Diabetes Essentials – Website and Product Terms and Conditions

1. Governing Document

1.1 Terms

(a) The terms and conditions set out on this page (these terms) govern the relationship between you and The Diabetic Association of South Australia Incorporated ABN 52 923 028 382 trading as Diabetes Essentials (Us, We, Our) in respect of your use of https://diabetesessentials.com.au/ and Diabetes Essentials online store made available through that website (Website) and purchases of Products made through the Website.

(b) These terms are split into three parts:

(1) Part A of these terms set out the terms which apply to use of the Website.

(2) Part B of these terms set out further terms which are only applicable if you purchase Products from us.

(3) Part C of these terms set out a number of definitions and rules of interpretation which apply to the document as a whole.

(c) Your entitlement to access and use the Website is conditional upon you agreeing to the terms set out in Part A and Part C of these terms. If you are purchasing a Product through the Website, the purchase is conditional upon you agreeing to all of the terms set out in these terms.

(d) If you do not agree with or otherwise do not wish to accept the applicable terms set out in these terms, you must not use or access the Website or purchase Products through the Website. By using or accessing the Website, you are considered to have accepted the terms set out in these terms.

(e) If you are a minor, please ask your parent or guardian’s permission before using or accessing the Website.

1.2 Disclaimers

(a) The content of this Website is not intended to be a substitute for professional medical advice, diagnosis or treatment.

(b) This Website may contain information and material about diabetes and the management of diabetes and related conditions. We also sell Products related to the management of diabetes. All information contained on this Website, including information relating to medical and health conditions, products and treatments, is for informational purposes only. You should always consult a medical professional to determine what courses of treatment, if any, may be appropriate for you.

(c) Products available through this Website have been reviewed by our team of Health Professionals including Accredited Practising Dietitians, Credentialed Diabetes Educators and Exercise Physiologists. However, we make no representations that Products will be appropriate for your needs; you should always consult a medical professional to determine what courses of treatment, if any, may be appropriate for you.

(d) The Website may include disclaimers regarding use of features, information or tools and their accuracy and capabilities. You are responsible for reading these disclaimers before using the feature, information or tool. Nothing in these terms limit the content of those disclaimers, and you should always consult a medical professional to verify and interpret any information you obtain from the Website.

(e) We will endeavour to provide you with uninterrupted access to the Website, subject to any necessary downtime that may be required for system maintenance, repairs and updates, but cannot guarantee that access will be uninterrupted.

Part A Your use of the Website

2. Privacy and security

(a) We use reasonable endeavours to implement appropriate security measures to protect against loss, misuse or alteration of information that we have collected from you. If you have any concerns regarding security measures (including at our physical locations), please contact us using the contact details below.

(b) Unfortunately, no data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect such information, we do not warrant and cannot ensure the security of any information transmitted by or to you. To the extent permitted by law, information transmitted by or to you is transmitted at your sole risk.

(c) We will deal with your Personal Information in accordance with our Privacy Policy, available at https://diabetesessentials.com.au/privacy-policy/.

(d) You agree to our collection and use of technical data and related information about the Website, to the extent such data does not include your personal information, including to improve our products or to provide services.

3. Content

3.1 Our content

(a) These terms do not constitute a transfer or conveyance of any Intellectual Property owned or licensed by us, including but not limited to all Intellectual Property associated with the Website or the Products.

(b) Except as set out in these terms, you agree not to copy, reproduce, republish, upload, post, transmit, or distribute the Content in any way, without our prior written consent.

(c) You may make a reasonable number of copies of downloadable Content (including by downloading, saving, and printing or by saving the Content in your personal on-premises or cloud-based storage) solely for your personal, non-commercial use, provided that you:

(1) do not modify the material in any way; and

(2) you keep intact all copyright, trade mark, and other proprietary interests on such Content.

3.2 Third Party Content

(a) The Content on the Website may contain links to or display content owned by or licensed to us from third parties, including links to websites operated by third parties (Third Party Content).

(b) You acknowledge and agree that you are not permitted to use such Third Party Content without the consent of the relevant third party.

(1) we do not make any warranties regarding any Third Party Content appearing on other websites; and

(2) you rely on and use any Third Party Content at your own risk.

