This platform, accessible at kloopr.com and its related services, products, websites, platforms, tools and applications (“Platform”) is owned and operated by Kloopr Australia Pty Ltd ACN 619 806 521 (“Kloopr Australia”). Please carefully read this Agreement including the disclaimer in clause 16. If you do not agree to the terms of this Agreement, please do not use the Platform. By accessing and using the Platform you agree to the following terms. We may update these terms from time to time at our discretion without notice to you. The updated terms come into effect upon publishing. Accordingly, each time you use our Platform you should revisit this Agreement.
1. DEFINITIONS & INTERPRETATION
In this Agreement unless inconsistent with the context or subject matter:
(a) Account means a User’s online account to use our Platform;
(b) ACL means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
(c) Agreement means this document;
(d) Applicable Laws means any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you are located or which in any way govern or affect the use of the Services;
(e) Confidential Information of a party means all information (in any form):
(i) relating to or arising from the Services;
(ii) that concerns a party’s business operations and which any reasonable person would consider to be of a confidential nature (such as trade secrets, methods, strategies, pricing, and other business processes); and
(iii) includes this Agreement;
but does not include information that:
(iv) is or becomes independently developed or known by the other party through no breach of this Agreement by that party; or
(v) becomes publicly available without breach of this Agreement.
(f) Content includes written and visual content used in connection with the Services and on the Platform including any material, text, pictures, sound, image, artwork, computer code, graphics, video and other data;
(g) Customer means a User who uses the Platform to search, view and place Orders with Merchants;
(h) Delivery Driver means the independent third party who may deliver Orders;
(i) Delivery Services means the services in connection with delivering the Orders to the Customers as contemplated by this Agreement;
(j) Delivery Vehicle means the vehicle used by the Delivery Driver to perform the Delivery Services;
(k) Intellectual Property means all intellectual property rights, including without limitation inventions, patents, copyright, trademarks, know-how, processes, concepts, including our Content, the Platform and any other platform developed by us and the source code for those systems and any application or right to apply for registration of any of the these rights throughout the world whether registered or unregistered and whether developed before or after the date of this Agreement;
(l) Kloopon Rewards Program means the reward program as specified in clause 19;
(m) Kloopon means the Kloopon earnt in the Kloopon Rewards Program;
(n) Merchant means a third party User who registers themselves as a Merchant on the Platform and sells, supplies and/or provides their Products on the Platform;
(o) Order means an order placed by a Customer for Products on the Platform;
(p) Our, us and we means Kloopr Australia and its related entities and related bodies corporate (as defined in the Corporations Act 2001 (Cth)) and its officers, personnel, subsidiaries and affiliates;
(r) Products means any products made available for sale by the Merchant on the Platform from time to time, including food;
(s) Services means any services and products we provide to you, including but not limited to the provision of the Platform and related functions and services;
(t) User means any person who uses the Platform and includes Customers, Merchants and Delivery Drivers; and
(u) You and your means a user of the Services.
In this Agreement, unless inconsistent with the context or subject matter:
(a) a reference to a person includes any other legal entity and vice versa;
(b) words importing the singular number include the plural number and vice versa;
(c) a reference to a party includes the party’s heirs, executors, successors and permitted assigns;
(d) headings are for reference purposes only;
(e) where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
(f) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
(g) unless otherwise stated, a reference to a monetary amount is a reference to an Australian dollar currency amount; and
(h) an obligation of two or more parties binds them jointly and each of them severally.
2. USING THE PLATFORM
2.1 The Platform provides a delivery platform through which Customers are able to search, view and place Orders with Merchants and have their Orders delivered by a Delivery Driver.
2.2 Your use of the Platform is by personal, non-exclusive licence granted by us strictly in accordance with this Agreement to use the Platform for purposes as contemplated in connection with this Agreement for your sole use as a licensee.
2.3 Our Services are available only to, and may only be used by, persons who can form legally binding contracts under Applicable Laws. If you do not qualify, you must not use our Services.
2.4 If you wish to be a Delivery Driver, you must register to create an Account (as detailed below). As a Delivery Driver you are not an agent of ours, and you shall not have any right or power to enter into contracts on our behalf. On registration we may be required to collect proof of identification, perform background searches and we may request any other information necessary to register your Account. You authorise our collection, use and disclosure of this information for verification and security purposes. You must immediately notify us within 7 days of any change to your application form details or if there is anything that may give rise to a suspected breach of this Agreement.
