Customer General Terms
Welcome to foodora!
foodora Australia Pty Ltd (ABN 50 605 948 052) of 5/29 Hutchinson St, NSW2010 Surry Hills ("foodora") is the operator of an online platform currently available at its website www.foodora.com.au, and via the Application and any other foodora branded or co-branded websites (including sub-domains, international versions, widgets, and mobile versions) and/or other media, software, devices, or networks now existing or later developed (collectively or separately known as the ("Site").
PLEASE READ THESE USER TERMS CAREFULLY BEFORE DOWNLOADING OUR APPLICATION AND/OR USING OUR SERVICES
- These Terms are an agreement between You and foodora and apply to You when using or accessing the Site or Services.
- The Terms constitute the entire agreement between You and foodora concerning the Services and supersedes any prior agreements.
- By using or accessing the Site or Services, You accept and agree to all of these Terms and You represent that You are eighteen (18) years of age or older and capable of entering into legally binding contracts. If You are under eighteen (18) years of age, You warrant that You have obtained consent from Your parent or guardian and that they agree to be bound by these Terms on Your behalf.
- If You do not agree to anything in the Terms You should not use the Site or Services.
- The Terms will remain in full force and effect and apply whenever You access the Site or Services, regardless of how You access the Site or Services, which You may access in several ways, including but not limited to the Web, mobile phones, tablets and RSS feeds.
- foodora reserves the right to amend the Terms at any time as notified to You via the Site. Continued use of the Site or Services will be deemed to constitute Your acceptance of those changes.
Application means mobile applications supplied by foodora and downloaded and installed for use on mobile devices;
App Store Sourced Application means any Application accessed through or downloaded from the Apple App Store;
Driver(s) refers to one of the independent contractors in foodora's network of drivers and riders, who are contracted to provide Delivery Services;
Content means any and all data, posts, text, software, images, audio, materials or video material and other content, in any medium, provided by foodora to You, and may include Third Party Content;
Customer means a person who places an Order with a Participant Restaurant using the Site;
Customer Content means any written or other content, information, posts or material (such as photographs or videos) provided by Customers or users of the Site and Services;
Customer Details means all details provided by a Customer in connection with an Order, such as the Customer's name, contact details, Designated Location and any Special Dietary Requests;
Delivery Fee means the fee that the Customer pays for delivery of an Order by a Driver;
Delivery Services means the collection of the Order from the Participant Restaurant and the delivery of the Order to the Customer;
Designated Location means the address provided by the Customer as the location for the delivery of the Order by the Driver;
Force Majeure Event means events or circumstances beyond a party’s reasonable control, including acts of God, war, flood, fire, storm, explosion, civil disobedience, tempest, theft, vandalism, riots, civil commotions, terrorist actions, wars, government restrictions, labour disputes, interruption to telecommunications systems, network failure or computer systems or the act or omission of any third party (other than contractors or subcontractors), including any damage caused by any of such events, over which the party has no control;
Job(s) means the individual Delivery Services that a Driver undertakes;
Non-excludable Rights means an implied condition, warranty or guarantee, including under the Australian Competition and Consumer Act 2010 (Cth) or any other applicable, equivalent legislation or rules of any State, Territory or jurisdiction which cannot be excluded, restricted or modified, the exclusion of which from these Terms would contravene any statute or cause any part of these Terms to be void;
Order(s) means the Customer's unique order for particular Restaurant Products made via the Site;
Order Price” means the price that the Customer will pay to the Participant Restaurant for the supply of Restaurant Products (inclusive of GST and any other applicable taxes);
Participant Restaurant(s) means the Participant Restaurants (which may vary depending upon the Participant Restaurants' geographical locations within Australia) with whom the Customer can place an Order via the Site;
Payment Option(s) means the payment options offered at checkout by foodora, including debit card and credit card;
Special Dietary Requests means any special food preparation requirements, including any specific health-related dietary requirements such as the exclusion of nuts or other potential allergens, relating to a Customer's Order;
Restaurant Products means any and all food and beverage items available from the Participant Restaurants featured on the Site;
Restaurant Contract means the agreement for the supply of an Order which is formed directly between the Customer and the Participant Restaurant and subject to the respective Participant Restaurant's general terms and conditions;
Services means the Site and associated services provided by foodora to facilitate the Customer placing an Order with a Participant Restaurant and the Driver delivering the Order to the Customer. This includes Services currently offered by foodora and any services or products that foodora may choose to offer in the future;
foodora Dispatch Application means the algorithm through which a Driver is selected and notified of Jobs which the Driver can accept or decline;
Third Party Content means any material, posts, content or information provided by the Participant Restaurants or third parties, including names, prices, address, location, menus, photos or reviews of their food and links to the Participant Restaurants' or third party websites, made available through the Site or posted or hosted on the Participant Restaurant's or third party websites;
Us, We or Our means foodora Australia Pty Ltd (ACN 602 925 128);
You, Your or Yourself means the person using or accessing the Site or Services, and includes all Customers.
