(b) “Application” means the application available on your iOS device which enables you to use the Service;
(c) “Operator” means 365cups Pty Ltd (ACN 149 082 388), the operator of the Service;
(d) “Orders” means orders for beverages, food and other items;
(e) “Service” means the service offered by the Operator via the Application and the Site which enables you to place Orders with Venues; and
(f) “Site” means the Internet website managed and operated by the Operator located at www.365cups.com;
(g) “Venues” means those cafes and other venues who accept Orders via the Service; and
(h) “You” or “you” means the person who creates an Account.
2. Status of Terms
In using the Service, you acknowledge and agree that:
(b) the Operator provides the Service solely in accordance with this Agreement, subject to any other relevant laws, and that prior to using the Service, you have read the terms of this Agreement;
(c) you must be aged 18 or over to create an Account and use the Service;
(d) the Operator may, from time to time at its sole and absolute discretion, revise this Agreement and post a notice on the Site advising of such revision, and you are taken to accept such revision if you continue to use the Service, whether or not any such revisions are expressly brought to your attention; and
3. Your Account
You acknowledge and agree that:
(a) you may only use the Service by logging in through your own Account;
(b) you assume full responsibility for maintaining the confidentiality of your Account details and password, and any other information you make available in using the Service and you must not permit any other person access to or use of your Account details;
(c) all information you provide in establishing or updating your Account or in using the Service generally is accurate, true and complete about you, and you must ensure that your Account details are up-to-date;
(d) you will not adopt a username or provide any information in establishing your Account or using the Service that is offensive, obscene, defamatory or is otherwise determined, at the sole and absolute discretion of the Operator, to be unacceptable for use in relation to the Service, and agree that the Operator reserves the right to remove any such username or information, and to cancel your Account in such circumstances at no compensation to you, and you will indemnify the Operator for any claims made by third parties in relation to the use or display of any such username or information in relation to the Service;
(e) the Operator reserves the right to edit or delete any material appearing in your Account, without notice and liability to you, in the event that any such material, as determined by the Operator in its sole and absolute discretion, violates this Agreement, or if the Operator deems it appropriate to do so pending investigation of any such violation;
(f) the Operator is not liable for any loss or damage you incur as a result of an unauthorised third party using your Account, including the use of any personal details you provide in the Account registration process howsoever obtained, and where you are aware that an unauthorised third party has access to or is using your Account, you must actively takes steps to prevent that third party from doing such and/or notify the Operator of such, and the Operator shall be authorised to temporarily suspend your Account whilst the issue is resolved, and that in any event, you are responsible for all losses or damages caused to any third party as a result of any such third party uses of your Account and must indemnify the Operator if claims are made against it by third parties in this respect;
(h) the Operator may suspend or terminate your Account and/or your use of the Service without liability to you in the event that you violate this Agreement in any respect, as determined by the Operator at its sole and absolute discretion, or if the Operator deems it appropriate to do so pending investigation of any such violation, and you accept that the Operator is not liable to you in such circumstances for any losses or damages suffered by you;
(i) the Operator reserves the right to suspend or terminate your Account, your use of the Service and access to the Site, without liability to you, if you use the Service in a manner or behave in a manner or transmit any information or other data via the Service deemed by the Operator to be dishonest, untruthful, defamatory, abusive, threatening, harassing, obscene, pornographic, fraudulent, malicious, misleading or deceptive, tending to be a breach of any criminal law or which may give rise to any civil liability, racial vilification, discrimination or which directly or indirectly endorses any other product or service not operated or provided by the Operator; and
(j) If you wish to cancel your Account, you can email [email@example.com] with your details. Prior to cancelling your Account, you must ensure that you have paid for all outstanding Orders.
