1) SCOPE AND FEES

1.1) Engagement 

a) Company supplies to Customer:
 

i) proprietary technology platforms by way of its website located at pickie.com.au (Website), mobile application (Application), any other software (collectively with the Website and Application referred to as ‘Software’ or ‘Goods’); 
 

ii) through its Software, its services (Services) to:

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A.) provide access to information, features, or resources available, accessible, or enable in the Company’s Goods and Services, including, but not limited to, on-demand lead generation, order and delivery processing, marketing, advertising, promotional services, proprietary information services, onboarding, operational and other support services, promote, manage, and process Customer’s purchasing experience of Items;

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B) link, facilitate, network and manage Customer’s order of Items with Merchant (Order) for the supply and fulfillment in respect of their purchase of food, (non-alcoholic and alcoholic) beverages, and tobacco products (Items); and

 

provide access, where required, to independent third-party contractors (Picker) who provide delivery services (Delivery Services) for the purchased Items; 

 

b) in connection with the Goods and Services, Company makes available to Customer a proposal for its Goods and Services (Proposal) to:
 

i) download its Software or Application from its Website or on an operating system marketplace application or software platform, including, but not limited to:

1. IOS App Store; 

2. Harmony OS AppGallery;

3. Microsoft Store; 

4. Android Google Play Store;

5. Microsoft Windows; and

6. Mac OS; 
    

ii) register and implement a Customer’s account (Customer’s Account) with the Company to enable a Customer to place an Order of Items with Merchant and to request for the Delivery Service of Pickers; 
 

iii) vet each Customer in terms of Customer’s ability, eligibility to obtain the Services from the Company; and

iv) manage the fulfillment of Customer’s Order of Items from Merchant and the requested Delivery Services from Pickers as well as the payment for the Order by Customer.

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c) These T&Cs form part of the Proposal and Order as if incorporated into the Proposal and Order (together the Agreement).

 

d) Company does not represent that it will provide any Goods unless they are included in the Agreement. 

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1.2) Acceptance

a) Customer accepts the Agreement (Acceptance) by accepting the:

1. T&C’s;

2. Proposal;

3. download and installation of the Company’s Software on a technological device;

4. accessing any part of the Company’s Website;

5. creation of a Customer account on the Company’s Goods; and

6. completion of payment of an Order through the Company’s Software.

 

1.3) Fees

a) Where Customer commits to an Order of Items at checkout, Customer must submit payment of the Proceeds of sale with the Company’s third-party payment gateway provider. Once the Proceeds of Sale has been applied and paid against Customer’s nominated Payment Card, the Order is confirmed. Once the Fee is paid, the Fee excluding the Order Processing Fee will be collected by Company on trust for Merchant and Picker for their entitlements. 

 

b) Payment of Proceeds of Sale are submitted to the Company’s third-party payment gateway provider through the Company’s Software by way of either Customer submitting details of a credit, corporate, debit, prepaid, reward card that may or may not be stored on a mobile wallet application (Payment Card) or by way of a token stored on the Company’s Software submitted to the third-party payment gateway provider where the details of a Payment Card has been previously provided by Customer. Payment of Fee may also be made by way of Vouchers or Account Credits.

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3) Company has individual agreement with Merchant and Picker that authorises and permits Company to collect its entitlement to apply its fees of five per centum (5%) against the total Retail Price of all Orders of Items from Customer (Fee) and to settle with Merchant and Picker their entitlements.

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1.4) Pricing

a) Customer acknowledges and agree that retail pricing of each of the Items from Merchant are not vetted by Company as to consistency and accuracy with Merchant’s shops on the Company’s Goods and Services. Company is not liable for Merchant’s representation of its pricing of Items to Customer.

 

b) Where Customer seeks for a Picker’s Delivery Service for their Order, Customer must pay the Delivery Fee supplementary to the Order of Items when paying the Proceeds of Sale to Company for the benefit of Picker for their delivery service, excluding any Order Processing Fee. 

 

c) Customer may voluntarily pay Gratuities supplementary to the Order of Items when paying the Proceeds of Sale to Company for the benefit of Picker for their delivery service, excluding any Order Processing Fee.

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d) Picker is solely responsible and liable to comply with all applicable taxes and laws (where applicable) with respect to the Delivery Fee and distribution of any Gratuities. 

 

e) Customer agrees that Company is required to apply and collect taxes, including, but without limitation to, GST on every component of the Pricing clause.

 

f) Customer agrees that Company’s third-party payment gateway provider is the sole beneficiary of any payment of Order Processing Fee made by Customer.

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2) CUSTOMER ACCOUNT

2.1) Application

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a) Company requires Customer to create a Customer’s account on the Company’s Software to access its Services.

 

b) Customer must:

 (i) as a natural person, be at least 18 years of age; and

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 (ii) comply with the representation and warranties under clause 11 of this Agreement; 

 

to be eligible to apply for a Customer’s Account on the Company’s Software for its Services.