Scope of Services
- In providing the Services, foodora is facilitating the following arrangements:
- Customers can browse Restaurant Products at the Site and place Orders with Participant Restaurants;
- Participant Restaurants can offer Restaurant Products via the Site that Customers can order;
- Drivers can be offered Jobs for delivery;
- Drivers can accept or decline Jobs; and
- Customers can track the status of their Order;
- The Customer acknowledges that foodora is not:
- supplying or delivering the Orders;
- a supplier or reseller of Restaurant Products or a delivery service; and
- is not acting as a partner, agent, affiliates or otherwise associated with the Participant Restaurants, Drivers or any other person or entity referred to on the Site
- A new Agreement in relation to the Services is created between foodora and the Customer each time an Order is made by the Customer and expires once the Services relating to an Order have been performed, however these Terms continue to apply when using or accessing the Site.
- By placing an Order, a Restaurant Contract between You and the Participant Restaurant is formed and a new Restaurant Contract between the Customer and the Participant Restaurant is created each time the Customer makes an Order with a Participant Restaurant.
- Drivers who accept Jobs are contracted by foodora to perform Delivery Services relating to that Job.
- foodora only provides the Services for Australian residents and only in locations where the Participant Restaurants and Drivers are available. foodora makes no representation that any Restaurant Products featured on the Site are available for purchase outside Australia.
- foodora does not recommend or endorse any particular Restaurant Products or Participant Restaurant. The Services are not designed to provide qualitative advice regarding the fitness for purpose and merchantability of any Restaurant Products. foodora strongly advises Customers to exercise caution and do their own due diligence on Restaurant Products and Participant Restaurants the Customer selects when making an Order.
- We currently do not provide any advertisements, however foodora may decide to deliver advertisements at its sole discretion in future.
Use of the Services
- You agree that by using the Services, You understand and acknowledge that foodora is providing You with
an online platform to browse, order and purchase Restaurant Products from Participant Restaurants via its
Site which are delivered to You by a Driver. Accordingly, foodora
- warrant or guarantee that You will find suitable Restaurant Products for Your specific taste, dietary, nutritional or other requirements;
- does not guarantee or accept responsibility for the availability, quality or preparation of Restaurant Products offered by the Participant Restaurants appearing on the Site; and
- does not have control over the quality, timing, availability, legality, failure to provide or delivery of the Orders or any other aspect whatsoever relating to the provision or delivery of the Orders by the Participant Restaurants or Drivers.
- You acknowledge and agree that Orders and Delivery Services are subject to:
- the availability of Restaurant Products at the respective Participant Restaurants;
- the operating hours of the Participant Restaurants; or
- acceptance by Drivers of Jobs matched through the Site.
- You agree to provide all Customer Details as may reasonably be required by foodora to provide the Services. We have the right to suspend or terminate any Customer account if the Customer fails to provide the Customer Details as required by Us.
- You are responsible for ensuring that all Customer Details provided are true, accurate and complete and We will not be liable to You, or any other person, including the Customer, Participant Restaurant or Driver, for any loss or damage arising from or in connection with a Customer's failure under this clause.
- We may refuse to process an Order for any reason or refuse to provide the Services to anyone at any time at Our sole discretion and if We do, We will refund any amount paid by You relating to that Order.
- Participant Restaurants featured on the Site may only be available to place an Order with within a selection of postcodes in Australia.
