1.       General

a)       These terms and conditions (Terms) are entered into between Abacus Solutions Pty Ltd ABN 25 602 063 525 (we, us or our) and you, together the Parties and each a Party. These Terms incorporate our privacy policy, posted on the Platform.

b)       We provide a technology platform to facilitate the ordering of food, beverages and other products (Items) and the processing of the payment for Items between customers who wish to order Items (Customers) and merchants selling Items (Merchants). 

c)       In these Terms, you means (as applicable) (1) the person or entity registered with us as either a Customer or Merchant; or (2) the individual accessing or using the Platform. 

d)       If you are using the Platform on behalf of your employer or a business entity, you, in your individual capacity, represent and warrant that you are authorised to act on behalf of your employer or the business entity and to bind the entity and the entity’s personnel to these Terms. You as an entity agree to be responsible for all acts or omissions of your staff or anyone who uses your account on the Platform.

2.       Acceptance

a)       You accept these Terms by checking the box indicating acceptance, creating an account on the Platform or using the Platform or our services.

b)       You must be at least 18 years old to use the Platform.

c)       We may amend these Terms at any time, by providing written notice to you. By clicking “I accept” or continuing to use the Platform after the notice or 30 days after notification (whichever date is earlier), you agree to the amended terms. If you do not agree to the amendment, you may cease using the Platform, and you may terminate these Terms in accordance with the Termination clause.

3.       Platform summary

a)       We provide the Platform to users (including hosting and maintaining the Platform), permit the ordering of Items and process payments between Customers and Merchants.

b)       You understand and agree that we only make available the Platform and our services on the Platform.

c)       We are not party to any agreement entered into between a Customer and a Merchant and we have no control over the conduct of Merchants, Customers or any other users of the Platform or over the availability,
pricing, quality or any aspect of Items a Merchant offers. We are not the seller of any Item offered by the Merchant and we are not acting for or on behalf of a Customer in relation to payment for an Item.

d)       Merchants may require Customers to agree to their terms and conditions in relation to the ordering of Items. To the extent there is inconsistency between any additional terms and conditions and these Terms, these Terms will prevail.

4.       Ordering

a)       To order Items from a Merchant’s website, the Customer will be directed to a new page, powered by us, and then will be able to select Items from the Merchant’s menu. The Customer finalises the order by making payment for the Items selected and listed on the order summary page, as well as any delivery fees (the selection, once paid for, becomes an Order).

b)       The delivery of Items is arranged externally to the Platform directly between the Merchant and the Customer.

5.       Accounts

a)       Merchants Accounts (only applicable to Merchants): In order to use the Platform as a Merchant, you must already have a merchant account with us (Merchant Account). Upon your request, we may add you as a Merchant on the Platform. To be listed on the Platform, you may be required to provide us with certain information, such as a menu including Items you will offer for sale, pricing for Items and your opening or operation hours. You must provide accurate information and keep such information up to date at all times. There are certain pieces of information that only we are able to change in your Merchant Account. We will not be responsible and will have no liability for any information you provide which is not accurate. You may invite your staff as users permitted to access and use the Platform under your account. You will be responsible for all staff’s acts and omissions in relation to the Platform and will ensure that all staff comply with these Terms at all times.

b)       Customers Accounts (only applicable to Customers): As a Customer, you may choose to create an account (Customer Account) to save your Order history and contact details, or may choose to place an Order without a Customer Account. You must provide basic information when registering for a Customer Account including your name and email address and you must choose a password. Your Customer Account is personal and you must not transfer it to others. You are responsible for keeping your Customer Account details and your password confidential and you will be liable for all activity on your Customer Account, including purchases made using your Customer Account details. You agree to immediately notify us of any unauthorised use of your Customer Account.

c)       If a legal entity such as a company has created an account, you, the legal entity, are the account owner, and regardless of any change in any contact details, you will remain responsible for your account as set out in these Terms. If you wish to change the account owner, you must provide us with a written request to transfer the ownership of the account to the incoming party, which must also include the incoming party’s written consent to take over full responsibility for the account.

d)      To delete any information we hold about you: (1) as an end user of a Merchant, please email that Merchant to request the deletion; and (2) as a Merchant, please email us at the address at the end of this Privacy Policy to request deletion of that information.