3.3 User generated content

(a) The Website may allow you to create Generated Content. To the extent that any Generated Content created by you gives rise to any Intellectual Property rights, you automatically grant us on and from creation a worldwide, perpetual, irrevocable, royalty-free, fee-free, fully transferable and sub-licensable licence to use, exploit and modify your Generated Content as reasonably required by us.

(b) To the extent permitted by law, you consent to the infringement by us and our successors and assigns of any moral rights that you may have in your Generated Content.

4. Your conduct

(a) You must not:

(1) use the Website in breach of any applicable laws or regulations;

(2) except with our prior written consent, use the Website, Products or Content for any commercial purposes;

(3) misuse, interfere with, disrupt, or create an undue burden on the Website or do anything which will or may damage, disrupt access to or interfere with the proper operation of the Website; or

(4) upload any information or material which you do not have permission to use, including any personal information (as that term is defined in the Privacy Act 1988 (Cth)).

(b) You acknowledge and agree that:

(1) any information or material submitted by you when using the Website will be treated by us as non-confidential and non-proprietary;

(2) you will not use the Website to create, post or transmit any material or information which is offensive, defamatory, obscene, unlawful, vulgar, harmful, threatening, abusive, amounts to harassment or is otherwise objectionable;

(3) you will not use the website to post or transmit any unsolicited advertising or promotional material;

(4) any material that you post or transmit can be removed by us without notice at any time; and

(5) you will not post or transmit any Intellectual Property or other material owned by another person or entity.

5. Risk

5.1 Non-Excludable Terms

Despite anything else in these terms, we acknowledge that some laws may, including the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), imply particular non-excludable guarantees, warranties and conditions into particular agreements for the supply of goods and services, which cannot be excluded, restricted or modified (Non-Excludable Terms). It is agreed by the parties that:

(a) we do not exclude, restrict or modify any of the Non-Excludable Terms;

(b) nothing in this clause or these terms is intended to exclude, or is to be interpreted as excluding, any Non-Excludable Term that cannot lawfully be excluded or disclaimed by us; and

(c) nothing in these terms limits any remedies which may be available to you at law and which cannot lawfully be excluded by us, including in respect of any breach of a Non-Excludable Term which may be applicable.

5.2 Liability

(a) Except as expressly set out in these terms and to the extent permitted by law, we will not be liable to you for any loss or damage of any kind, whether in contract or tort (including negligence) arising in connection with your:

(1) misuse of the Website;

(2) reliance on the Content, where we have included an express disclaimer;

(3) reliance on Third Party Content; or

(4) inability to access or use the Website.

(b) Except to the extent permitted by law, we will not be liable to you for any indirect, incidental, special, exemplary, consequential, or other damages (including, but not limited to, loss of profits, business interruption, loss of program or data) of any kind whether in contract or tort (including negligence), even if foreseeable.

(c) To the fullest extent permitted by law, our total liability to you in respect of all claims made by you under or in connection with these terms (whether arising out of breach of contract, negligence or any other tort, under statute or otherwise) will not in aggregate exceed:

(1) in respect of any Products purchased in an Order, the price paid for that Product; and

(2) otherwise, $100.

(d) Notwithstanding anything else to the contrary in these terms, to the extent we are unable to fully exclude our liability pursuant to applicable law, and to the extent that we are entitled to do so, our liability to you for a breach of any of the Non-Excludable Terms is limited to any one of the following, at our option:

(1) in the case of goods – replacement of the goods or the supply of equivalent goods; repair of the goods; payment of the cost of replacing the goods or acquiring equivalent goods or payment of the costs of having the goods repaired; and

(2) in the case of services – the supply of the services again or payment of the cost of having the services supplied again.

6. Account

6.1 Registration

(a) You may require an account to access certain features on the Website and to purchase certain Products.

(b) You may create an account by registering and providing us with your details to confirm your identity.

(c) To access certain features or offers on the Website, including discounts on Products through the Website, you may be required to provide evidence of your current membership with an Australian diabetes support organisation (Membership). Information about the Memberships we currently accept and how you can access Membership benefits are set out on our Website.

(d) You must ensure that:

(1) you only register one account; and

(2) if you have a single Membership, you do not allow other persons to use your Membership (including using your membership on behalf of another person); and

(3) if you have a family Membership, you only allow up to 5 of your immediate family members to use your Membership when creating their account.