 

c) Customer must not permit any person who is a minor to use the Services and the Customer will be solely responsible and liable for any unauthorised use.

 

d) Unless permitted in writing by Company, each Customer may only possess one Customer Account.

e) In establishing and setting up a Customer’s account, Customer must create a password, or other secure login method to access the Services. Customer must also provide valid credit card details in respect of the Fee due for an Order. Amongst other Customer’s information that will be required by Company will be the Customer’s full name, entity name and details such as ABN and ACN, date of birth, age, address, mobile phone number, email address, and an identity card to confirm eligibility to purchase alcoholic drinks and tobacco products.

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f) In as much as Company complies with the privacy of its Customer, Customer is solely responsible for the safeguard of the account details including login details and password and preventing any third-party from accessing the username, password, email account, mobile phone, and technological device. Where a third-party gains access to Customer’s account details and proceeded to place an Order of Items through the Company’s Goods for its Services, Customer will be liable for any Order of Items paid with the Token of the credit card details. Company is not liable for any losses suffered by Customer unless there is a breach of Privacy by Company in failing to secure Customer’s login details and password.

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g) Customer is responsible to maintain and to ensure that all details contained on Customer’s account are accurate, complete, and up to date information. Any failure by Customer to ensure of this may result in access to Services being suspended or not being accessible to Customer.

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h) Customer agrees and consents to Company sending of commercial electronic messages (including email, SMS, or push notifications) as part of the normal Company’s business operation and Services. Customer may opt out of receiving commercial electronic messages from Company at any time from Customer’s account subscription preferences. Customer further acknowledges that opting out from receiving commercial electronic messages may impact Customer’s use of the Company’s Services.

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2.2) Suspension and Closure

a) Customer may voluntarily close a Customer’s account at any time through the Company’s Software or by contacting Company. 

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b) Company may suspend Customer access to a Customer’s account, or close it permanently, where Company believes that Customer’s account has been used by a third party. 

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c) Company will equally close a Customer’s account where Company holds the view that Customer:

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i) has breached the T&C’s, Proposal, and Agreement;

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ii) does not, or is not likely to, qualify under applicable law or standards and policies of Company to access and use the Services;

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iii) has not acted lawfully with respect to the Company’s Services; and

 

iv) is abusing the Services (e.g. by applying for refunds or credit to which Company does not consider Customer is entitled, making repeated unreasonable complaints, mistreating Company’s staff, or any other good reason). 

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d) If Company closes Customer’s account permanently, Company will refund any remaining account credit validly obtained by applying a credit to Customer’s Payment Card, or if that is not possible for any reason, by way of a bank transfer using bank details provided to Company by Customer. 

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3) PROVISION OF SERVICES AND GOODS

The parties agree that the Goods and Services will commence on the Commencement Date, subject to any variation agreed by the parties, and provide the Services during the Term. 

 

3.1) Software Licence

a) Company makes available its proprietary technology by way of its Goods and platform for Services under a limited, non-exclusive, non-sublicensable, revocable, non-transferrable licence to Customer, Merchant, and Picker that enables Customer to complete an Order and make payment for the purchase of Items from Merchant and in turn for Merchant to receive an Order of Items from Customer for the fulfillment of that Order. Where Customer requests for Picker’s Delivery Service, Merchant can seamlessly request delivery services from Picker for the delivery to Customer’s location from Merchant’s location. 

 

3.2) Company’s rights and obligations

a) Company adheres to the privacy of Customer in accordance with its Privacy Policy and complies with this Agreement.

 

b) Company will supply Goods to Customer for the delivery of its Services to facilitate the process of an Order of Items by Customer from Merchant and the delivery thereof by Picker (if applicable).

 

c) Under this Agreement, Company makes available its Services for Customer’s sole use at Customer’s nominated address location in the Customer’s account for the Services (each, a Location). 

 

d) Subject to clause 3.3(b), Company, on behalf of Merchant, manages, deals, and resolves disputes and complaints with respect to Order of Items by Customer through its Goods and Services. 

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For clarity, Company will retain control over its Software to manage its dealings with Merchant, Customer, and Picker to ensure quality and experience for any Order of Items through its Goods and Services, including, but not limited to:

i) the personalisation of the Software;

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ii) the prioritisation and display of options available on the Software;

 

iii) the search functionality and results available; and

 

iv) the standardisation of the process and experience for all parties using the Goods and Services of the Company.

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e) Company and Merchant may at any time notify Customer that an Order has been cancelled. Customer will not be charged for any Order cancelled by Company or Merchant, and in the event of Fee paid by Customer, Customer will be refunded by Company the Fee paid less excluding Ordering Processing Fee through the same payment method or Payment Card used to pay for Customer’s Order;

 

f) Customer acknowledges and agrees that Company does not directly offer delivery services other than provide a platform for Services that facilitates the process for Merchant to fulfill the Order of Items from Customer and for the latter to have access to independent third-party contractors using the Company’s Software as a registered Picker to offer their delivery services to Customer from Merchant’s location. As such, Company supplies technology and platform for the provision of their Goods that both:

 

i) enable Merchant to connect with Customer who may purchase Items from Merchant; and

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ii) enable Picker to seek, receive and fulfill on-demand requests for delivery services between Merchant and Customer seeking delivery services for the Order of Items. 