6.       Payment

a)       We make available the Platform and process payment for Orders on behalf of Merchants as the agent of the Merchant through our payment processor.

Customer Payments (only applicable to Customers)

b)       You agree to pay the relevant price set out in the order summary (Price) at the time you place an Order. We will process the payment, through our payment processor, at the time when the Order is made. You will receive a receipt for the Order from us.

c)       In the absence of fraud or mistake, all payments made are final. If you make a payment by debit card or credit card, you warrant that the information you provide to us is true and complete, that you are authorised to use the debit card or credit card to make the payment, that your payment will be honoured by your card issuer, and that you will maintain sufficient funds in your account to cover the payment.

Merchant Payments (only applicable to Merchants)

d)       In consideration for providing the Platform, we will charge you a percentage of the Price of each Order as our service fee with the relevant percentage being as set out in your Merchant Account (Service Fee). We will pay you the Net Sales Proceeds (being the Price we receive from the Customer less the Service Fee for the Order) in accordance with this clause.

e)       Upon receipt of the Price from the Customer, we will hold the Net Sales Proceeds on your behalf. Any amounts we hold for you are not held separately by us and may be commingled with our general operating funds or funds from other merchant accounts. You are not entitled to any interest or other earnings for amounts we hold for you.

f)        You appoint us as your limited payment collection agent solely for the purpose of accepting the Price from the relevant Customer. You agree that we will not be required to pay you any amount until we have received the Price from the relevant Customer, that we will deduct our Service Fee from the Price we receive and that we may grant refunds to Customers in accordance with these Terms.

g)       You agree that when we receive full payment of the Price for an Order from a Customer, this will constitute payment to you for the Order and the Customer’s payment obligation to you will be deemed completed at that time and you will have no further claims against the Customer with respect to that payment.

h)       At the end of every day, we will aggregate the Net Sales Proceeds of the day and arrange for the total Net Sales Proceeds to be deposited in your bank account via direct deposit. This deposit will normally appear in your bank account within 3-7 Business Days after payment settlement is initiated but this timeframe may be delayed due to factors beyond our control including delays caused by our third-party payment processor.

i)         There may be situations where we attempt to make a payment of the Net Sales Proceeds to you and for whatever reason we are unable to process the payment within 3 Business Days of the end of the relevant day. This may include situations of Force Majeure or where we have been provided with incorrect payment details.

j)         If you have not provided Items in an Order to a Customer or if we determine a Customer should be refunded the Price in accordance with the next clause, we have the right to refuse to pay the Net Sales Proceeds to you. You acknowledge that we may set off any amounts you owe to us from time to time against any amounts we owe to you.

k)       You acknowledge and agree that we may, in our sole discretion, establish limitations around payments on the Platform by Merchants or Customers, including individual or aggregate transaction limits on the amount or number of Orders a Customer may make or a Merchant receives within certain time periods. We may refuse to process any payment if we believe that a transaction is fraudulent, invalid, suspicious or breaches applicable law or these Terms.

l)         If you are involved in a dispute, we may place a temporary limit on the funds in your Merchant Account to cover the amount of any potential liability. If the dispute is resolved in your favour, we will lift the limit on your funds and those funds may be released to you. If the dispute is not resolved in your favour, we may remove the funds from your Merchant Account. We may also place a limit on your Merchant Account in circumstances where we suspect you of fraudulent or other unacceptable behaviour, while we investigate any such matter.

