Terms and conditions

These Terms and Conditions apply to orders placed with Us through the Site.

1. Definitions

(a) In these Terms of Use the following terms shall have the following meanings unless the context otherwise requires:

(i) Australian Consumer Law is as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);

(ii) Consumer means a “consumer” as that term is defined in section 3 of the Australian Consumer Law;

(iii) Delivery Date means the date the Product is required to be collected by You or delivered by Us in accordance with the Order;

(iv) Delivery Fees means the fee charged by Us to deliver the Product to You, as outlined in the Order;

(v) Emergency means any health emergency or state of affairs declared or existing in Queensland or any other jurisdiction, whether in Australia or otherwise, which impacts on Our ability to deliver the Product including but not limited to, the time within which We can provide or deliver the Product or the manner in which We are required to produce or provide the Product;

(vi) Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including an Emergency, epidemic, pandemic, shortage of supplies, equipment, and materials, accident, strike, suspension of any relevant power supply, riot, war, act of terror, robbery, malicious damage, civil commotion, adverse nonforeseeable weather condition, disaster caused by fire and/or water, natural disaster, computer hacking, action or inaction by a government agency;

(vii) GST has the meaning given to it in the GST Act;

(viii) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

(ix) Intellectual Property means all intellectual property rights as may be applicable to these Terms and Conditions and any Product supplied pursuant to these Terms and Conditions, including (but in no way limited to) all confidential information, copyright, patents, trademarks, design rights, trade secrets, recipes, domain names, know-how and any other industrial or intellectual property and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application;

(x) Order means a request by You to Us to provide Product (whether or not by completion of an Order Form);

(xi) Order Form means the form on the Site which is completed by You and indicates the Product that You wish Us to provide together with the Price and other details such as

Delivery Date, subject to these Terms and Conditions;

(xii) Parties means You and Us, and a Party means either one of Us;

(xiii) Price means the price payable by You to Us for the provision of the Product as set out in the Order;

(xiv) Product means the specialty cake or cakes produced by Us;

(xv) Site means https://www.cakerycakes.com.au;

(xvi) Tax Invoice has the meaning given to it in the GST Act;

(xvii) Terms and Conditions means these Terms and Conditions for Orders;

(xviii) User means a person who has created an account pursuant to clause 3(b);

(xix) We, Us, Our means Cakery Cakes Pty Ltd ACN 667 484 835 of PO Box 154, Upper Coomera QLD 4209; and

(xx) You, Your etc means the person who places an Order with Us.

2. Interpretation

(a) The headings used do not form part of these Terms and Conditions and are for convenience only;

(b) Where the context admits or requires words importing the singular number shall include the plural number, those denoting a given gender shall include all other genders and those denoting natural persons shall include corporations;

(c) A reference to any legislation or legislative provision includes any statutory modification or reenactment of, or legislative provisions substituted for, and any subordinate legislation issued under, that legislation or legislative provision;

(d) A reference to "dollars" or “$” is to an amount in Australian currency;

(e) Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and

(f) Where an expression is defined anywhere in these Terms and Conditions it has the same meaning throughout.

3. Our Contract

(a) Any Order placed by You in the manner described on the Site is an offer by You to purchase a particular Product for the Price (including other charges such as Delivery Fees) specified on the Site at the time You place the Order or in our Tax Invoice;

(b) To place an Order via the Site You may choose to create an account, using a username and password, which is personal to You (Your Account). You must not allow Your username or password to be used by anyone else, and must not assist or permit any individual who is not a registered User to gain access to any part of the Site. We reserve the right to terminate Your Account, effective immediately without first notifying You in advance, should You not operate Your Account in line with these Terms and Conditions;

(c) When You place an Order via the Site, You will receive an acknowledgement e-mail from Us confirming receipt of the Order. This email will only be an acknowledgement and will not constitute acceptance of the Order. A contract between Us will not be formed until We send

You confirmation by e-mail that the Order has been accepted. It is Your responsibility to check the details of the Order as contained in this email carefully as the Order will be prepared according to the details in it, with such modifications as we deem reasonably necessary in order to comply with your Order;

(d) While every effort has been made to ensure the accuracy of prices, images and information displayed on the Site, We are not responsible for any errors or minor misdescriptions and reserve the right to accept or reject the Order for any reason, including without limitation, the unavailability of any Product, an error in the Price, image or description of the Product contained on the Site or our inability to produce a Product for the Price in accordance with the Order;

(e) We may require additional verification or information from You before accepting any Order. We only accept orders from within Australia;

(f) Placement of an Order constitutes Your acceptance of these Terms and Conditions.