- The information or materials listed on the Site with respect to the Participant Restaurants and Restaurant Products is provided by the respective Participant Restaurants and foodora has no liability relating to such information or materials, including any errors, omissions or inaccuracy of such information or materials, which remains the responsibility of the Participant Restaurant.
- Prices for Restaurant Products are set independently by the Participant Restaurants and may vary according to Your location.
- You are solely responsible for verifying ingredients that may cause You, or any other person You place an order for, any allergic reactions in the Restaurant Products and specifying any Special Dietary Requests when placing an Order.
- You understand and agree that You will access and use the Site and Services, including its tools, with full responsibility and in a manner that is consistent with these Terms and in such a way as to ensure compliance with all applicable laws and regulations.
- The provision of the Services does not include the provision of a computer, smartphone, internet facilities or other equipment or services You might need to access the Site or use the Services. You are solely responsible for acquiring such equipment and services. Please be aware that Your carrier's normal rates and fees, such as text messaging fees, download limits and charges etc. will still apply.
- The Participant Restaurants provide menus to foodora comprising of Restaurant Products (including Order Prices), which foodora publishes on its Site.
- If You are interested in ordering any of the Restaurant Products appearing on the Site from a Participant Restaurant, You can make an Order by selecting Your Order using the Site.
- Once You have selected Your Order, You will need to proceed through the Order process on the Site.
- At the time of placing an Order, You must provide all Customer Details requested including:
- specifying the Designated Location; and
- clearly stating any Special Dietary Requests where necessary.
- You may review and amend the details of Your Order, or cancel Your Order at any time, prior to confirming Your Order at checkout.
- Once You have proceeded through the Order process to checkout You will need to:
- confirm Your Order at checkout; and
- provide Your Payment Option details which We may pre-authorise as security for payment of Your Order.
- Once You confirm Your Order and Your Order has been processed at checkout, a Restaurant Contract is formed between You and the Participant Restaurant. foodora is not a party to that agreement and the Participant Restaurant will be obliged to prepare and provide the Order to You.
- We will send You confirmation of Your Order to the e-mail address nominated by You in Your Customer Details.
- Your Order will be delivered within two (2) hours from receiving e-mail confirmation from Us. However, the e-mail confirmation of Your Order sent by Us is not a guarantee by Us that Your Order will be fulfilled.
- We will communicate Your Order and Customer Details to the Participant Restaurant.
- A suitable Driver will be located to deliver Your Order who, upon the Driver's acceptance of the Job, is contracted by the foodora to deliver Your Order.
- We will communicate the details for the Job to the Driver who can choose to accepts the Job. The Driver will collect and deliver Your Order in accordance with those details.
- It is the responsibility of the Driver, not foodora, to ensure that Your Order is delivered, however if there are any delays to the delivery times You will be notified by phone, email or SMS according to the Customer Details provided by You.
- You or a nominated person will need to meet the Driver at the Designated Location to collect Your Order.
- At the time Your ordered is delivered to You will be required to sign an acknowledgement that You have received the Order.
- You acknowledge and agree that it is Your responsibility to ensure that You or a nominated person are at the
Designated Location to meet the Driver and collect Your Order. Should You or nominated person not be at the
Designated to meet the Driver and collect Your Order, You acknowledge and agree that:
- You will not be entitled to a refund for an uncollected Order; and
- foodora, the Participant Restaurant and Driver have no responsibility or liability relating to Your failure to collect an Order, including any obligation to store an uncollected Order or for any loss or damage to an uncollected Order, which may include perishable Restaurant Products.
- Should You or a nominated person be unable to collect an Order You must notify foodora and foodora may charge You a fee of up to $15 to arrange an alternate Designated Location or time to meet the Driver and collect Your Order.
- If a Driver is unable to fulfil a Job it accepts (in full or part) a replacement Driver will be located to perform the Job.
- If a suitable Driver cannot be located for the Job, or due to a Force Majeure Event Your Order is unable to be delivered, Your Order may be cancelled and We will refund any amount paid by You relating to that Order.
- foodora agrees to provide the Services for payment by the Customer of the Order Price and Delivery Fee,
which foodora collects to:
- pay the Participant Restaurant the Order Price; and
- to pay the Driver for the Delivery Services.