7.       Order changes, Refunds and Cancellations

a)       The cancellation, variation or refund of any Items ordered on this Platform is strictly a matter between the relevant Customer and Merchant. Merchants are responsible for setting their own cancellation, variation and refund policies for Items sold on the Platform. Customers must contact the Merchant directly if they wish to cancel or change their Order, or request a refund. Merchants may use the Platform functionality to process refunds at their discretion.

b)       If Customers have any issues in relation to the delivery or quality of Items or general customer service issues, they must contact the Merchant directly through their details on the Platform.

c)       Where a Merchant refunds a Customer, the Service Fee will still be payable by the Merchant to us and we will deduct the relevant Service Fee from amounts in the Merchant Account.

8.       Chargebacks (only applicable to Merchants)

a)       A chargeback and reversal is where a Customer instructs their card issuer or financial institution to stop and reverse a payment. We must follow the instructions of the payment product issuer or third party (payment processor) in relation to a chargeback.

b)       You agree that we will be entitled to deduct any chargeback and reversals that are imposed on us by a payment product issuer or third party (payment processor) on amounts paid to you by Customers, as well as any processing and other fees we incur on those chargebacks and reversals.

c)       You agree that we may reverse any such payments made to you, which are subject to chargeback or reversal instruction via your payment product issuer or third parties (payment processors). If you initiate any chargeback request or other “Request for Information” or similar process, you expressly agree and consent to us sharing any and all information in relation to your agreement of these Terms, in order to dispute any such chargeback request.

9.       Warranties

a)       You represent, warrant and agree that:

i)         you will not use our Platform in any way that competes with our business;

ii)       there are no legal restrictions preventing you from entering into these Terms; 

iii)      all information and documentation that you provide to us in connection with these Terms is true, correct and complete;  

iv)      you have not relied on any representations or warranties made by us in relation to the Platform (including as to whether the Platform is or will be fit or suitable for your particular purposes), unless expressly stipulated in these Terms;

v)       you will be responsible for the use of any part of the Platform, and you must ensure that no person uses any part of the Platform: (1) to break any law or infringe any person’s rights (including intellectual property rights) (2) to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or (3) in any way that damages, interferes with or interrupts the supply of the Platform; and

vi)      where you are a Merchant, you are solely responsible for marketing, selling, pricing, packaging and providing Items offered to Customer on the Platform in accordance with all applicable laws and regulations and you are responsible for any permits or authorisations you need to supply the Items.

10.    Privacy and Communication

a)       Where you are a Merchant, you are responsible for the collection, use, storage and otherwise dealing with Personal Information (as defined in the Privacy Act 1988 (Cth)) related to your business and all matters relating to the information you input or have access to through your Merchant Account.

b)       Where you are a Merchant, you must, and must ensure that your staff and anyone to whom you grant access to your Merchant Account, comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any privacy or anti-spam laws applicable to you in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with these Terms.

c)       We may contact you via the Platform, using in-account notifications or via-off platform communication channels, such as text messages or email with functional notifications.

d)       We may also send marketing and promotional material which may be of interest to you, using your contact details. You may opt out of receiving direct marketing messages at any time. Where you opt-out we will continue to send you functional communications relevant to your use of the Platform.

11.    Analytics

a)       Despite anything to the contrary, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Platform, in an aggregated and anonymised format (Analytics). You agree that we may make such Analytics publicly available, provided that it:

i)         does not contain identifying information; and

ii)       is not compiled using a sample size small enough to make the underlying information identifiable.

b)       We, and our licensors own all right, title and interest in and to the Analytics and all related software, technology, documentation and content used or provided in connection with the Analytics, including all intellectual property rights in the foregoing.

12.    Australian Consumer Law

a)       Certain legislation, including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the provision of the Platform by us to you which cannot be excluded, restricted or modified (Statutory Rights).

b)       If the ACL applies to you as a consumer, nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our Liability for the Platform provided to an entity defined as a consumer under the ACL is governed solely by the ACL and these Terms. 

c)       Subject to your Statutory Rights, we exclude all express and implied warranties, and all material, work and services (including the Platform) are provided to you without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

d)       As a Customer, the Items provided by a Merchant may also confer on you certain rights under the ACL.

e)       This clause will survive the termination or expiry of these Terms.

