Welcome to the customer driven ordering solutions provided to customers in Australia by HungryHungry Trading Pty Ltd (A.C.N 637 773 276) and to customers in New Zealand by HungryHungry Trading NZ Limited (NZBN: 9429046954558) (as applicable, HungryHungry, we, us or our). HungryHungry provides food, beverage and goods ordering services through our Platforms and Applications.
These Terms of Trade (“Terms of Trade” or “ Agreement”) set out our obligations as a service provider and your obligations as a Merchant (“you”, “ Merchant”). They also govern any upgrades, to the extent provided by us, that replace and/or supplement the original Goods and Services, unless such upgrade is accompanied by a separate agreement in which case the terms of that agreement will apply.
If you do not agree to any of the terms of this Agreement you must not submit any Service Agreement or use the Goods and Services.
If you have any particular questions please contact us by email via firstname.lastname@example.org
1.1 HungryHungry grants you a non-exclusive, non-transferable, non-sublicensable licence to use and access the Goods and Services (including and the Platforms) during the Term on the terms set out in this Agreement (“Licence”).
1.2 In exchange for HungryHungry granting the Licence to the Merchant, the Merchant must pay the Charges on the terms set out in this Agreement.
1.3 If this Agreement is terminated for any reason, then the Licence, together with HungryHungry’s provision of Goods and Services, will terminate.
2. DURATION OF AGREEMENT
2.1 The term of the Agreement will commence on the Commencement Date with a 24 month fixed term commitment (“Initial Term”), unless otherwise specified in Service Agreement.
2.2 At the expiry of the Initial Term, Service Term will automatically renew for additional terms equivalent to the Initial Term (each a “ Subsequent Term”) unless:
a) written notice is given by you terminating the Agreement at least twenty-eight (28) days prior to the expiry of the then current Service Term; or
b) the Agreement is replaced by another agreement by mutual consent of the parties.
2.3 The Charges payable for each Subsequent Term shall be equal to the Charges payable for the immediately preceding term plus a maximum increase of ten per cent (10%), where any such increase may be notified by us to you from time to time.
3. OUR OBLIGATIONS
3.1 Subject to the terms of the Agreement, we will provide you with access to the Goods and Services as specified in the Service Agreement.
3.2 We and our licensors reserve the right to change, suspend, remove, or disable access to any of the Goods and Services at any time without notice. In no event will we be liable for the removal of or disabling of access to any such Goods and Services. We may also impose limits on the use of or access to the Goods and Services in any case and without any notice or liability.
3.3 Use of the Goods and Services may be subject to limitations. Any such limitations will be advised.
4.1 As a condition of your using and accessing the Goods and Services, you represent and warrant that you:
a) if selling goods that include alcohol products you and any Delivery Provider, are aware and comply with all relevant and applicable laws regarding the purchase and consumption of alcohol, including but not limited to, legal age requirements;
b) will only provide Data and other information that is complete, accurate and up to date;
c) will not falsify any of your Data or other information;
d) will only maintain one account at any given time, and if your account is ever suspended or terminated for any reason, you will not create another account;
e) are not currently prohibited or otherwise restricted from using or accessing the Good and Services;
f) are not a competitor of us, and are not using or accessing the Good and Services for the purposes of competing with our business;
g) will not violate any of our or any other person’s rights, including but not limited to, Intellectual Property Rights; and
h) have full authority to enter into any agreement with us in connection with using or accessing the Good and Services, including but not limited to, agreeing to be bound by this Agreement, and that doing so does not violate any other agreement which you have with any other party.
5. YOUR OBLIGATIONS
5.1 You must not:
a) use the Goods and Services for any purpose or in any manner other than as set out in this Agreement;
b) use the Goods and Services in any way that could damage our reputation, or the goodwill or other rights associated with the Goods and Services; or
c) permit any third party to use the Goods and Services other than as set out in this Agreement;
d) attempt to undermine the security or integrity of our computing systems or networks or, where the Goods and Services are hosted by a third party, that third party’s computing systems and networks;
e) use, or misuse, the Goods and Services in any way which may impair the functionality of the Goods and Services, or other systems used to deliver the Goods and Services or impair the ability of any other person to use the Goods and Services;
f) attempt to gain unauthorised access to any materials other than those to which you have been given express permission to access or to the Device on which the Goods and Services are hosted;
g) transmit, or input into the Goods and Services, any files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which you do not have the right to use); and/or
h) rent, lease, lend, sell, redistribute or sublicense the Goods and Services, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Goods and Services, any updates, or any part thereof or any computer programs used to deliver and/or operate the Goods and Services (except as, and only to the extent that, any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Goods and Services).
5.2 You must only use the Goods and Services for your own lawful personal or business purposes, in accordance with this Agreement and as notified by us from time to time. You will comply with all applicable laws in using the Goods and Services. You may use the Goods and Services on behalf of others or in order to provide services to others but you must ensure that you are authorised to do so and that all persons for whom or to whom Goods and Services are provided, comply with and accept all of the terms of this Agreement that apply to you. You will be responsible for the acts and omissions of such persons as if they were your own.
