Last Updated: March 24, 2016
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS.
1. Who We Are
2. What We Do
FoodByUs provides an online platform that connects Makers who have food items available for purchase to Buyers seeking to purchase such food items (collectively, the "Services"), which Services are accessible at http://www.foodbyus.com and any other websites through which FoodByUs makes the Services available (collectively, the "Site") and as applications for mobile devices (the "Application").
In some cases, FoodByUs helps to organise the delivery or logistics associated with such an arrangement between Buyer and Maker. We may also act as the limited payment collection agent of each Maker for the purpose of accepting payments from Buyers on behalf of the Maker.
FoodByUs cannot and does not control the content contained in any Makers’ listing menu and the condition, legality or suitability of any kitchen or food, the sale of which is facilitated by FoodByUs. FoodByUs is not responsible for and disclaims any and all liability related to any and all food sold. Any food sold or purchased will be made or accepted at the member's own risk.
You understand and agree that FoodByUs is not a party to any agreements entered into between Makers and Buyers, nor is FoodByUs an agent, restaurant, café, caterer or any other provider of food or food related services. FoodByUs has no control over the conduct of Makers, Buyers and other users of the Site and Application or any food, and disclaims all liability in this regard to the maximum extent permitted by law.
3. Compliance With Local Laws
Makers should understand how the laws work in their respective jurisdictions. Some jurisdictions have laws that restrict their ability to sell certain types of homemade food to Buyers. These laws are often part of a state’s food authority laws or regulations. In some states, Makers must register, get a permit, or obtain a license before making food or accepting orders from Buyers. Certain types of food made at home may be prohibited altogether. State and local governments vary greatly in how they enforce these laws. Penalties may include fines. Makers must review and comply with all local laws before listing on FoodByUs. While in no way diminishing the Maker’s responsibilities under this clause, or giving rise to any positive obligation on the part of FoodByUs, FoodByUs may, in its absolute discretion, provide the Maker’s details to any food regulatory authority to assist with the Maker’s compliance obligations generally.
4. Maker’s Responsibilities
As a Maker, you are responsible for all aspects of food preparation, health and safety compliance, certifications, compliance with laws, customer service and service delivery. You acknowledge and agree that, as a Maker, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who may assist in the preparation and delivery of food and creation of Menus’ or who may assist in any other way that arises out of or relates to the use of this Site and Application or the supply of services.
Both Buyers and Makers agree to cooperate with and assist FoodByUs in good faith, and to provide FoodByUs with such information and take such actions as may be reasonably requested by FoodByUs, in connection with any complaints or claims made by Members relating to the provision of the Maker’s services.
5. Terms Of Service
Your access and use of the Site and Application constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and FoodByUs. If you do not agree to these Terms, you must not access or use the Site and Application. These Terms expressly supersede prior agreements or arrangements with you. FoodByUs may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Site and Application or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable services.
FoodByUs may amend the Terms related to the Services from time to time. Amendments will be effective upon FoodByUs’ posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
Failure to use the Site and Application in accordance with these Terms may subject you to civil and criminal penalties.
The content that you share with other users is neither private nor confidential and you should not have any expectation of privacy with respect to it. Information you upload will be posted along with other personal information. You must exercise caution and common sense when submitting and disclosing information. At the very least you should demonstrate the same degree of caution when publishing personal information by means other than the Internet and cellular services.
In particular, Members may choose to share personal information such as name, age, gender, their location information, appearance, messages, background personal information. This information may also be shared via third party services (such as social networks) which interact with the Site and Application.
By creating a FoodByUs Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You may opt-out of receiving text (SMS) messages at any time. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
FoodByUs reserves the right, at its sole discretion, to modify the Site and Application or to modify these Terms at any time and without prior notice. If we modify these Terms, we will either post the modification on the Site or via the Application or otherwise provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms.
By continuing to access or use the Site and Application or utilising the Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you must cease using the Site and Application.