13.    Indemnities

a)       Except to the extent that the Liability arose from our negligent acts or omissions or any of our personnel, you indemnify us and our personnel against all Liability that we or any of our personnel may sustain or incur as a result, whether directly or indirectly, of:

i)         your or your personnel’s breach of these Terms

ii)       your or your personnel’s negligent, unlawful or wilful acts or omissions in connection with these Terms.

14.    Exclusions to liability

a)       Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with: 

i)         your or your personnel’s acts or omissions;  

ii)       any use or application of the Platform or our services by a person or entity other than you, or other than as reasonably contemplated by these Terms;  

iii)      any aspect of the Customer and Merchant interaction including the Items offered by the Merchant, the description of the Items purchased, or the supply and delivery of Items by the Merchant;

iv)      any works, services, goods, materials or items which do not form part of the Platform or our services (as expressed in these Terms), or which have not been provided by us; 

v)       any third parties or any goods and services provided by third parties, including customers, end users, suppliers, delivery, transportation or logistics providers or other subcontractors which the provision of the Platform may be contingent on, or impacted by;

vi)      the Platform or our services being unavailable, or any delay in us providing the Platform or our services to you, for whatever reason; and/or

vii)    any event outside of our reasonable control.

b)       This clause will survive the termination or expiry of these Terms.

15.    Limitations on liability

a)       Despite anything to the contrary, to the maximum extent permitted by law: 

i)         we will not be liable for Consequential Loss;

ii)       our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by your acts or omissions (or any of your personnel); and

iii)      our aggregate liability for any Liability arising from or in connection with these Terms will be limited to us resupplying the Platform or our services to you or, in our sole discretion, to us repaying you the amount of: (a) for Customers, $100; or (b) for Merchants,  the Service Fees paid by you to us in respect of the supply of the Platform and our services to which the Liability relates, or where there are no Service Fees paid, $100. 

b)       This clause will survive the termination or expiry of these Terms.

16.    Termination

a)       Your Merchant Account or Customer Account and these Terms may be terminated by you at any time, using the ‘cancel Account’ functionality (or similar) in your in the account page section of your account settings.

b)       We may terminate these Terms at any time by giving 30 days’ written notice to you without cause.

c)       We may suspend your account or terminate these Terms immediately upon written notice to you, if:

i)         you (or any of your personnel or staff) breach any provision of these Terms and that breach has not been remedied within 10 Business Days of being notified by us;

ii)       you are a Merchant, and:

(1)     we have terminated your Merchant Account under other terms and conditions we have with you;

(2)     we reasonably believe you have or might bring the Platform or us into disrepute; or

(3)     you have received complaints by Customers which we consider to be valid; or

iii)      there is any reason outside our control which has the effect of compromising our ability to provide the Platform or our services.

d)       Upon expiry or termination of these Terms:

i)         we will remove your access to the Platform;

ii)       we will immediately cease providing the Platform and our services and any existing Orders will be cancelled; and

iii)      to the extent permitted by law, any payments made by you to us are not refundable to you.

e)       Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it. 

f)        This clause will survive the termination or expiry of these Terms.

17.    General

a)       Assignment: You must not assign or deal with the whole or any part of your rights or obligations under these Terms without our prior written consent.

b)       Disputes:  In relation to a dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) between a Customer and us, or a Merchant and us, a Party may not commence court proceedings relating to a Dispute without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Institute of Victoria to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

c)       Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.

d)       Governing law: These Terms governed by the laws of Victoria.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Victoria and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts. 

e)       Notices: Any notice given under these Terms must be in writing addressed to us at the address at the end of these Terms or to you at the address in your account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

f)        Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship (except to the extent set out in the Payment clause as limited payment collection agent) between the Parties.

g)       Severance: If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

18.    Definitions

a)       Business Day means a day on which banks are open for general banking business in Melbourne, Victoria, excluding Saturdays, Sundays and public holidays.

b)       Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

c)       Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to these Terms or otherwise.

For any questions or notices, please contact us at:
Abacus Solutions Pty Ltd ABN 25 602 063 525
Last update: 7 August 2020
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