5.3 You must ensure you protect the Goods and Services at all times from unauthorised access, use or damage. You must ensure that all usernames and passwords required to access the Goods and Services are kept secure and confidential. You must immediately notify us of any unauthorised use of your passwords or any other breach of security and you must reset your password and you must take all other actions that we deem reasonably necessary to maintain or enhance the security of our computing systems and networks and your access to the Goods and Services.
5.4 You must provide us with all documentation, information, and assistance reasonably required by us to provide the Goods and Services to you, including payment information such as price lists, billing details and other account information to allow the processing of payments for products that you provide the Users.
5.5 With respect to all materials and content you upload, or permit to be uploaded on the Goods and Services, you undertake that:
a) you own of have the necessary rights in the Intellectual Property Rights in that material or content, and have the necessary permission to upload, post, transmit or otherwise make it available on the Goods and Services;
b) it will not breach any applicable laws; and
c) it will comply with these Terms of Trade at all times.
We reserve the right at all times to remove any such material or content, without any liability to us.
5.7 You will be responsible for ensuring that any Device on which the Goods and Services is used are in good, up to date working order and operating condition. We accept no responsibility or liability for any deficiency relating to your Device and other access facilities. Additionally, you acknowledge and agree that you will be solely liable for any fees or other charges incurred by you in connection with using or accessing the Goods and Services, including but not limited to software, hardware, equipment and internet usage charges.
5.8 You must ensure your internet connection is functional for use of the Goods and Services at all times during the term of this Agreement, or where agreed on have access to alternate means, to fulfil the following obligations:
a) receive notice of orders placed by Users;
b) for pickup and delivery arrangements (or as otherwise required by us from time to time):
i. communicate order acceptance to each User; and
ii. provide estimates of delivery times for each order.
5.9 You must also, as promptly as possible, meet the following obligations in relation to User orders through our Goods and Services or Platforms:
a) review each order communicated to you by or through HungryHungry or the Goods and Services;
b) communicate order acceptance to Users; and
c) execute orders promptly and in accordance with a User’s reasonable expectations.
6. USAGE LIMITATIONS
6.1 Use of the Services may be subject to limitations. Any such limitations will be advised.
7. SET-UP SERVICES
7.1 If requested by the Merchant, we will provide Set-Up Services to Merchant in a timely manner. The Charges associated with the Set-Up Services will be set out in a Service Agreement. In relation to Set-Up Services:
a) You must provide us reasonable assistance to allow us to provide the Set-Up Services, including access to your premises, POS system (if required), copies of your menu and other such information and assistance that may be required by us from time to time.
b) You grant HungryHungry a royalty-free, worldwide, non-exclusive, non-transferrable licence to use and publish any of the Intellectual Property Rights obtained during the course of the Set-Up Services.
7.2 We may also provide Food Photography Services if requested by the Merchant. Charges associated with any Food Photography Services will be set out in a Service Agreement. In relation to Food Photography Services:
a) we may set reasonable conditions with respect to the provision of Food Photography Services, including requirements around presentation of applicable photo subjects. We will notify you of any such conditions;
b) you recognise and acknowledge that all Intellectual Property Rights created out of or in connection with the performance the Food Photography Services immediately and automatically vest with us, and you will take all such steps as practicable to ensure that these Intellectual Property Rights will vest in and remain vested in us;
c) we will grant you a royalty-free, non-exclusive and non-transferable licence to use and publish the Intellectual Property Rights obtained during the course of the Food Photography Services (that is, rights to the photos) to the extent necessary for your use of the Goods and Services; and
d) we will agree applicable photography shoot times and scheduling. Once agreed, these times cannot be changed without our consent. If you are unable to attend the agreed and scheduled time, and we are not able to agree a revised shoot time, you will still be liable to pay the Charges associated with the Food Photography Services.
8. SUITABILITY OF FOOD, BEVERAGES AND OTHER GOODS
8.1 You agree and acknowledge that:
a) we do not produce, prepare or provide any food, beverages or goods;
b) any and all food, beverages or goods purchased from you through our Goods and Services are provided by you to the User;
c) we make no representations as to the suitability, quality or acceptability of any food, beverages or goods that you provide and/or with regard to the suitability of your food, beverages or goods with respect to the particular needs of the User (including any allergies or illnesses of the User);
d) if there are any issues with regard to the suitability, quality or acceptability of any food, beverage or good provided by you to the User, the User will contact you directly in respect of such issues and you and the User will hold us harmless in respect of any claim, loss or damage arising from such issues (including any health outcome or illness associated with such issue); and
e) where the food, beverage or goods are not suitable and you agree to refund the User in respect of any payments they have made, you may provide the User with a refund. You accept and acknowledge that any agreement in respect of the provision of a refund is to be between you and the User.
