PTY LTD ABN 24 609 882 564
TERMS OF SERVICE
1.1 DeliDelight.com.au Pty Ltd ABN 24 609 882 564 provides the Chefing web & mobile
system www.chefin.com.au ( Chefing).
1.2 Chefing connects hosts with chefs to collaborate on meals at the host’s address, as
more fully described in items C.1 of these Terms of Service.
A KEY DEFINITIONS
A.1 The following terms are used regularly throughout these Terms of Service and have a
particular meaning (additional definitions are found in the General Conditions):
(a) Agreement means these Terms of Service.
(b) Assistant means any person that assists the Chef to provide the services
during a Booking.
(c) Booking means a confirmed booking for a Chef to prepare a meal with a Host.
(d) Chef means a User that uses Chefing as a Chef.
(e) Chefing means the:
(i) Web application accessible from such URL as the Company may make available from time-to-time; and/or
(ii) The Chefing mobile application available from the Apple® App Store®, Google Play® and other mobile application marketplaces.
(f) Company means DeliDelight.com.au Pty Ltd ABN 24 609 882 564.
(g) Fee means any fee payable by a User for access to, or use of Chefing.
(h) Food Safety Standards means the Australia New Zealand Food Standards Code.
(i) Guest means any person that consumes a meal prepared by the Chef during a Booking.
(j) Host means a User that uses Chefing as a Host.
(k) Individual means any person that Chefing holds Personal Information in relation to.
(l) Order means an order requesting a Booking.
(n) Third Party means any person that is not a User.
(o) User means a registered user of Chefing that holds a Chef or Host.
(a) Chefs ( Item E)
(b) Hosts ( Item F)
B.2 In addition to any other express or implied consents, by using Chefing the User accepts and agrees to the terms of:
(a) This Agreement; and
C USING CHEFING
C.1 Chefing is a service that allows Users to collaborate with each other to make a homecooked meal.
C.2 A User may use Chefing either as a Host or as a Chef.
C.3 A Chef may list meals available for a Host to Order. Each meal listing must include the full price to provide the meal including:
(b) The Chef and each Assistant’s time and effort to prepare the meal; and
(c) The use of any special equipment required for preparing the meal that the Host is unlikely to possess.
C.4 A Host may browse, search or place an Order for a meal with a Chef.
C.5 Chefing may provide the contact details (including telephone or email address) of another User in relation to an Order or Booking with that User’s consent in order to make necessary arrangements for a Booking.
C.6 Chefs and Hosts may communicate directly without using Chefing. The Company accepts no responsibility for such communication.
C.7 A Host and Chef shall agree on the amount of assistance that a Host shall provide in the preparation of a meal in relation to a Booking.
C.8 The Host must ensure that the kitchen facilities and equipment necessary for the Chef to provide the meal are sufficient including by providing (without limitation):
(a) A working stove and oven;
(b) A refrigerator;
(e) Pots and pans.
C.9 A Chef may charge the Host an additional fee for any additional facilities and equipment that it provides as part of a Booking.
C.10 Notwithstanding any agreement between a Chef and Host:
(a) The Chef shall be responsible for cleaning any kitchen facilities and equipment used in the preparation of the meal; and
(b) The Host is responsible for all other cleaning following a meal or Booking.
C.11 Bookings and Cancellation
(a) An Order is not confirmed until the Chef confirms the Booking via Chefing.
(b) Once a Booking is confirmed the Host must make payment no later than three days prior to the date of the Booking.
(c) Chefing shall forward on any funds due to a Chef within one Business Day of receiving the funds for the Booking from the Host.
(d) The Host acknowledges that any funds paid by the Host are used to purchase the ingredients for a meal, and
(e) The Chef must ensure they attend each confirmed and paid Booking and provide the meal in accordance with the Booking.
(f) If a Host does not receive confirmation of a Booking within 24 hours of requesting an Order, the Host should contact the Chef directly via telephone or email.
(g) In addition to the terms of this Agreement, all Bookings may be subject to any additional terms agreed between the Host and Chef.
(h) The Host is responsible for ensuring that all Guests are ready, and available to attend a meal subject to a Booking. If a Host or their Guests cannot attend a Booking after the Booking is confirmed, the Host must notify the Chef.
