365cups Terms of Use for Venues

 

1.       Definitions: To assist you in understanding these Terms of Use, please read the following definitions:

(a)  “Account” means the account created when you download this Application or register via the Site and accept these Terms of Use;

(b)  “Application” means the application available on iOS devices which enables Venues and Customers to use the Service;

(c)   “Customers” means customers who place Orders using the Service;

(d)  “Operator” means 365cups Pty Ltd (ACN 149 082 388), the operator of the Service;

(e)  “Orders” means orders for beverages, food and other items;

(f)   “Service” means the service offered by the Operator via the Application and the Site which enables Venues to accept and process Orders from Customers;

(g)  “Site” means the Internet website managed and operated by the Operator located at http://365cups.com/index.php?p=privacy_policy;

(h)  “Venues” means the cafes and other venues which you register with the Service; and

(i)    “You” or “you” means the person who downloads the Application or who otherwise registers with the Site to use the Service for one or more Venues. 

 

2.       Status of Terms

In using the Service, you acknowledge and agree that:

(a)  these Terms of Use together with the Privacy Policy http://365cups.com/index.php?p=privacy_policy (together, these are referred to as the “Agreement”) create a binding legal agreement between you and the Operator, which shall be construed in accordance with and governed by the laws of New South Wales, Australia, and the Federal Laws of Australia, where applicable;

(b)  you must be aged 18 or over to download the Application and use the Service;

(c)   you are the legal owner of, or otherwise have sufficient legal capacity on behalf of, the Venues to register the Venues with the Service and to accept the terms and conditions of this Agreement on behalf of the Venues;

(d)  the Operator provides the Service solely in accordance with this Agreement, subject to any other relevant laws, and that prior to using the Service, you have read the terms of this Agreement;

(e)  you take full responsibility for compliance with this Agreement by the Venues;

(f)   nothing in this Agreement shall be deemed to constitute, create, give effect to or otherwise recognise a partnership, agency or joint venture of any kind, or create a fiduciary relationship, between you and the Operator;

(g)  the Operator may, from time to time at its sole and absolute discretion, revise this Agreement and post a notice on the Site advising of such revision, and you are taken to accept such revision if you continue to use the Service, whether or not any such revisions are expressly brought to your attention and

(h)  in addition to this Agreement, by using the Service and/or maintaining an Account, you are also deemed to accept any additional terms of use which apply generally to the Site.

 

3.       Your Account

You acknowledge and agree that:

(a)  all information you provide in establishing or updating your Account or in using the Service generally must be accurate, true and complete about you and the Venues, and you must ensure that your Account details are up-to-date;

(b)  if you are in breach of this Agreement, you will not be permitted to make any further use of the Service and your Account may be cancelled by the Operator, without prejudice to any rights of the Operator;

(c)   you will not adopt a username or provide any information in establishing your Account or using the Service that is offensive, obscene, defamatory or is otherwise determined, at the sole and absolute discretion of the Operator, to be unacceptable for use in relation to the Service, and agree that the Operator reserves the right to remove any such username or information, and to cancel your Account in such circumstances at no compensation to you, and you will indemnify the Operator for any claims made by third parties in relation to the use or display of any such username or information in relation to the Service;

(d)  the Operator reserves the right to edit or delete any material appearing in your Account, without notice and liability to you, in the event that any such material, as determined by the Operator in its sole and absolute discretion, violates this Agreement, or if the Operator deems it appropriate to do so pending investigation of any such violation;

(e)  you assume full responsibility for maintaining the confidentiality of your Account details and password, and any other information you make available in using the Service;

(f)   the Operator is not responsible for any losses you incur due to informational or technical errors in the Account registration process;

(g)  you will not cause or allow your Account to be leased, sold, transferred to or operated by another party, whether for money or other valuable consideration or gratuitously;

(h)  the Operator is not liable for any loss or damage you incur as a result of an unauthorised third party using your Account, including the use of any personal details you provide in the Account registration process howsoever obtained, and where you are aware that an unauthorised third party has access to or is using your Account, you must actively takes steps to prevent that third party from doing such and/or notify the Operator of such, and the Operator shall be authorised to temporarily suspend your Account whilst the issue is resolved, and that in any event, you are responsible for all losses or damages caused to any third party as a result of any such third party uses of your Account and must indemnify the Operator if claims are made against it by third parties in this respect;