The Site and Application are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
9. Account Registration
In order to access certain features of the Site and Application, and to order or sell food, you must register to create an account ("FoodByUs Account") and become a Member. You may register to join as a Member directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third-party social networking sites ("SNS") (including, but not limited to, Facebook; each such account, a "Third-Party Account"), via our Site or Application, as described below. As part of the functionality of the Site and Application, you may link your FoodByUs Account with Third-Party Accounts, by either:
(i) providing your Third-Party Account login information to FoodByUs through the Site, Services or Application; or
(ii) allowing FoodByUs to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account.
You represent that you are entitled to disclose your Third-Party Account login information to FoodByUs and/or grant FoodByUs access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating FoodByUs to pay any fees or making FoodByUs subject to any usage limitations imposed by such third-party service providers.
By granting FoodByUs access to any Third-Party Accounts, you understand that FoodByUs will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Site and Application via your FoodByUs Account and FoodByUs Account profile page.
All SNS Content, if any, will be considered to be Member Content for all purposes of these Terms.
You have the ability to disable the connection between your FoodByUs Account and your Third-Party Accounts, at any time, by accessing the "Settings" section of the Site and Application.
Your relationship with the third-party service providers associated with your third-party accounts is governed solely by your agreement(s) with such third-party service providers.
FoodByUs is not responsible for any SNS Content.
10. account information
Your FoodByUs Account and your FoodByUs Account profile page will be created for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active FoodByUs Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. FoodByUs reserves the right to suspend or terminate your FoodByUs Account and your access to the Site and Application if you create more than one (1) FoodByUs Account, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current or incomplete.
You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your FoodByUs Account, whether or not you have authorised such activities or actions. You will immediately notify FoodByUs of any unauthorised use of your FoodByUs Account.
12. Food Menus and posting to the Site and Application
As a Maker, you may create Menus. To create a Menu, you will be asked a variety of questions about the food, including, but not limited to, the location, capacity, cleanliness, ingredients, cooking methods, packaging, food allergens, features, and lead time of your proposed Menu and pricing. In order to be featured in Menus via the Site and Application, all Makers must provide a valid physical address of the premises in which the food will be made. Menus will be made publicly available via the Site and Application. Other Members will be able to order from your Menu via the Site and Application based upon the information provided in your Menu. You understand and agree that once a Buyer requests an order from your Menu, you may not request the Buyer to pay a higher price than in the purchase request.
You acknowledge and agree that you alone are responsible for any and all Menus and Member Content you post. Accordingly, you represent and warrant that any Menu you post will (i) be in compliance with all applicable laws (such as food safety laws and zoning laws), Tax requirements, and rules and regulations that may apply to any Menu you post (including having all required permits, licenses and registrations), and (ii) not conflict with the rights of third parties (for example the Intellectual Property or menu items of an existing restaurant, bakery, café, caterer or similar business).
FoodByUs assumes no responsibility for a Maker’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. FoodByUs reserves the right, at any time and without prior notice, to remove or disable access to any Menu for any reason, including Menus that FoodByUs, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or FoodByUs's then-current Policies and Community Guidelines, or otherwise harmful to the Site or Application or provision of the Services.
If you are a Maker, you understand and agree that FoodByUs does not act as an insurer or as your contracting agent. If a Buyer requests an order from your Menu and purchases your food, any agreement or transaction you enter into with such Buyer is between you and the Buyer and FoodByUs is not a party to it. Notwithstanding the foregoing, FoodByUs serves as the limited authorised payment collection agent of the Maker for the purpose of accepting, on behalf of the Maker, payments from Buyers of such amounts stipulated by the Maker (including delivery or other fees and/or Taxes).
If you are a Maker, FoodByUs makes certain tools available to you to help you to make informed decisions about which Members you choose to accept orders from for your Menu. You acknowledge and agree that, as a Maker, you are responsible for your own acts and omissions, and your own decisions about acceptance, or otherwise, of Buyer orders.
