Terms and Conditions

Please read these terms and conditions (the ‘Terms’) carefully before proceeding.

1. About the Website

1.1. This Website and any mobile software application Whiskd provides to access its services (“Website”) provides you with functionality to browse, sell or purchase various baked goods and other products (“Products”) that have been listed by you or other users. Whiskd provides these services by way of granting users access to the content on the Website and facilitating communication and sales between users, customers and Bakers (the “Services”).

1.2. The Website is operated by Whiskd Group Pty Ltd (ABN 36 645 084 322).

1.3 Whiskd does not provide the Products. All Products are supplied by independent sellers (“Bakers”). Whiskd provides the Website and Services only.

1.4 If you sell Products using the Website or Services, you are also bound by the terms of the Baker Terms as amended from time to time, which are incorporated in these Terms.

1.3. Your use of parts of the Website (including those parts of the Website which are accessible to members of the public) also may be subject to disclaimers or additional terms and conditions.

1.4 Whiskd reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Whiskd updates the Terms, it will publish this on the Website. 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.

1.5 Whiskd may in its sole and absolute discretion, for any reason or no reason, and without notice:
(a) alter or withdraw any functionality on the Website;
(b) withdraw or suspend access to all or any part of the Website and any account;
(c) monitor the use of the Website;
(d) subject to any applicable laws, treat any material that you transmit or display as non-confidential and non-proprietary; and
(e) edit or remove any material that you may have uploaded, posted, emailed or otherwise transmitted to the Website or in connection with the Services.

2. Acceptance of the Terms

You accept the Terms by remaining on the Website or using the Services. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Whiskd in the user interface.

3. Using the Services

3.1. In order to access the Services, you may be required to provide personal information about yourself (such as identification or contact details), including:
(a) an email address;
(b) a mailing address;
(c) a telephone number;
(d) payment information; and
(e) name.

3.2. You warrant that any information you give to Whiskd in the course of using the Website or the Services will always be accurate, correct and up to date.

3.3. You may not use the Services and may not accept the Terms if:
(a) you are not of legal age to form a binding contract with Whiskd; or
(b) you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.

3.5 Whiskd may, at its sole discretion and for any or no reason, refuse registration of, or suspend a user account.

4. Your obligations

4.1. As a user, you agree that:
(a) you will use the Services only for purposes that are permitted by the Terms, any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(b) 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 Whiskd providing the Services;
(c) you will not use the Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of other users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(d) 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 Services. Appropriate legal action will be taken by Whiskd for any illegal or unauthorised use of the Website; and
(e) you acknowledge and agree that any automated use of the Website or its Services is prohibited.

4.2 If you wish to buy a Product, you must click the relevant button on the Website and confirm at checkout that you wish to make a purchase. Upon clicking the button to confirm a purchase, you are committing to a contractual obligation to buy the selected Products for the price, and to make such additional payments as may be required, as set out on the Website, and including those imposed by Whiskd, its payment partners and your financial institution.

4.3 Prices displayed are inclusive of all applicable GST. Shipping and any insurance charges will be separately shown, if selected.

5. Buying Products

Listings

5.1. In using the Services to purchase the Product through the Website, you agree to the payment of the purchase price stated on the relevant product listing (“Listing”) on the Website, or for custom Products, as agreed with the Baker (the ‘Purchase Price’).

5.2. Products are made and sold by other users, and the seller of the Product is the Baker on the Listing, and not Whiskd. If you choose to buy a Product, you are entering into a sale and purchase agreement with the Baker, and not Whiskd.

5.3 Whiskd does not make any warranty or representation in connection with Products advertised on the Website or bought and sold via the Services and accepts no liability in connection with those Products.

5.4 Whiskd does not examine, verify or review any descriptions, representations or photographs in connection with the Products listed for sale on the Website. This includes but is not limited to representations by the Baker (whether or not in a Listing) as to the Product’s condition, appearance, value, quality, ingredients, materials, suitability or fitness for purpose.

Product specifications

5.5 Users must always check with the Baker before making a purchase that the Product meets their individual needs, including allergen and dietary requirements.

