Terms And Conditions

 
 NOURISHY
TERMS AND CONDITIONS

 

Welcome to Nourishy

1. Our Services

Scantric Pty Ltd (ABN 98 638 748 035) trading as Nourishy and its related entities (“Nourishy”, “we”, “our” or “us”) provides users and customers with:

(a) access to our website located at nourishy.com.au (“Website”);

(b) access to our mobile application(s) we make available from time to time (“Apps");

(c) breast milk freeze drying processing services (“Processing Services”);

(d) use of cooler storage equipment (“Cooler Equipment”) and storage bag or other consumables to enable us to provide the Processing Services;

(e) any other services we make available such as physical breast milk kiosks,

(collectively the “Services”), which are provided subject to the following terms and conditions of service (“Terms”).

 

2. Our Terms and your Agreement with us

These Terms, and the terms and conditions of our Privacy Policy located at www.nourishy.com.au/policies/privacy-policy which are hereby incorporated by reference, apply to: (a) your use of our Website, Apps and Services; and (b) to all orders for Processing Services, including the use of our Cooler Equipment (if applicable) (“Orders”); and (c) and other services we provide to you.

By using the Website, Apps and Services, including by placing an Order or other offer to purchase Services from us, you acknowledge that: (a) you have read these Terms and agree to be bound by them; and (b) your continued use of our Services or offers to place Orders will constitute your acceptance of agreement to be bound by these Terms.

On acceptance by us of an Order, a binding contract is formed between Nourishy and you (“the Customer”) in respect of that Order, on and subject to the terms and conditions set out in these Terms, which are to be read together with any special conditions specified in the Order form (the “Agreement”).

If you do not agree with these Terms, please do not use the Website or any of our Services and do not place any Orders.

 

3. Customer to obtain health advice

Nourishy is dedicated to assisting parents in providing their infants with nutrient-rich breast milk for an extended duration. While Nourishy's services provide convenience for many, it's essential to recognise that our services may not meet all needs. Therefore, careful consideration should be given to assess your own situation and requirements.

We recommend that you consult a healthcare specialist and obtain advice about using your freeze-dried breast milk prior to ordering Nourishy’s Processing Service.

Actual product packaging and materials may contain ADDITIONAL and different information than what is shown on the Nourishy website (www.nourishy.com.au).

Customer agrees to always read labels, warnings, and directions provided with their processed freeze-dried breast milk before using it or allowing any child under Customer’s care to consume it.

Our Services are intended only for access and use by individuals at least eighteen (18) years old. By accessing or using any of our Services, you warrant and represent that you are at least eighteen (18) years of age and with the full authority, right, and capacity to enter into any agreements with us and to abide by all of the terms and conditions in these Terms.

If you are not at least eighteen (18) years old, please do not use the Website or any of our Services and do not place any Orders.

 

4. Customer Acknowledgements and Indemnities

Breast milk is acknowledged as a crucial source of nutrients for infants, containing antibodies, beneficial bacteria, and other elements that lower the risk of infections for your baby. However, proper handling of breast milk is essential, and understanding key aspects of its storage and handling is crucial to ensure the best protection for babies.Top of Form

(a) Customer acknowledges that risk in and ownership and title to Customer’s breast milk provided to Nourishy for processing remains with Customer at all times. At no time does risk in or title to the Customer’s breast milk pass to Nourishy.

(b) You acknowledge and agree that:

(i) There are inherent risks in handling and storing breast milk for human consumption.

(ii) Breast milk is not a sterile product and may carry pathogens or blood borne illnesses.

(iii) Customer is solely responsible for following safe breast milk expression and handling guidelines as set forth by www.health.qld.gov.au, including the requirement that frozen breast milk, once thawed, is immediately used or discarded, but never re-frozen.

(iv) Customer, and not Nourishy, is solely responsible for the proper and safe washing of Customer’s breast pump supplies; for the proper and safe packaging and sealing Customer’s breast milk; and for the quality and safety of their breast milk supplied to Nourishy for processing and the resulting quality and safety of their processed freeze-dried breast milk.

(c) Other than as expressly set out in these Terms, Customer agrees to use the Nourishy Processing Service at Customer’s own risk.