FoodByUs recommends that Makers obtain appropriate insurance for selling food from their Menu. Please review any insurance policy that you may have for your Menu carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Buyers.
14. No Endorsement
FoodByUs does not endorse any Member or any Menu. No reference or description on the Site or Application is an endorsement, certification or guarantee by FoodByUs about any Member, including of the Member's identity and whether the Member is trustworthy, safe or suitable. We recommend that you always exercise due diligence and care when deciding whether to order food from a Menu or to have any other interaction with any other Member.
Buyers and Makers will be asked to rate Members. Members must be honest and accurate in their appraisals. No Member rating is an endorsement, certification or guarantee by FoodByUs about any Member.
FoodByUs may also upload icons and display those icons on Menus or Member profiles. The icons indicate that Members have performed services in accordance with criteria. predetermined by FoodByUs. The notation is merely an indication that the prescribed criteria has been met and is not an endorsement, certification or guarantee by FoodByUs about any Member.
15. Claims against other members
By using the Site or Application you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Member/s or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy on FoodByUs with respect to such acts or omissions. This limitation shall not apply to any claim by a Maker against FoodByUs regarding the remittance of payments received from a Buyer by FoodByUs on behalf of a Maker, which instead shall be subject to the limitations described in the section below entitled "Limitation of Liability".
16. Payments to Food By Us (Charges)
In consideration for the use of the Site and Application and utilisation of the Services, FoodByUs charges fees to Makers and Buyers ("Charges"). As part of the registration process Makers and Buyers will be notified of the Charges. Where applicable, Taxes may also be charged in respect of the Charges.
All credit card details are protected using SSL (Secure Socket Layer) encryption. Credit card details are handled by leading PCI compliant providers of secure credit card processing solutions. FoodByUs does not save your credit card details. Rather FoodByUs keeps a non-sensitive reference to your credit card details (called a token) which is then linked to your FoodByUs Account. This token is provided to us by the payment provider, and allows FoodByUs to provide an option for you to use the same credit card for future transactions with us without FoodByUs holding any sensitive information. If, at any time, you wish the token to be removed please email email@example.com and we will have your token(s) removed.
FoodByUs shall deduct Charges due by the Makers from the payments of services from the Buyer. Balances will be remitted by FoodByUs to Makers via cheque, PayPal, direct deposit or other payment methods.
As between you and FoodByUs, FoodByUs reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in FoodByUs's sole discretion. We will notify you of all changes.
FoodByUs may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
17. Payment to Maker (Service Fees)
If you order through the Site or Application you are required to immediately pay the agreed fees of the services provided by the Maker (“Service Fees”). After you have ordered services or goods obtained through your use of the Site or Application FoodByUs will facilitate your payment of the Service Fees on behalf of the Maker as the Maker’s limited payment collection agent. Service Fees will be inclusive of applicable taxes where required by law. Service Fees paid by you are final and non-refundable, unless otherwise determined by FoodByUs.
All Service Fees will be processed by FoodByUs using the preferred payment method designated in your FoodByUs Account, after which FoodByUs will send you a receipt by email. If your primary FoodByUs Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that FoodByUs may, as the Maker’s limited payment collection agent, use a secondary payment method in your FoodByUs Account, if available.
18. Payments to Makers, Cancellations and Refunds
FoodByUs forwards Makers their Service Fees on a twice-weekly basis (every Tuesday and Friday, subject to public holidays). The minimum transfer amount is $30. Where the Service Fee amount due to the Maker is less than $30, the funds will be transferred on the next transfer date once the amount exceeds $30. Service Fee transfers from FoodByUs are made on completed orders only – this means the Maker must have made the food and the Buyer must have received the food (via pick-up or delivery).
