1.1         Parties to the Terms and Conditions

These Terms and Conditions form the agreement between:

(a)           GO Platforms Pty Ltd (A.C.N. 649 009 441) trading as HomeBite hereinafter referred to as the “Company”, “Us”, “We” or “Our”; and

(b)           The Chef hereinafter referred to as “You” or “User”. 

1.2         Acceptance of Terms of Use

(a)           By accessing and using the Application and/or the Website, you accept the Terms and Conditions.

(b)           Upon acceptance by You, these Terms and Conditions cannot be varied subject always to Our written consent, which consent can be granted, withheld, or granted with conditions, in Our full discretion.

2.1         Definitions

In these Terms and Conditions:

Affiliate	of a person means: (a)           where the person is a body corporate: (i)            a shareholder of the person; (ii)           a Related Body Corporate of the person; and (iii)          a director, company secretary or officer of the person; (b)           an entity the person Controls; (c)           an entity that Controls the person; (d)           a Related Entity of the person; (e)           a Relation of the person; (f)            an entity that is Controlled by an entity that Controls the person; and (g)           where the person is a trust, any person who is a beneficiary under that trust
Agreement	means these Terms and Conditions and the Schedules
Application	means the mobile and/or web application called HomeBite
Authorisations	includes any consent, authorisation, registration, filing, lodgement, document, notarisation, certificate, permission, licence, approval, authority or exemption prescribed by law or regulation or required by any Government Agency including in relation to intellectual property and licencing
Business Day	means a day on which trading banks are open for general banking business in Melbourne, Victoria
Claim	means any claim, notice, demand, action, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise
Confidential Information[NOH1]	includes but is not limited to all information concerning the existing and future business of the company and the methodology, affairs and procedures arising from or in connection with the Application including: (a)           information concerning marketing and promotional procedures and activities, surveys, techniques, data, formulae research and development, know-how and trade secrets, software, engineering data, plans and specifications, marketing plans and information, processes and formulae together with any accounting procedures or financial information; and (b)           information whether forming part of the Intellectual Property or not and whether in existence at the Commencement Date or coming into existence thereafter; (c)           any information designated by a party as being confidential; and (d)           information which is to be kept confidential
Control	has the meaning set out in section 50AA of the Corporations Act
Corporation	includes any statutory corporation, corporation sole or company formed or incorporated according to Corporations Law
Corporations Act	means the Corporations Act 2001 (Cth)
Customer	means a person or Corporation placing an Order
Delivery Fee	means the fee charged by the Delivery Partner
Delivery Items	means any order that is to be delivered to the Customer
Delivery Partner	means any person and/or Corporation delivering the Order to the Customer
Dollars or “$”	means the currency applicable in Australia
Expenses	means all expenses, including legal costs (on solicitor and own client basis), stamp duty and registration fees
Government Agency	means any government or any governmental or semi-governmental entity or judicial entity or authority, and includes any self-regulatory organisation established under applicable law or a stock exchange
GST	has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Intellectual Property	means the trade mark bearing registration under GO Platform Pty Ltd
Intellectual Property Entity	means GO Platforms IP Holding Pty Ltd (A.C.N. 650 149 625)
Legislation	means all legislation, regulations (or instruments made under it), by-laws, notices, directions, orders, requirements or demand which apply to this Agreement and where amended, re-enacted or replaced, means the amended, re-enacted or replacement Legislation
Liability	means any debt, obligation, interest, costs, expense, loss, damage, compensation, legal costs (on an indemnity basis), charge or liability of any kind, actual, prospective or contingent and whether or not currently ascertainable
Marks	means any or all of them the items, Trade Marks, signs, symbols, logos, colours and colour schemes used in the conduct of the Services and in observing these Terms and Conditions (whether registered or unregistered)
Month	means a calendar month
Notices	means a written Notice, consent, approval, direction or other communication in accordance with these Terms and Conditions
Order	means an order placed by a Consumer to You via the Application
Pay	includes transfer, assign and convey.
Personal Information	means any information or opinion, whether true or not and whether recorded in material form, about an individual from which the identity of the individual is apparent or can reasonable be ascertained, but excludes employee records as defined under the Privacy Act 1988 (Cth)
Processing Fee	means the fee charged to the Company for all EFTPOS transactions processed by Stripe Payments Australia Pty Ltd (A.C.N. 160 180 343)
Products	means unless otherwise specified products offered by the User via the Application to Consumers
Related Company or Related Body Corporate or Related Entity	has the meaning given to it in section 9 of the Corporations Act
Relation	of a person means: (a)           where a person is an individual, the spouse (including domestic partner), siblings, parents and children of that person; and (b)           where the person is a body corporate, the spouse (including domestic partner), siblings, parents and children of the person or persons that Control the Body Corporate
Retail Price	means the price set by the User for the Products
Services	means the services specified in clause 4.
Services Fee	means that amount determined in accordance with Clause 3.2 of these Terms and Conditions
Terms and Conditions	means these terms and conditions of use.
Website	means the domain handle https://homebite.com.au
Week	means Monday to Sunday