2.5 You acknowledge and agree that we do not provide Products nor are we responsible for the preparation, packaging or delivery of Products that are supplied in an Order. Our responsibility is limited to the Services provided in providing a platform to enable you to connect with Merchants and deliver their Orders to Customers. All such supply of Products is provided by independent third parties.
2.6 Any arrangements entered into with a Merchant is outside the scope of the Service provided by us. Our Services are limited to providing a delivery platform as outlined above.
2.7 Subject to you complying with these terms, we will provide the Services to you as set out in these terms.
3. PROVISION OF DELIVERY SERVICES
3.1 Once your application for registration is accepted, you will be able to access the Platform to view and accept Orders that are required to be delivered from Merchants to Customers.
3.2 When the Platform is active, you will see requests for delivery of Orders, if you are available and within the vicinity of the Merchant in accordance with the prompts on the Platform. If you accept an Order request for delivery, the Platform will provide you with certain information (including the delivery location). You are under no obligation to accept any delivery orders, and you will have no set schedule or time in which you must perform Delivery Services.
3.3 In delivering the Order you must wait at least 5 minutes for the Customer to show at the requested delivery location.
3.4 You acknowledge and agree that:
(a) you are solely responsible for determining the most effective, efficient and safe manner to deliver the Order;
(b) you are solely able to accept or decline any request for delivery;
(c) you are responsible for the acquisition, cost and maintenance of your Delivery Vehicle, equipment and smart device to be able to perform the Delivery Services (including ensuring that you have adequate charge on your device);
(d) you must not perform the Delivery Services under the influence of drugs or alcohol, and you must comply with all laws when undertaking the Delivery Services;
(e) you must follow guidelines that we release on the Platform to ensure your capacity to perform the Delivery Services is managed (for example if we release a limit on the number of Orders you may collect);
(f) you are responsible for all charges, penalties and fines relating to your usage of the Delivery Vehicle;
(g) you are responsible for the necessary wireless data plan to access the Platform and any costs associated with that plan. We are not liable for any fees, costs or charged associated with your usage on any plan.
3.5 You acknowledge that any arrangement or communication entered into with a Merchant to deliver an Order is solely at your own risk and creates a direct contract between you and the Merchant. You are solely responsible for the obligations and liabilities that arise out of this contract. We are not a party to any arrangement entered into. We have no control, influence or involvement in such arrangements and as noted before our responsibilities are limited to facilitating the availability of the Services.
3.6 Your legal rights in connection with the provision of Delivery Services is against the Merchant that offers the Products for sale and not us (except to the extent that it is caused by us). Specifically if, for any reason, any Merchant does not fulfil any obligations for which you have contracted, your rights are against that Merchant and not against us.
3.7 We do not guarantee the completeness, accuracy, currency or reliability of any information provided by Merchants and/or Customers. You must make your own investigation in the accuracy of the information.
4. LOCATION SERVICES
4.1 You acknowledge and agree that you must provide the Platform with your geo-location information and that we may use this information as reasonably necessary in the performance of providing the Services. This includes:
(a) sharing your location to other Users of the Platform; and
(b) sharing your location as necessary to third parties to monitor and track for safety and security purposes.
4.2 If access to the Platform is running in the background on a device we may have continuous access to your geo-location information.