 

3.3) Customer’s rights and obligations

a) Customer must provide access to its Location to Company through the Company’s Goods for the delivery and use of its Services;

 

b) Customer must ensure that it has and must maintain a stable and active internet connection service or data network access at its location to enable the delivery of the Company’s Goods and Services. Customer is responsible and liable for the rates and fees payable for accessing the internet connection service or data network access;

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c) Customer may only access and use the Company’s Goods solely for the delivery of the Company’s Services.

 

d) Customer further acknowledges and agree that Customer is solely responsible for acquiring and updating compatible technological device necessary to access and use the Company’s Goods and Services. Company does not make any representation nor guarantee that its Software and Services, or any portion thereof, will function on the said hardware or technological device;

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e) Customer acknowledges and authorises Company to manage the Customer’s purchase experience, deal, and resolve any disputes and complaints in respect of the Order of Items for the:

i) fulfillment of Customer’s Order by Merchant; 

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ii) delivery of Customer’s Order by Picker; and

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Customer must disclose all information to and assist Company with respect to any dispute and complaint with Merchant and Picker arising from Order of Items made through the Company’s Goods and Services. 

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f) Customer acknowledges and agrees that Company will not be liable for any loss or damage arising as a result a termination under clause 3.2(a).

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g) Customer, prior to submitting an Order of Items through the Company’s Software, must set the Customer’s Location for the benefit of a Picker to identify where the delivery service is to be provided to and completed at that Customer’s Location (Delivery Location). 

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Customer must be either present, or a nominate a person (Nominated Person) to be, at the Delivery Location to accept delivery from Picker. 

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Customer is responsible for paying for all Items ordered, and for related delivery charges under this Agreement, even where Customer has ordered an Item for a third party.

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Merchant may operate a minimum order value policy. This will be displayed on Company’s Software. All Items are subject to availability.  

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h) Customer acknowledges and agrees that Merchant, without notice, may use nuts or other allergens in the preparation of certain Items. In the event of allergies, Customer must contact Merchant prior to ordering. Company makes no representation not guarantee that any of the Items sold by Merchant are free of allergens. Customer indemnifies Company from any Claim for any loss or Consequential Loss arising from Items fulfilled by Merchant. 

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i) Further, where an Item is an alcohol drink or a tobacco product being part of the Customer’s Order where the Order Channel is through:

 

i) Customer’s Collection Service: Customer or Nominated Person will be required to supply and show his or her identification documentation to Merchant in person upon pickup of such an Item from Merchant’s Location; or

ii) Picker’s Delivery Service: Customer or Nominated Person will be requested by Picker, on behalf of Company and Merchant, to supply and show Customer’s identification documentation to confirm identity and eligibility of age to purchase alcoholic drinks and tobacco products at the Delivery Location upon delivery being effected.

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Customer acknowledges that Merchant or Picker may refuse to finalise delivery of an Item for alcoholic drink and tobacco products where Customer or Nominated Person fails to provide a valid identification documentation for verification of the recipient’s identity and age to confirm eligibility upon person collection from Merchant’s Location or upon delivery at the Delivery Location. 

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Customer further acknowledges and agrees that where Customer fails to meet the criterion of eligibility to purchase an Item that is an alcoholic drink or tobacco product, Customer will be liable to pay for that Item and any Fee paid in relation to that Item will not be refunded to Customer by Company on behalf of Merchant.  

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For clarity, Merchant is the seller and provider of Items for alcoholic drinks and tobacco products. Customer and Merchant, alike, keep indemnified Company from any Claim for any loss or or Consequential Loss arising from the sale and purchase of an Item that is an alcoholic drink or tobacco product.

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j) Customer acknowledges and agrees that Company will not be liable for any refund to Customer in respect of Items not in compliance with Food Safety Standards and Liquor Licensing Laws or other related issues within Merchant’s and Picker’s control, including but not limited to:

i) missing or incomplete Items;

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ii) non-complying Items; and 

 

iii) damaged Items,

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Should there be any issue in relation to non-compliance with Food Safety Standards and Liquor Licensing Laws by Merchant and Picker in relation to an Order of Items, Customer is required to raise a complaint with Company for dispute resolution and request for a refund from Merchant and Picker.

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Customer acknowledges that Company will consult with and seek a response from Merchant and Picker in relation to the raised issues contained in a complaint and will consider any Merchant’s response or Picker’s response (Notifiable Event Statement) to the raised dispute and complaint in order to provide Customer with an outcome.

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Company may, in its sole discretion and without further notice to Merchant, deduct from Merchant’s entitlement any refund or Account Credits payable to Customer.  

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k) Customer acknowledges and agrees that Company does not guarantee availability of independent third-party offering their delivery services to Customer, as Picker. 

