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Terms and Conditions for Users

 

CUSTOMER 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 17. 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, usand 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 and beverage 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;
(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 KLOOPR 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 place an Order on the Platform, you must register to create an Account (as detailed below).
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 in providing a delivery platform as outlined above. All such supply and delivery of Products is provided by independent third parties.
2.6 Subject to you complying with these terms, we will provide the Services to you as set out in these terms.

 

3. PLACING ORDERS ON THE PLATFORM
3.1 You can access the Platform to place Orders with Merchants.
3.2 You may place an Order on the Platform by viewing Merchant stores and selecting Products and following the prompts on the Platform. Your Order must be placed in advance in accordance with the terms as stated on the Platform and this Agreement. You acknowledge that any Order placed on the Platform is merely an offer by you and the Merchant reserves the right in its sole discretion to either accept or reject any offer made by you for any reason at any time and without notice. Any Order placed by you is subject to limitations shown on the Platform.
3.3 The purchase price for Products is as displayed on the Platform at the time you place your Order. Prices and other details are subject to change without notice.
3.4 You must provide payment via a method accepted by the Platform. The Platform will charge you and you agree to pay the purchase price and any other fees shown to you on the Platform for the Order at the time you place your order, except where otherwise specified. If you decide to place an Order with a Merchant and they provide you with Products, all payments made through the Platform will be held by us solely for the purpose of facilitating transactions between the Merchant and you and solely for the benefit of the Merchant (although we reserve the right to receive a commission fee from the Merchant which will be paid from the amount). Unless otherwise indicated a delivery fee will be added to each order. Prices shown on the Platform are in Australian Dollars (AUD) and include GST.
3.5 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.
3.6 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 to us at the same time as paying our fees, even if such fees are not explicitly disclosed on the Platform.
3.7 Merchants and Delivery Drivers are a third party unrelated to us. The Merchant may have its own terms and conditions that are applicable to an Order. When you place an Order for the supply of Products, you are entering into a contract directly with the Merchant. We are not a party to any contract between you and Merchants. All contractual and payment arrangements are the sole responsibilities of the parties and not us.
3.8 We do not supply, provide, manage or control the Merchants on the Platform or their Products and are not responsible for their advertising (including contents), preparation, packaging or otherwise. The Merchant is solely responsible for supplying the Products to you. We solely provide an online marketplace that facilitates introductions between Merchants, Customers and Delivery Drivers. If you have any enquiries about Products you must contact the relevant Merchant. We take no responsibility for the quality or freshness of a Product.
All Products are subject to availability. The Merchant may use nuts in the preparation of certain Products. We do not guarantee that any of the Products are free of allergens.
3.9 Your legal rights in connection with the provision of the Products is against the specific Merchant that provides the Products and not us (except to the extent that it is caused by us). Specifically if, for any reason, any Merchant is unable to provide Products for which you have contracted, your rights are against that Merchant and not against us.
3.10 The information about Merchants and their Products contained on the Platform is provided to us by Merchants and other third parties and we cannot, and do not, guarantee the completeness, accuracy, currency or reliability of such information. You must make your own investigation in the accuracy of the information.
3.11 If you place and Order for alcohol from a Merchant you must be aged 18 or over. By placing an Order for alcohol you expressly represent and warrant that you are at least 18 years of age. We may refuse to deliver any alcohol to any person who refuses to show identification.

 

4. DELIVERY OF ORDERS
4.1 You must ensure that you provide the Platform with an accurate address and telephone number to ensure that your Order arrives at the correct location.
4.2 Once the Merchant has accepted your Order and we have received on behalf of the Merchant a valid payment in full for the Order, an independent Delivery Driver will endeavour to deliver your Order within the timeframes as specified on the Platform however we are unable to guarantee delivery within these timeframes.
4.3 Please note that all shipping times listed on the Platform are an estimate time of delivery only and neither we nor the Merchant are responsible for any delays experienced or loss or damage suffered as a result.
4.4 If you are not available to take delivery of the Order within a reasonable period of time being within 5 minutes from the time the Delivery Driver arrives at your address, the Delivery Driver may at their discretion leave your address without delivering the food and you will be charged for the Order. In that case, the Delivery Driver may dispose of your Order in its discretion.
4.5 You may choose to leave a monetary tip for the Delivery Driver. If you choose to do so you authorise us to collect the tip from you and remit the tip to the Delivery Driver on your behalf. We may deduct a payment processing fee from this amount.

 

5. CANCELLATION OF ORDERS
5.1 We or the Merchant may cancel an Order for Products at any time (including any Orders already accepted) without any liability to you for that cancellation for any reason including, without limitation where:
(a) the Products are not available; and/or
(b) there is an error in the description or pricing of any Products on the Platform relevant to your Order.
5.2 If we do cancel your Order, we will endeavour to notify you and provide you a refund of all payments made.
5.3 You are not able to cancel any placed Orders once they have been accepted by the Merchant. We will determine whether an Order has been accepted by a Merchant or not in our discretion.

 

6. REFUNDS 
6.1 To the extent permitted by law, any fees paid to us are non-refundable under any circumstances.
6.2 The Merchant is solely responsible for the supply and provision of refunds of any Products. Each Merchant may have their own refund, return and cancellation policy and we encourage you to check with the Merchant before ordering as to what their policies are. Whilst Merchants are in certain cases obliged by law to provide a refund, return or permit a cancellation, we make no representations that Merchants will comply with such obligations and accept no responsibility if they fail to do so.

