- "Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State fair trading legislation;
- "Canary" means Canary Health - ABN 69 648 193 757.
- "Delivery Area" means a location within Australia.
- "Intellectual Property Rights" means all intellectual property rights (whether created before, on or after the date of these Terms and whether registered or unregistered) in respect of copyright, any patents, trademarks, logos, designs, software, domain names, business or trade name, together with marketing concepts and designs, product knowledge, training systems and materials, protection of confidential information, circuit layouts, inventions, know-how, product or business concepts, details of product development, and any other identifiable result of intellectual endeavour, whether arising under statute or otherwise or any similar industrial property right or any right to, or application for registration of, any of them.
- "Pharmacy Partners" means registered pharmacies that partner with Canary to dispense and supply medications to patients.
- (a) Canary is an ecommerce platform for prescription medication.
- (b) We bring together patients (or their representatives), (you, the Customer) who would like to purchase medication, with community pharmacies, which sell medication.
- (c) Orders placed with Canary are dispensed and supplied by registered community pharmacies based throughout Australia.
- (d) We facilitate the collection of orders and payments on behalf of our Pharmacy Partners, and organise delivery of orders (Services). Canary does not dispense or supply medications directly.
- (a) Our website (Site) is operated by Canary Health - ABN 69 648 193 757 (we, our or us). It is available at: https://canary.health and may be available through other addresses or channels.
- (b) By accessing and/or using the Site or our Services you warrant to us:
- that you have reviewed these terms of use, and our Privacy Policy (available on the Site);
- that you have the legal capacity to enter into a legally binding agreement with us;
- if you are ordering products on behalf of another person, that you have valid authority and consent to order, collect or receive products on behalf of that person;
- if you are ordering products on behalf of another person, that valid authority and consent to disclose their information to us in accordance with our Privacy Policy and communicate with us about their medications;
- that any information that you provide to us under this Agreement is accurate, correct, up-to-date and no information that would be relevant for us to deliver the products, or for a pharmacist to dispense any medicines, has been withheld from us; and
- agree to use the Site in accordance with the terms of use ser out herein (the Terms).
- (c) We and our personnel are not medical practitioners or health professionals, and do not give medical advice, diagnosis or treatment. You acknowledge and agree that nothing in the Services we provide or on the Site may be taken to be medical advice, diagnosis or treatment by us or our representatives, nor are they intended to be a substitute for consulting a qualified medical practitioner. If you have any health or medical issues or concerns you agree to speak with a qualified medical professional prior to using the Site and receiving services from us.
- (d) You accept these Terms by placing an order for products via the Site.
- (e) You must not place an order for products unless you are at least 16 years old.
- (a) You may order products as set out on our Site. When you place an order for products on our Site, you are making an order to purchase the product(s) for the price listed on the Site (including the delivery fees or other applicable charges and taxes).
- (b) We may, at our absolute discretion, accept or reject an order. If we need to reject your order, we will notify you within a reasonable time after your order is placed. Once we accept an order, a binding agreement is formed for the supply of our services to you in accordance with these Terms.
- (c) We may cancel, at any time before delivery and for whatever reason, an order that we have previously accepted, including where there is a considerable delay in dispatching your order, if for any reason we cannot supply the Services you order (for example for an event beyond our reasonable control) or if our Pharmacy Partner is unable to fulfil or supply the order due to stock unavailability, inability to prepare the product for professional reasons, or other reasonable grounds. We will contact you using the details you provided when you placed your order.
- (d) It is your responsibility to check the order details, including selected products, delivery details and pricing, before you submit your order.
- (e) When you order and your payment has been validated, we will provide you with an order confirmation email, which may include an order number, the billing address, a description of what was ordered and the delivery address.
- (a) You must pay us the purchase price of each product you order plus any applicable delivery costs based on the delivery options selected by you as set out on the Site (the Price) in accordance with this clause. All amounts are stated in Australian dollars and are inclusive of Australian GST (where applicable). The Price displayed on our Site includes both the cost of medication and the cost of packaging the medications for delivery, to comply with legal regulations and in accordance with good industry practice. We display delivery cost(s) separately from the product price. The Price for products is subject to change without notice at Canary's sole discretion. Canary reserves the right to change the quoted Price in the event that the Customer's order is varied.
- (b) You must pay the Price upfront using one of the methods set out on the Site.
- (c) You must not pay, or attempt to pay, the Price by fraudulent or unlawful means. In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment and that your payment will be honoured by your card issuer.