4. Your details and Communicating with You

(a) When placing an Order, You must provide Us with a current, up to date and valid phone number and email address (Valid Contact Details) to enable Us to communicate with You;

(b) It is Your responsibility to provide Us with correct and accurate information when placing an Order. If We need to contact You regarding an Order (including in the event that We need to make a change to or cancel the Order in accordance with these Terms and Conditions):

(i) We will attempt to notify You by contacting You once only at the phone number and/or email address provided at the time the Order was made;

(ii) We are not obligated to follow up any communications to an email address that You do not action or reply to or to make a further call to You at the phone number you provided at the time of the Order if you do not reply to Us within a reasonable time; and

(iii) If You do not provide Us with Valid Contact Details and We cannot contact You regarding the Order when We need to, then We shall have the right to cancel the Order without further notice. If the Order is cancelled by Us in accordance with this clause, then We will provide a refund to You of any part of the Price You have paid to Us, less an administration fee for the reasonable costs, expenses or other amounts which We were not able reasonably to avoid because of the cancellation of the Order, including payment fees charged by Our payment partner, Stripe (Our Payment Partner).

5. Pricing

(a) Prices for Our Products as displayed on the Site are subject to change without notice. Availability of Products is subject to change without notice. Prices of Products placed in the basket on the Site but not paid for are also subject to change and You agree to pay the price current at the time of checkout;

(b) All prices are in Australian Dollars;

(d) Product prices displayed on the Site do not include Delivery Fees. Delivery Fees will be stated at the checkout for the Order. Your Delivery Fee depends on Your choice of delivery. Our Delivery Fee is calculated in accordance with Our delivery policies in place from time to time

and any delivery times referred to on the Site may vary, including for reasons beyond Our control;

(e) If there is a period of more than 30 days between when You place the Order and the Delivery Date, then We reserve the right to increase the Price if there is an increase in the price charged to Us for ingredients by Our suppliers (IncreasedPrice). If You do not agree to pay the Increased Price then You may cancel the Order within 48 hours. If the Order is cancelled by You in accordance with this clause, then We will provide a refund to You of any part of the Price which you have paid to Us, less an administration fee for the reasonable costs, expenses or other amounts which We cannot reasonably avoid because of the cancellation of the Order, including payment fees charged by Our Payment Partner.

6. Product

(a) We may use props on the Site for styling purposes. Props (including, for example, cake stands) do not form part of the Order and have been used for styling purposes only;

(b) We have made every effort to display as accurately as possible on the Site the colours and images of Our Products. Colour variations may occur from images on the Site or printed photographs to the final physical Product. You accept that colour and overall finish differences may also occur between each finished Product, due to the handmade nature of Our Products;

(c) All descriptions of Our Products are subject to change at any time without notice, at Our sole discretion. We reserve the right to discontinue any Product at any time;

(d) Occasionally there may be information on the Site that contains typographical errors, inaccuracies or omissions that may relate to the description of Our Products, the Price, Delivery Fees, Delivery Dates and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after You have submitted the Order);

(e) Our Product has been made using ingredients and on equipment that may contain traces of nuts, gluten, eggs, dairy and other known allergens. Our Product may therefore contain traces of nuts, gluten, eggs, dairy and other known allergens. You must consider this carefully when ordering a Product as We are not responsible for any allergic reaction to any of Our Products by any recipient thereof;

(f) If You have ordered Product with fresh flowers, please note that these are not edible and must be removed before serving. Whilst every attempt is made to replicate images on the Site, the variety, colours and sizes of flowers used may vary depending on seasonal availability.

7. Payment and Tax Invoice

(a) You must pay the Price and any Delivery Fees in full at the time You place the Order;

(b) Our Payment Partner has told us that all payments are securely processed by Our Payment Partner but You acknowledge that We have no control or influence over this and that We cannot be held responsible by You should that prove not to be the case.

(c) You can choose to save credit card payment information to Your Account. If you choose to save credit card payment information to Your Account you do so at your sole risk. Saved credit card information is stored by Our Payment Partner;

(d) We may, at Our discretion, disconnect or switch Our account with Our Payment Partner. If We choose to do this, then You will not be able to update Your payment information or use

saved credit cards connected to Your Account and You will need to delete and re-save Your saved payment information;

(e) We may also choose to offer Apple Pay to You if you have set up Apple Pay on Your device..

Your card number and identity will not be shared with Us by Apple;

(f) You will be issued with a Tax Invoice upon collection or delivery of the Product.