5. DELIVERY DRIVER OBLIGATIONS
5.1 In using the Platform and/or Services you acknowledge and agree that:
(a) the information you provided in an application form, posted on the Platform or otherwise provided to us and/or a Merchant and/or a Customer is valid and correct in all respects, and that you have not engaged in misleading or fraudulent conduct (for example your licence details must be valid);
(b) you must at all times hold and maintain a valid driver’s licence with appropriate level of certification to operate your Delivery Vehicle (if necessary);
(c) you may be subject to certain background checks;
(d) no conditions attached to any registration or qualifications that you hold will be breached through the provision of the Delivery Services;
(e) if you have represented to a Merchant that you are able to deliver Orders to Customer you must be able to provide those services under all Applicable Laws;
(f) in providing Delivery Services you agree to provide the services with due care and skill with a high degree of quality and responsiveness and to a standard that complies with all Applicable Laws, ordinances, regulations, standards (including industry standards) and codes that would reasonably be expected of an expert and experienced delivery provider in a similar position;
(g) you must maintain high standards of honesty, integrity and business ethics;
(h) your Delivery Vehicle must be suitable for performing the Delivery Services and consistent with industry safety and maintenance standards for a vehicle of its kind;
(i) you are only permitted to use Customer’s information for the purposes as contemplated by this Agreement. You are not permitted to resell, broker or otherwise share contact information of any Customer to any third party in whole or part (except where authorised). Any information provided by the Customer to you is confidential in nature and you must take reasonable steps to protect the confidentiality of such information;
(j) any communications entered into between you and a Merchant and/or Customer is at your own risk;
(k) any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third parties will be limited to a claim against the particular Users or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from us with respect to such actions or omissions;
(l) we provide the Platform only as an introductory tool as above specified and we are not responsible for any negotiations, agreements or disputes arising as a result of any communication or arrangement entered into with a Merchant and/or Customer;
(m) we have the right to share your information that you provide to us with Merchants and/or Customers; and
(n) we assume no responsibility for a Merchant and/or Customer’s compliance with Applicable Laws.
5.2 We strongly encourage that you conduct enquiries and undertake your own due diligence in respect of any Merchants and/or Customers prior to contracting with them in order to ensure that the information they provide you is correct and they are able to comply with their obligations.
6. PROHIBITED USE
6.1 Your use of the Platform, our Services, and information you provide must not:
(a) be false, inaccurate or misleading;
(b) be fraudulent or deceptive;
(c) infringe any third party’s copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy;
(d) violate any Applicable Laws (including those governing consumer protection, unfair competition, criminal law, anti-discrimination or trade practices law);
(e) be defamatory, libellous, unlawfully discriminatory, threatening or harassing;
(f) be obscene or contain comments of a religious, political or social nature;
(g) contain any viruses, trojan horses, worms, time bombs, trap doors, back doors, easter eggs, spiders, robots, screen scrapers, data aggregation tools or other devices or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of the Platform;
(h) create liability for us or cause us to lose (in whole or in part) the services or custom of our internet service provider, other Users or other suppliers;
(i) damage the credibility or integrity of the Platform or Kloopr Australia, or dilute, tarnish, or otherwise harm our brand in any way;
(j) breach or violate any of our policies;
(k) copy, store or otherwise access or use any information contained on the Platform for purposes not expressly permitted by this Agreement;
(l) use the Platform for any purposes that are not permitted by this Agreement or in any way that is inconsistent with the purpose of the Platform, or in a manner that falsely implies Kloopr Australia endorsement, partnership or otherwise misleads others as to your affiliation with Kloopr Australia;
(m) use our Platform in connection with the distribution of unsolicited commercial email (“spam”) or advertisements;
(n) attempt to gain unauthorised access to the Platform or computer systems or networks connected to the Platform through any means;
(o) interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform;
(p) reverse engineer, decompile or disassemble the Services or the Platform or any part thereof;
(q) tamper with, hinder the operation of or make unauthorised modifications to the Platform or any part thereof;
(r) collect, store, input, upload, post, disclose or transmit personal information or data about others, including, without limitation email addresses;
(s) stalk or harass any other User or collect or store any personally identifiable information about any other User;
(t) be in a way that violates these terms;
(u) be for unlawful or dangerous activities or purposes;
(v) be in a manner that directly or indirectly attempts to circumvent payment of any fees.
7. COMPLIANCE WITH LAWS
7.1 You must at all times and at your own cost:
(a) comply with all Applicable Laws and all industry codes of conduct, occupational health and safety laws and privacy and data protection laws in respect of the supply of the Products;
(b) obtain and maintain all licenses, authorisations, consents, approvals and permits that are required by Applicable Laws to be held by you in order for you to provide the Products.
8.1 Whilst you remain a Delivery Driver on the Platform, you must maintain at your own cost insurances with a reputable insurance company that covers all risks that a reasonable person carrying on the Delivery Services would be likely to insure against and any insurances required under any Applicable Laws. For the avoidance of doubt, unless otherwise agreed, you must maintain at a minimum the following insurances:
(a) motor vehicle insurance that provides protection against bodily injury and property damage to yourself and to third parties in respect of the Delivery Vehicle (if necessary) at levels of coverage that satisfy the requirements under Applicable Laws;
(b) personal insurance that provides protection in the event of serious injury or illness, loss of ability to earn, total and permanent disablement or even death; and
(c) workers compensation insurance as required under Applicable Laws.