- foodora accepts all payment options listed on the Site and You Order will be processed in accordance with the Payment Option selected by You.
- foodora uses third party merchant facilities to process payments. Accordingly, foodora is not responsible or has any control over any third party merchant facilities. Customers acknowledge and agree that foodora will not be liable for any loss or damage arising out of their use of a third party payment gateway. foodora advises that Customers should read and understand the terms of the third party merchant facilities before using them.
- All prices shall be shown in AUD, and include GST where applicable.
Vouchers and Promotions
- foodora may from time to time offer vouchers, promotions or gift cards to its Customers free of charge or for value. foodora may from time to time permit Participant Restaurants to offer their own vouchers or promotions for use in conjunction with ordering Restaurant Products through the Site.
- Any vouchers, promotions or gift cards offered by foodora or the Participant Restaurants cannot be redeemed or refunded for cash (whether from foodora, a Participant Restaurant or any other person) or be redeemed after any relevant expiry dates.
- You are solely responsible for the security of any vouchers, promotions or gift cards that You open through using the Services. foodora will have no liability to You for any loss or damage to those vouchers, promotions or gift cards and does not have any obligation to replace them, if the loss or damage arises from Your own act or omission.
- Neither foodora nor any Participant Restaurant will redeem any vouchers, promotions or gift cards which foodora in its sole discretion determines have been tampered with, forged or otherwise dishonestly dealt with. foodora reserves the right to refer any such activity to relevant law enforcement authorities.
Changes and Cancellations
- You acknowledge that once You have confirmed Your Order and Your Payment Option has been processed, You
cannot retract, cancel or modify that Order unless:
- You request cancellation or amendment of Your Order by calling the customer support number provided on the Site; and
- foodora or the Participant Restaurant allow You to do so at their absolute discretion; and
- The Participant Restaurant has not commenced work on Your Order.
- A Participant Restaurant may refuse or cancel the provision of an Order for any reason at any time in its
sole discretion, or if Restaurant Products are unavailable. If this occurs:
- We will refund any amount paid by the Customer relating to that Order; or
- the Participant Restaurant may offer You alternate Restaurant Products. You will be informed of the substitution by phone (on the phone number provided in Your Customer Details.
- If You decide to accept alternate Restaurant Products, foodora reserves the right to charge or refund You any difference in price between the Order Price for the unavailable Restaurant Products You ordered and the Order Price for the alternate Restaurant Products accepted by You.
- foodora will not be liable to You or any third party by reason of a refusal, suspension or cancellation or by reason of the unwinding of any Order permitted under these Terms, after processing Your Payment Option has commenced.
Refunds and Complaints
- You acknowledge that the Participant Restaurant is solely responsible for, and foodora will have no responsibility whatsoever to You or any other person for, the quality and standard of Restaurant Products, including for ensuring the Restaurant Products are fit for human consumption and that all health and safety obligations of the Participant Restaurant are met, or for the quality and standard of the dining experience provided by any Participant Restaurant, or for ensuring that any Special Order Requests have been fully met by the Participant Restaurant.
- foodora will use reasonable endeavours to assist with any complaints regarding the Services notified to Us in writing at [[email protected]].
- If an Order is not delivered, or any Restaurant Products are missing from Your Order, You should report this immediately to Us in writing at [[email protected]]. foodora will make all reasonable endeavours to investigate the matter with the Participating Restaurant in order to make a decision to refund or replace the Order. We will notify You of Our intention to refund the Order or the Order Price of any missing Restaurant Products from Your Order. You agree that We have the sole discretion of deciding whether to refund or replace an Order or any missing Restaurant Products from Your Order.
- Other than refund disputes described in the above paragraph, if You are not satisfied with any of the Restaurant Products in Your Order or wish to return, replace or refund Restaurant Products, this should be raised with the relevant Participant Restaurant. You agree that You must pursue any complaint or dispute about Restaurant Products with the Participant Restaurant, and foodora has no obligation to become involved in the resolution of any such disputes. However, foodora will use reasonable endeavours to assist with such disputes, returns, replacements or refunds of Restaurant Products and You must notify Us in writing at [[email protected]] within 1 hour of receipt of the relevant Order. If foodora, at its absolute discretion, does become engaged in any such dispute, foodora will do so as an independent third party, without any interest in the dispute or its outcome.