 

2.2         Interpretation

In this Agreement unless a contrary intention is expressed:

(a)           The singular will mean and includes the plural and vice versa and any gender will means and includes all other genders. 

(b)           Headings in this Deed are for convenience only and will not affect the interpretation of this Deed. 

(c)           References to persons will include a Corporation partnership or any other entity having separate legal personality. 

(d)           References to a person will include the legal personal representatives, successors and assigns of that person. 

(e)           Reference to a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, rewrites, amendments, re-enactments or replacements of any of them (whether of the same or any other legislative authority having jurisdiction). 

(f)            References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes facsimile, e-mail and other forms of technological advancing transaction. 

(g)           References to authorities and bodies, whether statutory or otherwise, will deem to include references to the delegates of those authorities and bodies whether appointed by statute or otherwise. 

3.1         The Services

The Customer agrees to accept the Services and the Company agrees to supply to the Customer the Services subject to the Terms and Conditions.

3.2         Services Fee List

(a)           In exchange for the Services provided by the Company as described in these Terms and Conditions, You agree to pay to the Company the Services Fee, which is calculated in accordance with clause 3.2(b).

(b)           The Company will calculate the Services Fee on each Order subject to clause 3.2(d) as follows:

(i)            for Orders valued at less than $100.00: 7% commission and 3% Processing Fee; and

(ii)           for Orders valued at $100.00 or above: 13% commission and 2% Processing Fee. 

(c)           If You are paid for an Order, you must pay the applicable Services Fee to the Company simultaneously with receiving payment for the Order.

(d)           The Company will not charge the Services Fee for the first two months of the commencement of You using the Application, being two months from the date the User publishes its Products on the Application.

(e)           The User will be liable to pay the Processing Fee at all times. 

3.3         Payment of the Services Fee by the User

Following acceptance of an Order by the User, the Company will collect the entirety of the Retail Price and will hold the Retail Price until the Order has been fulfilled, following which the Services Fee and Processing Fee will be deducted from the received Retail Price and the balance remitted to the User’s nominated bank account within 3-7 Business Days. 

3.4         Changes to Services Fee

The Company reserves the right to change the Services Fee from time to time without prior notice to the User. Any changes to the Services Fee will not apply to any orders made and confirmed prior to the change of the Services Fee. 

4.1         As part of the Services provided to You, the Company will:

(a)           provide lead generation services to you;

(b)           grant you access to the Application during the Term;

(c)           manage refunds to your customers in relation to Items sold by you via the Application; and

(d)           facilitate the performance of the Services set out in clause 4.2(b). 

4.2         As part of the Services, the Company will also facilitate:

(a)           the collection of payments from your Customers on your behalf;

(b)           the processing of payments to You;

(c)           the processing of refunds to the Customer and wholly or partially deducting refunds from payments owed to You. 