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Customer agrees that Picker retains the right to select and opt for a pickup of an Order to fulfill the delivery services through the Company’s Software based on a proximity and priority basis. Further, where there are no Picker available for the delivery service of an Order, during the Company’s Operating Hours, Company may be required to intervene to facilitate the delivery services in lieu of Picker. As such, Company is entitled to the Delivery Fee of Picker.

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Customer further agrees that, outside the Company’s Operating Hours, Company will not provide intervention where there is no available Picker. Consequently, Company, at its sole discretion, will provide a refund of the Fee paid less Order Processing Fee by Customer as well as applying a credit Adjustment in favour of Merchant for Items on the Order prepared by Merchant at Company’s own costs. 

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l) Customer may only obtain an automatic refund of the Fee paid less Order Processing Fee (excluding any discount, Voucher applicable to the Order) from Merchant for a cancelled Order where a Merchant has agreed that the fulfillment of Order of Items has yet to be commenced by Merchant. Company will apply the refund using the same payment method and Payment Card used for the Order of Items. 

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m) Company may, at its sole discretion or in consultation with Merchant, offer to Customer through its Company’s Goods and Services, as part of the Company’s marketing strategy, any of the following:

i) Vouchers; 

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ii) Account Credits;

 

iii) Promotional Offers; and

 

iv) Referral Program Credits.

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4. ORDER CHANNELS

a) Each party acknowledges Company provides options for Order channels to Customer through its Goods and Services. By receiving an Order of Items through an Order channel from Customer, Merchant agrees to make available for supply of the Order of Items from Customer based on the Order channel selected by Customer to be either through a:

i) Picker’s Delivery Service where Customer requests on-demand delivery services provided by a Picker, subject to clause 3.3(h); or

ii) Customer’s Collection Service where Customer requests for Order of Items to be collected by Customer from Merchant’s Location (excluding the use of Picker);

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5. REPORTING

1.1) Record Keeping

a) Company is responsible to keep records of Customer’s transactions including Fees paid, dispute, and complaint, Merchant’s and Picker’s Notifiable Event Statements, Company’s resolution report, refunds to Customers and any Adjustments for consideration to and from Merchant.

 

b) Company is permitted to provide under its Privacy Policy and Cookie Policy and T&C’s with each of Merchant, Customer, and Picker. Customer further agrees that Company may share Customer’s transactional data regarding ordered Items, including sales data, with Company’s affiliated entities.  

 

2) SOFTWARE

2.1) Access

a) Consumer is provided access to Company’s Software, subject to Service Availability of the Company’s Goods and Services and provision of the Company’s Goods and Services. Company reserves its right to withdraw or amend access to Software or Services without notice. 

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b) Company will not be liable for unavailability of Software or Services at any time or for any period. From time to time, Company may restrict access to some parts Software or Services, or the entire Software or Services to Customers who have registered an account with Company’s Goods and Services. 

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c) Customer is responsible for maintaining the confidentially of their login details and any activities that occur under their individual account. Company may deactivate a Customer’s account at any time without further notice. Should this be the case, a Customer may enquire with Company by sending a query by email in accordance to the Company’s Privacy policy.

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2.2 Interactive Features

a) Company may from time to time provide certain features which allow Customer to interact through Software or Services that  permits Customer to submit, upload, publish or otherwise make available to Company through its Services textual, audio, and/or visual content and information, including chat room communication, commentary  and feedback related to the Services, initiation of support requests, submission of entries for entries for competitions and promotions (Customer’s Provided Content). Company acknowledges that Customer’s Provided Content remains the property of Customer.

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b) Customer agrees to provide the Customer’s Provided Content to Company by granting a worldwide, perpetual, irrevocable, transferable, fee free licence to Company and its affiliated entities with the further right to sub-licence, use, copy, modify, create derivative works of, distribute, public display, publicly perform, and otherwise exploit in any manner such Customer’s Provided Content in all formats and distribution channels now known or hereafter devised without further notice to or consent from Customer and without the requirement of payment to Customer or Person.

 

c) Customer represents and warrants to Company and its affiliated entities that Customer is either the sole and exclusive owner of all Customer’s Provided Content and that Customer holds all rights, licences, consents and releases necessary to grant Company and its affiliated entities the licence to the Customer’s Provided Content and further that neither the Customer’s Provided Content nor the Customer’s submission, uploading, publishing or otherwise making available of such Customer Provided Content nor the Company and its affiliated entities’ use of the Customer’s Provided Content as permitted herein by Customer or Person will infringe, misappropriate or violate any third-party’s intellectual property or proprietary rights or rights of publicity or privacy or result in the violation of any applicable law or regulation.  

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d) Customer agrees to not provide Customer’s Provided Content that is defamatory, libellous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Company in its sole discretion, whether or not such material may be protected by Law. Company may, but is not obligated to, review, monitor, or remove Customer’s Provided Content, at Company’s sole discretion and at any time and for any reason, without notice to Customer being in contravention of this Agreement.