- If, after Your Order has been processed through the Site and You require any refund of any payment for Your Order made using an electronic payment facility available through the Site, including by You instigating a chargeback through Your bank or financial institution, You must contact foodora and provide details of why You require that refund. foodora will work with You and the Participant Restaurant to resolve the dispute that You claim gives rise to Your right to a refund.
Accessing the Services
- We reserve the right to withdraw or amend the Services, including the Site and any Content We provide on the Site, at any time without notice.
- At our discretion, We may at any time without prior notice restrict, block or disable access, edit and/or remove some parts of or the entire Site, Services or Content, including any material which in our reasonable opinion may give rise to a breach, or be in violation of these Terms or is otherwise harmful.
- foodora does not warrant that Your use of the Site or Services will be uninterrupted and We do not warrant that any data communication using the Site or Services will be transmitted reliably, accurately, in a timely manner or at all. To the extent permitted by law, the Services, are provided on an "as is" basis.
- The Site or Services may be subject to delay or downtime, and Your access to the Site or Services, may be restricted to allow for repairs, maintenance or the introduction of new services.
- foodora does not warrant that the Site or Services are free from viruses or anything else which may have a harmful effect on any technology.
- You acknowledge and agree that although We will use all reasonable efforts to ensure that the Services are available, temporary interruptions of the Svxervices available through the Site may occur and the Services may be suspended, restricted or terminated at any time.
- foodora reserves the right to substitute, change, suspend, modify or remove without notice any part of the Services at any time.
- foodora will not be liable to any person or entity for loss or damage incurred by any downtimes or disruption to the Services under this clause 11, including due to any software or hardware operated by You or any third party.
- You acknowledge that foodora has no obligation to monitor Your access to or use of the Site or Services or to review or edit any Content, but has the right to do so for the purpose of operating the Site and Services, to ensure Your compliance with these Terms, or to comply with applicable law or an order or requirement of a court, administrative agency or other governmental body.
Prohibitions and Security
- We do Our best to keep the Services safe and secure, but We cannot guarantee it. We need Your help to do
that, which includes the following commitments. You must not:
- share or post any blogs, items, messages or content that is inappropriate or fails to observe sense of decency or would offend other persons;
- republish, sell, rent or sub-license any Content including republication on another website;
- collect and disclose information about Customers' or users’ personal information;
- reproduce, duplicate, copy or otherwise exploit any Content on the Site for a commercial purpose;
- upload, send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
- send or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs;
- interfere with or disrupt the integrity or performance of the Site or Services or the data contained therein;
- engage in unlawful multi-level marketing, such as a pyramid scheme, using the Site or Services;
- solicit login information or access an account belonging to someone else;
- bully, intimidate, or harass any user and/or Customer;
- develop or operate a third-party application containing alcohol-related or other mature content (including advertisements) without appropriate age-based restrictions; or
- facilitate or encourage any violations of these Terms.
- foodora will have the right to investigate and prosecute violations of any of the prohibitions under these Terms to the fullest extent of the law. foodora may involve and cooperate with law enforcement authorities in prosecuting You if You violate these Terms.
- This Site supports secure socket layers of 128bit and greater.
- As a Customer You commit to Us relating to registering and maintaining the security of Your account,
- You will not provide any false personal information to foodora, or create an account for anyone other than Yourself without permission;
- You will not create more than one personal profile;
- if We disable Your account, You will not create another one without Our permission;
- You will not use Your personal profile for Your own commercial gain (such as selling Your status update to an advertiser);
- You will keep Your contact information accurate and up-to-date;
- You will not share Your password, let anyone else access Your account, or do anything else that might jeopardize the security of Your account;
- You will not transfer Your account (including any page or application You administer) to anyone without first getting Our written permission; and
- if You select a username for Your account We reserve the right to remove or reclaim it if We believe appropriate (such as when a trademark owner complains about a username that does not closely relate to Your actual name);
- In the event You change or deactivate Your mobile telephone number, You will update Your account information on foodora within 48 hours to ensure that Your messages are not sent to the person who acquires Your old number.