Refunds to Buyers will be at the discretion of FoodByUs who is responsible in its capacity as the Maker’s limited payment collection agent for all refunds to cardholders. In the event FoodByUs determines at its sole discretion that a refund is necessary, FoodByUs reserves the right to deduct funds from the Service Fees due to Makers on the next transfer date. Please contact
Some Makers may pledge to donate a portion of the funds they receive from confirmed orders made via the Site and Application to a particular cause or charity. FoodByUs does not take any responsibility or liability for whether the Maker does in fact make the donation he or she pledged to make. In such cases, the Maker in question is responsible for his or her own compliance with all laws and regulations applicable to such pledges and/or fund-raising.
20. Member Content
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site and Application, you hereby grant to FoodByUs a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of or to promote or market the Site and Application. FoodByUs does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site and Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site and Application or you have all rights, licenses, consents and releases that are necessary to grant to FoodByUs the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or FoodByUs' use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
21. Member Conduct
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site and Application and Collective Content. In connection with your use of the Site and Application and Collective Content, you may not and you agree that you will not:
(a) violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;
(b) use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the Site and Application or Collective Content;
(d) use the Site and Application or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
(e) copy, store or otherwise access or use any information contained on the Site and Application or Collective Content for purposes not expressly permitted by these Terms;
(f) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
(g) interfere with or damage our Site or Application including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
(h) use our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(i) use our Site and Application or Collective Content in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to lodging in a private residence;
(j) "stalk" or harass any other user of our Site and Application or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as a FoodByUs Maker or Buyer;
(k) offer, as a Maker, any goods or services that you do not yourself own, create or have permission to create;
(l) register for more than one FoodByUs Account or register for an FoodByUs Account on behalf of an individual other than yourself;
(m) contact a Maker or Buyer for any purpose other than asking a question related to transacting on FoodByUs or use of the Site and Application;
(n) recruit or otherwise solicit any Maker or other Member to join third-party services or websites that are competitive to FoodByUs, without FoodByUs' prior written approval;
(o) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
(p) use automated scripts to collect information from or otherwise interact with the Site and Application or Collective Content;
(q) use the Site and Application or Collective Content to find a Maker or Buyer and then complete a transaction independent of the Site or Application in order to circumvent the obligation to pay any Service Fees related to FoodByUs' provision of the Services or for any other reasons;
(r) as a Maker, submit any Menu with false or misleading price information, or submit any Menu with a price that you do not intend to honour;
(s) post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
(t) systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
(u) use, display, mirror or frame the Site and Application or Collective Content, or any individual element within the Site and Application or Collective Content, FoodByUs' name, any FoodByUs trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site or Application without FoodByUs' express written consent;
(v) access, tamper with, or use non-public areas of the Site or Application FoodByUs' computer systems, or the technical delivery systems of FoodByUs' providers;
(w) attempt to probe, scan, or test the vulnerability of any FoodByUs system or network or breach any security or authentication measures;
(x) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by FoodByUs or any of FoodByUs' providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;
(y) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;
(z) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content;
(aa) advocate, encourage, or assist any third party in doing any of the foregoing; or
(bb) accept or make a payment outside of FoodByUs. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold FoodByUs harmless from any liability for such payment.
FoodByUs has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
You acknowledge that FoodByUs has no obligation to monitor your access to or use of the Site and Application or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site and Application (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. FoodByUs reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that FoodByUs, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or Services.
The Site and Application, and Collective Content are protected by copyright, trademark, and other laws of Australia and other countries. You acknowledge and agree that the Site and Application and Collective Content, including all associated intellectual property rights, are the exclusive property of FoodByUs and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site and Application, or Collective Content.
Subject to your compliance with these Terms, FoodByUs grants you:
a) a limited non-exclusive, non-transferable license to download and install a copy of the Application on each mobile device or computer that you own or control and run such copy of the Application solely for your own personal use; and
b) a limited, non-exclusive, non-transferable license, to
a. access and view any FoodByUs Content solely for your personal and non-commercial purposes; and
b. access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes.
You have no right to sublicense the license rights granted in this section.