9. DELIVERY OF FOOD, BEVERAGES AND OTHER GOODS
9.1 You agree and acknowledge that:
a) delivery will only be available if you engage a Delivery Provider and take responsibility for facilitating the delivery services offered by that Delivery Partner. We are not responsible for any fees or other amounts incurred by you in engaging the Delivery Partner for services;
b) where our Goods and Services are used to place a request for delivery with respect to food, beverage or goods provided by you, the delivery service to the User is provided by a Delivery Provider (and will not be delivered by us);
c) any delivery will be carried out by a Delivery Provider (and you and the User agree to be bound by any policies and terms applicable to that Delivery Provider with respect to the delivery);
d) we make no representations as to the suitability, quality or acceptability of the conduct of the delivery driver, the timeliness of the delivery or generally in regard to the delivery by a Delivery Provider;
e) if there are any issues with regard to the suitability, quality or acceptability of any food, beverage or good delivered to the User by a Delivery Provider, the User will contact you directly in respect of such issues and will hold us harmless in respect of any claim, loss or damage arising from such issues including any health outcome or illness associated with such issue); and
f) if there are any issues with regard to the conduct of the delivery driver, the timeliness of the delivery or generally in regards to the delivery by a Delivery Provider, the User will contact you and/or that Delivery Provider directly in respect of such issues and each of you, the Delivery Provider and the User will hold us harmless in respect to any loss or damage arising from such issues.
10. FEES AND PAYMENTS
10.1 You acknowledge that where the User purchases any food, beverage or goods from you through our Goods and Services, the User will be responsible for payment in respect of that food, beverage or good.
10.2 Where such payments are taken through the Goods and Services, you acknowledge and accept that such payments are not processed or taken by us and instead are processed by a third party payment gateway (and you agree to be bound by any policies and terms applicable to that payment gateway).
10.3 We shall not be liable for any losses of the Merchant arising out of or in connection with the processing of payments through the Goods and Services, and we disclaim all liability in relation to the same.
10.4 A User may request a tax invoice via the Platforms for any payment to you.
10.5 You acknowledge that HungryHungry may charge an additional Platform Fee directly to the User in addition to the Charges specified in the Service Agreement (“Platform Fee”). The Platform Fee amount may also be specified in the Service Agreement.
10.6 You agree that with respect to any Collected Funds, prior to making any payment to you, we will first deduct any and all of our fees (including the Platform Fee) and Charges as well as any and all payment gateway and other associated third party fees (“Allowable Deductions ”).
10.7 You acknowledge and agree that where we take funds through the Platform or Applications in respect of any food, beverage or good provided by you (“Collected Funds”), we will pay the Collected Funds to you less any Allowable Deductions.
10.8 You agree that in any circumstance where any payment made to you is mistakenly in excess of the intended or actual amount you are due (“ Overpayment Amount”), you must organise a transaction to refund or otherwise transfer to us an amount equal to the Overpayment Amount. Without limiting anything else in this Agreement, we are entitled to set off any amount owed to us in connection with an Overpayment Amount against any amounts owed to you from time to time, whether under this Agreement or otherwise.
10.9 You agree that where the underlying transaction in respect of the Collected Funds involves the delivery of goods, the amount we pay to you will include the costs of the delivery service and you are solely responsible for payment of those funds to the Delivery Provider.
11.1 You must pay the Charges at the rate and in the manner specified in the Service Agreement.
11.2 You acknowledge and agree that the Charges may include any or all of Subscription Fees, Service Fees and Minimum Commitment Fees. These will be specified in any Service Agreement, and will be payable each month. Where Merchant is charged under an Service Fee arrangement, Charges will include an amount that is equal to the greater of:
a) the Service Fees charged in respect of that month, based on your Monthly GMV; and
b) the Minimum Commitment Fee.
11.3 Should you fail to pay the Charges in accordance with the terms of the Agreement, without limiting anything else in this Agreement, we reserve the right to suspend the provision of the Goods and Services and ultimately terminate the provision of the Goods and Services.
11.4 You will pay us interest on any amount due and not paid within the time required by the Agreement at the rate of interest equivalent to five percent (5%) per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 (Vic).
11.5 Subject to any provision of the Agreement dealing with GST, the Charges quoted are exclusive of taxes, duties and charges imposed or levied in Australia or overseas in connection with the Service Agreement and without limiting the foregoing, you will be liable for any new taxes, duties, or Charges imposed subsequent to the Commencement Date in respect of the Service Agreement.
11.6 In addition to paying the Charges and any other amount payable under or in connection with the Agreement (which is exclusive of GST), you will:
a) pay to us an amount equal to any GST payable for any supply by us in respect of which the Charges or other amount is payable under the Agreement;
b) make such payment either on the date when the Charges or other amounts to which it relates fall due or within five business days after you are issued with a tax invoice, whichever is later.
11.7 In the event of a Chargeback, Reversal or Invalidated Payment, you acknowledge and agree that you will be liable to pay:
a) the total Charges;
b) the Chargeback Fee; and
c) any other associated fees incurred by us.
11.8 We reserve the right to alter the amount or terms of the Charges at any time at our sole discretion.
12. PERIODIC DEBIT
12.1 In circumstances where you have separately agreed in writing to allow us to take periodic debits from you, you hereby authorise us to make such periodic debits from your nominated bank account/credit card in respect of all monies payable by you under this Agreement.