8.2 We may hold certain insurances that may extend to protect your interests, or alternatively we may make a group insurance policy available which you can avail yourself of. In the event we do this, you are solely responsible for complying with the conditions of the insurance and we make no warranties or representations in respect of the insurance policy or its adequacy to protect your interests. Although during the Term we may maintain insurance related to the services you provide under this Agreement (in our sole discretion) we have no obligation to maintain or provide you with any specific insurance. We may cancel any insurance we offer at its discretion at any time.
8.3 You acknowledge and agree that it is solely your responsibility, and not ours, to ensure that you are adequately insured and that you understand the scope and application of your insurance. The matter of insurance is solely at your risk. We will not be responsible for any loss as a result of your failure to comply with Applicable Laws or to be adequately insured.
8.4 You must provide us within 2 business days of request a certificate of currency for any insurance required to be held by you.
(a) Subject to your performance of your obligations under this Agreement, we agree to pay you the delivery fee, as stated on the Platform at the time the Service is provided, for each delivery made for Orders of a Merchant’s Products, on behalf of that Merchant into your nominated bank account. For the avoidance of doubt, we may deduct our fee for providing you with the Services from the delivery fee.. Our fees (if any) will be as stated on the Platform from time to time.
(b) You appoint us solely to collect this amount on your behalf, and it is agreed that payment made from us to you (on behalf of the Merchant) will be considered as payment made directly from the Merchant to you. The Merchant is solely responsible for the payment of any fees to you.
(c) Unless we specify otherwise, payment will be made to you on a fortnightly basis. We will provide you with an invoice and statement shortly after payment is made. You will be able to view all statements and invoices on the Kloopr website or App.
(d) You are solely responsible for collecting and remitting any value added, use or sales taxes owed in connection with this Agreement.
(a)You authorise us, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud. This may include asking you to provide a form of government identification (e.g. driver’s license or passport), your date of birth, and other information requiring you to take steps to confirm ownership of your email address and payment methods.
10.1 In the event that you have received a complaint from a Customer and/or Merchant, you acknowledge and agree that, if requested by us:
(a) you must provide us with details of the complaint;
(b) you must, acting reasonably, do all things and provide all information necessary to resolve the dispute;
(c) you authorise us to liaise with the Customer and/or Merchant in order to ascertain the issues; and
(d) you must notify us of how the complaint is being handled.
10.2 Notwithstanding the above, you acknowledge and agree that:
(a) any terms and conditions relating to the Delivery Services via the Platform are solely between you and the Merchant and do not involve us in any way; and
(b) if you have a dispute with a Merchant, you must resolve the dispute directly with the Merchant. We are not a party to any dispute in any way, notwithstanding that we may be provided with details of the dispute.
11. YOUR ACCOUNT
11.1 To access and use the Platform, you may need to register with us and set up an account with your email address and a password. You are solely responsible for maintaining the confidentiality of your password and you are liable for all activities that happen under your account, even if you do not authorise such activities.
11.3 When you notify us of your account being accessed without your authority or your account not being secure, we may restrict your use of the Services in our absolute discretion.
12. ACCESS AND TERMINATION
12.1 We reserve the right, at any time and without prior notice, to remove or disable access to this Platform or any part of it, including your Account, for any reason and you agree that we are not liable for any loss suffered by you or any third party as a result of the removal or disablement of this Platform.
12.2 This Agreement will continue to apply until terminated or superseded by us. You can terminate your agreement with us by discontinuing your use of the Services at any time. You do not need to inform us if you choose to discontinue use of the Services. No refunds of any fees paid by you to us will be provided.
