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Terms and Conditions for Merchants

 
MERCHANT AGREEMENT
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 19. 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
1.1 Definitions
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) 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;
(j) 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;
(k) Order means an order placed by a Customer for Products on the Platform;
(l) 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;
(m) Privacy Policy means our privacy policy accessible on the Platform;
(n) Products means any products made available for sale by the Merchant on the Platform from time to time, including food products;
(o) 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;
(p) User means any person who uses the Platform and includes Customers, Merchants and Delivery Drivers; and
(q) you and your means a user of the Services.
1.2 Interpretation
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 You may use the Platform as an unregistered user, however if you wish to create a store listing and allow Customers to view your Products and place Orders you must register to create an Account (as detailed below) and submit an application to us.
2.5 We reserve the continuing right to reject, revise or discontinue any listing of your Products at any time and for any reason at our sole discretion.
2.6 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 in providing a delivery platform to enable you to fulfil the Customers’ Orders and to connect you with independent Delivery Drivers. We do not provide delivery services.
2.7 Any arrangements entered into with a Customer and/or Delivery Driver is outside the scope of the Service provided by us. Our Services are limited as outlined above.
2.8 Subject to you complying with these terms, we will provide the Services to you as set out in these terms.

 

3. STORE LISTING AND PRODUCTS ON THE PLATFORM
3.1 You must submit an application to join the Platform and list your Products for sale in a store listing through the Platform. The store listing will enable you to showcase your best selling Products, bundle Products and enable add-on Products. We may in our sole discretion accept or reject an application, without any obligation to provide reasons. Once accepted, your listing will be created based on the information that is provided by you in the application form. Your appointment to be listed on the Platform is non-exclusive. We may provide you with access through the Platform to manage your Products.
3.2 You must provide us with any information deemed necessary by us to create your listing. You must immediately notify us within 30 days of any change to your application form details.
3.3 You authorise us to promote and sell your Products on behalf of you through the Platform and any other distribution channels ancillary to the Platform. When a Customer places an Order on the Platform, the Order will be received by you either through a smartphone (text message) or printer. You acknowledge that upon acceptance of an Order placed by a Customer you enter into a binding legal agreement with that Customer and you agree to supply the Products to the Customer upon receipt of payment. You authorise us to collect the purchase price of Orders and all ancillary fees from your Customers on your behalf, which will be dealt with in accordance with the terms of this Agreement.
3.4 You agree that when listing Products on the Platform:
(a) you will not make Products available on the Platform at a price higher than the eat-in price of a similar meal at your restaurant;
(b) you will only set available daily portions of Products that you are able to supply to Customers;
(c) you are responsible for the preparation and packaging of Products which must be ready for pickup by the Delivery Driver within the times as stated on the Platform; and
(d) you will make Products available to be delivered during your normal business hours.
3.5 You acknowledge that any arrangement or communication entered into with a Customer is solely at your own risk and you are solely responsible for the provision of any Products to the Customer. 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 and the introduction of you and the Customer and Delivery Driver.
3.6 Your legal rights in connection with the supply of Products is against the Customer that requests the Products and not us (except to the extent that it is caused by us). Specifically if, for any reason, any Customer does not fulfil any obligations for which you have contracted, your rights are against that Customer and not against us.
3.7 We do not guarantee the completeness, accuracy, currency or reliability of any information provided by Customers. You must make your own investigation in the accuracy of the information.
3.8 We reserve the continuing right to reject, revise, or discontinue any store listing or Product, at any time and for any reason in our sole discretion, and to terminate the store listing or Product and to remove all references to the store listing or Product from the App; and redirect or delete any URL used in connection with the Product.

 

4. DELIVERY OF PRODUCTS
4.1 Delivery of Products is to be undertaken by an independent Delivery Driver who is an unrelated third party. We are not a party to any arrangement entered into with a Delivery Driver. Your legal rights in connection with the delivery of Products is against the Delivery Driver only and not us (except to the extent that it is caused by us).
4.2 For purposes of delivery of the Products, the Delivery Driver shall operate under cover of your retail licence privileges and control, as your agent, and not employee. For the avoidance of doubt, you are responsible for the delivery of Products and maintain possession, control and care of the Products at all times.
4.3 The Delivery Driver reserves the right to accept or refuse any Product for delivery in their sole discretion.
4.4 Only Products are able to be delivered by the Delivery Driver.