12.2 You acknowledge the Agreement is for a fixed term and that the Agreement cannot be terminated prior to this other than in accordance with this Agreement.
12.3 Any other fees incurred from the payment gateway relating to the provision of the Goods and Services are not within our control and you should refer to the terms and conditions (if any) for the payment gateway service for further information on payment gateway fees payable.
12.4 If at any time during the Agreement your bank/credit card details change or expire, you must update your details with us within three (3) business days before the next scheduled payment.
12.5 If for any reason a payment is dishonoured, funds must be made available on the account/card or bank account/card details must be updated, within three (3) business days. Where payment is unsuccessful, we may attempt to charge the bank account (that is provided to us to deposit funds) for the dishonoured amount. Failure to rectify any default and/or failure to provide a valid method of payment which subsists for a period of 4 weeks or more, may result in the suspension of access to the Goods and Services.
13.1 Unless the relevant party has the prior written consent of the other or unless required to do so by law:
a) each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with the Agreement;
b) neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by the Agreement; and.
c) each party’s obligations under this clause will survive termination of the Agreement.
13.2 You must take all reasonable steps to ensure that your employees, agents, subcontractors or related entities, do not make public or disclose our Confidential Information. If you become aware that any of your employees, agents, sub-contractors or related entities have passed on any Confidential Information to any other party, then you must notify us in writing immediately.
13.3 The provisions of this clause shall not apply to any information which:
a) is or becomes public knowledge other than by a breach of this clause;
b) is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure;
c) is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party; or
d) is independently developed without access to the Confidential Information.
14.1 You agree that we may collect, process, use, disclose, store, and back-up your Data for any purpose (including the purpose of enabling you to use or access the Goods and Services and any other purpose related to provision of services to you or any User).
14.3 You agree that we may collect and use the Data and other technical and related information, including but not limited to information about your Device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Goods and Services. We may use this information, as long as it is in a form that does not personally identify our Users, to improve our products or to provide services or technologies to you.
14.4 We adhere to best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but do not make any guarantees that there will be no loss of Data.
15. THIRD PARTY APPLICATIONS AND YOUR DATA
15.1 If you enable third party applications for use in conjunction with the Goods and Services, you acknowledge that we may allow the providers of those third party applications to access your Data as required for the interoperation of such third party applications with the Goods and Services.
15.2 You agree that where you use any third party applications or services to interact with our Goods and Services in any way, you do so at your own risk and on the understanding that we are not responsible for any claims or loss arising out of, or in any way related to, your use of such third party applications or services and/or the interaction of such third party applications or services with our Goods and Services.
16. INTELLECTUAL PROPERTY
16.1 Title to, and all Intellectual Property Rights in the Goods and Services and any documentation relating to the Goods and Services remain our (and/or our licensors) sole property. Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights.
16.2 You acknowledge that we (and/or our licensors, as the context requires) own all the Intellectual Property Rights in the Goods and Services, including in modifications, enhancements, and improvements to them.
16.3 You will not directly or indirectly do anything that would or might invalidate or put in dispute our title in the Goods and Services.
16.4 If any person makes any claim alleging that any of the Goods and Services infringes any Intellectual Property Rights or Moral Rights of any person, you must:
a) promptly notify us in writing; and
b) cooperate with, assist and act at all times in accordance with our reasonable instructions, in relation to the claim and any consequent investigations, negotiations, settlement and dispute resolution proceedings.
16.5 You must not:
b) reproduce, make error corrections to or otherwise modify or adapt the Goods and Services or create any derivative works based upon the Goods and Services;
c) de-compile, disassemble or otherwise reverse engineer the Goods and Services or permit any third party to do so; or
d) modify or remove any copyright or proprietary notices on the Goods and Services.
17. OWNERSHIP AND RETENTION OF TITLE OF HARDWARE
17.1 The Goods and Services (except for Hardware) are licensed not sold and remains our sole and absolute property.
17.2 In respect of Hardware, risk in the Hardware shall pass to you upon delivery to your nominated delivery point. However, title to the Hardware (whether or not attached, fixed or incorporated into any other property) shall remain with us until we have received in full all sums due in respect of the Hardware and/or any other liabilities you have to us now or in the future. Once such funds are received, title to such Hardware will automatically pass to you.
17.3 Until title to the Hardware has passed to you, we will have a security interest in all the Hardware and you must:
a) hold the Hardware on trust for us;
b) store the Hardware separately from all your other goods or any goods belonging to a third-party;
c) not remove any batch number or other identification, or any notice indicating or displaying that the Hardware is our property;
d) maintain the Hardware in satisfactory condition; and
e) keep the Hardware insured on our behalf for its full replacement value against all risks to our reasonable satisfaction (on request you must produce the policy of insurance).