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2.3) Reliance on Information Posted

a) Commentary and other materials posted on Software or Services are not intended to amount to advice on which reliance should be placed by Customer. 

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b) Company disclaims all liability and responsibility arising from any reliance placed on such materials by Customer to its Software or Services, or by anyone who may be informed of any of its contents.

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2.4) Updating Software

a) Company may update Software or Services regularly and may change the content at any time. If the need arises, Company may suspend access to Software or Services, or close them indefinitely. 

 

b) Any of the material on Software or Services may be out of date at any given time, and Company is under no obligation to update such material. 

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2.5) Promotional Offers

a) Company, in consultation with Merchant, may make Promotional Offers available to Customer through its Software. Promotional Offers on the Merchant’s menu of Items are for a limited term or otherwise subject to availability where Promotional Offers may be withdrawn at any time without any further notice to Customer.

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2.6) Third Party Links

Where Software or Services contains links to other sites and resources provided by third parties, these links are provided for Customer’s information only. Company does not endorse any of the contents of any third-party sites. Company has no control over the contents of those sites or resources nor accept no responsibility for them or for any loss or damage that may arise from Customer’s use of them. 

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3) LIMITATION OF LIABILITY AND INDEMNITIES

3.1) Statutory warranties

a) The provisions of this Agreement do not exclude or limit the application of any laws, (including the Competition and Consumer Act 2010 (Cth)) where to do so would contravene those laws or cause any part of this Agreement to be void.  

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b) To the maximum extent permitted by law, the provisions of this Agreement exclude all implied conditions and warranties except any implied condition or warranty, the exclusion of which would contravene any laws or cause this condition to be void.

 

3.2) Limitation of Company liability

a) To the extent permitted by law and subject to clause 7.3, the liability of Company in connection with the provision of the Services whether arising in contract, tort, negligence, breach of statutory duty or otherwise will be limited to the: 

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i) five per centum (5%) of the Retail Price of the Item paid by Customer;  

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ii) payment for the costs of having a replacement of Item; or

 

iii) Retail Price of the Item; 

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b) Each party releases the other party from any liability for any Claim arising as a result of delay or failure to provide the Services or to comply with this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party (including a Force Majeure Event), and which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable, provided that the affected party has used all reasonable endeavours to promptly cure such an event or circumstance. 

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3.3) Limitation of liability of both parties

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a) To the fullest extent permitted by law, no party will be liable for any Consequential Loss of the other party in contract, tort, negligence, breach of statutory duty or otherwise.

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b) No party will be liable to the other party to the extent that the other party or its agents, employees or subcontractors has caused or contributed to any loss or damage.

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3.4) Acceptable Quality

a) Customer has the right to receive an Item that matches its description, which are of merchantable quality, and which comply with any specific requirements (as agreed between Customer and Merchant) before an Order is placed. 

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b) If the Item delivered does not comply with these requirements and are not of merchantable quality, Company may request from Customer a photograph to support a Customer’s claim about the issues raised in respect of the Items not meeting the requirements and merchantable quality of the Item. 

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c) At Company’s reasonable discretion, Company may request from Merchant or Picker a Notifiable Event Statement to better understand the issue raised by Customer and it will be at Company’s sole discretion to provide a refund or Account Credits in respect of the affected part of the Item to Customer. Customer may not receive a refund from Company where it has reasonable cause to believe the issues raised by Customer arose after delivery whilst in the possession of Customer.

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d) Prior to processing Customer’s refund or Account Credits, Company may take into account relevant factors including the details of the order, including account history, details of what happened on delivery and Notifiable Event Statement from Merchant and Picker when determining the Company’s outcome for Customer’s dispute and complaint.

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3.5) Indemnity

Customer will indemnify, keep indemnified and hold Company harmless from and against all Claim and loss or damage, to the extent caused or contributed to by Customer. 

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4) INTELLECTUAL PROPERTY

4.1) Ownership of IP Rights

a) Each party will retain the rights, title and interest in its Existing IP Rights at Commencement Date of this Agreement.

 

b) Customer acknowledges that Company may acquire intellectual property from a third-party.

 

c) Customer agrees that Company owns all Developed IP Rights, and that all right, title and interest in the Developed IP Rights will vest beneficially in favour of Company and, to the extent this does not occur, Customer assigns them (by way of present assignment) to Company.

 

4.2) Licensing of IP Rights

a) Customer agrees and acknowledges that Company grants Customer a limited, non-exclusive, non-sublicensable, revocable, non-transferrable licence, non-exclusive, licence to use its Developed IP Rights contained in its Goods and Services for the intended purpose for which it was developed for Customer and for no other purpose except as agreed to by the parties.

 

b) Customer must obtain the written consent of Company where Customer intends to make use of the Goods and Services for any other purpose other than the intended purpose. 

 

4.3) IP Rights Warranties

a) Each party warrants that it will not, in any way, infringe or allow any other person to infringe the other party’s Existing IP Rights.