It is an essential term of the license that you will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site and Application, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by FoodByUs or its licensors, except for the licenses and rights expressly granted in these Terms.
The Site and Application may contain links to third-party websites or resources. You acknowledge and agree that FoodByUs is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by FoodByUs of such websites or resources or the content, products, opinions or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Application ("Feedback"). You may submit Feedback by emailing us, through the "Contact" section of the Site and Application, or by other means of communication. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of FoodByUs and you hereby irrevocably assign to FoodByUs all of your rights, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At FoodByUs' request and expense, you will execute documents and take such further acts as FoodByUs may reasonably request to assist FoodByUs to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
26. Copyright Policy
FoodByUs respects copyright law and expects its users to do the same. It is FoodByUs' policy to terminate in appropriate circumstances the FoodByUs Accounts of Members or other account holders who infringe or are believed to be infringing the rights of copyright holders.
27. Suspension, Termination and FoodByUs Account Cancellation
We may, in our discretion and without liability to you, with reasonable cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your FoodByUs Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your FoodByUs Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site and Application, your FoodByUs Account, your Member Content, or receive assistance from FoodByUs Customer Service, (b) any pending or accepted future orders as either Maker or Buyer will be immediately terminated, (c) we may communicate to your Buyers or Makers that a potential or confirmed order has been cancelled, (d) we may refund your Buyers in full for any and all confirmed orders, irrespective of pre-existing cancellation policies, (e) we may contact your Buyers to inform them about potential alternate Menus with other Makers that may be available on the Site and Application, and (f) you will not be entitled to any compensation for orders (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your FoodByUs Account. You may cancel your FoodByUs Account at any time via the "Cancel Account" feature of the Services or by sending us an email. Please note that if your FoodByUs Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site and Application, including, but not limited to, any reviews or Feedback.
If you choose to use the Site and Application or Collective Content, you do so at your sole risk. You acknowledge and agree that FoodByUs does not have an obligation to conduct background checks on any Member but may conduct such background checks in its sole discretion. The Site and Application and Collective Content are provided "as is", without warranty of any kind. FoodByUs makes no warranty that the Site and Application, Collective Content, including, but not limited to, the menus, will meet your requirements or be available on an uninterrupted, secure, or error-free basis. FoodByUs makes no warranty regarding the quality of any food, Menus, Makers, Buyers, the Services or Collective Content or the accuracy, timeliness, truthfulness, completeness or reliability of any Collective Content obtained through the Site and Application.
No advice or information, whether oral or written, obtained from FoodByUs or through the Site and Application or Collective Content, will create any warranty not expressly made herein.
You are solely responsible for all of your communications and interactions with other users of the Site, Application or Services and with other persons with whom you communicate or interact as a result of your use of the site or application including, but not limited to, any Makers or Buyers. FoodByUs makes no representations or warranties as to the conduct of users of the Site, Application or Services or their compatibility with any current or future users of the Site, Application or Services. You agree to take reasonable precautions in all communications and interactions with other users of the Site, Application or Services and with other persons with whom you communicate or interact as a result of your use of the Site or Application including, but not limited to, Buyers and Makers, particularly if you decide to meet offline or in person regardless of whether such meetings are organised by FoodByUs. Notwithstanding FoodByUs' appointment as the limited payment collection agent of the Makers for the purpose of accepting payments from Buyers on behalf of the Makers, FoodByUs explicitly disclaims all liability for any act or omission of any Marker, Buyer or other third party.