 

5. TITLE
5.1          You will maintain title of the Products until each Product is delivered to the Customer.

 

6. MERCHANT OBLIGATIONS
6.1 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 Customer is valid and correct in all respects, and that you have not engaged in misleading or fraudulent conduct (for example if you make nutritional information available on the Platform such as allergen information it must be accurate);
(b) no conditions attached to any registration or qualifications that you hold will be breached through being listed on the Platform and/or providing Products to Customers;
(c) if you have represented to a Customer that you can provide certain Products, you must be qualified and able to provide those Products under all Applicable Laws. For the avoidance of doubt, this includes the supply of, and arranging for the delivery through a Delivery Driver of, alcohol. In the event that you supply Alcohol through the Platform, you must ensure that you are licenced to do so, and the Delivery Driver is also covered under your licence and so complies with any obligations under your licence;
(d) in providing Products to a Customer you agree to provide the Products 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 provider of products similar to the Products;
(e) you must maintain high standards of honesty, integrity and business ethics;
(f) you are the seller, supplier and/or provider of any Products and you are solely responsible for providing the Products;
(g) unless otherwise agreed with us, you are responsible for all customer service in connection with the Products;
(h) 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;
(i) any communications entered into between you and a Customer and a Delivery Driver are at your own risk;
(j) 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;
(k) we provide the Platform only as an introductory tool between you and the Customer and we are not responsible for any negotiations, agreements or disputes arising as a result of any communication or arrangement entered into with a Customer;
(l) we have the right to share your information that you provide to us with Customers and Delivery Drivers; and
(m) we assume no responsibility for a Customer’s compliance with Applicable Laws.

 

7. PROHIBITED USE
7.1 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; or
(v) be in a manner that directly or indirectly attempts to circumvent payment of any fees.

 

8. COMPLIANCE WITH LAWS
8.1 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.

 

9. INSURANCE
9.1 Whilst you remain a Merchant 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 supply of Products 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) public liability insurance with minimum coverage of $10 million per event;
(b) general commercial insurance with minimum coverage of $2 million per event;
(c) product liability insurance with minimum coverage of $2 million per event.
9.2 You must provide us within 2 business days of request a certificate of currency for any insurance required to be held by you.
9.3 You will not be entitled to list your store on the Platform until such time that you have furnished satisfactory proof of insurance to us.

 

10. PAYMENT AND FEES
10.1 Payment
(a) Subject to your performance of your obligations under this Agreement, we agree to remit the purchase price paid by the Customer for the Orders (less any fees contemplated by this Agreement, such as delivery fees, our fees and tips) to you into your nominated bank account.
(b) Unless we specify otherwise, payment will be made to you on a fortnightly basis. We will provide you with an invoice shortly after payment is made. You will be able to view all payments in the backend admin page on the Platform.
(c) You will be solely responsible for collecting and remitting any goods and services taxes owed in connection with this Agreement.
10.2 Service Fees
(a) In consideration for our provision of the Services to you, you agree to pay to us the service fee, as stated on the Platform at the time the Service is provided. The time for payment of a fee as well as the manner of payment will be as stated on the Platform from time to time. You authorise us to deduct the applicable service fee from any amounts that we owe to you at any time.
(b) We reserve the right to modify or terminate any fees, services, or charges on the Platform at any time and without prior notice.
(c) A portion of the service fee will be donated to our official NFP partner Foodbank Victoria in accordance with terms stated on our Platform.
10.3 Delivery Fees
(a) You agree to pay a delivery fee to Delivery Drivers for each successful delivery made for Orders of your Products. The delivery fee will be as stated on the Platform at the time the Order is placed.
(b) You authorise us to collect a delivery charge from your Customers and remit the delivery fee to the Delivery Driver on your behalf.
10.4 Other fees and add-ons
(a) We reserve the right, in our sole discretion, to charge you a fee for additional features available through the Platform or for additional equipment (“Extras”). We may modify or terminate any fees, services, or charges for Extras at any time and without prior notice. Current Extras include being featured as Restaurant of the Month, or the integration of a Kloopr printer. If we charge a fee for any Extras, the fee payable by you for that Extra is the then current fee stated on the Platform at the time the Extra is purchased. The time for payment of a fee as well as the manner of payment will be as stated on the Platform from time to time.
10.5 Late Payment
(a) If you fail to pay any amount when due under this Agreement, you acknowledge that we may in our discretion:
(i) suspend the provision of the Services (and we will not be liable for any loss suffered by you, for example the loss of your ability to contact a Customer); and/or
(ii) charge you interest at 12% per annum which shall accrue daily and compound monthly in respect of the overdue amount from the due date for payment up to the date of actual payment of all amounts owed.
10.6 Verification
(a) You authorise Kloopr Australia, 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.
10.7 General
(a) Unless otherwise stated on the Platform, fees payable by you are exclusive of any goods and services tax or similar tax and such taxes must be paid by you to us at the same time as payment of our fees.
(b) Our payment provider may charge you a fee depending on the payment method used by you (for example, payments made by credit card). You agree to pay such payment fees us at the same time as paying our fees.