(d) Customer accepts all risk of loss and damage in the event of an act of omission or Customer’s failure to follow any of these Terms, including (but not limited to): Customer’s failure to properly and safely handle and store their breast milk; or properly package and ship their breast milk to Nourishy; or for any inherent defects in Customer’s breast milk provided to Nourishy for processing.

(e) By ordering the Nourishy’s Processing Service, Customer agrees to indemnify, defend, and hold Nourishy, and Nourishy’s employees, directors, officers, subcontractors, service providers, and agents harmless against any and all claims, losses, damages, or costs or expenses (including attorneys’ fees) suffered or incurred by us, howsoever arising, whether at common law or statute, that arise directly or indirectly from Customer’s breach or violation of these Terms or Customer’s use of the Services or the processed freeze-dried breast milk other than in accordance with these Terms.

 

5. Quality Assurance

Nourishy complies with all applicable laws, rules and regulations concerning the handling of human milk, including safety guidelines set forth by the Australian Breastfeeding Association and packaging guidelines set forth by Food Standards Australia New Zealand.

Nourishy observes strict quality control measures in connection with the handling of Customer’s breast milk. However, Nourishy cannot guarantee the safety of the processed freeze-dried breast milk provided to Customer to the extent that a risk arises from the circumstances which are out of the control of Nourishy, including the circumstances under which the breast milk was expressed, handled or stored by Customer.

Customers requesting Processing Services must ensure that:

(a) they handle and store any breast milk they send to us for Processing Services in accordance with safe breast milk handling guidelines published by Queensland Health located at https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/clinical-staff/maternity/nutrition/breastfeeding/how-to/expressing-storing-breastmilk including but not limited to:

(i) Stored at -18°c in a freezer; used within 6 months and up to 12 months being acceptable if stored in a chest freezer. Thawed human milk should never be re-frozen; and

(b) they send the breast milk to us for processing using the Cooler Equipment and/or consumables provided by Nourishy and in accordance with Nourishy’s instructions notified in the Order; and

(c) Ensure that the cooler is returned only on day of the week instructed by Nourishy (Monday or Tuesday).

Further information about Nourishy’s quality assurance protocols and our handling and testing standards, certifications and other safety and quality measures may be found at our page nourishy.com.au/pages/safety-1.

To ensure the safety and quality of the Processing Services, Nourishy will not process any Customer’s breast milk that fails to meet Nourishy’s criteria for safe freeze drying processing as determined by Nourishy (our “Processing Standard”).

Our Processing Standard includes, but is not limited to, the following criteria determined at Nourishy’s sole discretion:

(a) the Customer’s breast milk is stored in the approved milk storage bags as recommended or supplied by Nourishy;

(b) the Customer’s milk storage bags received by Nourishy have no visible rips, tears or leaks; and

(c) the Customer’s breast milk, at the time of receipt by Nourishy, is stored in the Cooler Equipment provided by Nourishy (or other cooler storage equipment approved by Nourishy) and is at a temperature of zero degrees Celsius (0°C) or below.

If any of the Customer’s breast milk (in whole or in part) fails to meet Nourishy’s Processing Standard, or cannot be freeze-dried or processed for any other reason as determined by Nourishy’s good faith assessment, we will promptly notify the Customer and:

(d) if Customer requests, at the Customer’s cost we may return the breast milk to the Customer at their cost, either as unprocessed frozen breast milk or we may process the breast milk at our sole discretion, in which case the returned milk (whether unprocessed or processed) must not be used for human consumption, , provided the request is advised to Nourishy within 2x working days of notification from Nourishy; or

(e) if Customer has not requested return of their unprocessed breast milk within 2x working days of notification from Nourishy, we will discard the unprocessed breast milk in compliance with all applicable laws, rules and regulations, in which case, we will not charge you the applicable Processing Services fees for the unprocessed breast milk.

Where we supply any Cooler Equipment, it is supplied to you in accordance with the relevant third-party manufacturer’s usage instructions, specifications and warranty, unless otherwise agreed by us. Nourishy takes no responsibility for any Cooler Equipment malfunction or warranty support.

We retain ownership of and title to the Cooler Equipment at all times. If the Cooler Equipment is not returned to Nourishy, we reserve the right to invoice the Customer for the costs of the Cooler Equipment and the costs of shipping to the Customer’s address.