(i) Notwithstanding a Refundable Issue, the Company does not offer refunds for cancellations.
(j) Nothing in this agreement shall restrict a Chef from:
(i) Offering a refund to a Host in accordance with any agreement reached between the Chef and the Host;
(ii) Charging a cancellation fee, which may be deducted from any refund.
C.12 Food Safety
(a) The Company does not sell food in any form, and does not operate a food business.
(b) Chefing is not intended to be used by food handlers to operate a food business. Each Chef is responsible for ensuring that they comply with the Food Safety Standards including whether their use of Chefing constitutes the operation of a food business.
(c) The Company makes not claim as to the reputation, experience, skills or quality of any Chef.
(d) Notwithstanding any law or agreement between Users to the contrary, each Chef and Host are jointly responsible for safety of any meal consumed as a result of a Booking.
C.13 Dispute Resolution. In addition to the dispute resolution provisions contained in clause 16 of the General Conditions:
(a) Any dispute that arises in relation to a Booking must be resolved between the Host and the relevant Chef in accordance with any agreement between the Chef and the Host.
(b) The Company reserves the right to suspend a User’s account if the Company receives a complaint about a User.
(c) The Company may reinstate a suspended account at its sole discretion.
C.14 No Warranty
(a) The Company makes no warranty or representation as to the quality, safety or fitness for purpose of any meal or services provided by a Chef.
(b) The Company takes no responsibility for any harm or loss suffered by a Host caused by a Chef. If a Chef does cause loss or harm to a Host, the Host agrees that:
(i) The Host shall have no recourse against the Company; and
(ii) The relevant Chef remains responsible for any such loss or harm.
D PAYMENT TERMS
D.1 Payments and Bookings
(a) Payments must be made by credit card, or as otherwise specified.
(b) The Company may take a Fee from payments made via Chefing in consideration for its services prior to forwarding the balance of the payment to the Chef.
(c) The amount of any applicable Fee deducted shall be in accordance with the rates advertised on the Company’s website from time-to-time, or as otherwise agreed with the Company.
(d) The Company will pay the balance of any Booking payment to the Chef within one Business Day of receiving payment from the Host.
(e) The Company does not store credit card or bank account details within Chefing.
(f) In the event that any payment dispute between a Host and a Chef, results in a reversal of payment from the Company’s account, then:
(i) The Chef must reimburse the Company for the value of any loss suffered by the Company as a result of that reversal (which the
Company may account for by off-set against any future payments to the Chef); and
(ii) The Chef must resolve the dispute with the Host directly, and not involve the Company any further.
(g) The Company will provide:
(i) The Host with a Tax Invoice for its payment; and
(ii) The Chef with a recipient created Tax Invoice for each payment it makes to the Chef.
E.1 Chefing may enable a Chef to:
(a) Create and manage a Chef account;
(b) List meals that the Chef is capable of preparing;
(c) Receive Orders;
(d) Confirm a Booking;
(e) Take payment.
E.2 The Chef agrees and warrants that:
(a) The Chef is responsible for ensuring that it remains in compliance with the Food Safety Standards at all times (if applicable).
(b) The Chef is responsible for ensuring all information that it provides via Chefing is accurate, including without limitation, with regard to:
(i) The Chef’s qualifications and experience; and
(ii) Each meal it lists on Chefing.
(c) The Chef is responsible for ensuring the following in relation to each Booking:
(i) Ingredients supplied by the Chef are fresh, and of good, edible quality;
(ii) The Chef attends the Booking on time;
(iii) The Chef (and any Assistant) is not under the influence of alcohol or any other substance that may affect the Chef’s ability to prepare a meal;
(iv) The Chef prepares each meal to high standard, and that each meal is fit for consumption;
(v) The Chef is polite and Courteous with each Host and Guest;
(vi) The Chef provides any equipment or ingredients agreed with the Host; and
(vii) Otherwise attends a Booking and does all things in accordance with the Chef’s agreement with the Host.
(d) The Chef is responsible for each Assistant that takes part in a Booking, and must ensure the Assistant’s compliance with this Agreement and the terms of any other agreement between the Chef and the Host.