17.4 If payment for the Hardware is overdue in whole or in part, or you become subject to any form of insolvency administration, then you shall not be entitled to resell or part with possession of any Hardware still owned by us until you have paid in full all sums owed by it to us under the Agreement. Furthermore, upon notice we shall also be entitled to immediately terminate your right to possession of the Hardware and without prejudice to any other rights under the Agreement:
a) enter, or instruct agents to enter on our behalf, on five (5) days’ notice or such shorter period as may be reasonable in the circumstances, including for the purposes of Sections 130 and 135 of thePersonal Property Securities Act 2009 (Cth) (“ PPSA”), any premises where the Hardware may be, and to repossess and dispose of any or all Hardware owned by us; and
b) withhold delivery of any other undeliverable Hardware.
17.5 You must promptly do all things requested by us, acting reasonably to:
a) ensure our rights in relation to the Hardware are enforceable, perfected and effective; and
b) enable us to apply for any registration, or give any notification, in connection with the Agreement to preserve our rights in relation to the Hardware.
c) 6. You acknowledge that the Agreement constitutes a security interest for the purposes of the PPSA and must whenever requested by us sign all documents and do all acts and things requested by us to register our interest on the Personal Property Securities Register and such other register as we require under the PPSA.
17.6 If you fail to pay for the Service Agreement in accordance with the Agreement:
a) we may suspend or cancel your full operational access to the Goods and Services and/or recover possession of any Hardware (which has not yet been paid for in full) at any site owned, possessed or controlled by you; and
b) you agree that we have an irrevocable Licence to do so and we reserve our rights absolutely to recover all amounts outstanding for any Goods and Services provided to you.
18.1 To the fullest extent permitted by law, you agree that you waive, release, discharge and relinquish any and all Claims that you have now or may have against us which arise out of, or are in connection with, the provision and use of the Goods and Services.
18.2 You agree to indemnify and hold us and our officers, employees and agents harmless (“those indemnified”) from and against any action, liability, Claims, loss, damage, proceeding, expense (including reasonable legal costs and expenses) suffered or incurred by any of those indemnified, whether directly or indirectly, arising from or otherwise in connection with:
a) your breach of any of your obligations under this Agreement;
b) any Chargeback, Invalidated Payment or Reversal, including any dispute arising between you and your consumers or banking and/or payment authorities; and
c) your use or access of any of the Goods and Services.
18.3 Each party’s obligations under this clause will survive termination of the Agreement
19. WARRANTIES AND ACKNOWLEDGEMENTS
19.1 You warrant and acknowledge that:
a) you have full authority to enter into and carry out your obligations contained in the Agreement;
b) you will fulfil all of your obligations to any consumers (including Users) who purchase food, beverages or goods from you, and you will resolve any dispute or complaint with such consumers directly;
c) you have obtained all permits, authorisations, licences, registrations or other approvals required or necessary to conduct your business in connection with which the Goods and Services are used and carry out your obligations contained in the Agreement, and will maintain them in full force and effect for the duration of the Agreement;
d) you are authorised to use and access the Goods and Services and to access and use the information and Data that you input into the Goods and Services, including any information or Data input into the Goods and Services by any person you have authorised to use the Goods and Services.
e) you are authorised to access the processed information and Data that is made available to you through your use of the Goods and Services (whether that information and Data is your own or that of anyone else);
f) you are responsible for authorising any person who is given access to information or Data, and you agree that we have no obligation to provide any person access to such information or Data without your authorisation and may refer any requests for information to you to address; and
g) “”it is your sole responsibility to determine that the Goods and Services meet your personal needs and requirements and are suitable for the purposes for which they are used;
h) you remain solely responsible for complying with laws applicable to you;
i) it is your responsibility to check that storage of and access to your Data via the Goods and Services will comply with laws applicable to you (including any laws requiring you to retain records); and
j) other than those representations and descriptions expressly provided by us in this Agreement, you have not relied on any representations or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by us.
19.2 You acknowledge and warrant that if you use our Goods and Services on behalf of or for the benefit of anyone other than yourself (whether a body corporate or otherwise):
a) you are responsible for ensuring that you have the right to do so;
b) you agree that you have obtained that person’s authority and consent to use the Goods and Services on their behalf and have the authority to agree to this Agreement on behalf of that person;
c) you agree that by registering to use the Goods and Services you bind the person on whose behalf you act to the performance of any and all obligations that you become subject to by virtue of this Agreement, without limiting your own personal obligations under this Agreement; and
d) the provision of, access to, and use of, the Goods and Services is on an “as is” basis and at your (and that person’s) own risk.
19.3 You are solely responsible for ensuring the correctness, accuracy and/or lawfulness of:
a) all Data, including but not limited to, consumer ABN/can and contact details, pricing, discounts, surcharges, and Invalidated Payments;
b) your menu content, including but not limited to, descriptions, prices and allergy information; and
c) your marketing and advertising material, including but not limited to your shop signage, website and social media pages, and you will not be entitled to a reduction or variation in the Charges, your obligations under the Agreement or other remedy by reason of any such error relating to any of the above.
20. OUR LIABILITY
20.1 You acknowledge and agree that the Goods and Services cannot be tested in every possible combination, operating condition or application, and how and for what purpose the Goods and Services are used by you and that the allocation of risk contained in the Agreement is reflected in the Charges.