5.6 If a user elects to purchase a customised Product, this must be negotiated in advance with the Baker, with all specifications and other requirements clearly stated.

Regulation

5.7 Users should note that the manufacture and sale of certain Products available via the Services may require licensing or regulation in the place of manufacture and sale, or the place of consumption. Users must satisfy themselves that all licensing and regulatory requirements have been met, and if in doubt, should check with the Baker.

5.8 Due to differing licensing and regulatory requirements and the online nature of the Services provided, Whiskd does not check or verify that a Baker holds any necessary licensing and does not undertake any responsibility to determine food safety or handling standards have been met. If in doubt, users should request this information from the Baker and satisfy themselves prior to making a purchase.

Payment

5.9 Payment of the Purchase Price may be made through one of the following providers:
(a) Paypal
(b) Stripe; or
(c) Any other payment method we may offer from time to time
(the ‘Payment Gateway Providers’)

5.10 In using the Services, you warrant that you have familiarised yourself with, and agree to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Providers.

5.11. Users who make a purchase must make full payment for Products via the methods offered by Whiskd from time to time. Purchases are not confirmed until Whiskd (or the Baker as the case may be), has confirmed receipt or verification of payment. All payments must be made, and will be taken, in Australian dollars.

5.12 Following payment of the Purchase Price, you will be issued with a receipt to confirm that the payment has been received.

Delivery

5.13 Delivery methods and charges are set out in the Listing, and delivery services are provided by the Baker. If the Products are being shipped to an address that is not in the same state or territory as the Baker you or the addressee will be responsible for paying any other charge, tax or impost or levy imposed by any applicable government agency in the addressee’s state or territory.

Complaints

5.14 You acknowledge and agree that Whiskd only provides the platform to deliver the Services. If you have a complaint about, or a dispute in relation to the Product, delivery or Baker, you agree to raise the complaint or dispute directly with the Baker and not Whiskd. You indemnify and hold Whiskd harmless from any claim, loss or damage in connection to the Product. While Whiskd may provide you with the contact details of the Baker to facilitate the raising of your complaint or dispute, doing so does not require Whiskd to take any further action in connection with the complaint or dispute and does not imply that Whiskd accepts any liability.

Communication between users

5.15 As part of the Services, Whiskd provides users with contact information and functionality to enable communication between users. Whiskd has no control over the content of any such communication, does not warrant that the communication will be safe, secure or accurate. Users should not provide financial or other sensitive information via the internet (outside of a Payment Gateway Provider and subject to its terms) as there is an inherent risk of interception. Any transfer of information is at the disclosing user’s sole risk.

Reviews and comments

5.16 Whiskd may provide users the functionality to place reviews and comments on other users’ profile or Listings. While Whiskd does not routinely review the content of reviews and comments, it may at its sole discretion, edit, amend or delete any part or the whole of a review or comments for any reason, including but not limited to that content being illegal, threatening, improper, false or objectionable.

5.17 All comments and reviews become the sole property of Whiskd upon submission.

6. No other warranties and limitation of liability

6.1 To the extent permitted by law, Whiskd excludes all representations and warranties, express or implied, other than those contained in these terms and conditions. Where Whiskd is found to be liable for breach of any warranty or condition implied by statute and which it cannot lawfully exclude (such as under the Competition and Consumer Law Act 2010 (Cth), Whiskd’s liability is limited (to the extent permitted by law) at its option to the following:
(a) in the case of goods supplied or offered by it:
(i) to the supply of those goods again; or
(ii) to the payment of the cost of having those goods supplied again; or
(b) in the case of services supplied or offered by it:
(i) to the supply of the services again; or
(ii) to the payment of the cost of having services supplied again.

6.2 Whiskd, its related bodies corporate, its directors, and its employees accept no liability for any loss (including loss of revenue or anticipated profits, loss of goodwill, loss of business, loss of data, computer failure or malfunction), or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of:
(a) a user’s use of or inability to use the Website or Services,
(b) any virus or other harmful, or potentially harmful, code which may be transmitted in connection with use of the Website or Services;
(c) any information available on or through the Website or on or through any website to which there is a link from the Website; or
(d) Whiskd’s negligence or the negligence of any of its related bodies corporate, directors, officers, shareholders, employees, provider institutions or agents.