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b) Customer warrants that it will not, in any way, infringe or allow any other person to infringe the Developed IP Rights.

 

5) RATINGS

a) Each party acknowledges and agrees Company may request and obtain from Customer feedback through its Goods and Services by providing rating, comments and feedback of Merchant’s supplied Items and customer service as well as Picker’s efficiency and customer service for their delivery service provided to Customer (Customer Feedback). 

 

b) Company reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of Company and its affiliated entities without attribution to or approval of Customer. Customer acknowledges and agrees that Company and its affiliated entities are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Company and its affiliated entities hold the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal data, violate any privacy or other applicable laws, or Company’s or its affiliated entities’ content policies. 

 

6) PRIVACY AND CONFIDENTIAL INFORMATION

a) Customer acknowledges and agrees Company may be required to collect Confidential Information from Customer.

 

b) Customer agrees to provide Company with all necessary records, including Confidential Information, as reasonably required and requested by Company for the provision of the Company’s Goods and Services.

 

c) Confidential Information received by Company in the course of providing the Goods and Services will not be disclosed to persons other than Customer except as required or allowed for by law or with Customer’s express written consent.

 

d) Each party must ensure that to the extent it shares any data with any other person, it is compliant with all relevant privacy and data protection laws and regulations.

 

7) REPRESENTATIONS AND WARRANTIES

7.1) By each party

Each party represents and warrants to the other party that:

 

a) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws); 

 

b) any trade marks (registered or unregistered) used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party; 

 

c) the execution of this Agreement has been properly authorised by all necessary corporate or other action;

 

d) it has full corporate or statutory power and authority to execute this Agreement and to perform or cause to be performed its obligations under this Agreement;

 

e) this Agreement constitutes a legal, valid and binding obligation on it;

 

f) this Agreement does not conflict with, or result in the breach of, or default under, the provision of the constitution or other constituent documents of the party or any material term or provision of any Agreement or any writ, order or injunction, judgment, law, rule or regulation to which it is a party or is subject or by which it is bound;

 

g) it is solvent, no controller, administrator or statutory manager has been appointed in respect of it or in respect of any of its assets and it has not entered into any voluntary arrangement with one or more creditors; and

 

h) if it is a trustee of a trust:

i) it is the sole trustee of the trust and no action has been taken to remove or replace it;

 

ii) it has the power under the trust deed to execute and perform its obligations under this Agreement;

 

iii) all necessary action has been taken to authorise the execution and performance of this Agreement under the constituent documents of the trust;

 

iv) this Agreement is executed and all transactions relating to this Agreement are or will be entered into as part of the due and proper administration of the trust and are or will be for the benefit of the beneficiaries;

 

v) no controller, liquidator or statutory manager has been appointed in respect of the trust or any part of the assets or undertaking of trust; and

 

vi) to its knowledge, there are no actions, claims, proceedings or investigations pending or threatened against it which could have a material effect upon the subject matter of this Agreement.

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8) GST

a) Unless the contrary intention appears, any amount specified in the Goods is exclusive of GST. 

 

b) For the purposes of this clause, the terms words defined in the GST Law, have the same meaning in this Agreement.

 

c) If GST has any application to any supply made under or in connection with this Agreement, the party making the supply (for the purposes of this clause only, Supplier) may in addition to any amount or consideration expressed as payable elsewhere in this Agreement, recover from the recipient of the supply (for the purposes of this clause only, Recipient) an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.

 

d) Any additional amount on account of GST recoverable from the Recipient under this clause shall be calculated without any deduction or set-off of any amount and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under this Agreement.

 

e) The Supplier must issue to the Recipient a tax invoice and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under this Agreement or in respect of any supply under this Agreement.

 

f) Where an Adjustment event in relation to a supply under this Agreement has occurred, the Supplier must issue an Adjustment note to the Recipient no later than 14 days after that Adjustment event.

 

9) TERMINATION

9.1) Termination

This Agreement will commence on the Commencement Date and, unless earlier terminated as provided below, will continue for a period of 1 year from the Commencement Date (Initial Term) and will automatically renew for successive 1 year periods (each, a Renewal Term and together with the Initial Term, the Term). 

 

9.2) Voluntary Termination

Customer may voluntarily terminate the Agreement by requesting closure of their Customer Account with the Company and the Company agreeing for the closure of the Customer Account.

 

Company may not permit reinstatement of Customer Account for Services unless Customer agrees to be bound by the Agreement upon reinstatement of the Customer Account.  

 

9.3) Termination for breach

Either party may terminate the Agreement by giving 7 days’ notice in writing to the other, if the other party has: 

 

a) failed to comply with the terms and conditions of the Agreement; and 

 

b) failed to rectify that breach, to the satisfaction of the notifying party, following the expiration of 7 days’ notice of the breach.