20.2 To the maximum extent permitted by law:
a) you will be deemed to have accepted all Goods and Services from the Commencement Date (unless you notify us in writing of non-acceptance within seven (7) days of delivery);
b) we exclude all warranties and representations as to the correctness, accuracy, adequacy, completeness, currency, reliability, timeliness or usefulness of any information or other content posted on the Goods and Services;
c) we do not warrant or guarantee that the Goods and Services, or the server supporting the Goods and Services, are free from defects, viruses or other harmful components, or will be uninterrupted or error free. We will not be responsible or liable for any direct or indirect losses, expenses or damages suffered or sustained by you as a result of, or in connection with, any interruption, error or delay in accessing and using the Goods and Services, including (without limitation) due to availability of third party services and systems;
d) we accept no liability for the loss of Data, including where such loss is wholly or partly caused by factors beyond our reasonable control including, but not limited to, failure or fault in the hosted environment of the Goods and Services, defective network or internet connections, defective equipment utilised by you or incorrect operation by you of your own Device or other access facilities;
e) we shall not be responsible for any disclosure, use, modification or deletion of your Data resulting from any access by third party application providers; and
f) neither us, nor our directors, officers, employees, contractors or agents, will be liable for any direct, indirect, consequential or other loss or damage to any person or entity, however caused (whether by negligence or otherwise), arising in connection with your use of, or inability to use, the Services, or reliance upon any of the content or other information posted on the Goods and Services.
20.3 Save for any terms, conditions, guarantees, warranties, indemnities or other rights which may arise under the Australian Consumer Law or other legislation and which cannot be excluded:
a) all warranties, whether express or implied including warranties as to fitness for any purpose and merchantability are expressly excluded; and
b) to the extent legally possible any liability that we may have to you or the User in relation to the Goods and Services which cannot be excluded shall be limited to, at our discretion:
i. either the supplying of the Goods and Services again; or
ii. the payment of the cost of having the Goods and Services supplied again.
20.4 We will not accept a return of the Goods and Services (including the Hardware) unless we have received written notice of non-acceptance in accordance with clause 20.2(a) and have given our written authorisation for the return. In the event that a return authorisation has been granted:
a) we will not be liable for any freight or other costs incurred by you in the event that a return is authorised by us;
i. a 20 percent (20%) re-stocking fee shall apply for all Hardware supplied;
ii. all Hardware must be received by us in as new condition, with original packaging, manuals and other accessories; and
iii. any Hardware that is damaged or soiled will not be accepted for refund.
20.5 You are responsible for any and all costs associated with setting up the Goods and Services and we will not accept any liability (or provide any refunds) in relation to your set up costs (except as required by law).
20.6 In all cases, our total aggregate liability for all Claims arising from or otherwise in connection with this Agreement is limited to the amount of the Charges paid by you under this Agreement in the 12 months preceding the relevant Claim.
21. ACKNOWLEDGEMENT AND RELEASE
21.1 You acknowledge and agree that:
a) you must resolve all disputes directly with the User in respect of any food, beverages or goods provided or purchased by the User or with any Delivery Providers with respect to delivery of any food, beverages or goods;
b) subject to the Australian Consumer Law, the Goods and Services supplied herein are general purpose Goods and Services only and no reliance by you has been placed upon our skill or judgment or the skill or judgement of our agents or representatives to select the Goods and Services for your particular purpose, and the Agreement is made without any warranty by us that the Goods and Services are suitable for any particular purpose.
c) you are solely responsible for your interactions with your consumers (including Users) and any and all claims, losses, expenses, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you and/or those consumers in connection with your interactions with them or the provision of your products and/or services to them or any Delivery Partner (as applicable),and to the maximum extent permitted by law, you release us from any and all such Claims;
d) you are solely responsible for ensuring that any tax invoice you provide to a User via the Platforms is correct in all respects and constitutes a Valid Tax Invoice;
e) you are solely responsible for determining the applicable GST rate to each product and/or service supplied to the User and remitting the GST payable on any such supply to the relevant tax authority;
f) you will hold us harmless in respect of any loss or damage arising from your failure to correctly apply GST to the sale of any product or service supplied to a User; and (iv) we do not act as your agent for GST purposes; and
g) by using or accessing the Goods and Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, you agree to use or access the Services at your sole risk and that we shall not have any liability to you for any content that may be found to be offensive, indecent, or objectionable.
21.2 You agree that, to the maximum extent permitted by law, you release us from any and all Claims suffered by you, in connection with:
a) your interaction with or provision of goods and/or services to you by any Merchant or Delivery Provider;
b) any loss, cost or damage you suffer as a result of (or in any way connected to) any food, beverage or goods purchased through our Services from a Merchant;
c) any loss, cost or damage you suffer as a result of (or in any way connected to) any food, beverage or goods purchased through our Services which are (and/or are to be) delivered by a Delivery Provider;
d) any loss, cost or damage (including relevant penalties and interest) you suffer as a result of your failure to correctly classify (for GST purposes) any supply of products and/or services sold to a User through our Goods and Services (including failing to apply GST on any such sale where GST is payable and remitting this to the relevant tax authority) or failing to issue a Valid Tax Invoice to a User;
22. FEEDBACK AND REVIEW
22.1 From time to time, we may request that you provide us with feedback or reviews on the Goods and Services. You are not obliged to provide such feedback.