8. Order Fulfilment

(a) Should:

(i) Our Directors, employees or agents become incapacitated, be required to quarantine or otherwise be prevented from preparing the Product as a result of taking reasonable precautions in relation to the COVID-19 virus or any Emergency; or

(ii) Delivery of the Product be delayed as a result of reasonable biosecurity or Government measures being taken in relation to the COVID-19 virus or any Emergency; or

(iii) Delivery of the Product be delayed as a result of a Force Majeure Event,

then We can extend the Date for Delivery by up to fourteen (14) days (Extended Delivery Date) by notice to You, without compensation to You. If You do not agree with the Extended Delivery Date then You may cancel the Order within 48 hours. If the Order is cancelled by You in accordance with this clause, then We will provide a refund to You of that part of the Price which You have paid to Us less an administration fee for the reasonable costs, expenses or other amounts which We cannot reasonably avoid because of the cause of the reason why We cannot deliver the Product to You on the date anticipated or cancellation of the Order, including payment fees charged by Our Payment Partner.

9. Delivery or Collection

(a) If pick-up is selected at the time of placing Your Order, the Product must be collected from Us. It is Your responsibility to collect the Product from Us during Our opening hours. We are not responsible for any loss or damage suffered by You should You fail to collect the Product or fail to do so during Our opening hours;

(b) Deliveries on weekends and public holidays are not available, except when stated by Us, in writing, otherwise;

(c) We do not provide a track and trace service or an estimated time of arrival once the Product is in transit for delivery;

(d) We have no control over Our third party delivery agents other than in their selection based on reputation. You unconditionally release Us and We have no liability to You for any delay or failure in the delivery of the Product where that delay or failure is caused by a third party agent such as a freight/courier delivery service;

(e) Subject to clause 9 (d), if We have agreed to deliver the Product to You, and You have paid the Delivery Fees, the Product will be delivered to You on the Delivery Date. Delivery times provided by Us are estimates only and will not be binding on Us. We cannot guarantee delivery by a certain time, or within a certain window of time, on the Delivery Date as delivery times are determined by various factors, some of which are outside of Our control. The delivery can be made anytime on the Delivery Date or as soon as reasonably practicable thereafter. We will not be liable for any damages, costs or loss of whatever nature caused by reason of any delay

in delivery. As the Product is perishable, We will instruct Our third party delivery agents that the Product is not to be left should no-one be present at the delivery address to accept delivery.If no-one is present at the delivery address to accept delivery then the Product will be returned to Our premises and We will, at our discretion, contact You to either:

(i) Arrange for an alternative delivery date (such date to be within 48 hours from the time of contact); or

(ii) Advise you that you must collect it from Us, in which case no refund of the Delivery Fees or any money paid by You to Us for the Product, will be made;

(f) For safety, We may (acting reasonably) determine that the address You have provided to Us is unsafe or inappropriate to deliver the Product. Where this occurs, We reserve the right to have the delivery agent return the Product to Our premises and You will be responsible to collect it from Us. No refund of the Delivery Fees or any money paid by You to Us for the Product will be made;

(g) Any Product not collected by You or not delivered by Us (due to no fault on Our part including, by way of example, should no-one be present at the delivery address to accept delivery on the second attempt) in accordance with any part of this clause 9(a)within forty-eight hours after the Delivery Date will, at Our discretion, either be:

(i) On-sold, in which case We will provide a refund to You of the Price paid by You to Us less an administration fee for the reasonable costs, expenses or other amounts which We cannot reasonably avoid because of the on-sale of the Product, including payment fees charged by Our Payment Partner; or

(ii) Destroyed in which case no refund will be provided to You;

(h) We are not liable for any claims for late delivery of Product or for any loss or damage (including consequential loss or damage) suffered by You arising from delay in delivery of the Product or failure to deliver due to circumstances beyond Our reasonable control including in consequence of a Force Majeure Event and You release Us from any claims and must accept delivery of the Product notwithstanding late delivery;

(i) The Product will be shown to You upon pick-up or delivery. It is Your responsibility to ensure that You inspect the Product and are satisfied with it. Taking the Product from Our premises or accepting delivery of the Product from Us or Our third party delivery agents constitutes acceptance of the Product;

(j) Products, once accepted:

(i) Cannot be returned by You to Us due to their perishable nature; and

(ii) Are to be transported and stored by You at Your own risk. We are not responsible for any damage to the Product as a result of You inappropriately transporting or storing the product. We are not responsible for, and You release Us entirely for, any claim, cost or injury You or any party suffer as a result of incorrect storage of the Product by You after acceptance.

10. Variation of Orders

(a) In limited circumstances, We may, at Our sole discretion, agree to a variation of the Order (including a postponement for up to 30 days) although You acknowledge that this may increase the Price of the Product for which You will be liable and that, in no circumstances will We agree to vary the Order within 48 hours prior to the Delivery Date;

(b) We may, in Our sole discretion and without having to provide You with a reason, refuse to alter or amend any Order at any time;

(c) We are unable to provide any alterations or amendments (including cancellations) for Orders that have already been prepared and/or are in transit.