6.2 Login security

(a) We may specify security requirements for your account, such as requiring you to create a password which meets password difficulty requirements, requiring you to use two factor authentication or other security features to access your account.

(b) We may make changes to the security requirements by providing you with notice where we are increasing the security protocols.

(1) protecting your access credentials for your account, including keeping your password confidential; and

(2) any activity though your account if you allow a third party to access your account.

(d) If you believe that your login details (or other security features) have become, or may be, known to anyone other than yourself, or that there has been unauthorised access using your account, you must:

(1) immediately change login details (or other security features); and

(2) tell us as soon as possible.

7. Advertising

(a) We may feature advertisements on the Website, including advertisements from us or third parties. We may include advertising or change the advertising used on the Website.

(b) You acknowledge and agree that, subject to any applicable law, we are not responsible for the content of any third-party advertisements, websites or other materials that may be linked to by third party advertisements, and you access any third party websites and materials at your sole risk.

Part B Terms of sale

8. Orders

8.1 Placing an order

(a) By placing an Order through the Website, you are making an offer to enter into a contract with us to purchase the Products in that Order on the terms and conditions set out in these terms. Each Order is a separate contract.

(b) Orders will be deemed accepted by us at the time we send an order confirmation and tax invoice to your nominated email address, or if you have not provided us with an email address, postal address. It is your responsibility to ensure that the correct email address and contact details are entered with your Order.

(c) If an Order is addressed to a person other than you, you agree to procure the consent of that person to be contacted by us in respect of that Order.

8.2 Order cancellation

(a) In some cases, we may need to cancel your Order. We reserve the right to reject or cancel your Order as set out in these terms, including where your Order does not meet the requirements set out in these terms or where we do not have stock of a Product in your Order.

(b) You may cancel an order before it is dispatched to you by contacting us. If your Order has been dispatched, we will not be able to cancel your Order.

(c) If an Order is rejected or cancelled, we will refund any money paid to us to your original payment method, unless otherwise agreed.

8.3 Payment

(a) All prices displayed on the Website:

(1) are in Australian dollars;

(2) include GST (if applicable);

(3) exclude delivery and handling charges, which will be calculated at the checkout.

(b) You must pay for your Order in full at the time you place your Order via a payment method made available through the Website from time to time.

8.4 Delivery

(a) The delivery options for our Products are set out on the Website, including when you proceed to checkout.

(b) All dispatch and delivery timeframes are estimates only and are subject to stock availability, delivery-service provider availability/delays and events beyond our control.

(c) Your Order may be fulfilled from multiple locations at different times depending on stock availability. You will not be charged any more for delivery in this instance.

9. Availability and Restrictions

(a) From time to time, we may list restrictions on the purchase of Products, including restrictions in respect of age or purchase quantity. Restrictions will be stated on the Product page, in materials about the relevant promotion, at the checkout or as otherwise advised to you.

(b) Some Products may only be available to be purchased by you if you have a Membership.

(c) From time to time, some Products may be out of stock or unavailable and we may not be able to fulfil all or part of your Order. If this happens, we may need to cancel all or part of your Order, in which case we will refund you for the cancelled part of your Order.

(d) We may withdraw or suspend from sale any Product displayed on the Website, either temporarily or permanently, at any time and without notice. We will notify you if an Order is impacted and refund you if we are unable to fulfil an Order.

(e) We can deliver Orders to most locations in Australia. At this time, we do not offer an overseas shipping service.

10. Returns and refunds

10.1 Australian Consumer Law

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

(1) to cancel your service contract with us; and

(2) to a refund for the unused portion, or to compensation for its reduced value.

(b) You are also entitled to choose a refund or replacement for major failures with goods.

(c) If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.

(d) You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

10.2 Refund policy

(a) If you have a faulty or damaged Product in an Order, please contact our customer services team.

(b) We do not offer returns on Products you have purchased if you:

(1) change your mind or make a wrong choice;

(2) misuse the Product or use the Product incorrectly; or

(3) damage or alter the Product or the issue is as a result of reasonable wear and tear.

(1) a description of the Product, the issue and evidence of this issue (such as photographs); and

(2) adequate proof of purchase.