22.2 From time to time, we may also request the recipient of any food, beverages or goods provided by you, to provide us with feedback or reviews with respect to the Goods and Services and/or the food, beverages or goods provided by you.
22.3 You acknowledge and agree that we, at our sole discretion, may determine whether such comments are published on our Goods and Services.
22.4 You acknowledge and agree that where you intend to post any negative review or comment with respect to our services on our Goods and Services or on any external review site or social media platform, you will contact us and provide us with an opportunity to discuss your concerns before publishing such negative review or comment.
23. SOCIAL MEDIA
23.1 You agree that, where our Goods and Services integrates in any way with social media, with respect to such integrations, you will adhere to these Terms of Trade and any other social media policy enacted by us from time to time.
23.2 With respect to social media, for the purposes of marketing and/or promotion, you acknowledge and authorise us to:
a) upload, publish, post or repost any content which directly or indirectly references you and/or any venue operated by you;
b) upload, publish, post or repost any content which directly or indirectly references any of your food, beverages or goods; and
c) make use of any publicly available information (including venue information and imagery) for the purposes of any publication, post or repost.
23.3 For the avoidance of doubt, by using the Goods and Services, you agree and consent to us undertaking any of the activities contemplated by clause 23.2 without the need to obtain any further consent from you.
24.1 Without limiting anything else in this Agreement, we may terminate the Agreement immediately by notice in writing if:
a) you breach of any term of the Agreement and such breach is not remedied within five (5) business days of us notifying you of that breach;
b) you become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration;
c) you, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; or
d) you, being a natural person, dies.
24.2 If notice is given to you pursuant to this clause 24, we may, in addition to terminating the Agreement:
a) retain any moneys paid; and
b) be regarded as discharged from any further obligations under the Agreement; and
c) pursue any additional or alternative remedies provided by law.
24.3 On termination of the Agreement for whatever reason, you undertake to pay all and any outstanding amounts payable under this Agreement (whether accrued prior to or after termination, including but not limited to the Charges and Chargeback Fee).
24.4 To avoid doubt, if you terminate this Agreement during a Service Term, you will be liable to pay the monthly Minimum Commitment Fee and/or Subscription Fee for the remainder of that Service Term.
24.5 On termination of the Agreement:
a) your rights under the Agreement will terminate automatically without notice from us;
b) you will no longer have access to, and will immediately cease using all Goods and Services; and
c) you will destroy and/or return all copies, full or partial, of the Goods and Services as well as all revisions, enhancements and upgrades of the Goods and Services.
25. SERVICES AVAILABILITY
25.1 Whilst we intend that the Goods and Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Goods and Services may be unavailable. If for any reason we have to interrupt the Goods and Services for longer periods than we would normally expect, we will use reasonable endeavours to publish in advance details of such activity on the Goods and Services. We will not be liable to you or any other person for any unavailability of or interruptions to the use of or access to the Services.
26. ASSIGNMENT AND NOVATION
26.1 You may not assign or transfer any rights under these to any other person without our prior written consent.
26.1 Without limiting clause 26, If the Merchant undergoes a change of control or ownership (including by way of sale or transfer of its shares or assets), you must provide us written notice, which must include the intended or expected date of settlement or completion and contact details for the acquirer or new owner. In these circumstances, in circumstances where the acquirer or new owner continues with HungryHungry under this Agreement, a new term will commence on and from the date of settlement or completion equal to the Initial Term (unless agreed by us in writing).
27. OUR RIGHTS
27.1 Any express statement of a right of ours under the Agreement is without prejudice to any other rights we may have including those expressly stated in the Agreement or existing at law.
28. GOVERNING LAW
28.1 The parties to the Agreement shall be bound by the laws of the State of Victoria in relation to all matters arising from all contracts between the parties and the parties agree to submit to the non-exclusive jurisdiction of the Court of Victoria and the Federal Courts of Australia and that any legal proceedings may be heard in these courts.
29.1 If any part or provision of the Agreement is invalid, unenforceable or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision. The remainder of the Agreement will be binding on the parties.
30.1 Any notice given under these Terms of Trade by either party to the other must be in writing by email and will be deemed to have been given on transmission.
30.2 Notices must be sent to email@example.com or to any other email address notified by email to you by us.
30.3 Notices to you may be sent via electronic messages, including email, text message/SMS, or mobile push notifications, to the email address or numbers which you provided when setting up your access to the Services.
31. RIGHTS OF THIRD PARTIES
31.1 A person who is not a party to this Agreement has no right to benefit under or to enforce any term of the Agreement.
32. VARIATION TO TERMS
32.1 We reserve the right to change, modify, add or remove portions of these Terms of Trade at any time without notice to you, effective upon posting it on the Goods and Services. By continuing to use or access the Goods and Services following any changes to these Terms of Trade, you signify that you have read, understood and agree to be bound by the updated Terms of Trade.