4. Use of the Service
In using the Service, you irrevocably and unconditionally acknowledge and accept the following:
(a) the nature of the Service is to enable you to place Orders at participating Venues, and as such, the Operator is not party to any transaction or contract between you and the owner of the Venue in this respect;
(b) when you use the Service to place an Order to purchase any goods and/or services you are entering into a contract with the relevant Venue and not with the Operator, and the Operator does not bear or accept any liability arising from any such contract, and you agree to hold the Operator free from all liability arising in this respect and to indemnify the Operator for claims arising from Venues or any third party for your failure to perform any obligation in any transaction or contract with a Venue;
(c) the Operator is not responsible in any way for ensuring that a Venue complies with all consumer protection laws, occupational health and safety laws or any similar or equivalent legislation regarding the preparation, supply and sale of goods for which you can place Orders via the Service including without limitation as to the quality or merchantability of any such goods;
(d) the Operator makes no warranties or representations as to the accuracy, content or quality of the information of any kind displayed on the Service and is not responsible for verifying the accuracy of any information available via the Service in respect of any Venue including without limitation as to opening times, Order processing times, pricing or availability of goods to Order, collection times, opening hours, the location and contact details for Venues or any other information that is relevant to a Customer making an Order, and the Operator will not be liable for any misleading or deceptive conduct by Venues in respect of the Service;
(e) if you buy credit at a Venue, the balance of such credit as appears when you log in to your Account or otherwise use the Service will be based on information provided by the relevant Venue and the Operator is not responsible if such information is incorrect;
(f) it is a condition of your use of the Service that you allow the Operator to track your location when you use the Service;
(g) the Operator provides the Service on a purely ‘as is’ basis without warranty of any kind to you;
(h) you will only use the Service for the purpose for which it was intended and will only place genuine Orders with Venues via the Service;
(i) when you place an Order using the Service, upon your confirmation of such Order (being the final step in the process for placing an Order), you are irrevocably and unconditionally bound to pay for such Order notwithstanding that you are not required to pay for such Order until collecting the items contained in that Order;
(j) you will fulfil all Orders you place with Venues via the Service including without limitation by collecting and paying for your Order within the timescale indicated at the time of placing the Order;
(k) you cannot change or cancel an Order once you have confirmed an Order via the Service;
(l) you will not use the Service in a manner which will or may compromise its security or normal operation, including doing any acts that are harmful in nature or are not acts not ordinarily done in the normal use of the Service;
(m) you may not copy, modify, license, sell, publish, communicate to the public or otherwise commercialise the Service or any of the information available from the Site in any way;
(n) you must not modify, reverse-engineer, decompile, disassemble or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Operator in operating the Service;
(o) the Operator does not warrant the Service meets your requirements and is not responsible for any losses or damages you incur due to errors in the operation of the Service; and
(p) the Operator does not guarantee that the Service will be available “24x7” and reserves the right, without prior notice to you, to suspend the Service pending maintenance, repair, diagnosis, analysis or upgrade of the Service, or to modify the Service, or discontinue the Service at any time, in any event, without liability to you.
5. Operator’s Disclaimers
You acknowledge and agree that:
(a) to the maximum extent permitted by law, the Operator expressly disclaims any and all liability and any warranties or guarantees, express or implied, regarding the provision of any third party goods and/or services via the Service, including and not limited to, the merchantability, fitness for a particular purpose, acceptable quality, safety of goods and/or services provided by a Venue;
(b) to the maximum extent permitted by law, the Operator shall not be liable for damages of any kind (including, but not limited to, special, incidental, or consequential damages, lost profits, regardless of the foreseeability of those damages) arising out of or in connection with your use of the Service; and
(c) the Operator does not warrant that the Service, including without limitation the Application and Site, will be available for use uninterrupted or free of technical or functional errors, including the presence of “viruses” “Trojans” “spyware” “adware” “bots” and other similarly harmful computer effects, and any losses or damages you suffer as a result thereof, or because the Operator has chosen to temporarily or permanently suspend operation of the Service, is a risk borne by you for which you cannot make a claim against the Operator.
6. Complaints Procedure
(a) If you wish to lodge a complaint about any matter in relation to any aspect of the Service, you must provide full details of the complaint to the Operator using the contact details available via www.365cups.com and allow the Operator a reasonable amount of time to investigate the complaint before giving you a written response.
(b) You hereby irrevocably undertake to inform the Operator of any issue or complaint you experience with use of the Service or in respect of any third party, including the Operator, in accordance with this section before you commence any legal proceedings against the Operator in respect of such issue or complaint, and you acknowledge and agree that you shall allow the Operator a reasonable amount of time after notifying it of such issue or complaint to investigate, assess and respond to you regarding that issue or complaint.
(c) You acknowledge and accept should you not comply with this section of this Agreement, you are required to indemnify the Operator for all costs associated with dealing with any issue or complaint if because of your non-compliance with this section, you have caused the Operator to incur costs which it would not have incurred or to a greater extent than necessary, if the issue or complaint were first brought to the attention of the Operator in accordance with this section, and the issue or complaint was resolved between the relevant parties within three (3) weeks or without the need for you or the Operator to commence legal proceedings or whichever occurs first.
(a) The Operator may, in its sole and absolute discretion and without prior notice, (a) modify the Service; or (b) discontinue the Service at any time, in either case, without liability to you.
(b) If, for whatever reason, a court of competent jurisdiction finds any term or condition in this Agreement to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.
(c) The Operator shall not be taken to waive the enforcement of any of its rights, whether for past, future or continuing breaches, contained under this Agreement unless made in writing and signed by an authorized representative of the Operator.
(d) In the event there is any inconsistency between this Agreement and any other information appearing on the Site, or any other material accessible, available or observable on the Site or Service published by the Operator or matters contained in any other document or representation received from any party including the Operator, unless herein provided otherwise, this Agreement shall prevail.
(e) This Agreement shall be construed in accordance with and governed by the laws of the New South Wales, Australia, and the Federal Laws of Australia where applicable. You hereby irrevocably consent to the jurisdiction of the state or federal courts in Australia in all disputes arising out of or related to the use of the Service or this Agreement.