6.3 Whiskd 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 Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

6.4 Without limiting 6.1, 6.2 or 6.3, Whiskd’s total liability shall be limited to the amount paid by a user in respect of a disputed transaction.

7. Copyright and Intellectual Property

7.1 The Website, the Services, trademarks and all of the related material are the intellectual property of Whiskd. The material on the Website is protected by trademark law and copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all intellectual property rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the ‘Content’) are owned or controlled for these purposes, and are reserved by Whiskd or its contributors.

7.2 Whiskd retains all rights, title and interest in and to the Website and Services 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, trademark, industrial design, patent, registered design or copyright of Whiskd; or
(b) the right to use or exploit a business name, trading name, domain name, trademark or industrial design; or
(c) a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).

7.3 You may not, without the prior written permission of Whiskd and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose. This prohibition does not extend to materials on the Website which are freely available for re-use or are in the public domain.

8. Privacy

8.1 Whiskd takes your privacy seriously and any information provided through your use of the Website or connected with the Services are subject to Whiskd’s Privacy Policy, which is available on the Website.

8.2 You acknowledge and agree that Whiskd may use, store and disclose their personal information to other users for the purposes of providing the Services, and specifically in connection with a dispute or complaint raised by another user.

9. General Disclaimer

9.1 You acknowledge that Whiskd does not make any guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.

9.2 Use of the Website, the Services, and any of the products of is at your own risk. Everything on the Website, the Services, and the Products of Whiskd, 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 make any express or implied representation or warranty about its content or any products or Services (including the products or Services of Whiskd) 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 Services, 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 Services or any of the Products;
(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.

10. Termination of Terms

10.1 If you want to terminate the Terms, you may do so by:
(a) notifying Whiskd at any time; and
(b) closing your accounts for all of the Services which you use, where Whiskd has made this option available to you.
Your notice should be sent, in writing, to Whiskd via the ‘Contact Us’ link on our homepage.

10.2 Whiskd may at any time, terminate the Terms with you by notifying you at the contact details we hold.

10.3 Termination of the Terms does not affect any rights or obligations that arose before the date of termination, or that survive termination.

11. Indemnity

You indemnify Whiskd, its related bodies corporate, their officers and employees, and service
providers from and against all:
(a) liability to any third party (including Bakers);
(b) damage to property; and
(c) other liability, damage or loss, including consequential loss;
insofar as the injury, damage or other liability, damage or loss is attributable to your
negligence, breach of these terms and conditions, or unlawful or wilful action in connection
with these terms and conditions, their performance, or the failure to perform them.

12. Disputes with Whiskd – Resolution Process

12.1 Before court or arbitration proceedings other than for urgent interlocutory relief may be commenced, the following steps must be taken to attempt to resolve any dispute that arises out of or in connection with this contract (including any dispute as to the validity, breach or termination of the contract, or as to any claim in tort, in equity or pursuant to any statute).

12.2 Notice (the notice of dispute) must be given in writing by the party claiming that a dispute has arisen to the other party (or parties) to this contract specifying the nature of the dispute.

12.3 Upon receipt of the notice of dispute, the parties must attempt to agree upon an appropriate procedure for resolving the dispute.

12.4 If within 10 business days of receipt of the notice of dispute the dispute is not resolved, then the parties shall agree on a mediator, of failing agreement on a mediator, refer the dispute to a person appointed by the New South Wales Small Business Commission (NSWSBC), for facilitation of a mediation in accordance with the NSWSBC’s mediation rules.

12.5 The parties must co-operate with the NSWSBC and the mediator.

12.6 The parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The parties must each pay their own costs associated with the mediation

12.7 The mediation will be held in Sydney, New South Wales.

12.8 All communications concerning negotiations made by the parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.

12.9 This clause will remain operative after the contract has been performed and notwithstanding its termination.

13. Venue and Jurisdiction

The Services and Website offered by Whiskd are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Service, Products or the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.