5.1         The Customer will submit an Order request via the Application to the User, which the User must accept or reject within a time period calculated as 10% of the number of hours between the submission of the Order and the fulfillment of the Order.

5.2         Example: if an Order is submitted and requested to be fulfilled within 24 hours of submission, then the User must accept or reject the Order within 2.4 hours of the submission of the Order.

5.3         The User must not unreasonably reject an Order.

5.4         The User must specify its working hours and days and a minimum notice period between the making of an Order and fulfilment of that Order.

5.5         If an Order is accepted, the User must provide a separate Order ID for each Order made by a Customer.

5.6         The User is required to package each Order in transparent containers with the Order ID attached and visible on the container.

5.7         If the User is delivering an Order to a Customer, the User must take two photographs of the Order at the delivery address with the premises address and Order ID visible in the photographs.

5.8         The User will be liable for the delivery of the Order and ensuring that the requirements set out in clauses 5.1 and 5.2 are met and will indemnify the Company against any Claims made by the Customer for any loss and damage suffered by reason of the User’s failure to deliver or failure to comply.

6.1         The User may, at its discretion, suspend the Services and mark itself “out of kitchen” so as to ensure that an Order is not made by a Customer during that time.

6.2         In the event that the User seeks to terminate the Services, it must notify the Company, in writing to info@homebite.com.au and the Company will close the User’s kitchen and remove it from the Application.

6.3         In the event that the Company receives complaints against the User from a Customer or should the User fail to deliver the Order in accordance with these Terms and Conditions, the Company may, at its discretion, terminate the Services immediately with written notice.

7.1         Services Fee

The User must pay to the Company the Services Fee in accordance with clause 3.2(b).

7.2         Payment for Orders

(a)           You appoint the Company as your limited payment collection agent solely for the purpose of accepting payments from your customers on your behalf.

(b)           Payment made by your customer to the Company (or its Affiliate) will be considered the same as payment made directly by the Customer to You.

7.3         Delivery Fee (for Delivery Items)

(a)           If you offer a Delivery Item, you must include the cost of delivery in your fees for any Order. The Company is not responsible for organising the delivery of any Delivery Item and is not liable for the Delivery Fee. 

(b)           If you are paid for a Delivery Item, you must pay the applicable delivery fee to your delivery partner.  

(c)           If an Order is a Delivery Item, you authorise the Company (or its nominated Affiliate) to collect the Delivery Fee from the Customer on your behalf.

7.4         Additional charges

(a)           You authorise the Company (or its nominated Affiliate) to:

(i)            collect additional charges, such as transactional charges (including the Processing Fee) and other charges that relate to the provision of the Orders to your Customers, on your behalf; and

(ii)           remit the applicable additional charges to You. 

7.5         Remittance of payment for Orders

(a)           The Company will remit to you the total Order Revenue earned by you, less:

(i)            the Services Fee; and

(ii)           the cost of any refunds given to your customers on your behalf.

(b)           The Order Payment will be remitted to You upon completion and payment of the Order. 

7.6         Cancelled Orders

(a)           In the event that an Order is cancelled by You after accepting an Order request by a Customer, the Company reserves the right to retain the Retail Price in full and charge the User the Services Fee.

(b)           Subject to clause 7.6(a), the Company may, at its discretion, elect to:

(i)            waive the Services Fee for an Order cancelled within one (1) hour of its acceptance by the User;

(ii)           to charge $50.00 or 35% of the Retail Price (whichever is higher) for Orders cancelled at least 48 hours of the established collection time and date of the Order;

(iii)          to charge $50.00 or 50% of the Retail Price (whichever is higher) for Orders cancelled within 48 hours of the established collection time and date of the Order.

(c)           In the event that an Order is cancelled by the Customer after it is accepted by the User, the Customer will be charged for the Retail Price of the Order and the Services Fee will be charged in accordance with clause 3.2(b).

(d)           Subject to clause 7.6(c), the User may, at its discretion and following the deduction of the Services Fee on the Order, elect to refund the balance of the Retail Price to the Customer.

