage that may arise from your use of them. If you decide to access any of the Other Websites linked to the Website, you do so entirely at your own risk.
12. Consumers’ Content
12.1. We may have review/feedback forum or chat room on the Websites which you and other users of the Websites may post, transmit, display, publish, distribute, or submit public user generated material on the Products or on us ("a Submission"). You agree not to create any Submission that is for a purpose other than which we have designed them or intended them to be used or contains vulgarity or offensive language or contains any defamatory statement, or tends to mislead or reflect unfairly on us or any other person, business or entity.
12.2. Each time you provide a Submission to the Websites, you represent and warrant that:
12.2.1. you are the author of the Submission, or
12.2.2. the Submission is not protected by copyright law, or
12.2.3. you have express permission from the copyright owner to use the Submission in connection with the Website; and
12.2.4. you have the right to grant us the licence set out in clause 14.3 of this Agreement; and
12.2.5. your use of the Website and Submission(s) do not violate this Agreement.
12.3. Submissions are not endorsed by us, and do not represent our or the view of our affiliates, our Related Body Corporate (as defined in the Corporations Act 2001 (Cth)), our directors, officers, employees, agents. You acknowledge and agree that we do not control the Submissions, and disclaims any responsibility for all Submissions.
12.4. We reserve the right (but disclaims any duty, obligation, or responsibility) to refuse to post, remove in their entirety, or edit (at any time and without prior notice) any Submissions on the Website for any reason or no reason whatsoever, in its absolute and sole discretion. If you believe in good faith that Submissions posted by the Website infringe your copyright, you (or your agent) may send us a notice requesting that the Submission(s) be removed from the Website.13. Intellectual Property Rights
13.1. All material displayed on Website, including the Content and all information, photographs, graphics, illustrations, artwork, names, logos, trademarks, copy writing and design features we acknowledge and have the right to use or are our property (“Sun Kitchen Intellectual Property”) are protected by copyright, trademark and other intellectual property laws. You may not use the Sun Kitchen Intellectual Property for any purpose without our express prior written consent.
13.2. You acknowledge that no title or interest to Sun Kitchen or our intellectual property rights is transferred to you and you agree to make no claim of interest in any of Sun KItchen or our services or Website.
13.3. A Submission by you shall be considered (and we may treat it as) non-confidential (subject to our obligations under data protection legislation). You grant us a royalty-free, perpetual, irrevocable, non-exclusive licence to use, copy, modify, adapt, translate, publish and distribute world-wide any Submission.
14. Sale and Assignment
14.1. If we are involved in a merger, acquisition, asset sale or change in control, we may assign, novate or otherwise transfer its rights and obligations that arise under these terms without reference to you so that in the future, the Services are provided by a different party.
15.1. All prices are in Australian Dollars.
15.2. Except where indicated otherwise, prices include GST.
15.3. Except as expressly stated in this Agreement, all warranties, conditions and other terms, whether express or implied, by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law.
15.5. All provisions of this Agreement apply equally to and are for the benefit of us, our subsidiaries, its Related Entities, our holding company its (or their) affiliates and its (or their) third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf (save that this Agreement may be varied or rescinded without the consent of those parties).
15.6. In any event, the provisions that are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of the Agreement. In the event you use the Website or Services again, then the provisions of the terms and conditions that then apply will govern your re-use of the Website or Services.
15.7. If any provision of this Agreement is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and where capable the validity and enforceability of the remaining provisions of this agreement shall not be affected.
15.8. The Service and Website are controlled and offered by us from Victoria, Australia. All sales occur and are appropriated in Victoria. We make no representation that the Services and Website are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for local laws.
15.9. Governing law: This Agreement (and all non-contractual relationships between you and us) shall be governed by and construed in accordance with the law of Victoria and both parties hereby submit to the exclusive jurisdiction of the courts of Victoria.