(d) We will assess any request to return a Product and contact you with your options for the Product to be repaired, replaced or refunded. We may require that you return the Product to us.

(e) Where a refund is provided (for any reason), it will be refunded using your original method of payment.

(f) If the Product is found to have a manufacturing fault or was damaged prior to delivery, a replacement product, or a refund (including any associated postage costs to return the Products), will be provided.

(g) If required, you must organise the return of the Product to us and should ensure that you:

(1) retain proof of purchase for postage or transport costs and provide us a copy; and

(2) package the Product so it is well protected during return delivery (original packaging is not required).

11. Discounts and Membership benefits

(a) You may be eligible for discounts where you have a current Membership. If you are eligible, you will receive a specified discount on Products listed on the Website. The discounted prices are listed on our Website and may vary from time to time.

(b) If you hold a Membership, you may be entitled to further discounts and member benefits (such as discounted shipping), as advertised on our Website from time to time.

(d) Promotions offered on the Website may change from time to time, as determined by us in our absolute discretion.

Part C General and Interpretation

12. General

12.1 Deleting your account

You may delete your account by contacting us. Deletion of your account does not terminate these terms.

12.2 Amendment

(a) We may, acting reasonably, amend these terms by providing written notice to you, including by notifying you when you next use the Website.

(b) You may terminate these terms and cease using the Website if you do not agree to the terms of any amendment.

12.3 Waiver

(a) A party may not rely on the words or conduct (including a delay in the exercise, a non‑exercise or a partial exercise of a right) of any other party as a waiver of any right arising under or in connection with these terms (including a right to rely on this clause) unless the waiver is in writing and signed by the party granting the waiver.

(b) A waiver is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

12.4 Severance

If a provision in these terms is wholly or partly void, illegal or unenforceable in any relevant jurisdiction, that provision or part must, to that extent, be treated as deleted from these terms for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of these terms.

12.5 Governing law and jurisdiction

(a) These terms are governed by and are to be construed under the laws in force in South Australia.

(b) Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in South Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these terms and waives any right to object to proceedings being brought in those courts for any reason.

12.6 Entire agreement

These terms embody the entire understanding and agreement between the parties as to its subject matter.

12.7 Relationship of the parties

Nothing contained in these terms shall constitute an agency, partnership, joint venture or employment relationship between the parties.

13. Contact

In the event that you need to contact us regarding these terms, please use the following details:

Diabetes Essentials

[email protected]

Phone 1300 647 302

P O Box 1930 Hilton SA 5033

14. Definitions and interpretation

14.1 Definitions

In these terms:

(a) Content means the contents of and all material made available on or through the Website including our name and logo and any text, code, information, graphics, illustrations, images, videos, documents, and their arrangement.

(b) Generated Content means content generated, created, made or otherwise brought about as a result of using the Website.

(c) Intellectual Property means all rights throughout the world in relation to patents, copyright, designs, registered and unregistered trade marks, trade secrets, know-how and confidential information and all other intellectual property and any right to register those rights, whether created before or after the date of these terms, and in all cases for the duration of those rights and any renewal.

(d) Membership has the meaning given to that term in clause 6.1(c).

(e) Non-Excludable Terms has the meaning given to that term in clause 5.1.

(f) Order means an order you place with us for Products through the Website.

(g) Product means any goods sold by us on the Website.

(h) Third Party Content has the meaning given to that term in clause 3.2(a).

(i) Website has the meaning given to that term in clause 1.1(a).

14.2 Interpretation

(a) In these terms, unless the context otherwise requires:

(1) the singular includes the plural and the plural includes the singular;

(2) a ‘person’ includes any individual, firm, company, partnership, joint venture, an unincorporated body or association, trust, corporation or other body corporate and any government agency (whether or not having a separate legal personality); and

(3) a reference to a person includes an individual, a body corporate and a government.

(b) In these terms:

(1) headings are for convenience and do not affect the interpretation of these terms;

(2) ‘includes’ is not a word of limitation; and

(3) other parts of speech and grammatical forms of a word or phrase defined in these terms have a corresponding meaning.

(1) a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to these terms;

(2) time is to Adelaide, South Australia time;

(3) an agreement or document includes that agreement or document as amended or replaced; and

(4) legislation includes any regulation or instrument made under it and any amended, re-enacted or replacement legislation.