Website T&C'S

WEBSITE & PURCHASE SERVICES: TERMS AND CONDITIONS OF USE

 

          1. ABOUT THE WEBSITE

1.1 Welcome to www.instacake.com.au (the 'Website'). The Website provides you with an opportunity to browse and purchase various products that have been listed for sale through the Website (the 'Products'). The Website provides this service by way of granting you access to the content on the Website (the 'Purchase Services').

1.2 The Website is operated by InstaCake Pty Ltd (ABN 54639261377). Access to and use of the Website, or any of its associated Products or Services, is provided by InstaCake Pty Ltd. Please read these terms and conditions (the 'Terms') carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any Services, immediately.

1.3 InstaCake Pty Ltd reserves the right to review and change any of the Terms by updating this page at its sole discretion. When InstaCake Pty Ltd updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.

 

         2. DELIVERY

 

2.1 The delivery Fee is Payable in addition to the cost per order and charged at checkout. 

2.2 InstaCake Pty Ltd delivers to most Sydney Metropolitan Areas and some Wollongong Suburbs. Deliveries are made between 1230pm and 5pm on the selected day. You acknowledge that the delivery window may move outside the 1230pm and 5pm range on Christmas Eve, Valentines Day, Mother’s Day, Father’s Day, Easter weekend and other busy days that InstaCake is unable to deliver products between these times.

 2.3 InstaCake Pty Ltd requests that the recipient is available to receive the package on the day of delivery. The customer is notified before, during and after the delivery process (Before: Order confirmation, which states the delivery date; During: Email and SMS tracking link sent, where customer and recipient can check that their order has been picked up and view an ETA of the delivery time; After: an email confirmation of delivery, where you can click a link to check proof of delivery), in order to make sure someone is there to receive the order.

 2.4 If no one is available to accept the delivery, the customer gives InstaCake Pty Ltd the “Authority to Leave”, which means the item will be left outside the residence or workplace only if the driver identifies that it will be safe to leave the order unattended. InstaCake Pty Ltd takes no responsibility for any “melted”,  “compromised by insects” or “stolen” products for any deliveries left unattended.  It is the customers and/or recipients responsibility to review the tracking information and ensure that the cake is collected and consumed and/or stored as indicated. If there is no safe place to leave the product then the following applies:

(a) If your order includes a cake product,  you will lose your order without an option for a refund.

(b) if your order does not include a cake product, your order will be sent back to the InstaCake Pty Ltd warehouse and a $25 re-delivery charge will occur to have your item sent out the next business day, without an option for a refund.

 

2.5 You agree that InstaCake Pty Ltd is not liable for incorrect or failed deliveries where the address provided by you is incorrect or has insufficient information (including contact information). In this instance the following applies:

(a) If your order includes a cake product,  you will lose your order without an option for a refund.

(b) if your order does not include a cake product, your order will be sent back to the InstaCake Pty Ltd warehouse and a $25 re-delivery charge will occur to have your item sent out the next business day , without an option for a refund.

 

2.6 InstaCake Pty Ltd does not accept requests for specific times or specific time periods for delivery. Any requests by the customer for specific times or times periods are invalid and void. InstaCake Pty Ltd takes no responsibility for any orders that are unable to be delivered to businesses/ schools etc that may require delivery by a certain time, regardless of any requests made by the customer.

 

          3. CHANGES

 

3.1 InstaCake Pty Ltd does accommodate changes to orders; however, we require at least 24 business hours notice from the delivery date in order to review, approve and confirm requested changes.

 

3.2 If you have placed an order for a delivery that will not occur within the next 24 business hours and would like to make a change, please contact us via email yum@instacake.com.au quoting your order number and your request. You must receive written confirmation from us that the change has been approved before it will be applied to your order.  InstaCake Pty Ltd reserves the right to refuse any changes requested if it is within 24 business hours from the delivery date.