(f) The Chef is responsible for ensuring that it operates its food business in compliance with the Food Safety Standards, all laws and regulations (including holding all necessary registrations and certifications) necessary in order to provide the services it provides to Hosts.
(g) To the extent permitted by law the Chef indemnifies and will hold the Company harmless against all costs, claims damages and expenses for any:
(i) Penalty imposed upon the Chef;
(ii) Injury, illness or death caused to a Guest, Host or Third Party;
(iii) Damage to the property of any Guest, Host or Third Party;
(iv)Claim of infringement of intellectual property rights made by a ThirdParty;
(v) Claim of breach of confidentiality by any Third Party; As a result of the Chef’s use of Chefing.
(h) The Chef shall not store or record any Personal Information that it can access through Chefing unless it is fully compliant with the Privacy Act;
(i) It shall ensure that all information that it makes available through Chefing is accurate and up to date, including (but not limited to) information supplied for:
i Creating an account;
ii Describing the Chef;
iii Describing a meal;
iv Notifying Users; and
v Any other information that may be accessed by the Chef or another User;
(j) It shall not disclose any information about an Individual to any other person or party other than as authorised by the Individual;
(k) It shall ensure all personal information it has access to through its use of Chefing is kept and used in accordance with applicable privacy laws in the jurisdiction;
(l) It shall only use Chefing for its intended purpose as set out in this Agreement;
(m) It shall comply with all anti-SPAM legislation in its jurisdiction;
(n) Its licence to use Chefing, as provided for in the General Conditions, is subject to the payment of all necessary Fees.
E.3 Any person who registers as a Chef in Chefing warrants that he or she is an authorised representative of that Chef with the requisite uthority to bind the Chef to this Agreement.
F.1 Chefing may allow a Host to:
(a) Create and manage a Host Account;
(b) Browse and search meals;
(c) Connect the Host’s account with a Chef;
(d) Place an Order;
(e) Receive notifications;
(f) Make payments.
F.2 The Host agrees and accepts that:
(a) The Host uses Chefing at its own risk. To the extent permitted by law, under no circumstance will the Company be liable for any injury, illness, death or damage to property resulting from the use of Chefing.
(b) The Host is responsible for each Guest that attends a Booking.
(c) Any claim based on injury, illness, death or damage to property that results from a Host’s use of Chefing must be directed to the Chef.
(d) To the extent permitted by law, the Company accepts no liability for the accuracy of any information made available using Chefing. Any reliance on the information available through Chefing is at the Host’s own risk.
(e) The Host indemnifies Chefing against all costs, claims damages and expenses for any injury or damage caused to the person or property of a Chef, Guest or Third Party as a result of the Host’s use of Chefing;
(f) Any information shared by Chefing with a Chef may be retained by the Chef for the purpose of updating their records;
(g) Chefing may send the Host emails, text messages, push notifications and other alerts on behalf of a Chef;
(h) Any consent or statement made by a Host through Chefing is valid and binding unless and until revoked by the Host, and a Chef may rely on a consent or statement made through Chefing without any need to further verify the veracity of that consent;
(i) All information about a Host or an Individual is used and controlled by the Host, Individual or Chef, not Chefing;
(j) All information input into Chefing about an Individual is provided with that Individual’s consent.
G.1 Fees apply as advertised to the use of Chefing, and the terms of those Fees are set out in the General Conditions.
G.2 Where a Fee is paid for a particular term of access to Chefing, the User shall not be entitled to a pro-rata refund of any Fees if it elects to stop using Chefing within that term.
H RESCHEDULING AND REFUNDS.
H.1 A Host may request a refund if any of the following refundable issues ( Refundable Issue) occur:
(a) The Chef cancels a Booking shortly before the scheduled start of the Booking;
(b) The Host determines whether before or after commencement of the Booking, that the description of the meal or the Chef’s credentials in a listing are materially inaccurate, or the Chef fails to meet the minimum standards set out in this Agreement; or
(c) The Host determines whether before or after commencement of the Booking, that the Chef is unqualified or unfit to provide the meal, or otherwise fails to meet the minimum standards set out in this Agreement.
H.2 The Host Refund and Rescheduling Policy.
(a) A Host that suffers a Refundable Issue may apply to the Company for a refund or to reschedule another Booking (whether with the same Chef or not).