 

11. REFUNDS AND CANCELLATIONS
11.1 To the extent permitted by law, any fees paid to us are non-refundable under any circumstances.
11.2 In the event that you have arranged with a Customer to supply Products, and you are unable to supply them for any reason you will be required to:
(a) notify us and the Customer immediately of your inability to supply the Products; and
(b) comply with all Applicable Laws, including the ACL, as well as your contract with the Customer, which may require you to refund to the Customer all amounts paid by the Customer to you.

 

12. COMPLAINTS
12.1 In the event that you have received a complaint from a Customer, 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 in order to ascertain the issues; and
(d) you must notify us of how the complaint is being handled.
12.2 Notwithstanding the above, you acknowledge and agree that:
(a) any terms and conditions relating to the Products via the Platform are solely between you and the Customer and do not involve us in any way; and
(b) if you have a dispute with a Customer, you must resolve the dispute directly with the Customer. We are not a party to any dispute in any way, notwithstanding that we may be provided with details of the dispute.

 

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; and
(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. PRIVACY
14.1 The Privacy Policy applies to your use of the Platform, and its terms are incorporated into this Agreement by this reference.
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. FEEDBACK SYSTEM
16.1 Each time a Customer orders Products 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.
16.2 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.
16.3 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.
16.4 You acknowledge that we reserve the right to restrict your access to the Platform or limit your access as a Merchant 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.
16.5 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.

 

17. YOUR ACCOUNT
17.1 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.
17.2 If we enable you to connect to the Platform with a third-party service (e.g. Facebook or Google+), you hereby grant us permission to access, store, and use your Information from that service as permitted by that service and as may be described in our Privacy Policy. You should contact us immediately if you believe your account has been compromised or misused in any way.
17.3 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.

 

18. ACCESS AND TERMINATION
18.1 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.
18.2 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.
18.3 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 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 Customer about you;
(c) you are on more than three occasions in a calendar month unable to provide 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.

 

19. DISCLAIMER
19.1 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) you assume total responsibility for your use of the Platform;
(f) we cannot represent that the Platform will provide you with sales;
(g) we cannot ensure that any files or other data you download from the Platform will be free of viruses or contamination or destructive features;
(h) 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;
(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 Customers 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 Customers or Users;
(ii) any information provided by Users to each other;
(iii) the conduct of Customers or Users;
(iv) 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.
19.2 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.

 

20. LIMITATION OF LIABILITY
20.1 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.
20.2 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;
(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.
20.3 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.
20.4 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.
20.5 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.
20.6 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.

 

21. INDEMNITY
21.1 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;
(c) any claims that your trade marks infringe a third party’s intellectual property rights;
(d) harm caused by your violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation;
(e) your disputes with Customers and/or Delivery Drivers; and/or
(f) your breach of this Agreement.

 

22. MISCELLANEOUS
22.1 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.
22.2 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.
22.3 This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
22.4 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.
22.5 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.
22.6 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.
22.7 You agree that this Agreement may not be construed adversely against us solely because we prepared them.
22.8 This Agreement and our policies comprise the entire understanding and agreement between you and us with respect to the subject matter.
22.9 Nothing in this Agreement or your use of the Platform establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between Kloopr Australia and its Users.