 

           4. CANCELLATIONS AND REFUNDS

 

4.1 Cancellations can be requested only via email, and they will be subject to the following fees and conditions:

(a) More than 48 Business Hours notice from the delivery date: A refund can be requested (minus a $15 Administration fee) OR a store credit for the FULL amount can be issued to be used on the instacake.com.au website at a later time.

(b) Between 48 and 24 Business Hours notice from the delivery date: A refund can be requested (minus a $25 Administration and Pre-delivery arrangement fee) OR a store credit for the FULL amount can be issued to be used on the instacake.com.au website at a later time.

(c) 24 or less Business Hours notice from the delivery date: Unfortunately, a refund will not be possible under ANY circumstances at this stage.

 

4.2 Refunds will be made via the Payment Gateway provider the customer originally used to make payment (Shopify, After Pay or PayPal)

 

4.3 Once InstaCake Pty Ltd has approved a refund via email, the funds will be re-imbursed to you via the same Payment Gateway method used for payment. Refunds may take between 5-10 business days to appear in your account, depending on your financial institution.

 

      5. YOUR OBLIGATIONS AS A MEMBER

As a member, you agree to use the Purchase Services only for purposes that are permitted by:

(a) the Terms;

(b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;

(c) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of InstaCake Pty Ltd providing the Purchase Services;

(d) you will not use the Purchase Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;

(e) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Purchase Services. Appropriate legal action will be taken by InstaCake Pty Ltd for any illegal or unauthorised use of the Website

(f) you acknowledge and agree that any automated use of the Website or its Purchase Services is prohibited

(g) you will not use the Purchase Services or Website for sending unsolicited messages or messages that may be considered abusive or contain inappropriate content; and

(h) you acknowledge that InstaCake Pty Ltd does not alter card or video messaging and is not responsible for content sent from a Member to a recipient.

 

          6. PURCHASE OF PRODUCTS

6.1  In using the Purchase Services to purchase the Product through the Website, you will agree to the payment of the purchase price listed on the Website for the Product (the 'Purchase Price').

 

6.2  Payment of the Purchase Price may be made through Shopify, AfterPay or PayPal (the 'Payment Gateway Provider').

 

              7. WARRANTY

7.1  InstaCake Pty Ltd's Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product. 

 

7.2  As InstaCake Pty Ltd's Products are edible, you may make a claim under this clause (the �Warranty Claim') for materialdefects and workmanship in the Products within 60 minutes from the date of receipt (the ' Warranty Period').

 

7.3  In order to make a Warranty Claim during the Warranty Period, you must provide proof of purchase to InstaCake Pty Ltd showing the date of purchase of the Products, a description of the Products and accompanying photos evidencing the failure via email at yum@instacake.com.au.

 

7.4  Where the Warranty Claim is accepted then InstaCake Pty Ltd will, at its sole discretion, replace any defective Products or part thereof at no charge to you for labour. You acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in facilitating the Warranty Claim.

 

7.5  The Warranty shall be the sole and exclusive warranty granted by InstaCake Pty Ltd and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Products to which this warranty relates.

 

7.6  All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.

 

7.7  The Warranty does not apply to any appearance of the supplied Products where the exterior of which has been damaged or defaced from being subjected to misuse, or abnormal service or handling.

 

         8. COPYRIGHT, INTELLECTUAL PROPERTY & PATENT PENDING

 

8.1  The Website, the Purchase Services and all of the related products of InstaCake Pty Ltd are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips, message concepts and software) (the 'Content') are owned or controlled for these purposes, and are reserved by InstaCake Pty Ltd or its contributors.

8.2  InstaCake Pty Ltd retains all rights, title and interest in and to the Website and all related content. Nothing you do on or in relation to the Website will transfer to you:

(a)     the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of InstaCake Pty Ltd; or

(b)     the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or

(c)     the right to use or exploit a system, application or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).

8.3  InstaCake Pty Ltd retains all rights to images andthey cannot be subject to advertisement or promotion unless previously agreed with us via email.