 

9.4) Immediate termination

Company may terminate this Agreement immediately on notice to Customer by having closure of the Customer Account and cease its Services if:

 

a) Customer: 

i) is no longer able to perform its obligations under this Agreement;

 

ii) where it is a body corporate, any officer or employee:

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A. is charged with or found guilty of any criminal offence;

 

B. by their conduct, act or omission brings Company or any of its officers, employees or agents into disrepute; or

 

C. commits fraud or is alleged to have committed any impropriety in their financial dealings; and

 

iii) breaches a material term (or persistently breaches any term) of this Agreement which is incapable of remedy; or

 

b) Company is unable to perform its obligations under this Agreement as a result of TPD or death of its affiliate.

 

9.5) Consequences of termination

Upon termination of this Agreement:

 

a) any Fee, Activation Fee, expenses, Adjustments (whether invoiced or not) payable by Company to Merchant in respect of any period prior to the termination must be paid by Company within 14 days after the termination subject to Merchant authorising and approving the final reconciliation report and Company’s tax invoice within 7 days of Termination;

 

b) each party retains the rights it has against the other party, including in respect of any breach of this Agreement that arose before termination or out of the events that caused termination;

 

c) the rights and obligations of each party under this Agreement which are expressed to survive termination will remain in force; 

 

d) neither party may represent to any other person, whether directly or indirectly, that it remains associated with the other party; and

 

10.) GENERAL

10.1) Service Availability

The parties agree that:

 

a) Company may determine the prescribed delivery area from time to time in consultation with Merchant. Company will ensure that Merchant and Picker will not be required service Order of Items outside the prescribed delivery area to Customer; 

 

b) Customer acknowledges and agrees that Company may set a prescribed delivery area for Merchant to ensure serviceability by Merchant and Picker for Customer; and

 

c) Customer agrees that Merchant may determine its own operating hours. This means that the Company’s Services will be subject to the range of Merchant available to supply the Order of Items in the prescribed delivery area. Company’s Software will disable functionality of its Software for Customer outside the operating hours of Merchant to prevent Order of Items from Merchant.

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10.2) Amendment

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The Agreement may only be amended in writing.

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10.3) Severability

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If any provision in the Agreement is void, invalid, illegal or unenforceable the existence, validity, legality and enforceability of the residual provisions will not be affected, prejudiced or impaired and the offending provision will be deemed severed from the Agreement.

 

10.4) Waiver

No failure or delay by a party in exercising any right, power or privilege in the Agreement will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.

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10.5) Joint and several liability

If more than one person is Customer, each will be jointly and severally liable, regardless of the person to whom the invoice is addressed to and regardless of which person received the benefit of the Goods. 

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10.6) No reliance

Each of the parties acknowledges that, in entering into the Agreement, it does not do so in reliance on any representation, warranty or other provision except as provided in writing. Any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

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10.7) Priority of documents

a) Subject to sub-clause (b), if there are any inconsistencies between the Agreement and any other document, the Agreement will prevail.

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b) If there are inconsistencies between these T&Cs and the Proposal, the T&Cs will prevail. 

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10.8) Survival of obligations

The obligations accepted by the parties under clauses 7, 8, and 10 survive termination or expiry of the Agreement or the provision of the Services and Goods.

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10.9) Electronic Transaction

Each party consents to the execution of this Agreement by electronic communication, as contemplated by the Electronic Transactions (Victoria) Act 2000 (Vic).  

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10.10) Application of law

The rights and remedies provided in the Agreement are cumulative and not exclusive of any rights and remedies provided by law.

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10.11) Governing law

a) This Agreement will be governed by, and construed in accordance with the laws in Victoria, Australia.

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b) The parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia. 

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11) DEFINITIONS AND INTERPRETATION

11.1) Definitions

In this Agreement, unless the context otherwise requires capitalised works have the meaning set out below or in the schedule:

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a) Account Credits means credits that may be applied to a Customer’s account at the Company’s discretion; 

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b) Claim means all demands, claims, loss, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);

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c) Commencement Date means the date that Customer has provided Acceptance under this Agreement for provision of Services by registering a Customer Account with Company for its Services and upon completion of payment for a first Order through the Company’s Goods by Customer;

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d) Confidential Information means all information (whether written or oral) disclosed by a party to another party which is either:

i) identified as confidential by the discloser at the time of disclosure; or

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ii) of a nature which should reasonably be regarded by the recipient as confidential,

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but does not include information which:

i) is in the public domain without fault of the discloser;

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ii) was in the recipient's lawful possession at the time of disclosure;

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iii) is disclosed to obtain the consent of any third party to any requirement of, or to any act pursuant to, this Agreement; or 

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iv) is required by law, by an order of a court or tribunal or by the requirements of a stock exchange to be disclosed;

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e) Consequential Loss means all indirect, special and/or consequential losses, damages, costs or expenses of any nature whatsoever incurred or suffered, including any economic loss or other loss of turnover, any loss of reputation or goodwill, any loss of value of intellectual property, any legal costs and other expenses of any nature whatsoever in respect of them;

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f) Customer means a Person who has registered a Customer Account through the Company’s Goods and Services and proceeded with an Order and purchase of Items from Merchant and requested for Picker’s Delivery Service (if applicable);