33. PREFERENTIAL PRICING OR DISCOUNTS
33.1 You may from time to time be offered preferential pricing or discounts for the Charges as a result of the number of organisations that you have added to the Goods and Services or that have been added with your authority or as a result of your use of the Goods and Services (" Organisations").
33.2 Eligibility for such preferential pricing or discounts is conditional upon your acceptance of responsibility for payment of any Charges in relation to all of your Organisations.
33.3 Without prejudice to any other rights that we may have under this Agreement or at law, we reserve the right to render invoices for the full (non-discounted) Charges due or suspend or terminate your use of the Goods and Services in respect of any or all of your Organisations in the event that any invoices for those Charges are not paid in full by the due date for payment.
The following definitions apply in this Agreement:
“Applications” means any of the customer driven ordering software provided by us via the Platforms on any Device (as changed or updated from time to time by us).
“Australian Consumer Law” means schedule 2 of the Competition & Consumer Act 2010 (Cth).
“Charges” means all monies payable by you specified in the Service Agreement, exclusive of GST.
“Chargeback” means any challenge to a payment filed directly by you with your credit card issuer or company.
“Chargeback Fee” means the sum of AUD $25.00.
“Commencement Date” means the date on which the Merchant signs the Service Agreement (or such other date specified in the Service Agreement).
“Confidential Information” means the confidential information of a party which relates to the subject matter of this Agreement and includes:
(a) confidential information relating to the technology and design of our Goods and Services including, but not limited to, algorithms, manuals, designs, diagrams and training videos of the Goods and Services;
(b) the Data;
(c) information relating to our personnel, policies or business strategies;
(d) information relating to the terms upon which the Goods and Services are provided to you;
(e) all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Goods and Services but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.
“Data” means any data inputted by you or with your authority through the use of the Goods and Services and includes, without limitation, data owned or supplied by you or data which may otherwise be generated, compiled, arranged or developed by you in using the Goods and Services pursuant to this Agreement.
“Device” means any type of device including a computer, mobile phone, tablet or console, and including any HungryHungry order manager or printer.
“Delivery Provider” means a third party person or entity who conducts a delivery business or provides delivery services, or other delivery arrangements determined or organised by you (including your own drivers), as the context requires.
“Food Photography Services” has the meaning given in a Service Agreement.
“Goods and Services” means any and all:
(b) platforms (including the Platforms);
(c) applications (including the Application);
(d) products or services;
(e) Management Services; and
(f) Hardware (as applicable),
offered by us.
“GMV” or “Gross Merchandise Volume” means the total sales volume of all Transactions placed through the Goods and Services by the Merchant.
“GST” has the meaning given by section 195-1 of the GST Act.
“GST Act” means the A New Tax System (Goods and Services) Tax Act 1999 (Cth) as amended or replaced from time to time.
“Hardware” means any equipment, goods or tangible materials provided to the Merchant by us.
“Intellectual Property Rights” means all intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
“Invalidated Payment” means an invalid payment, refund payment, over-payment, Chargeback or any other expense incurred due to any error, negligence, wilful misconduct or fraud by you or your directors, officers, employees, contractors, agents, consumers or banking and/or payment authorities.
“Moral Rights” has the meaning given under the Copyright Act 1968 (Cth) and includes any similar rights existing in other countries.
“Management Services” means support services, including without limitation, implementation, support, training and development services, provided to you by us.
“Merchant” means any merchant using the Goods and Services and/or any person from whom food, beverages or goods may be purchased via the Goods and Services.
“Minimum Commitment Fee” has the meaning given to it in the Service Agreement.
“Monthly GMV” means the GMV for a single calendar month.
“Platforms” means the internet sites at the domains owned and operated by HungryHungry including hungryhungry.com or any other website, mobile site or application operated by us via which the Applications may be accessed or used on any Device.
“Platform Fee” means a fee charged to the User by HungryHungry directly, which is specified in the Service Agreement.
"Related Bodies Corporate” has the meaning given to it in the Corporations Act 2001 (Cth).
“Reversal” means a reversal by us of any payment because the payment:
(b) has been categorised for reversal by our risk models.
“Service Agreement” means the order form completed by you for the Goods and Services and accepted by us in respect of the provision of the Goods and Services to you pursuant to this Agreement.
“Service Fee” means the fees HungryHungry will charge per transaction processed through the Goods and Services (and based on Monthly GMV), as specified in the Service Agreement.
“Service Term” means the Initial Term and each Subsequent Term.
“Set-up Services” has the meaning given in a Service Agreement.
“Subscription Fee” has the meaning given in a Service Agreement.
“Terms of Trade” means these terms of trade (as may be changed or updated without notice from time to time by us).
“Transaction” means the User payment processed by HungryHungry for an order via the Goods and Services.
“Valid Tax Invoice” means a tax invoice that satisfies the applicable requirements of the GST Act.
“You” means the Merchant, and where the context permits, any person you authorise to use the Services on your behalf “your” has a corresponding meaning.