14. Governing Law

These 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, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. These Terms shall be binding to the benefit of the parties hereto and their successors and assigns.

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. Revisions and Errata

The content appearing on the Website could include technical, typographical, or photographic errors. Whiskd does not warrant that any of the content on the Website is accurate, complete, or current. Whiskd may make changes to the content contained on the Website at any time without notice. Whiskd does not, however, make any commitment to update the content.

27. Links and Advertising

Whiskd has not reviewed the sites linked to or from the Website or third-party advertising. All links and advertising provided are for your convenience only, and Whiskd is not responsible for the content of any such linked site or advertising. The inclusion of any link or advertising does not imply endorsement by Whiskd of the site. Use of any such linked website or advertising is at your own risk.

 
BAKER TERMS

These terms apply if you are a Baker, in addition to the general Terms of use.

1. Registering as a Baker

1.1 In order to sell Products via the Website and Services (“Online Sales”), you are required to register an account (“Account”).

1.2 To register we require at least the following information as determined by us from time to time:
(a) name;
(b) address;
(c) payment details;
(d) account name; and
(e) Payment account details

1.3 We may reject your application for or renewal of an Account, at our discretion.

1.4 We may suspend or terminate your Account for any breach of agreement or failure to comply with our reasonable directions.

1.5 We need not accept any Product for Online Sales, or we may reject it after acceptance at any time, and we need not provide any reason.

1.8 Unless otherwise agreed with us in advance, you may only offer baked goods manufactured by you for sale.

1.9 Account names must not be:
(a) misleading or deceptive;
(b) offensive;
(c) in violation or any law or third party rights.

1.10 You are solely responsible for activity on your Account and shall be responsible for maintaining the confidentiality of the Account password. No sharing of Accounts is permitted.

2. Ingredients

2.1 You must only use ingredients that are fit for human consumption and which are approved for use in the Product you offer for sale.

2.2 You must not warrant or represent (whether or not in a Listing) to any user of the Website or Services that your Products are “nut-free” or are otherwise free of allergens.

2.3 You must not warrant or represent that your Product meets any specific dietary requirement such as kosher or halal certification, unless you can evidence such certification to the customer’s satisfaction.

2.4 You may not sell liquor unless you have the appropriate licence or fall under an appropriate exemption.

2.5 Your Products must only include ingredients that you have disclosed to the potential customer.

3. Listings

3.1 Bakers are solely responsible for creating their Listings within the format provided by Whiskd, and for setting the price (Price). The Price must be a genuine price for which the goods or services are available, must be accurate at all times and must not include misleading or deceptive information such as false discounts.

3.2 The content and material related to a Listing must not contain unauthorised third party intellectual property, or unauthorised material that is subject to other third party proprietary rights.

3.3 Whiskd may, at its sole discretion and for any or no reason, delete, edit, modify, reformat, excerpt, or translate any material or content related to a Listing.

3.4 Bakers acknowledge that Whiskd may establish general practices and limits concerning use of the Services, including without limitation the maximum period of time that data or other content will be retained by Whiskd and the maximum storage space that will be allocated to a Listing.

3.5 Whiskd may at its sole discretion for any reason or no reason, terminate any Listing at any time without notice or compensation.

3.6 By submitting a Listing, Bakers are making a binding offer to sell the listed Product to a customer who purchases the Product for the Price. When a customer accepts an offer by purchasing a Product, Bakers are contractually bound to deliver that exact Product for the Price and within the required delivery timeframe. Whiskd is not a party to the contract of sale and purchase between the Baker and the customer.

3.7 Bakers are obligated to monitor Product inventory and ensure all Listings are accurate. Without limiting any other remedy available to Whiskd under this agreement, any fraud on the part of the Baker, failure to fulfil orders or breach of this agreement may lead at Whiskd’s sole discretion to chargebacks and charges payable by the Baker.

3.8 Bakers warrant that they will provide a true and correct description of the Products in each Listing and in any representation made to the customer.