Where the Customer uses other cooler storage equipment or consumables that are not supplied by us, we take no responsibility for the quality of or performance of such equipment or consumables, including the ability of that equipment to maintain the required storage temperatures.

 

6. Placing Orders

Nourishy's service has been designed to assist parents who are on their breastfeeding journey and should not be employed in any manner to facilitate the trade in breast milk.

(a) When you place an Order for Processing Services, you must provide us with certain information, such as quantities, pick up and delivery locations of their cooler equipment and powdered breast milk, and we will provide you with Cooler Equipment, instructions, or other consumables for you to prepare your breast milk for the Processing Services.

(b) The fees we charge for our Services will be as displayed on our Website when you place an Order and you are liable to pay the applicable fees at the time of placing an Order.

(c) By placing an Order for Processing Services, you represent and agree:

(i) Customer will not use the Processing Service in any way that violates any applicable local, national, or international law or regulation;

(ii) Customer will not use the Processing Service for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way;

(iii) Customer will only use the Processing Service for personal use, such as to provide milk to Customer’s own child (which includes surrogated or adopted children);

(iv) Customer will not use the Processing Service for any illegal selling, swapping or donating of your powdered breast milk;

(v) Customer is of the age of majority in Customer’s jurisdiction, has the power to enter into binding contracts, and is not barred from doing so;

(vi) Customer will not use the Processing Service to engage in any commercial activities, including, without limitation, acting as an intermediary to provide the Processing Service Service to third parties; and

(vii) Customer will not otherwise attempt to interfere with the proper working of the Processing Service.

If Nourishy has reason to believe that Customer engaged in any of the prohibited uses described above or otherwise violated these Terms, Nourishy reserves the right to notify the proper authorities and any affected parties, as applicable, of the actual or potential breach.

 

7. Disclaimer of warranties and limitation of liability

(a) Other than as expressly set out in these Terms, to the maximum extent permitted by law, including under the Australian Consumer Law (in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) (ACL) (if applicable):

(i) Nourishy makes no warranties or representations as to the quality, reliability, suitability, availability, accuracy or completeness of the Services;

(ii) Nourishy makes no guarantee that the Services are free from defect or fault or fit for purpose with respect to an individual Customer’s requirements; and

(iii) Nourishy disclaims and excludes all other warranties, conditions, and representations of any kind, whether express, implied or statutory.

(b) Notwithstanding the preceding paragraph, the ACL provides consumers with statutory rights. Where the ACL applies to the Services provided by Nourishy:

Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

(c) To the maximum extent permitted by law, including under the ACL, subject to paragraphs (d) and (e) below, Nourishy will not be liable to the Customer or to any other person for any claim under these Terms or in connection with the Services, for any damage, loss, injury, or death, including damages for emotional or mental distress, whether the claim is based in contract, tort (including negligence), statute or otherwise, whether the loss or damage arises as a result of (i) delays or other incidents related to the shipping of the Customer’s frozen breast milk to Nourishy; (ii) the Customer’s breast milk (in whole or in part) being unsuitable for freeze-drying processing or being discarded by Nourishy; or (iii) any inherent defects in the quality or safety of the Customer’s breast milk provided to Nourishy and the resulting quality or safety of their processed freeze-dried breast milk, or to the extent that the liability is caused by any breach of your obligations under these Terms or a negligent act or omission by you, or you caused or contributed to the loss the subject of the claim, or the liability is due to any delay in performance or breach of these Terms which arises as a result of any matter beyond our control.

(d) To the maximum extent permitted by law, including under the ACL, neither Nourishy nor the Customer will be liable for any indirect, incidental, special, punitive, aggravated, exemplary or consequential loss or damage, including economic loss or loss of opportunity, or any other type of consequential, special or contingent loss or damage of any kind, arising from any action, demand, claim, proceeding, cost, liability under these Terms or relating to the Services, irrespective of the manner in which it occurs, including negligence, or whether the possibility of such damage was reasonably foreseeable.

(e) To the maximum extent permitted by law, including the ACL, except where paragraph (b) applies, in all other circumstances, Nourishy’s maximum aggregate liability to the Customer for all losses, damages and claims arising out of these Terms is limited to the amount paid by the Customer under the relevant Order for the Services to which the loss relates.