8.1         Title

(a)           At all times the Application is and remains the property of the Company and noting in these Terms and Conditions shall grant any proprietary rights or interest in the Application in Favour of the User or any nominee of the User.

(b)           The rights of the User with respect to the Application are limited to these Terms and Conditions.

8.2         License

(a)           The Company grants the User, for no charge, a non-exclusive, royalty-free, non-transferable, non-sublicensable and non-assignable license to use the Application strictly in accordance with these Terms and Conditions.

(b)           You may only use the Application in connection with your use of the Services pursuant to these Terms and Conditions.

8.3         License to each party’s Marks

(a)           The User grants to the Company and/or its Affiliates a license to use the User’s Marks for the Term in accordance with these Terms and Conditions. The license is granted for no charge and is limited, non-exclusive and non-transferable and royalty-free.

(b)           The Company and/or its Affiliates grant to the User a license to use its Marks for in accordance with these Terms and Conditions. The license is granted for no charge and is limited, non-exclusive and non-transferable and royalty-free.

(c)           The Parties are only permitted to use each other’s Marks for the purpose of performing the activities permitted in these Terms and Conditions (including promotional activities).

(d)           The Marks must be used in the form and format specified or approved by the owner of those Marks and must not be used for any purpose other than what is permitted under these Terms and Conditions without the prior, express written consent of the other party.

(e)           The Company may remove any of your Marks from the Application if it reasonably believes that any of your Marks are inappropriate or infringe the rights (including the Intellectual Property rights) of any third party.

8.4         Ownership and License of Marketing Materials

(a)           You may provide videos, photos or other materials to the Company with respect to your Products for marketing purposes. You represent and warrant that you either own all rights to those videos, photos or other materials or have the right to grant the Company and/or its Affiliate a license to use those materials.

(b)           The Company may create videos, photos and other materials for marketing purposes (Marketing Materials). The Marketing Materials (including all Intellectual Property Rights) are, and will continue to be, the property of the Company or its Affiliates.

(c)           You represent and warrant that you either own all rights to the videos, photos or other materials as set out in clause 8.4(a) or have the right to grant the Company a license to use those materials.

(d)           The User shall at all times indemnify and keep indemnified the Company and its Affiliates, directors, employees or agents from and against all or any actions, Claims and demands made against the Company for any infringement of any other party’s rights with respect to any of the photos, videos or other materials provided by the User to the Company in accordance with clause 8.4(a).

8.5         Use of Intellectual Property

(a)           The User must

(i)            only use the Intellectual Property or the Marks as authorized by the Company;

(ii)           not alter the Intellectual Property, except with the Company’s consent (which can be withdrawn at any time);

(iii)          not do anything which may prejudice the Company’s license of the Intellectual Property; and

(iv)          not do anything which may prejudice the Intellectual Property Entity’s ownership of the Intellectual Property.

(b)           The User and the Company acknowledge that any goodwill in the Intellectual Property accrues to the exclusive benefit of the Company and the User has no interest or proprietorship in any goodwill of the Business and/or the Intellectual Property.

(c)           The User agrees to indemnify and reimburse the Company for all costs, Expenses and damages for which the Company is held liable in any proceeding arising out of the use of any Intellectual Property by the User otherwise than in compliance with this Agreement and for all costs reasonably incurred by the Company in the defense of any such claim brought against it or in any such proceeding in which it is named as a party.

The User shall at all times indemnify and keep indemnified the Company and its Affiliates, directors, employees or agents indemnified from and against all or any actions, Claims and demands made against the Company for any loss, damage or liability incurred by the Company to any person arising out of the User’s breach of this Agreement or arising out of the Products and/or the Orders, including any act or omission or negligence of the User or any of its agents, contractors or employees in dealing or delivering the Products.