3.9 If a Listing or representation is deemed by Whiskd, acting reasonably, to be misleading or deceptive, then Bakers agree that any associated orders by customers may be cancelled and Bakers may be charged fees and lose the right to receive payment for those Products

3.10 Bakers acknowledge and agree that Whiskd has no responsibility, duty or obligation to review the accuracy of any Listing or representation to a customer.

3.11 It is the Baker’s sole responsibility to ensure compliance with any legal restrictions placed on the manufacture and sale of Products, whether in the Baker’s home city, state, territory or country or in any other city, state, territory or country. Whiskd is not responsible for Bakers’ compliance with any such applicable laws. If the sale of Products breaches third party rights applicable to such Products, then Bakers should not list them for sale. Whiskd does not accept any liability for Products listed by Bakers in breach of any third party rights applicable to such Products and Bakers shall remain solely responsible to the relevant parties for any consequences of listing Products in breach of such terms and conditions.

3.12 Failure to provide full and accurate details in a Listing may lead to Whiskd or customers suffering loss or damage and Bakers agree to indemnify and hold harmless Whiskd and customers from and against all losses, liabilities, damages, fines, expenses and costs arising out of or in connection with a Baker’s failure to provide full and accurate details of Products in a Listing or representation.

3.13 Bakers warrant to and for the benefit of Whiskd and the customer, the following:
(a) Each Product and related information that appears in a Listing or representation is:
(i) accurate and authentic in all respects;
(ii) safe for human consumption;
(ii) fully transferrable;
(iii) available for immediate sale at the price listed;
(iv) not stolen, counterfeit or in any way contains fraudulent, inaccurate or misleading information;
(vi) not offered for sale in breach of law or third-party rights; and
(vii) available at the nominated location, or deliverable to the locations specified within the agreed delivery period
(b) In offering Products for sale via the Website and Services, Bakers are complying with all applicable laws, regulations and codes of practice including, but not limited to, consumer or other legislation which regulates the activities of the Baker or which may be applicable to the manufacture, sale or resale of Products within any relevant territory, state or country; and
(c) All information Bakers provide to Whiskd when applying to become a Baker or at any time thereafter is true and accurate in all respects.

3.14 Bakers may set their own additional terms and conditions in relation to a Product but only if:
(a) such terms and conditions do not conflict with these Baker Terms or the general Terms of use; and
(b) All additional terms and conditions are clearly displayed in a Listing and available prior to purchase.

3.15 Bakers may not change terms or impose additional terms to a Product after it has been purchased.

3.16 Bakers are responsible for shipping the Products to the customer in a suitable manner. If there is an extra charge for shipping or insurance you must clearly state this before accepting payment from a buyer.

3.17 From time to time Bakers may receive communications from customers either directly or via the Website. Bakers must take all reasonable steps to respond to such communications in real time or as soon as reasonably practicable.

3.18 Bakers are not the employees, partners, contractors of, or joint venturers with Whiskd.

4. Fees payable by Bakers to Whiskd

4.1 Whiskd charges Bakers a Service Fee in exchange for providing the Services, payable only when a Product is sold and which is deducted from the Price displayed to the customer before payment is made to the Baker, less any additional transaction fees.

4.2 Bakers agree to pay the Service Fee to Whiskd for providing the Services. The current fee is set out on the Website, and is not refundable, subject to the requirements of the Competition and Consumer Law Act 2010 (Cth).

4.3 The Service Fee is set out on the Website and may be changed from time to time.

5. General indemnity and exclusion of liability

5.1 You are solely responsible for setting the Price, describing the Product, manufacturing and selling it. Whiskd does not verify or review the Product, and you hold us harmless and indemnify us in full from any claim, loss or damage (including consequential loss) in connection with your breach of the Baker Terms, the general Terms, your description, manufacture, proposed sale or sale of the Product, to the extent that we have not contributed to that loss or damage.

5.2 We are not 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 these Baker Terms or the transactions contemplated by them, whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.

6. Customer complaints or disputes

6.1 In the case of any complaint or dispute, you agree that you will respond promptly to the customer.

6.2 You agree that we may share your name and contact details with any customer in connection with the sale of the Product.