- (d) We may offer payment through a third-party provider. You acknowledge and agree that we have no control over the actions of the third-party provider, and your use of the third-party payment method may be subject to additional terms of use.
- (e) You appoint Canary as your limited payment collection agency solely for the purpose of accepting payment from you for orders of Products through the Site.
- (a) Please refer to the delivery information on the Site to ensure you are in a Delivery Area. If you are not in a Delivery Area please contact us to discuss delivery options. We do not deliver outside of Australia.
- (b) Delivery costs are set out on the Site and are to be paid in accordance with the delivery option selected.
- (c) Any delivery periods displayed on the Site are estimates only, based on the information provided by the delivery company and may be subject to delivery delays outside of our control. We will not be liable for any such delays that occur or any loss or damage suffered by you due to a failure by Canary to meet the estimated delivery time.
- (d) If you need to change the delivery address, please notify us immediately in writing.
- (e) We may deliver the products using a range of delivery methods and third party delivery providers, such as Australia Post and courier services. You may need to sign for some deliveries. If neither you nor your authorised representative are at the delivery address to accept delivery, the third party delivery provider will generally deliver the products to a post office, or will return the delivery to the dispensing pharmacy. You agree that Canary will not be liable for the act or omission of any third party delivery provider that delivers the product(s) to you.
- (f) Title to the products will remain with us until you have paid us the Price in full in accordance with the Terms. Until title passes, you must not do anything which seeks to create an encumbrance, lien, charge or other interest in or over the products.
- (g) Risk in the products will pass to you as soon as they are delivered to the delivery address you provided in your order.
- (a) We do not accept returns for change of mind or other circumstances. You may have rights under the Australian Consumer Law (see below) in addition to this clause.
- (b) Where you return the products to us to seek an Australian Consumer Law remedy, you will need to cover any associated costs (for example delivery costs) of you returning the products to us.
- (c) Where your claim is a valid claim under the Australian Consumer Law, we will refund your return delivery costs and, depending on the failure, either dispatch a new product or refund you the Price of the relevant product. Please contact us for further information.
- (a) All intellectual property (including copyright) developed, adapted, modified or created by us or our personnel (including in connection with the Terms and the Services) will at all times vest, or remain vested, in us.
- (b) You must not, without our prior written consent:
- (a) The Customer's purchase of a Product does not confer on the Customer any assignment of any Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Canary, and the Customer agrees that it will not assert any rights in, or challenge Canary's title to, those Intellectual Property Rights.
- (b) Canary makes no representation or warranty to the Customer of any kind, express or implied that the Products will not infringe any intellectual property rights of a third party.
- (c) The Customer acknowledges that Canary retains ownership of all rights, title, interest and goodwill in the Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Canary (including user guides, instruction manuals and other documents).
- (d) Canary grants to the Customer, and the Customer accepts, a personal non- exclusive licence to use the Intellectual Property Rights that subsists in any of the Products or any other materials supplied by Canary (including user guides, instruction manuals and other documents) for the purposes of these Terms.
- (e) Canary shall not be permitted to assign, transfer or sub-licence any of the rights granted to it by Canary to any related party or any unrelated third party without the express consent in writing of Canary. Canary may withhold such consent in its absolute discretion or may grant consent on such terms as it considers fit.
- (f) The Customer shall not re-publish, transfer, copy, reproduce or post on the internet any of Canary's materials without Canary's prior written consent.
- (g) In addition to any other remedies available to Canary under these Terms or otherwise, any unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Intellectual Property Rights will entitle Canary to any available statutory or equitable remedy against the Customer.
- (h) The copyright in the Site, copy, images, logos, indicia, text, content, and unique method of showcasing products is owned by Canary. The domain name https://canary.health or any of the trademarks, logos or other material in which intellectual property rights subsist may not be used in advertising or publicity pertaining to distribution of this information without Canary's prior written consent.
- (i) Trade marks used on the Site which are owned by third parties are used with express permission and remain the intellectual property of the third party.
- (j) You may not modify or copy the layout or appearance of the Site nor any computer software or code contained in the Site. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover or access any source code related to the Site.
- (k) If you correspond or otherwise communicate with Canary, you grant to Canary an irrevocable, perpetual, non-exclusive, royalty-free, world-wide licence to use, copy, display and distribute the content of your correspondence or communication and to prepare derivative works of the content or incorporate the content into other works in order to publish and promote such content. This may include, but is not limited to, publishing testimonials on the Website and developing your ideas and suggestions for improved products or services Canary provides.