- The Services, including the Site, any Content and their "look and feel" (eg, text, graphics, images, logos
and button icons), photographs, content, notices and other material, are protected under both Australian and
other applicable copyright, trademark and other intellectual property laws and treaties, and are the
exclusive property of foodora or its licensors. You obtain no interest in that intellectual property. You
must not do anything which interferes with or breaches those laws or the intellectual property rights in the
Services, Site or any Content, including:
- distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or part of the Site or Services, including any Content, or any rights granted by these Terms, to any other person;
- modify, translate, adapt, arrange, or create any adaptation, modification or derivative works based upon the Site or Services, including any Content, for any purpose;
- create Internet “links” to the Site or Services or “frame” or “mirror” any Application on any other server or wireless or Internet-based device;
- reverse engineer or access the Site or Services in order to (i) design or build a competitive product or service, (ii) design or build a product using similar ideas, features, functions or graphics of the Site or Services, or (iii) copy any ideas, features, functions or graphics of the Services, Site or Application; or
- launch an automated program or script, including, but not limited to, Web spiders, Web crawlers, Web robots, Web ants, Web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Site or Services.
- The foodora.com.au logo and other foodora logos on the Site are registered trademarks of foodora or its related bodies corporate. Other trademarks may be displayed on the Site from time to time. These may belong to third parties. Nothing displayed on foodora should be construed as granting any licence or right of use of any logo, trademark or masthead displayed on the Site, without the express written permission of the relevant owner.
- foodora grants to You a revocable, non-transferable and non-exclusive licence to use and access the Site
or Services, including downloading, viewing or printing a copy of Content on the Site, provided that You:
- only use the Site or Services for Your personal use;
- do not modify the in any way (including any copyright notice);
- do not copy, distribute or publish any part of the Site or Services, other than as may be reasonably necessary to use the Site or Services for their intended purposes;
- do not to use or launch any automated system or program in connection with the Site or Services or their online ordering functionality;
- do not collect or harvest any personally identifiable information from the Site or Services, use communication systems provided by the Site or Services for any commercial solicitation purposes, solicit for any reason whatsoever any users of the Site or Services with respect to their submissions to the Site or Services, or publish or distribute any vouchers or codes in connection with the Site or Services, or scrape or hack the Site or Services; and
- You otherwise comply with these Terms.
- Subject to Your compliance with these Terms, foodora grants You a limited non-exclusive, non-transferable licence to download and install a copy of the Application on a mobile device that You own or control and to run such copy of the Application solely for Your own personal use.
- Any rights not expressly granted in these terms are reserved by foodora and its licensors.
- foodora may provide facilities for You to post, submit, host, share, or publish Customer Content.
- foodora owns all of the rights, title and interest in relation to Your Customer Content and You automatically assign to foodora all rights, title and interest, absolutely in Your Customer Content.
- For Customer Content that is covered by intellectual property rights, like photos and videos, You grant Us a worldwide, perpetual, irrevocable, royalty free, sub-licenseable, transferrable license to use, reproduce, modify and adapt such Customer Content for any purpose whatsoever. This licence continues even if You delete Your Customer Content or Your account.
- Without limitation, Customer Content may be published, reproduced or redistributed for any purpose, and You consent to the doing of all things with Customer Content that, in the absence of this clause, might or would breach any moral rights You may have in such Customer Content.
- Notwithstanding clause 16.4, if any of Your Customer Content is published, You consent to foodora also publishing Your name in conjunction with that Customer Content.
- You agree that Customer Content is not confidential information, and foodora may communicate Customer Content to any person by any means without restriction.
- foodora is not obliged to monitor or verify the accuracy or completeness of any Customer Content provided by You or any other person.
- You acknowledge that Customer Content may be reproduced, used and stored on the computing devices of other users of the Services.
- foodora may (or may authorise any other person to), in its sole discretion:
- refuse to display some or all Customer Content to some or all other users;
- remove Customer Content; and
- edit Customer Content.
- You warrant that Customer Content must not be:
- subject to any third party intellectual property rights, including copyright or trademark rights (whether registered or unregistered), or otherwise subject to third party proprietary rights, including privacy rights, unless You have an appropriate licence as required by clause 16.12;
- false or misleading, unlawful, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourage conduct that would be consider a criminal offence; or
- advertisements or solicitations of any business or entity (except with our prior written consent).