10.1       The User shall do all things that are necessary to comply with any Legislation which affects this Agreement and the Services and which is relevant to the operation of the User’s business from which it operates in providing the Products. Should any part of this Agreement be found by any Court of competent jurisdiction not to comply with any applicable Legislation then this Agreement shall be amended accordingly provided that such amendments do not defeat the substance of this Agreement and in that case the Company may terminate this Agreement forthwith.

10.2       The Company shall have the right to require the User on demand to produce to the Company such evidence and proof as the Company shall reasonably require to satisfy the Company that full compliance is being made by the User with the Terms and Conditions and any applicable Legislation.

11.1       The User represents and warrants to the Company and/or its Affiliates that it holds  valid  Authorizations to carry on a commercial kitchen license as at the Commencement Date and will notify the Company if it ceases to hold such Authorizations or ceases to satisfy any requirements relating to the holding of such Authorizations.

11.2       The User acknowledges that the holding of a commercial kitchen license is an essential term to this Agreement.

11.3       The User represents that, unless expressly specified to the contrary, all Products and Orders are available as published by it on the Application.

Without limiting any other provision of this Agreement, the Company must comply with the provisions of the Privacy Act 1988 (Cth) in relation to Personal Information collected by or disclosed by or reasonably accessible to the Company under these Terms and Conditions.

13.1       The User shall be liable for and indemnify the Company against all Claims and Liabilities which the Company incurs or is liable to pay by reason of any breach by the User of these Terms and Conditions.

13.2       In the event of breach or anticipated breach by the User, the Company may, without any prejudice to any rights the Company has under these Terms and Conditions or any law, suspend, terminate or withhold or refuse the Services to the User.

14.1       Keep Information Confidential

The User must keep the Confidential Information confidential and secret at all times.

14.2       Disclosure and Use of Confidential Information

(a)           The User must:

(i)            not disclose the Confidential Information at any time (unless required by law or if the information is already public knowledge otherwise than by reason of the User’s disclosure of such Confidential information) in which case the User must, prior to such disclosure, notify the Company; and

(ii)           not use any of the Confidential Information without prior written consent from the Company.

15.1       All notices, notifications, consents, demands, selections, agreements and other documents and communications required or permitted to be given under these Terms and Conditions must:

(a)           be in writing; and

(b)           be addressed to the Party it is to be given to at the address provided at the Commencement Date.

15.2       The Company may rely on the email addressed provided by You at the Commencement Date for the purposes of clause 15.1(b).

15.3       The parties shall be entitled to rely on any communication or document believed by that Party to be genuine, correct and fully authorized, and to have been communicated or signed by the person by or on behalf of whom it purports to be communicated or signed and shall not be liable to any other person for any of the consequences of such reliance.

16.1       Waiver

The failure of either party to insist upon a strict performance of any of the terms and provisions of these Terms and Conditions will not be deemed a waiver of any subsequent breach or default in the terms of provisions of these Terms and Conditions.

16.2       Survival of rights

The expiration or termination of these Terms and Conditions will be without prejudice to the rights of either party against the other in respect of anything done or omitted to be done under these Terms and Conditions prior to such expiration or termination or in respect of any sums or other claims outstanding at the time of expiration or termination.

16.3       Governing law

(a)           These Terms and Conditions are governed by and will be construed in accordance with the laws of Victoria, Australia. The parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria (including any Federal Court in Australia) and any courts that have jurisdiction to hear appeals from any of those courts. Each Party irrevocably and unconditionally waives any right it has to object to any action being brought in these Courts referred to in clause 11 of these Terms and Conditions, to claim that the action has been brought in an inconvenient forum or to claim that these Courts do not have jurisdiction. 

(b)           In addition to any mode of service provided by any statute, any document in any proceedings (including, without limitation, any writ of summons or other originating process or third party notice) may be served on any Party by being delivered to that Party at his address for service of notices as provided by these Terms and Conditions.

16.4       Assignment

The User must not attempt or purport to assign its rights or obligations under these Terms and Conditions to any third party without the express written consent of the Company.

The User acknowledges that it understands this Agreement and agrees to be bound by it.