12.3 We may also terminate our agreement with you or cease providing all or any part of the Services immediately without notice to you if:
(a) you breach any of the terms of this Agreement or act in a manner that demonstrates you are unable to or do not intend to comply with them, in our opinion;
(b) you or we receive a complaint from a Merchant and/or Customer about you;
(c) you are on more than two occasions in a calendar month unable to deliver Products to a Customer;
(d) where we are required to by law, for example due to a change in law governing the Services;
(e) the Services relies on data or services provided by a third party partner and the relationship with such partner has expired, been terminated or altered in a manner which we consider to be adverse;
(f) an event occurs in which we (acting reasonably) have significant concern for our reputation or our brand (including but not limited to matters of safety);
(g) provision of the Services is no longer commercially reasonable to us; or
(h) where you are no longer qualified to provide the Delivery Services or to operate the Delivery Vehicle (if required).
12.4 Following termination you must no longer represent yourself as being connected in an way with our business, and in particular shall no longer perform Delivery Services in connection with the Platform or attempt to be a Delivery Driver.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 You acknowledge and agree that:
(a) we own all Intellectual Property of the Platform and no right, title or interest in any of the Intellectual Property is transferred or granted to you, except so far as expressly stated in this Agreement;
(b) you will not copy, reproduce, alter, modify, create derivative works, or publicly display any of our Intellectual Property unless with our prior written consent or the appropriate third party authorised to grant such permission and when doing so you must acknowledge us and, in the case of websites, include a link from the website to the Platform;
(c) you must not try to register or claim ownership over any of our Intellectual Property;
(d) any works, items, materials or information of whatever nature produced or developed or discovered in connection with the Platform shall remain our sole and exclusive property, whether such property is tangible or is in the nature of industrial and intellectual property rights (including copyright and rights of confidential information) and you will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in such additional or further property to us;
(e) you acknowledge that when you provide us with Content, we may receive additional related data, such as the time, date and place you provided the Content;
(f) when you provide us with Content (including reviews and testimonials) you grant to us a worldwide, perpetual, irrevocable, full paid-up, transferable, non-exclusive licence to use, reproduce, modify, adapt and communicate it in connection with the Services;
(g) you warrant that any Content you provide us with will not infringe any intellectual property rights of any third party nor give rise to any liability to make royalty or other payments to any third party;
(h) we are not liable or responsible for any loss that you may experience in submitting Content to us or for our use of your Content in accordance with the licence granted.
13.2 Any of the foregoing, whether merely attempted or successfully executed, is a material breach of this Agreement and your use of the Services will be immediately terminated without notice or compensation to you.
13.3 We may in our sole and absolute discretion refuse or remove any Content from the Platform.
14.2 By using the Platform you acknowledge and agree that internet transmissions are never completely private or secure and understand that any message or information you send to the Platform may be read or intercepted by others.
14.3 You authorise us to use, store or otherwise process any information including personal information which relates to and/or identifies you, to the extent reasonably necessary for the provision of the Services requested by you.
15. CONFIDENTIAL INFORMATION
15.1 You must not disclose or allow to be disclosed Confidential Information to any third party except:
(a) with our consent; or
(b) in accordance with government or other public regulatory requirements,
and you must take, or cause to be taken, reasonable precautions necessary to maintain the secrecy and confidentiality and to prevent the disclosure of the Confidential Information.
15.2 Considering the character of the Confidential Information, the loss of which may not be reasonably or adequately compensated for in damages or in an action at law, your failure to perform and observe your covenants and obligations concerning Confidential Information will entitle us to begin an action against you for an injunction to enjoin and restrain you from your breach (whether with or without a simultaneous action for damages).
16.1 You acknowledge and agree that your use of this Platform is at your own risk. We provide our Services on an “as-is” and “as available” basis and whilst every effort is taken to ensure the Content and Platform is accurate, we make no representations and give no warranties about the currency, suitability, reliability, availability, timeliness and/or accuracy of the Content and the Platform for any purpose. Subject to the other terms of this clause and to the maximum extent permitted by Applicable Laws, anything contained in this Platform is without warranty of any kind and we expressly exclude such warranties. You acknowledge and agree that:
(a) we are not responsible for any information made available on the Platform;
(b) we do not make any representations in relation to the continuing availability of the Services or the Platform and will not be liable for the Services or Platform being unavailable or discontinued;
(c) we do not promise that the Platform or any Content will be error-free or uninterrupted, or that your use of the Platform will provide any specific results;
(d) we do not represent or warrant that your use of the Services will meet your particular requirements, whether those requirements are disclosed to us or not;
(e) we dot not represent that the Platform will provide you with requests to deliver Orders;
(f) you assume total responsibility for your use of the Platform;
(g) you assume total risk for your use of the Platform including where you are introduced to unrelated third parties, and that third party may cause harm or risk to you or other third parties;
(h) we cannot ensure that any files or other data you download from the Platform will be free of viruses or contamination or destructive features;
(i) we do not warrant that this Platform is free from anything that may damage any computer or other device which accesses the Platform or any data on such computer or other device;
(j) we are not a party to any transaction arising or entered into between you and Merchants. As a result, we have no control over, and do not ensure, guarantee or provide any warranty or indemnity in respect of the quality, fitness for purpose, legality, accuracy, completeness or otherwise of:
(i) any Merchants and/or their Products;
(ii) any information provided by Users to each other;
(iii) the ability of Users to undertake their respective obligations.