- You must not impersonate another person when using the Services.
- You warrant that You own or have the necessary licences, consents and permissions to use and authorise foodora to use all patent, trade mark, trade secrets, copyright or other proprietary rights in and to any and all Customer Content to enable inclusion and use of the Customer Content in the manner contemplated by these Terms, including the right to grant foodora all of the licence rights specified in these Terms.
- You agree to indemnify, defend and hold harmless foodora, its respective officers, directors, employees,
suppliers, subcontractors and agents from any loss, liability, claim, demand, damage, or expenses (including
reasonable legal fees):
- asserted by any third party due to or arising from or in connection with any claim by any person that any Customer Content submitted by You infringes or allegedly infringes the intellectual property rights of any person, or otherwise causes loss or damage to any person; or
- arising from any breach by You of any obligation or warranty under these Terms in respect of Customer Content.
- foodora reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by You, which does not excuse Your indemnity obligations.
- We always appreciate Your feedback or other suggestions about the Site or Services, but You understand that We may use them without any obligation to compensate You for them (just as You have no obligation to offer them).
Third Party Content
- The Site may include Third Party Content.
- foodora has not verified, and does not verify, the accuracy of Third Party Content made available through the Site.
- foodora does not endorse any Third Party Content available through the Site. Any such third party information and links are used by You at Your own risk.
- Accordingly, foodora is not responsible for Third Party Content or the actions of third parties and You
- foodora will have no liability whatsoever to You or any other person arising from, or in connection with, Third Party Content; and
- You release Us, Our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim You have against any such third parties.
- We currently provide Our Application for free, which is subject to change at the sole discretion of foodora.
- With respect to any App Store Sourced Application, You will use the App Store Sourced Application only in accordance with the “Usage Rules” set forth in the Apple App Store terms of service.
- foodora reserves all rights in and to the Application not expressly granted to You under these Terms.
- You acknowledge and agree that:
- these Terms are valid between You and foodora only, and not Apple;
- foodora, not Apple, is solely responsible for the App Store Sourced Application and content thereof; and
- that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, You may notify Apple, and Apple will, where applicable, refund the purchase price for the App Store Sourced Application to You and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between foodora and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of foodora.
- You and foodora acknowledge that, as between foodora and Apple, Apple is not responsible for
addressing any claims You have or any claims of any third party relating to the App Store Sourced
Application or Your possession and use of the App Store Sourced Application, including, but not limited to:
- product liability claims;
- any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and
- claims arising under consumer protection or similar legislation.
- You and foodora acknowledge that, in the event of any third party claim that the App Store Sourced Application or Your possession and use of that App Store Sourced Application infringes that third party's intellectual property rights, as between foodora and Apple, foodora, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
- You and foodora acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries relating to Your licence of the App Store Sourced Application, and that, upon Your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the rights under these Terms as related to Your licence of the App Store Sourced Application against You as a third party beneficiary thereof.
- Without limiting any other provisions of these Terms, You must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
- We may terminate Your membership or account as a Customer for any reason at any time. If You are using a paid version of the Services and We terminate Your membership or account because You have breached this Agreement, You will not be entitled to any refund of unused Services Fees.
- If You violate these Terms, or otherwise create risk or possible legal exposure for us, We can stop providing all or part of the Services to You. We will notify You by email or at the next time You attempt to access Your account.
- You may terminate Your membership as a Customer, or delete Your account or disable Your Application for any reason at any time by notifying Us via email at [email protected] foodora will disable Your account within fourteen (14) days of Your notification. Even after Your membership or account is terminated, certain provisions of these Terms will remain in effect.
- The parties must first attempt to resolve any claim or dispute arising out of or relating to these Terms or the Services in an amicable manner by mutual agreement in the first instance and in failing mutual agreement in the first instance, by mediation with a mutually acceptable mediator based in Sydney, Australia, prior to commencing any legal action.
- These Terms are governed by the laws of New South Wales and the Commonwealth of Australia. Any claim or dispute between You and foodora will be exclusively decided by a court of competent jurisdiction located in Sydney, New South Wales, Australia.