(b) The Company may reimburse the Host the amount paid by the Host through Chefing, provided that the Company determines in its discretion that a Refundable Issue has occurred.
(c) Rather than accepting the payment of a refund, a Host may elect for the Company to hold the amount of any refund on account, which may then be applied to the value of a subsequent Booking by the Host.
H.3 Conditions to Claim a Refundable Issue. Only a Host may submit a claim for a Refundable Issue. In order to submit a valid claim for a Refundable Issue and receive the benefits with respect to their booking, the Host is required to meet each of the following conditions:
(a) The Host must bring the Refundable Issue to the Company’s attention in writing, and provide the Company with information (including photographs or other evidence) about the Vessel, Booking and the circumstances of the Refundable Issue within 24 hours after the time the Booking ended or was cancelled, and must respond to any requests by the Company for additional information or cooperation on the Refundable Issue.
(b) The Host must not have directly or indirectly caused the Refundable Issue (whether through action, omission or negligence).
H.4 Minimum Quality Standards, Chef Responsibilities and Reimbursement to Host.
(a) The Chef is responsible for ensuring that the Chef meets the minimum safety and quality standards set out in this Agreement, and do not present a Host with Refundable Issues.
(b) The Chef agrees to reimburse the Company up to the amount paid by the Company within 30 days of the Company’s request if:
(i) The Company determines that a Host has suffered a Refundable Issue related to a Booking confirmed by the Chef; and
(ii) The Company reimburses that Host any amount up to the amount paid by the Host through the Site for the Booking.
(c) All determinations of the Company with respect to a refund, including (without limitation) the size of any refund to the Host, shall be final and binding on the Host and Chef.
(d) The Chef agrees that in order to reimburse the Company up to the amount paid by the Company, the Company may off-set or reduce any amounts owed by the Company to the Chef by this amount.
(e) The rights of the Hosts under this Agreement supersede any cancellation provisions of an Agreement reached between the Chef and the Host with regards to the relevant Booking.
(f) If a Chef disputes the Refundable Issue the Chef may notify the Company in writing and provide the Company with information (including photographs or other evidence) disputing the claims regarding the Refundable Issue.
(g) The Company may take into account, the reasonable efforts made by a Chef to remedy or mitigate the Refundable Issue when reaching its determination.
(h) Each User agrees that all determinations of the Company with respect to the Refundable Issue shall be final and binding on the Hosts and Chefs regardless of their submission of a dispute against such Refundable Issue.
(i) In the event of one or more Refundable Issues in relation to the same Chef, the Company, in its discretion, may elect to take additional actions. These actions may include, but are not limited to negatively affecting the Chef’s user rating, cancelling future bookings, suspending or removing meal listing or imposing penalties or fees for the administrative burden associated with the Refundable Issues.
H.5 Nothing in this item shall prohibit the Company from processing a refund or crediting a Host’s account if the Company determines that a Booking was cancelled via Chefing, and a Booking did not occur prior to a payment being forwarded to the Chef for aBooking.
H.6 No other refunds. No other refunds shall be offered by the company except in accordance with this clause, or as required by law.
I ELECTRONIC TRANSACTIONS
I.1 The User agrees that when it provides any consent, authority or agreement through Chefing it does so as an electronic transaction and warrants that such transaction shall be binding on the party.
I.2 The User agrees that any request for a consent, authority or agreement it sends to other Users through Chefing as an electronic transaction shall be sent directly from its email address.
J.1 The User is solely responsible for verifying the identity of a signatory to any electronic
transaction it is a party to.
J.2 The Company does not guarantee the validity of any electronic transaction.
K TERM & LIMITATIONS
K.1 Term. The User’s licence to access Chefing shall be ongoing until terminated by the Company in accordance with this Agreement.
K.2 Limitations on Use. The Company may limit or restrict access to Chefing from time-to-time as it sees fit, including (but not limited to):
(a) Age. All Users must be over the age of 18 and capable of forming legally binding contracts.
(b) Chefs. The Company may restrict access only to reputable Chefs; and
(c) Location. The Company may restrict access to Chefing to certain jurisdictions where it is able to offer Chefing.
(a) The User must register an account in Chefing to use Chefing.