(f) Nourishy has made every effort to display its Services, and other information on its Website as accurately as possible. Information about Nourishy services appearing on any Website (including the Nourishy Website) may contain minor technical inaccuracies or typographical errors or omissions. To the maximum extent permitted by law, Nourishy is not responsible for any such typographical, technical, or pricing errors or omissions.

 

8. Website use and Accounts

Subject to the terms and conditions set out in these Terms, Nourishy grants you a revocable, non-exclusive, royalty free and non-transferrable licence (without the right to sub-licence) to use the Website for your own personal use.

In order to use the Website or to place Orders you may need to create an account with us (“Account”). When you create an Account, you represent and warrant that:

(a) you are at least eighteen (18) years of age and with the full authority, right, and capacity to enter into a binding legal agreement with us;

(b) you accept and agree to be bound by all of the terms and conditions in these Terms;

(c) all registration information that you submit to us is accurate, complete, and current;

(d) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Orders you place;

(e) you are responsible for maintaining the confidentiality of your Account details, logins or passwords and keeping them secure.

You must not provide your Account details, logins or passwords to any other person and you accept responsibility for any and all activities or actions that occur under your Account or using your logins or passwords, whether your logins or passwords are linked to our Services or a third-party service.

You must not use as a username the name of another person or entity, a name that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without the prior written authority or consent of the other person or entity, or use as a username any name that is offensive, vulgar or obscene.

Inaccurate, incomplete, or obsolete information may result in the immediate termination of your Account or Service.

You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account

We reserve the right to refuse to provide Services, terminate Accounts, remove or edit content, or cancel Orders in our sole discretion.

 

9. Communications and Privacy

When you use the Website or place Orders we may collect personal information about you (including, without limitation, your name, credit card number, the expiration date of your credit card, your billing address, and your shipping information) and we may also collect data (including de-identified and anonymised personal information) about our Services, to assist us to:

(a) provide you with information and support regarding your use of the Services, including to provide the Processing Services, fulfil Orders and to manage and administer your Account;

(b) send you communications, notifications and alerts, (including, for example, via phone or text message to your mobile phone or email), in providing the Services to you or to send you offers, newsletters, marketing, promotional and/or other such notifications from us for other commercial purposes (you may opt out or unsubscribe from these if you wish), and for conducting our business functions and activities;

(c) employ the use of third party services for the purpose of facilitating payment, delivery and the completion of Orders; and

(d) monitor and analyse, or to use third-party service providers to monitor and analyse, the use of our Services and to enable us to continuously improve and further develop the Services.

We will collect, handle, disclose, process and store any such personal information in accordance with our Privacy Policy nourishy.com.au/policies/privacy-policy which contains information about how you may access and seek correction of your personal information, how you may complain about a breach of your privacy, and how we will deal with that complaint.

By submitting your personal information to us when you create an Account or in placing an Order, you consent to us using and disclosing your personal information, including to third parties, in the ways described in these Terms, subject to our Privacy Policy.

If you do not agree with these Terms or with the terms of our Privacy Policy, please do not provide your personal information to us, or use the Website, any of our Services or place any Orders for Services.

 

10. Termination or suspension

We may terminate or suspend your Account and/or restrict access to the Services immediately, without prior notice or liability, in our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of Terms.

If you wish to terminate your Account, you may simply discontinue using the Services.

All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

 

10. Intellectual Property Rights

(a) Nourishy owns, or has the right to use or sublicense, all intellectual property rights in the Services, including the Website and its content, features and functionality, and all components of the same, which may include trademarks, logos, service names, trade names of Nourishy (“Nourishy IP”) or third parties which may be registered or otherwise protected by law.

(b) You must not distribute, modify, transmit, reuse, download, repost, copy, or use any Nourishy IP or Website content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.

(c) You acknowledge and agree that: (i) nothing in these Terms gives you any ownership of the Nourishy IP or any other intellectual property rights whatsoever in the Services, including the Website, other than as expressly provided in these Terms; and (ii) you are not permitted to distribute, modify, transmit, reuse, download, repost, copy, or use any Nourishy IP or third party intellectual property, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us, and you must not engage in or permit any act which infringes the intellectual property rights which subsist in the Services, the Website or any third party content on the Website.