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g) Delivery Fee means the fee paid by Customer to Company for the benefit Picker as a set fee for the services of the Picker in attending to the collection of Items contained in a Customer’s Order from Merchant’s location and its delivery to Customer’s location to the exclusion of any Gratuities;

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h) Developed IP Rights means any IP Rights developed during the Term in the course of providing the Services and Goods;

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i) Existing IP Rights means the IP Rights of each party existing as at Commencement Date;

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j) Force Majeure Event means an event, or series of events, outside the reasonable control of Company including (but not limited to) death or TPD of Company’s affiliate, fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, pandemic, any government decision and action on the community, or any other catastrophes;

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k) Gratuities means any additional amount that a Customer voluntarily agrees to pay to the Company for the benefit of the Picker other than the Delivery Fee in recognition of the quality of Picker’s services to the exclusion of any Order Processing Fee;

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l) GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

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m) IP Rights means all present and future statutory or other intellectual property rights which exist or may in future exist in respect of:

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i) any inventions, innovations, patents copyright, confidential information and know-how; and 

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ii) all rights with respect to intellectual property as defined in Article 2 of the convention establishing the World Intellectual Property Organisation of July 1967,

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including, but not limited to coding, programmes, designs, briefs, materials, manuals, records, procedures, systems, marketing techniques, plans or specifications;

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n) Merchant means a Person who has registered a Merchant Account through the Company Goods and Services as a participating business outlet to put to market Items for sale and has agreed to supply and complete the fulfillment of an Order of Items from Customer; 

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o) Operating Hours means Monday to Friday from 10:00am to 9:00pm and Saturday to Sunday 10:00am to 7:30pm

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p) Order Processing Fee means the fee payable by Customer for the use of third-party payment gateway and financial institution services to process payment of an Order through the Company’s Goods and Services, which is currently set at 2.2% of Order Total Price, but may be varied from time to time by Company as set out in any future versions of the T&C’s available on Company’s Website and Software;

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q) Order Total Price means total of:

i) Retail Price of each of the selected Items in an Order;

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ii) Gratuities;

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iii) Delivery Fee (if applicable); and

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iv) applicable taxes (including, but not limited to, GST);

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to the exclusion of any Order Processing Fee; 

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r) Person means a natural person of at least 18 years of age, an associated person to an entity, or an entity, including, but not limited to, a partnership, corporate entity, trust or otherwise as defined in clause 15.2(d);

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s) Picker means a Person who has registered a Picker Account through the Company’s Goods and Services to act as an independent third-party contractor for the provision of delivery services which may include, but is not limited to, seeking, receiving, and fulfilling on-demand requests for delivery by Customer from Merchant’s Location;

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t) Proceeds means the Order Total Price and Order Processing Fee,  

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u) Proposal means an offer made by Company to Customer for Company’s Goods and Services, with an estimate of likely costs and fees applicable to Customer for the provision of the Goods and Services;

v) Promotional Offers means an offer made by Company, at its sole discretion, to promote: 

i) targeted Merchant; 

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ii) Merchant’s targeted Items;

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iii) Picker’s Delivery Service;

as part of a marketing strategy by varying features and rates through the Company’s Goods and Services being available to Customer;

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w) Referral Program Credits means where Company may set up a program in accordance to the T&C’s- Customer for its existing Customer base (Referrer) to have the opportunity to earn credits as a promotional reward by inviting eligible Person to register an account as a new Customer, subject to the latter placing an initial Order of Items through the Company’s Goods and Services through a customised and unique referral identification link from the Referrer;

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x) Retail Price means the market price inclusive of GST as determined by Merchant for an Item payable by Customer; 

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y) TPD means the total and permanent disability (whether physical or mental) for a period (or anticipated period) of at least three months; and

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z) Vouchers means promotional credits that may be offered by Company or Merchant through the Company’s Goods and Services.

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11.2) Interpretation

In this Agreement, unless the context otherwise requires:

a) a reference to any law includes any subordinate legislation as amended, replaced, re-enacted or consolidated;

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b) the singular includes the plural and vice versa;

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c) where a party is to determine a matter they are to do so acting reasonably;

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d) a reference to ‘Person’ further includes:

i) a corporation, partnership, joint venture, association, authority, trust, state or government authority; and

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ii) their executors, administrators, substitutes, successors and permitted assigns;

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e) a reference to a clause or schedule is to a clause or schedule of this Agreement;

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f) headings are included for convenience only and do not affect interpretation;

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g) a reference to any Agreement or document is to that Agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;

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h) a reference to a matter being written includes that matter being in any mode of representing or reproducing words, figures or symbols capable of written form;

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i) a reference to dollars or $ is to Australian currency;

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j) if a period of time starts from a given day (or event), it is calculated exclusive of that day (or the day the event occurs);

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k)  “includes”, “including”, or similar expressions, are not words of limitation.

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11.3) Neutral interpretation

Nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or a relevant part of it.