Because of the foregoing, in the event that you have a dispute with one or more other Users, you release and hold us (and our officers, directors, agents, related entities, related bodies corporate, employees and contractors) harmless from actions, claims, demands and losses of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
16.2 This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of this Agreement or your use of the Services. You are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with your use of the Platform.
17. LIMITATION OF LIABILITY
17.1 In no event shall we or our officers, directors, employees, agents, contractors or other personnel be liable for any direct or indirect loss, damage, cost or expense of any kind suffered by you or any other person arising in connection with your use of, or reliance upon, or the availability of the Services. The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
17.2 You expressly understand and agree that we will not be liable to you for:
(a) any direct, indirect, incidental, special, consequential or exemplary damages that may be incurred by you, howsoever caused including but not limited to loss of profit, loss of goodwill or business reputation, loss of data, costs of procurement of substitute goods or services, or other intangible losses;
(b) any reliance placed by you on the completeness, accuracy or existence of any Content, including but not limited to advertising or as a result of any relationship or transaction between you and any third party who is in any way associated or appears on the Platform or on the Services;
(c) any changes that we make to the Services or any permanent or temporary cessation of the provision of the Services or any features;
(d) the deletion of, corruption of, or failure to store any Content and other communications or data maintained or transmitted by or through your use of the Platform or the Services;
(e) your failure to provide us with accurate account information or your failure to maintain your account or secure your account details including but not limited to your password; or
(f) your or any third party’s property damage,
and you agree that this is a proper allocation of risk in the circumstances and will apply whether you have advised us or we should have been aware of the possibility of any such loss or damages.
17.3 Subject to the other terms of this clause, our liability to you for all claims in aggregate (whether those claims be for breach of contract, negligence or otherwise, and whether those claims be only for economic loss, or for personal injury or other damage) arising under or in connection with this Agreement is limited to the actual fees paid by you to us under this Agreement in the 1-month period preceding the matter or event giving rise to the claim.
17.4 Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
17.5 If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option the resupply of the services or the payment of the cost of resupply.
17.6 This limitation of liability applies to the fullest extent permitted by law and shall survive any termination or expiration of this Agreement or your use of our Services.
18.1 You acknowledge and agree that you are personally responsible for the performance of the Delivery Services.
18.2 You agree to indemnify and hold us and our officers, directors, agents, employees and contractors harmless from and against any actions, claims, demands, proceedings, loss of every kind and nature, known and unknown, including legal fees (on a solicitor and own client basis) and claims made by third parties, due to or arising out of:
(a) your use of the Platform or your violation of any Applicable Laws or the rights of a third party;
(b) your negligence or wilful misconduct in the performance of the Delivery Services or otherwise;
(c) your failure to provide the Delivery Services with a sufficient standard of care;
(d) a claim by a third party directly or indirectly in relation to the provision of your Delivery Services or use of the Services;
(e) any claims that your trade marks infringe a third party’s intellectual property rights;
(f) your disputes with Merchants and/or Customers; and/or
(g) your breach of this Agreement.
19. KLOOPON REWARDS PROGRAM
19.1 The Kloopon Rewards Program is a rewards-based platform where both Customers and Delivery Drivers will be able to accrue Kloopon and redeem their Kloopon for various discount offers and benefits that are able to be used on the Platform.
19.2 We may at any time change, add to or make deletions from how you can earn Kloopon at any time.
19.3 Your entitlement to claim rewards is based on the available balance of Kloopon in your Account. You must have an active Account to redeem Kloopon.