(d) You may provide us directly with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to our Services (“Feedback”). You acknowledge and agree that: (i) you shall not retain, acquire or assert any intellectual property right or other right, title or interest in or to the Feedback; (ii) we may have development ideas similar to the Feedback; (iii) Feedback does not contain confidential information or proprietary information from you or any third party; and (iv) we are not under any obligation of confidentiality with respect to the Feedback. In the event the transfer of the ownership in or to the Feedback is not effective, you hereby grant Nourishy and its affiliates an exclusive, transferable, irrevocable, free-of-charge, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) Feedback in any manner and for any purpose.

(e) We may use third-party Service Providers to monitor and analyze the use of our Service.

12. Updates to Terms or changes to Services

We reserve the right without notice to you to update the Website, these Terms and our Privacy Policy located at nourishy.com.au/policies/privacy-policy from time to time at our discretion, by posting updated terms on this website at nourishy.com.au/policies/terms-of-service.

It is your responsibility to review any updates to these Terms or our Privacy Policy before using the Services or placing Orders, so you are aware of any changes, as they will be binding on you. You should visit these pages regularly to review the current version of these Terms and our Privacy Policy.

Your continued use of the Services or placing of Orders, following publication of any updated version of these Terms or our Privacy Policy means that you accept and agree to any revisions in the updated version(s) and agree to be bound by the revised terms which will apply to any further access of the Website, use of our Services or Agreements with us.

If you do not agree to the revised or new terms, please do not use the Website or any of our Services and do not place any Orders.

We reserve the right to withdraw or amend part or all of our Services, and any service or material we provide as part of the Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of a Service is unavailable at any time or for any period. From time to time, we may restrict users access to part or all of our Services to users.

 

13. Force Majeure

For the purposes of these Terms, “Force Majeure Event” means an event beyond the reasonable control of Nourishy including but not limited to strikes, lock-outs or other industrial disputes, act of God, accident, fire, flood, storm, explosion, war, riot, civil commotion, epidemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, failure of a utility service or transport network, breakdown of plant or machinery, or default of suppliers or subcontractors.

Nourishy will not be liable to the Customer as a result of any delay or failure to perform its obligations under these Terms or an Agreement as a result of a Force Majeure Event, and Nourishy will not be deemed to be in default under these Terms or an Agreement as a result of such delay or failure to perform caused by the Force Majeure Event.

If a Force Majeure Event occurs, Nourishy may at its election, delay performance of the Services, reduce the quantity of Services to be performed and delivered, or cancel the relevant Order or terminate the relevant Agreement (as applicable) by giving written notice to the Customer, in which case we may return the Customer’s breast milk to them upon request, either as unprocessed frozen breast milk or we may process the breast milk at our sole discretion, in which case the returned milk (whether unprocessed or processed) must not be used for human consumption, or stored at Nourishy for later processing.

 

14. General

(a) No delay or failure by us to enforce any provision of these Terms will be deemed a waiver or create a precedent or will prejudice our rights. No waiver by us will be effective unless it is in writing and signed by us.

(b) No waiver by Nourishy of any term or condition set forth in Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Nourishy to assert a right or provision under Terms shall not constitute a waiver of such right or provision.

(c) If any provision of Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of Terms will continue in full force and effect.

(d) If any term of these Terms is void, unenforceable or illegal, that term is severed. The remainder of these Terms has full force and effect.

(e) Unless expressly stated otherwise, all amounts payable by a party under these Terms will be in Australian Dollars AUD and, in respect of a taxable supply, are inclusive of GST. If the amount payable for the supply is stated to be inclusive of GST, the recipient of the supply is not required to pay GST in addition to the amount payable, and if the amount payable for the supply is stated to be exclusive of GST, the recipient of the supply must, in addition to the GST exclusive amount, and at the same time, pay to the supplier the applicable GST payable in respect of the supply.

(f) The laws of the State of Queensland, Australia govern these Terms.

(g) If a dispute arises between Nourishy and the Customer under these Terms, the disputing party must promptly provide the other party with written notice expressing the nature and details of the dispute. The parties must first attempt to resolve the dispute by negotiation within 30 days of the date of the notice of dispute. If the dispute is not resolved within the initial negotiation period, the parties must refer the dispute for mediation by an accredited mediator before pursuing other remedies. Each party will bear their own costs of the dispute and the costs of the mediator will be shared equally between the parties. Neither party will commence proceedings unless they have first complied with this clause or they are seeking urgent interlocutory relief.