29. Limitation of Liability
FoodByUs will not be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these terms, the delivery of the services by the Makers (or failure to deliver the services), from the use of or inability to use the Site and Application or Collective Content, from any communications, interactions or meetings with other users of the Site, Application, or services or other persons with whom you communicate or interact as a result of your use of the Site and Application, or from your menu or ordering of any food via the Site and Application, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not FoodByUs has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
Except for our obligations to pay amounts to applicable Makers pursuant to these terms, in no event will FoodByUs' aggregate liability arising out of or in connection with these terms and your use of the Site and Application including, but not limited to, from your menu or ordering of any food via the Site and Application, or from the use of or inability to use the Site and Application, or Collective Content and in connection with any food orders or interactions with any other Members, exceed the amounts you have paid or owe for goods or services via the Site and Application as a Buyer in the twelve (12) month period prior to the event giving rise to the liability, or if you are a Maker, the amounts paid by FoodByUs to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred Australian dollars (AUD$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between FoodByUs and you.
You agree to release, defend, indemnify, and hold FoodByUs and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site and Application, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) ordering from any Menu, or (iii) creation of a Menu; (d) the consumption of any food by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of your ordering or consumption of any food.
31. Accessing and Downloading the Application from iTunes
The following applies to any Application accessed through or downloaded from the Apple App Store ("App Store Sourced Application"):
You acknowledge and agree that (i) these Terms are concluded between you and FoodByUs only, and not Apple, and (ii) FoodByUs, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Services.
You acknowledge 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 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 FoodByUs 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 FoodByUs.
You and FoodByUs acknowledge that, as between FoodByUs 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: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and FoodByUs 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 FoodByUs and Apple, FoodByUs, 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 these Terms.
You and FoodByUs acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
32. Reporting Misconduct
If you become aware of a Member wrongfully utilising the Site or Application or breaching any of these Terms, you are requested to immediately report such conduct to FoodByUs.
33. Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between FoodByUs and you regarding the Site and Application, Collective Content, and any orders from Menus made via the Site and Application, and these Terms supersede and replace any and all prior oral or written understandings or agreements between FoodByUs and you regarding orders from Menus made via the Site and Application, and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without FoodByUs' prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. FoodByUs may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by FoodByUs (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
36. Controlling Law and Jurisdiction
These Terms and your use of the Services will be interpreted in accordance with the laws of New South Wales and Australia. You and we agree to submit to the jurisdiction of the courts of that State and country.
37. Dispute Resolution
Claims between Members
FoodByUs may, but is not obliged to investigate claims by Members in relation to the provision of services by Makers to Buyers.
All claims by or between Members are personal to those Members and FoodByUs is released and discharged from all claims and liabilities in relation to such claims.
Claims between FoodByUs and Members
You and FoodByUs agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, (collectively, "Disputes") will initially be subject to mediation, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
The failure of FoodByUs to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorised representative of FoodByUs. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
39. Third party beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms.
Nothing contained in these Terms shall constitute the relationship of partnership, joint venture, principal and agent or employer and employee between any of the parties. Save as expressly permitted under these Terms, no party may act nor has the authority to act as agent of, or to bind any other party to any obligation and no party shall hold itself out as being the agent of the other party or as having the authority to bind the other party
41. Contacting FoodByUs
If you have any questions about these Terms please contact FoodByUs.
42. Key Terms
"FoodByUs Content" means all Content that FoodByUs makes available through the Site, Application, or Services, including any Content licensed from a third party, but excluding Member Content.
"Collective Content" means Member Content and FoodByUs Content.
"Content" means text, graphics, images, music, software (excluding the Application), audio, video, information or other materials.
"Buyer" means a Member who requests from a Maker any order of food via the Site, Application or Services.
"Maker" means a Member who creates a Menu via the Site and Application. Every Maker is an independent entity offering their own food and Menu on the Site and Application and as such are defined as independent Third Party Providers.
"Menu" means one or more food items that is listed by a Maker as available for order via the Site, Application, and Services by interested Buyers.
"Member" means a person who completes FoodByUs's account registration process, including but not limited to Makers and Buyers, as described under "Account Registration" below.
"Member Content" means all Content that a Member posts, uploads, publishes, submits, transmits, or includes in their Menu or Member profile to be made available through the Site, Application or Services.
"Tax" or "Taxes" mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), that makers and sellers of food may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.