19.4 The Kloopon amount needed for each reward will be the amount specified on the Platform at the time of redemption.
(a) Kloopon are not redeemable for cash in any currencies, including cryptocurrencies. Rewards cannot be replaced if lost, stolen or otherwise destroyed.
(b) Kloopon may not be transferred or sold. Klooponare not property, have no monetary value and can only be used to claim rewards on the Platform. There will be no refunds for Klooponthat are not used to claim a reward.
(c) We may:
(i) reverse or cause to be reversed any Kloopon which have been allocated to you; or
(ii) cancel any rewards redeemed or to be redeemed by you; or
(iii) terminate your participation in the Kloopon Rewards Program,
(i) there are grounds which we consider reasonably justify a reversal, cancellation or termination in our sole discretion, including without limitation, Kloopon created erroneously or fraudulently earned through fraudulent means or manipulation of the Kloopon Rewards Program in anyway, or incorrect listings of rewards on the Platform; or
(ii) your access to the Platform is terminated or your Account is terminated, or you breach the terms of this Agreement.
(d) We reserve the right, and you consent to us monitoring your activity in the Platform to ensure that any Kloopon are accumulated legitimately and rewards redeemed legitimately.
(e) Kloopon must be redeemed within 12 months of the date at which they are earned by you. Any unused Klooponthat remain after this date will expire.
(f) To track your Kloopon balance and view your Kloopon earnings and redemption transaction you can check your Account on the Platform.
(g) We reserve the right, in its sole discretion to modify or terminate the Kloopon Rewards Program and your ability to participate in the Kloopon Rewards Program at any time, for any reason at its sole discretion and without prior notice. In the event this occurs, you will not be able to redeem Kloopon for rewards on the Platform and acknowledge and agree that you forfeit all your Kloopon.
19.5 For more information on the Kloopon Rewards Program please visit the Platform.
20. FEEDBACK SYSTEM
20.1 Each time a Customer received a delivery from you through the Platform, the Customer may be given an opportunity to review you. We reserve the right to display this rating and feedback in the Platform.
20.2 Reviews must be honest and accurate, and not contain unlawful or objectionable content, including but not limited to, reviews containing defamatory, libellous, abusive, racially or sexually offensive or obscene language.
20.3 We reserve the right not to publish reviews, to amend content of reviews at any time and to remove reviews from the Platform without notice in our sole discretion.
20.4 You acknowledge that we reserve the right to restrict your access to the Platform or limit your access as a Delivery Driver on the Platform if you fail to maintain an average rating (given by Customers) that exceeds the minimum average acceptable established by us from time to time.
20.5 We are in no way responsible or liable for the information that is contained in the reviews and do not make any representation or warranty as to the accuracy or reliability of any information or content that is published in the review. We are under no obligation to remove any review published by the Customer, and you agree that we are not liable under any laws (including defamation and misleading and deceptive conduct) simply through the publication of reviews on the Platform.
21.1 Accessing information from the Platform is done at your own risk and you will be responsible for compliance with the laws applicable within your jurisdiction.
21.2 This Agreement is governed by the laws of Victoria, Australia and the parties submit to the jurisdiction of the Courts of Victoria and relevant Commonwealth courts competent to hear appeals from them.
21.3 This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
21.4 If a clause of this Agreement is void or unenforceable it must be read down to the minimum extent necessary to ensure compliance with the law. If it cannot be read down, the term is to be severed from this Agreement and the clauses that are not void or unenforceable shall be unaffected by the severance.
21.5 You agree that this Agreement and all incorporated agreements may be assigned by us in our sole discretion without notice. You may not assign this Agreement without obtaining our prior written consent which may be withheld in our absolute discretion.
21.6 Our failure to enforce a provision of this Agreement or act with respect to a breach by you or others does not constitute a waiver of that provision or breach or a waiver of our right to act with respect to that breach or subsequent or similar breaches. The waiver of any such provision or breach will be effective only if in writing and signed by a duly authorised representative of Kloopr Australia.
21.7 You agree that this Agreement may not be construed adversely against us solely because we prepared them.
21.8 This Agreement and our policies comprise the entire understanding and agreement between you and us with respect to the subject matter.
21.9 Nothing in this Agreement or your use of the Platform establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between us and our Users.