- (a) Despite anything to the contrary, to the maximum extent permitted by law:
- our maximum aggregate liability arising from or in connection with the Terms (including the products and/or the subject matter of the Terms) will be limited to, and must not exceed, the portion of the Price paid by you to us for the products the subject of the relevant claim;
- we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; and
- we will not be liable to you for any adverse outcomes or health impacts that arise due to the use of any products ordered through the Site or as a result of providing our ordering and delivery services to you;
whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
- (b) Despite anything to the contrary, to the maximum extent permitted by law, we will have no liability, and you release and discharge us from all liability, arising from or in connection with any:
- loss of, or damage to, the products, or any injury or loss to any person, including allergic reactions or adverse effects from consuming the products;
- failure or delay in providing the products; or
- breach of the Terms or any law,
where caused or contributed to by any:
- event or circumstance beyond our reasonable control; or
- act or omission of you or your related parties,
and, in any event, any defect, error, omission or lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the products.
- (c) Nothing in these Terms attempts to modify or exclude the conditions, warranties and undertakings, and other legal rights, under the Australian Consumer Law. In Australia, our goods come with guarantees which cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Any and all other warranties or conditions which are not guaranteed by the Australian Consumer Law are expressly excluded where permitted, except to the extent such warranties and conditions are fully expressed in these Terms.
- (a) You will at all times indemnify, and agree to keep indemnified, Canary and its directors, officers, employees and agents from and against any loss (including reasonable legal costs and expenses on a full indemnity basis) or liability incurred or suffered by you or by Canary arising from any claim, demand, suit, action or proceeding by any person against you or against Canary where such loss or liability arose out of, in connection with or in respect of your conduct, or breach of these Terms, including any costs of enforcement.
- (a) We collect personal information about you in order to enable you to access and use the Site, provide you with our Services, to contact and communicate with you, to allow you to create an account with us, to respond to your enquiries, to process and dispatch your orders and for other purposes set out in our Privacy Policy.
- (b) Canary's computer server may record details about any computer which is used to access the Site (such as the IP address, operating system and browser type), the date and time of access, and details of the information downloaded.
- (c) We may disclose that information to third party service providers who help us deliver our services (including our Pharmacy Partners, delivery partners, inventory management software, information technology service providers, data storage, web-hosting and server providers, professional advisors, payment systems operators and our business partners) or as required by law (including to the Australian Department of Health and state authorities). If you do not provide this information we may not be able to provide our Services to you. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.
- (d) Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process.
- (e) By providing personal information to us, you acknowledge we will collect, hold, use and disclose your personal information in accordance with our Privacy Policy.
- (a) Disputes: Neither party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with the other party to seek (in good faith) to resolve that dispute (unless that party is seeking urgent interlocutory relief or the dispute relates to compliance with this clause).
- (b) Notices: Any notice given under these Terms must be in writing addressed to us at the details set out below or to you at the details provided when you submitted your order. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
- (c) Feedback and complaints: We are always looking to improve our services. If you have any feedback or a complaint, please notify us on our contact details below and we will take reasonable steps to address any concerns you have.
- (d) Assignment: You must not assign any rights or obligations under these Terms, whether in whole or in part, without our prior written consent.
- (e) Entire agreement: The Terms contain the entire understanding and agreement between you and us in respect of their subject matter.
- (f) Amendment: We may, at any time and at our discretion, vary these Terms by publishing varied terms on the Site. Prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them. For any order that has been accepted by us, the terms of use that apply will be the ones that were in effect (and which you agreed to) when you placed your order.
- (g) Waiver: If Canary does not exercise or enforce any right or provision under these Terms, it will not constitute a waiver of such right or provision. Any waiver of any right or provision under these Terms will only be effective if it is in writing and signed by Canary.
- (h) Force majeure: If the performance of Canary’s obligations under these Terms is prevented, restricted or affected by force majeure including strike, lock out, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of Canary, Canary will not be liable for any loss or damage suffered by you or any other person and Canary will endeavour to give you written notice if the force majeure event has continued unabated for thirty (30) days.
- (i) Governing law: These Terms are governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. The Site may be accessed in Australia and overseas. We make no representation that the Site complies with the laws (including intellectual property laws) of any country outside of Australia. If you access the Site from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place you access the Site.
- (j) Third party sites: The Site may contain links to websites operated by third parties. Unless we tell you otherwise, we do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations with respect to the suitability of those websites.
For any questions and notices, please contact us.