(i)    should your Business cease or intend to cease trading for whatever reason, or if you are aware of any circumstance that renders your Business unable to use the Service, you must notify the Operator of such and/or cancel your Account and/or modify your Account status to indicate that your Business is unavailable to accept Orders from Customers, and if your failure to comply with this clauses results in loss or damage to any third party, including the Operator, you agree to indemnify the Operator against all claims from third parties, including the Operator, arising from damage or loss caused by your failure to comply with this obligation;

(j)    you will keep confidential any information you obtain that relates to any Customer, including actual names, nicknames and email addresses of Customers, and will not publish or reproduce such information in any form via any media without the prior written permission of the relevant Customer and the Operator;

(k)  the Operator may suspend or terminate your Account and/or your use of the Service without liability to you in the event that you violate this Agreement in any respect, as determined by the Operator at its sole and absolute discretion, or if the Operator deems it appropriate to do so pending investigation of any such violation, and you accept that the Operator is not liable to you in such circumstances for any losses or damages suffered by you;

(l)    the Operator reserves the right to suspend or terminate your Account, your use of the Service and access to the Site, without liability to you, if you use the Service in a manner or behave in a manner or transmit any information or other data via the Service deemed by the Operator to be dishonest, untruthful, defamatory, abusive, threatening, harassing, obscene, pornographic, fraudulent, malicious, misleading or deceptive, tending to be a breach of any criminal law or which may give rise to any civil liability, racial vilification, discrimination or which directly or indirectly endorses any other product or service not operated or provided by the Operator; and

(m) If you wish to cancel your Account, you need to email support@365cups.com with your details. Prior to cancelling your Account, you must ensure that you do not have any outstanding Orders that have not been processed.

 

4.       Use of the Service

In using the Service, you irrevocably and unconditionally acknowledge and accept the following:

(a)  you operate a business that primarily offers to the public consumable goods for purchase and ancillary services of that nature, and conduct such business in compliance with any applicable laws and regulations, and with such licences, leases or permits from any third party or public authority (the “Business”);

(b)  you will not use the Service or any other feature thereof, for purposes unrelated to your Business or purposes that are not intended by the Operator, whether or not related to your Business and having regard to the nature of the Service, this Agreement and the intention of the Operator;

(c)   you intend to use the Service for purposes directly connected to your Business, and that your Business does not violate any laws or the rights of third parties, and in the event that your Business or any other business you conduct via the Service violates any law or rights of any third party, insofar such violations involve your use of the Service, you hold the Operator free from liability and must indemnify the Operator against claims arising from any third party by reason of the matters stated in this clause;

(d)  you agree that you will not use or attempt to use the Service to advertise or promote any business you are affiliated with other than the Business, and in the event you engage in such activities, the Operator reserves the right to suspend or terminate your Account and your use of the Service, and you agree to indemnify the Operator against claims arising from any third party by reason of any damage or loss caused to that third party by reason of the advertising and/or promoting of any business you are affiliated with via the Service;

(e)  the nature of the Service is to connect you with Customers for the sale and purchase of goods and/or services you supply through your Business, and as such, the Operator is not party to any transaction or contract between you and a Customer in this respect, nor does the Operator bear or accept any liability arising from any such transaction or contract, and you agree to hold the Operator free from all liability arising in this respect and to indemnify the Operator for claims arising from Customers or any third party for your failure to perform any obligation in any transaction or contract with a Customer;

(f)   the Operator is not obliged to and makes no undertaking whatsoever to monitor or enforce the performance by any parties of any obligations arising from any transaction or contract entered into between such parties via the Service, including but not limited to, their capacity, ability and willingness to perform any obligations owed to you in relation to any goods and/or services they have notified you via the Service of intending to purchase, and you shall hold the Operator free from all liability in respect of the failure of any Customer or any other person to perform any such obligations owed to you that arises from any agreement or transaction you enter into with a Customer or other person; 