 

8.4  InstaCake Pty Ltd is protected by a Patent Pending for the Instavid Digital Video Card under the laws of Australia and through international treaties. Instacake Pty Ltd retains all rights, title and interest in the concept, implementation and software. This excludes all rights to: 

(a)   Use or exploit the Intellectual Property and industrial design of the system, application and process; and

(b)   Imitate, adapt, or modify the system, application and process.

 

8.5  InstaCake Pty Ltd is represented by a Patent Attorney.

 

         9. PRIVACY

InstaCake Pty Ltd takes your privacy seriously and any information provided through your use of the Instavid Digital Video Card and/or the Purchase Services is subject to InstaCake Pty Ltd's Privacy Policy, which is available at instacake.com.au.

 

         10. GENERAL DISCLAIMER

10.1       You acknowledge that InstaCake Pty Ltd does not make any terms,guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.

10.2       InstaCake Pty Ltd will make every effort to ensure a Product is accuratelydepicted on the Website, however, you acknowledge that:

(a)   sizes, colours and packaging may differ from what is displayed on the Website

(b)   All cakes are handmade and slight imperfections can occur

(c)   Cake, Cookie, Brownie, and other decorations may be substituted depending on product availability

(d)   Cookies and Brownies are assorted and can be a combination of any flavours.

 

10.3         All Instacake Products contain nuts, soy, dairy, and eggs.

10.4         You acknowledge that any alcohol shown in our website is designed to be delivered by way of a gift and can only be ordered by an adult over 18 years of age and delivered to an adult over 18 years of age. In ordering any gift boxes containing alcohol, you take responsibility for guaranteeing the recipient is of the legal age.

10.5       Nothing in these Terms limits or excludes any guarantees, warranties,representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.

10.6       Subject to this clause, and to the extent permitted by law:

(a) all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and

(b) InstaCake Pty Ltd will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Purchase Services or these Terms (including as a result of not being able to use the Purchase Services or the late supply of the Purchase Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

 

10.7  Use of the Website, the Purchase Services, and any of the products ofInstaCake Pty Ltd (including the Delivery Services), is at your own risk. Everything on the Website, the Purchase Services, and the Products of InstaCake Pty Ltd, are provided to you on an "as is" and "as available" basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of InstaCake Pty Ltd (including any third party where the Delivery Services are made available to you) make any express or implied representation or warranty about its Content or any products or Purchase Services (including the products or Purchase Services of InstaCake Pty Ltd) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:

(a) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;

(b) the accuracy, suitability or currency of any information on the Website, the Purchase Service, or any of its Content related products (including third party material and advertisements on the Website);

(c) costs incurred as a result of you using the Website, the Purchase Services or any of the Products and Software;

(d) the Content or operation in respect to links which are provided for the User's convenience;

(e) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or

(f) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.

 

         11. LIMITATION OF LIABILITY

11.1        InstaCake Pty Ltd's total liability arising out of or in connection with thePurchase Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase Price, then the total liability of InstaCake Pty Ltd is the resupply of information or Purchase Services to you.

11.2           You expressly understand and agree that InstaCake Pty Ltd, its affiliates,employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

11.3           InstaCake Pty Ltd is not responsible or liable in any manner for any site content(including the Content and Third Party Content) posted on the Website or in connection with the Purchase Services, whether posted or caused by users of the website of InstaCake Pty Ltd, by third parties or by any of the Purchase Services offered by InstaCake Pty Ltd.

 

11.4    You acknowledge that InstaCake Pty Ltd does not provide the DeliveryServices to you and you agree that InstaCake Pty Ltd will not be liable to you for any special, indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Delivery Services.

 

         12. VENUE AND JURISDICTION

The Purchase Services offered by InstaCake Pty Ltd is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.

 

        13. GOVERNING LAW

The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

 

          14. INDEPENDENT LEGAL ADVICE

In using this Website and procuring Product Services you declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

 

           15. SEVERANCE

If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.

 

           16. ACCEPTANCE OF THE TERMS

You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by InstaCake Pty Ltd in the user interface or by placing an order.