 

7. USER OBLIGATIONS
7.1 In using the Platform and/or Services you acknowledge and agree that:
(a) you are responsible for reading the full listing of the Products offered by the Merchant and any connected terms and conditions for Products, including any terms provided to you by the Merchant;
(b) your use of the Platform is voluntary and at your sole risk;
(c) the Merchant is the seller, supplier and/or provider of any Products and is solely responsible for providing the Products to you;
(d) all information you provide is valid and correct in all respects, and that you have not engaged in misleading or fraudulent conduct;
(e) any communications entered into between you and the Merchant and/or the Delivery Driver are at your own risk;
(f) you accept the risk of dealing with an unrelated third party;
(g) 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;
(h) we provide the Platform only as a delivery tool and we are not responsible for any contract arising as a result of any communication or arrangement entered into with a Merchant and/or Delivery Driver;
(i) we do not have any knowledge of the Merchants or the Products being advertised on the Platform, and as such is not responsible for providing any advice of any of the Merchants or the Products. It is solely your responsibility to ensure that the Merchant and the Products are suitable and information provided by the Merchant is correct;
(j) in making a decision in connection with a Merchant (including what Products to order) you are solely responsible for the decision, and the consequences of ordering from that Merchant;
(k) we have the right to share your information with Merchants and Delivery Drivers when you place an Order;
(l) Merchants may in their discretion withdraw Products or cancel Orders on the Platform at any time; and
(m) we assume no responsibility for a Merchant’s or Delivery Driver’s compliance with Applicable Laws.
7.2 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.
7.3 We strongly encourage that you conduct enquiries and undertake your own due diligence in respect of any Merchants 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.

 

8. PROHIBITED USE
8.1 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.

 

9. FEES
9.1 Service Fees
(a) We reserve the right, in our sole discretion, to charge you a fee, and to modify or terminate any fees, services, or charges on the Platform at any time and without prior notice. If we charge a fee for any Service, the fee payable by you for that Service is the then current fee stated on the Platform at the time the Service 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.
9.2 Late Payment
(a) If you fail to pay any amount when due under this Agreement, you acknowledge that we may in our discretion suspend the provision of the Services (and we will not be liable for any loss suffered by you).
9.3 Verification
(a) You authorise us, directly or through third parties, to make any inquiries that 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.
9.4 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

 

10. PROMOTIONAL CODES
10.1 From time to time, we may in our sole discretion, create promotional codes that may be used in the Platform to provide you with credit or other benefits. It is your responsibility to ensure that the code is valid, and that you enter the code for use at the correct time. The code cannot be applied after you have submitted your Order.
10.2 Promotional codes are subject to any additional terms we make available to you at the time the promotional code is published.
10.3 Promotional codes may be disabled by us at any time for any reason without liability to us.
10.4 In the event we establish that your use of promotional code was in error, fraudulent, or in violation of the additional terms published, we reserve the right to withhold or deduct the benefits granted under the coupon code.

 

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. In the event authorisation is done via text message or email, you authorise us to send a text message or email to your nominated address or phone number for this purpose.
11.2 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.
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 The 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.
12.3 We may also terminate our agreement with you or case 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) where we are required to by law, for example due to a change in law governing the Services;
(c) 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; and/or
(d) provision of the Services is no longer commercially reasonable to us.

 

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. 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 you place an Order with a Merchant through the Platform, you may be given an opportunity to review the Merchant and/or the Delivery Driver.
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 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 you, 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. DISCLAIMER
17.1 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 any 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 ensure that any files or other data you download from the Platform will be free of viruses or contamination or destructive features;
(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 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;
(i) we are not engaged in the selling of Products and are not a party to any transaction or contract 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 listing information in respect of Merchants and Products;
(ii) any Products (including their existence, quality, safety, suitability or legality);
(iii) any information provided by Users to each other;
(iv) the conduct of Merchants or Users;
(v) the ability of Merchants or Users to undertake their respective obligations; or
(vi) the fees charged by Merchants.

Because of the foregoing, in the event that you have a dispute with one or more Merchants or 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. You should always exercise due diligence and care when deciding whether to order from a Merchant and interact with other Users.
17.2 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.

 

18. LIMITATION OF LIABILITY
18.1 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.
18.2 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 and under any theory of liability 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 thereof;
(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;
(g) our supply of Products as a Service to you in accordance with this Agreement,
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.
18.3 Subject to the other terms of this clause and to the extent permitted by Applicable Laws, our maximum aggregate liability to you for any loss or damage or injury arising out of or in connection with this Agreement, including any breach by us of this Agreement however arising, is limited to the actual charges paid by you to us under this Agreement in the 1-month period preceding the matter or event giving rise to the claim.
18.4 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.
18.5 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.
18.6 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.

 

19. INDEMNITY
19.1 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 disputes with Merchants or Users; and/or
(c) your breach of this Agreement.

 

20. MISCELLANEOUS
20.1 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.
20.2 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.
20.3 This Agreement shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
20.4 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.
20.5 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.
20.6 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.
20.7 You agree that this Agreement may not be construed adversely against us solely because we prepared them.
20.8 The Agreement and our policies comprise the entire understanding and agreement between you and us with respect to the subject matter hereof.
20.9 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.