(b) The Company may set any registration requirements in its absolute discretion.
M.1 This Agreement may be terminated at any time by:
(a) Written notice of one party to the other; or
(b) By cancelling or otherwise terminating the Host’s account through Chefing.
M.2 Deleting Chefing does not constitute termination of this Agreement, although the Company may terminate this Agreement in the event it determines in its reasonable discretion that Chefing has been deleted and the User’s intention is to cancel or terminate their account and this Agreement.
M.3 The User agrees and accepts that deletion of Chefing may result in loss of data for which the Company is in no way liable.
N DISCLAIMER – THIRD PARTY INFORMATION & SERVICES
N.1 The User acknowledges that Chefing:
(a) Is dependent on third-party services, including but not limited to:
(i) Banks, credit card providers, BPAY, PayPal;
(ii) Telecommunications services;
(iii) Hosting services;
(iv) Email services; and
(v) Analytics services.
(b) May provide links to third party websites.
N.2 The User agrees that the Company shall not be responsible or liable in any way for:
(a) Interruptions to the availability of Chefing due to third-party services; or
(b) Information contained on any linked third party website.
O.1 Governing Law. New South Wales, Australia
O.2 Reference City. Melbourne.
1.1 The User wishes to access Chefing provided by The Company.
1.2 The terms and conditions in this Agreement govern the provision of Chefing to the User by the Company.
2.1 The following definitions apply in this document:
(a) ABN means Australia Business Number.
(b) ACN means Australian Company Number.
(c) Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Reference City set out in item O of the Important Terms.
(d) Corporations Act means the Corporations Act 2001 (Cth).
(e) Fees mean the fees and charges as set out in the Important Terms.
(f) Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party:
(i) Act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;
(ii) Act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
(iii) The effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and
(iv) Embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
(g) General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.
(h) GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(i) Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.
(j) Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
(k) Intellectual Property Rights means, for the duration of the rights in any part of the world, any Moral Rights, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
(l) Personal Information has the meaning given to it in the Privacy Act.
(m) Moral Rights means:
(i) Moral rights pursuant to the Copyright Act 1968 (Cth);
(ii) Or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).
(n) Pricing means the pricing as notified to the User in writing by the Company from time-to-time.
(o) Privacy Act means the Privacy Act 1989 (Cth).
(p) Solution means the solution called Chefing described in the Important Terms.
(q) Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.
(r) Tax Invoice has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(s) User Content means data that is uploaded or input into Chefing by the User or that forms part of the User’s Intellectual Property.
2.2 Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
(a) The singular includes the plural and the opposite also applies.
(a) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(b) A reference to a clause refers to clauses in this Agreement.
(c) A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
(d) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
(e) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
(f) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(g) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
2 APPLICATION OF THIS AGREEMENT
2.1 This Agreement applies to use of and access to Chefing.
2.2 Where the User does not accept the terms and conditions of this Agreement, the User must immediately cease using Chefing.
2.3 This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Chefing at the User’s next login after the User receives written notice of the update(s).
3 THE CHEFING PRODUCT
3.1 Chefing is the product described in the Important Terms.
3.2 Chefing is only accessible to the User for the term set out in the Important Terms.
3.3 The User agrees and accepts that Chefing is:
(a) Hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company servers and is not available ‘locally’ from the User’s systems; and
(b) Managed and supported exclusively by the Company from the Company servers and that no ‘back-end’ access to Chefing is available to the User unless expressly agreed in writing.
3.4 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Chefing.
3.5 The Company shall not exercise its rights under clause 3.4 in a manner that would intentionally cause the User to lose access to User Content or fundamentally decrease the utility of Chefing to the User, other than in accordance with the terms of this Agreement.
4.1 By accepting the terms and conditions of this Agreement, the User is granted a limited, non-exclusive and revocable licence to access and use Chefing for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.
4.2 The Company may issue the licence to the User on the further terms or limitations (including the number of users or volume of use or transactions) as it sees fit.
4.3 The Company may revoke or suspend the User’s licence(s) in its absolute discretion for any reason that it sees fit, including for breach of the terms and conditions in this Agreement by the User or any of its users. The Company will ordinarily advise the User of any suspension or revocation however it is under no obligation to do so.