- foodora will use reasonable endeavours to assist with any disputes concerning the Services, including disputes arising with the Driver or Participant Restaurants.
Exclusion, Limitation of Liability and Indemnity
- Your use of the Site or Services is at Your own risk and We do not guarantee that foodora will be safe or
secure. Accordingly, subject to any Non-Excludable Rights, foodora excludes:
- all conditions, warranties and terms implied by statute, general law or custom from these Terms, and You agree that the Services are supplied “as is” without any express or implied warranties as to their function or performance of any kind including, but not limited to, implied warranties of merchantability, fitness for particular purpose, and non-infringement, unless expressly provided in these Terms;
- any and all injuries, illnesses, damages, claims, liabilities, losses and costs suffered or incurred by You, or any other person, arising from or in connection with Your use of the Restaurant Products, Participant Restaurants, Drivers or Delivery Services, including without limitation those relating to the quality, timing, legality (including any applicable laws, legislation or regulations relating to food and beverage and/or health and safety), delivery, preparation and availability of Restaurant Products or Orders;
- all liability to You, or any person, for lost profits, lost revenue, lost savings, lost business, loss of opportunity and any consequential, special, indirect or incidental loss arising out of, or in connection with, the Services, Your use of the Site, any claims by any third person (such as a Participant Restaurant), these Terms, or the liability or fitness of any Driver, Delivery Services or Restaurant Products, even if foodora knew the loss was possible, or the loss was otherwise foreseeable; or
- any liability for any breach of Our obligations under these Terms arising from, or in connection with, a Force Majeure Event.
- Except for liability in relation to breach of any Non-excludable Rights, foodora’s maximum aggregate liability to You including for one or more breaches of any express term or terms of these Terms, tort (including negligence), statute or otherwise, is limited to any amount equal to AU$50.
- For liability in relation to breach of any Non-Excludable Rights, except to the extent where such liability cannot be limited by law, foodora’s liability is limited, at foodora’s option, to any one of resupplying, replacing or repairing, or paying the cost of resupplying, replacing or repairing the goods in respect of which the breach occurred, or supplying again or paying the cost of supplying again, the services in respect of which the breach occurred.
- Where any limitation or exclusion of liability, or incidental or consequential damages is not permitted by law, including due to any Non-excludable Right, then such provision shall be deemed severable from these Terms and the other provisions shall remain in full force and effect.
- Should You wish to make a claim to enforce Your rights under the Competition and Consumer Act 2010 (Cth) including, but not limited, to any misleading statements made and/or incorporated by any of the Participant Restaurants on the Site, We will use reasonable endeavours to provide assistance relating to such claims.
- You must indemnify and hold Us harmless, including our officers, directors, employees, agents, successors
and assigns against all claims, costs, liabilities, losses, damage or expenses or injury of any kind
(including reasonable legal fees and costs) made upon or against foodora by any person, arising out of or
in any way connected with:
- Your access to and use of the Services; or
- Your breach of these Terms and any applicable law or the rights of another person or party;
- Your Customer Content; or
- the suitability of the Restaurant Products for You, or any other persons, specific taste, dietary, nutritional or other requirements, including any error or omission in detailing any Special Order Requests. This indemnification section survives the expiration of Your registration, and applies to claims arising both before and after the registration ends.
- If any provision of these Terms are found to be invalid, unenforceable or illegal for any reason, such provisions will be deemed deleted and the remaining provisions will remain in full force and effect.
- If We fail to enforce any of these Terms, it will not be considered a waiver. Any amendment to or waiver of these Terms must be made in writing and signed by Us.
- You must not transfer, assign or delegate any of Your rights or obligations under these Terms to anyone else without Our consent. We may assign, novate or otherwise delegate all or any of our rights or obligations under these Terms to any person or entity, and this clause records Your agreement to the replacement of foodora as a party to this this agreement with any other person or entity without further notice to You.
- Nothing in these Terms shall prevent Us from complying with the law.
- These Terms does not confer any third party beneficiary rights.
- Nothing in these Terms shall be construed to create a joint venture, partnership or agency relationship between You and foodora and neither party shall have the right or authority to incur any liability, debt or cost or enter into any contracts or other arrangements in the name of or on behalf of the other.