(g)  the Operator does not warrant that the Service, including without limitation the Application and Site, will be available for use uninterrupted or free of technical or functional errors, including the presence of “viruses” “Trojans” “spyware” “adware” “bots” and other similarly harmful computer effects, and any losses or damages you suffer as a result thereof, or because the Operator has chosen to temporarily or permanently suspend operation of the Service, is a risk borne by you for which you cannot make a claim against the Operator;

(h)  you have read and accepted the term and conditions on which Customers are permitted to use the Service (http://365cups.com/index.php?p=terms_view) and that you approve their inclusion, where appropriate, into any transaction and contract you enter into with a Customer when an Order is placed using the Service;

(i)    you must comply with all consumer protection laws, occupational health and safety laws or any similar or equivalent legislation regarding the preparation, supply and sale of goods for which Customers can place Orders via the Service including without limitation as to the quality or merchantability of any such goods;

(j)    the information you provide in using the Service, including without limitation regarding your products, prices, processing times for Orders, collection times, opening hours, the location and contact details for all Venues and any other information that is relevant to a Customer making an Order will be accurate and not misleading or deceptive;

(k)  the Operator provides the Service on a purely ‘as is’ basis without warranty of any kind to you;

(l)    you will only use the Service for the purpose for which it was intended, namely for you to accept Orders placed by Customers;

(m) you will not use the Service in a manner which will or may compromise its security or normal operation, including doing any acts that are harmful in nature or are not acts not ordinarily done in the normal use of the Service;

(n)  you may not copy, modify, license, sell, publish, communicate to the public or otherwise commercialise the Service or any of the information available from the Site in any way;

(o)  the Operator retains all intellectual property rights in and to the Service, Site and all software used in the provision of the Service;

(p)  you must not modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Operator in operating the Service;

(q)  the Operator does not warrant the Service meets your requirements and is not responsible for any losses or damages you incur due to errors in the operation of the Service;

(r)   the Operator does not guarantee that the Service will be available “24x7” and reserves the right, without prior notice to you, to suspend the Service pending maintenance, repair, diagnosis, analysis or upgrade of the Service, or to modify the Service, or discontinue the Service at any time, in any event, without liability to you;

(s)   you acknowledge that the Operator reserves the right to use your information, including Business information, obtained from your Account, free of compensation to you, in any manner it deems appropriate, including publishing or otherwise disclosing your that information, whether on its own volition or by legal compulsion by law, to assist any legal authority in the investigation of a criminal offence, or to assist any party in the resolution of a complaint or claim for civil relief in relation to activities by you, a Customer or the Operator in relation to the Service;

(t)   you hereby indemnify and undertake to keep the Operator and its affiliates, officers, directors, employees, consultants, agents and representatives fully and effectually indemnified from and against:

(i)       any and all third party claims, proceedings, losses, liability, damages and/or costs (including legal fees on an indemnity basis) arising from your access to or use of the Service and/or your breach of any warranty, representation, term or condition of the Agreement; and

(ii)      any and all claims, proceedings, losses, liability, damages and/or costs (including legal fees on an indemnity basis) from Customers.

 

5.       Financial Terms

You acknowledge and agree that:

(a)  you shall not be entitled to commence use of the Service until you have paid the Operator the applicable set-up fee as advertised on the Site at the time of registering with the Site;

(b)  the set-up fee is a payment made in respect of allowing you to establish an Account with the Operator and does not represent a payment by which the Operator grants you the right to use the Service in the manner contemplated under this Agreement;

(c)   the set-up fee is not refundable when you choose to close or terminate your Account for whatever reason, and that the Operator is not liable to repay to you the set-up fee if, for whatever reason, the Service is temporarily or permanently suspended from operation;

(d)  your continued right to use the Service is subject to you continuing to pay the Operator the applicable monthly fee (being the monthly fee applying at the time you registered on the Site), in advance,  on the due date, with the first monthly payment being due on the date on which you register with the Site and each subsequent payment being due on monthly anniversary of such date, each such payment to be made in accordance with the payment methods available on the Site;

(e)  should the monthly fee not be paid on time, the Operator reserves the right to suspend or terminate your Account without notice to you until any arrears have been received by the Operator;

(f)   the Operator shall be entitled to increase the monthly fee on not less than one month’s notice to you, such notice to be served by email to the email address you provided when registering for the Site; and

(g)  time is of the essence for all payments due under this Agreemen