5.1 The User agrees that it shall only use Chefing for legal purposes and shall not use it to engage any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.
6 AUTHORISED USERS
6.1 The User shall authorise users to access Chefing in its absolute discretion. The Company accepts no liability for access to User Content by users authorised by the User or using login details of users authorised by the User.
6.2 The User is solely responsible for the security of its username and password for access to Chefing.
6.3 The User shall notify the Company as soon as it becomes aware of any unauthorised access of its Chefing account.
7 USER CONTENT
7.1 The Company obtains no right, title or interest in User Content including any Intellectual Property found within it. The Company accepts no liability for the content of User Content.
7.2 The User is responsible for the accuracy, quality and legality of User Content and the User’s acquisition of it, and the users that create, access and/or use User Content.
7.3 Despite clause 7.1 the Company shall be authorised to permanently delete User Content where outstanding Fees remain unpaid in accordance with clauses 9 and 10.
7.4 The Company shall not access, use, modify or otherwise deal with User Content except where required by compulsion of law or upon the User’s authority (such as to provide support for Chefing).
8.3 The Company makes no warranty as to the suitability of Chefing in regards to the User’s privacy obligations at law or contract, and it is the User’s responsibility to determine whether Chefing is appropriate for the User’s circumstances.
9.1 The Company may deduct a fee from payments made via Chefing.
9.2 The terms of payment set out in the Important Terms shall apply.
9.3 Fees are non-cancellable and/or non-refundable once ordered or paid.
9.4 The Company may introduce new services with corresponding Fees by giving the User written notice of their availability and applicability.
9.5 The Company may revoke or suspend the User’s licence to access Chefing for unpaid Fees without liability.
9.6 Where the Company:
(a) Is required to perform any services for the User outside of what is set out in this Agreement or otherwise in writing; and
(b) Is subject to delays caused by changes or complexities outside of its control (and not caused by its breach of this Agreement); then The User agrees that the Company shall be entitled to charge the User an additional amount that is reasonable for the service performed.
9.7 GST is applicable to any Fees charged by the Company to Users within Australia. Unless expressed otherwise, all Fees shall be deemed exclusive of GST. The Company will provide the User with a Tax Invoice for its payment.
9.8 No refunds of Fees are offered other than as specified in this Agreement or as required by law.
10 INVOICING & PAYMENTS
10.1 The Company shall issue the User a Tax Invoice for all Fees for which GST applies.
10.2 The terms of payment set out in the Fees shall apply.
10.3 Should the User dispute a Tax Invoice, the User must notify the Company that issued the invoice of the disputed item within 5 Business Days of the date of the Tax Invoice. The User must pay the amount of the Tax Invoice not in dispute within the prescribed payment period.
10.4 Should the Host dispute a Tax Invoice, the Host must notify the relevant User and resolve the dispute with the User in accordance with item C.12 of the Important Terms or the User’s terms of trade. The Company shall not perform a dispute resolution role in relation to a Host’s invoice dispute.
10.5 Overdue Tax Invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.
10.6 The User authorises the Company to use the User’s information for the purposes of obtaining a credit assessment or to otherwise make investigations as to the User’s payment history.
11.1 Security. The Company takes the security of Chefing and the privacy of its users very seriously. The User agrees that the User shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them.
11.2 Transmission. The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards. It is up to the User to ensure that any transmission standards meet the User’s operating and legal requirements.
11.3 Storage. The Company may limit the amount of data that the User stores in Chefing, and shall advise the User of such. Data that is stored with Chefing shall be stored according to accepted industry standards.
11.4 Backup. The Company shall perform backups of Chefing in as reasonable manner at such times and intervals as are reasonable for its business purposes. The Company does not warrant that it is able to backup or recover specific User Content from any period of time unless so stated in writing by the Company.
12.1 By accepting the terms of this Agreement the User agrees that the Company shall provide access to Chefing to the best of its abilities, however:
(a) Access to Chefing may be prevented by issues outside of its control; and
(b) It accepts no responsibility for ongoing access to Chefing.
12.2 Users may prepare for unscheduled unavailability of Chefing by:
(a) Keeping their Chefing mobile app up to date and backed-up, which will store local copies of the data; and
(b) Printing hard copies of the information stored within Chefing.