11. Order cancellations

(a) We may, in Our sole discretion, cancel the Order if, in Our sole judgment, You appear to be a reseller;

(b) Order cancellations cannot be made by You on the Site;

(c) You may be able to cancel the Order by written notice to Us given at least 48 hours prior to the Delivery Date. It will be Your responsibility to contact Us to determine whether or not the Order can be cancelled. The decision as to whether or not the order can be cancelled by You is solely at Our discretion;

(d) We may cancel the Order at any time up until delivery of the Product to You should We be unable to provide the Product due to a Force Majeure Event;

(e) If the Order is cancelled by Us in accordance with this clause, then We will provide a refund to You of the that part of the Price which You have paid to Us less an administration fee for the reasonable costs, expenses or other amounts which We cannot reasonably avoid because of the cancellation of the Order, including payment fees charged by Our Payment Partner;

(f) If Your order is eligible for a refund, You will be refunded by Us using Your original payment method. You acknowledge that it may take some time for Your bank or credit card company to process and post the refund to You;

(g) Cash refunds will not be provided under any circumstances.

12. No Intellectual Property or On-Sales

(a) The specifications and design of the Product (being Our Intellectual Property) remain Our property. You acknowledge that You will not, as a result of entering into or performing any of Your obligations or Us creating the Product under these Terms and Conditions, acquire any right to the Intellectual Property in the Product;

(b) You must not advertise for sale, drop-ship, re-sell or supply the Product to any third party.

13. Subcontracting & Assignment

(a) We reserve the right to assign or sub-contract Our obligations to You to any third party;

(b) We can have others (either in Our place or together with Us) produce the Product.

14. Warranties

(a) We warrant that We will (or anyone else We have produce the Product pursuant to clause 13)prepare the Product:

(i) With reasonable care and skill;

(ii) In accordance with food catering industry standards for hygiene and general cleanliness concerning:

A The preparation and cooking of food; and

B The handling and service of food and utensils; and

(iii) In compliance with statutory and regulatory requirements affecting the preparation, cooking and handling of food;

(c) To the extent permitted by law, any condition or warranty which would otherwise be implied into these Terms and Conditions is hereby excluded.

15. Limitation of liability

(a) We have no liability to You to the extent that Our performance of the contract is prevented by Force Majeure;

(b) We have no liability to You the extent that a failure of the Product is attributable to any act or omission on Your part;

(i) In the case of goods supplied by Us (or another person pursuant to clause 13), the replacement of the goods or the supply of equivalent goods (or the payment of the cost of the replacement or supply), or the repair of the goods (or the payment of the cost of the repair); and

(ii) In the case of services supplied by Us, the supply of the services again or the payment of the cost to You of having the services supplied again;

(d) Subject to the previous sub-clauses, no attempt is made to exclude or limit liability arising under the Australian Consumer Law to the extent that there is a statutory restriction on such exclusion or limitation;

(e) In all other respects, Our total liability for loss or damage of every kind, whether:

(i) Arising pursuant to these Terms and Conditions; or

(ii) Arising in any other way out of or in relation to the supply of the Product, its sale or delivery, and whether in tort or contract or in any other cause of action, is limited to an amount equivalent to the Price paid by You to Us for the Product;

(f) Except in relation to liability for negligence, and except as otherwise stipulated in these Terms and Conditions, We do not accept liability to You in respect of any indirect or special loss or damage which may be suffered or incurred by You in respect of Product supplied by Us to You pursuant to these terms.

16. Waiver

(a) Any waiver of any provision of these Terms and Conditions will be effective only if in writing and signed by Us. Without limiting the foregoing, if You breach these Terms and Conditions and We take no action, We will still be entitled to use Our rights and remedies in any other situation where You breach these Terms and Conditions.

17. Entire agreement

(a) These Terms and Conditions, together with Our Privacy Policy and Our Website Terms of Use constitute the entire agreement of the parties.

18. Severability

(a) If any part of these Terms and Conditions is found to be void, unlawful, or unenforceable then, to the extent that it is possible to read it down so that it is not void, unlawful or unenforceable, it shall be read down provided that, if that cannot be done, that part will be deemed to be severable from the balance of these Terms and Conditions and it shall be severed and the severed part will not affect the validity and enforceability of any remaining provisions.

19. Governing law

(a) These Terms and Conditions will be governed by and interpreted in accordance with the law of the State of Queensland, Australia, without giving effect to any principles of conflicts of laws; and

(b) You agree to the exclusive jurisdiction of the courts of the State of Queensland, Australia to determine any dispute arising out of these Terms and Conditions.