13 INTELLECTUAL PROPERTY
13.1 Trademarks. The Company has moral & registered rights in its trade marks and the User shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.
13.2 Proprietary Information. The Company may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the User agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The User warrants that it shall not infringe on any third-party rights through the use of Chefing.
13.3 The Chefing Application. The User agrees and accepts that Chefing is the Intellectual Property of the Company and the User further warrants that by using Chefing the User will not:
(a) Copy Chefing or the services that it provides for the User’s own commercial purposes; and
(b) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Chefing or any documentation associated with it.
13.4 Content. All content (with the exception of User Content) remains the Intellectual Property of the Company, including (without limitation) any source code, analytics, insights, ideas, Exercises, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Chefing.
14 LIABILITY & INDEMNITY
14.1 The User agrees that it uses Chefing at its own risk.
14.2 The User acknowledges that Chefing does not provide food services or operate a food business.
14.3 The User agrees that it has had reasonable opportunity to obtain legal advice on this Agreement.
14.4 The User acknowledges that the Company is not responsible for the conduct or activities of any user and that the Company is not liable for such under any circumstances.
14.5 The User agrees to indemnify the Company for any loss, damage, cost or expense that the Company may suffer or incur as a result of or in connection with the User’s use of or conduct in connection with Chefing, including any breach by the User of these Terms.
14.6 In no circumstances will the Company be liable for any direct, incidental, consequential or indirect damages, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the User’s access to, or use of, or inability to use Chefing or any content, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the Company knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.
14.7 Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted or modified. Apart from those that cannot be excluded, the Company and the Company’s related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, the Company’s liability for breach of any implied warranty or condition that cannot be excluded is restricted, at the Company’s option to:
(a) The re-supply of services or payment of the cost of re-supply of services; or
(b) The replacement or repair of goods or payment of the cost of replacement or repair.
15.1 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
15.2 The rights and obligations under the relevant provisions of clauses 6, 8, 9, 10, 13, 14, 15, 16, 17, 18 and 18.6 survive termination of this Agreement.
16.1 All disputes between a User and the Company shall be handled in accordance with the Company’s dispute resolution policy.
16.2 Where the Company does not have a relevant dispute resolution policy for a type of dispute, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of this Agreement, then within 5 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Mediation. If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 16.1, the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;
(c) Arbitration. If the dispute between the parties relating to or arising out of this Agreement is not settled by mediation under Clause (b), either party may by written notice to the other refer the dispute to arbitration administered by the Institute of Arbitrators Australia. The arbitrator will be agreed between the parties from a panel suggested by the President of the Institute of Arbitrators Australia or failing Agreement, an arbitrator will be appointed by the President of the Institute of Arbitrators Australia; and
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause (d) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.
17 FORCE MAJEURE
17.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
(a) Specify the obligations and the extent to which it cannot perform those obligations;
(b) Fully describe the event of Force Majeure;
(c) Estimate the time during which the Force Majeure will continue; and
(d) Specify the measures proposed to be adopted to remedy or abate the Force Majeure.
17.2 Following a notice of Force Majeure in accordance with clause 17.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
17.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
17.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
17.5 The term of this Agreement will not be extended by the period of Force Majeure.
18 ELECTRONIC COMMUNICATION, AMENDMENT AND ASSIGNMENT
18.1 The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
18.2 The User can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement. The Company will notify the User of a change of details from time-to-time.
18.3 The Company will send the User notices and other correspondence to the details that the User submits to the Company, or that the User notifies the Company of from time-to-time. It is the User’s responsibility to update its contact details as they change.
18.4 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
18.5 Notices must be sent to the parties’ most recent known contact details.
18.6 The User may not assign or otherwise create an interest in this Agreement.
18.7 The Company may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the User.
19.1 Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
19.2 Prevalence. To the extent that the Important Terms are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.
19.3 Disclaimer. Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
19.4 Relationship. The relationship of the parties to this Agreement does not form a joint venture or partnership.
19.5 Waiver. No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
19.6 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
19.7 Governing Law. This Agreement is governed by the laws of the state set out in item O of the Important Terms. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
19.8 Severability. Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
END GENERAL CONDITIONS