Service User Terms and Conditions of Trade

Introduction

1. By using any Service provided by FoodXS, whether procured through the FoodXS website (currently www.FoodXS.com.au) or otherwise, all Service Users (you, your) agree to the following Terms and Conditions with FoodXS.

The entity you are contracting with is FoodXS Pty Ltd ACN 631 469 826, referred to in these Terms and Conditions as FoodXS, we, our, us.

Interpretation

In these Terms and Conditions, unless the context otherwise requires:

ACL means the Australian Consumer Law under the Competition and Consumer Act 2010(C’th).

Intellectual Property means any intellectual or industrial property, including (without limitation):

(a)  any patent, trademark or service mark, copyright, registered design, trade secret or confidential information; or

(b)  any licence or other Right to use or to grant the use of any of the above or to be the registered proprietor or user of any of them.

Interest Rate means the rate which is 3% per annum above the rate charged by FoodXS’ bankfrom time to time on unsecured overdrafts of $100,000 or more, conclusive evidence of whichwill be confirmation in writing by a manager of FoodXS’ bank.

Non-Excludable Condition means any condition, warranty or guarantee provided or implied by any state, territory or commonwealth law, including but not limited to the statutory consumer guarantees described in the ACL, and the provisions of any state or territory legislation which cannot be lawfully excluded.

Obligation means any express or implied legal, equitable, contractual, statutory or other obligation, agreement, covenant, commitment, duty, undertaking or liability.

Right includes any legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action.

Schedule of Fees and Charges means FoodXS’s schedule of standard rates, fees and charges imposed from time to time for FoodXS Services and as published on the FoodXS website (currently at www.foodxs.com.au/feesandcharges) or available upon request from FoodXS, from time to time. All fees and charges are quoted in Australian dollars and unless otjherwise specified, include a Goods and Services Tax (GST) where applicable.

Service User means the user of any of the Services and, where the context requires, is a reference to each person comprising a user, jointly and severally.

Services means the services provided by FoodXS as specified on the FoodXS website or as otherwise published.

Terms and Conditions means these Service User Terms and Conditions and includes, where the context requires, any additional or other terms and conditions expressly agreed to by FoodXS in writing from time to time.

User Agreement means an agreement entered into between you and FoodXS, to which these Terms and Conditions apply. For the avoidance of doubt, each time a Service User uses any Service, a User Agreement is formed incorporating these Terms and Conditions. Any other terms or conditions (e.g. appearing on a Service User’s orders, website or stationery) do notform part of a User Agreement unless expressly agreed in writing to the contrary by FoodXS.

2. Before using any Services, you must read all of these Terms and Conditions, including the FoodXS Privacy Policy and the Schedule of Fees and Charges. FoodXS strongly recommends that as you read these Terms and Conditions, you also access and read the hyperlinked information. By becoming a Service User, you will be deemed to have read and accepted these terms and Conditions. By accepting these Terms and Conditions, you agree that these Terms and Conditions will apply whenever you use any of the Services. If you use another website accessed through our website, you acknowledge that you will need to accept and be bound by the terms of that other website. Some Services may have additional or other terms that will be communicated to you when you use those particular Services.
3. FoodXS reserves the Right to update from time to time these Terms and Conditions or any other terms and conditions that may apply to a User Agreement. If FoodXS makes a change to these Terms and Conditions, that change will take effect from the date on which FoodXS provides reasonable notification to you of such change. You confirm that notification on the FoodXS website of the updated Terms and Conditions or reference to the updated Terms and Conditions in any material provided to you will be reasonable steps taken by FoodXS to so inform you. You will be taken to have acknowledged and accepted such change if you make any subsequent use of any Service or request that FoodXS provide any Services to you. FoodXS declares and you acknowledge that the most up-to-date version of the Terms and Conditions which form part of any User Agreement can be found on the FoodXS website, currently located at www.foodxs.com.au/termsoftrade
4. If FoodXS believes that Service Users are creating problems or possible legal liabilities, infringing the Intellectual Property Rights of FoodXS or third parties or acting inconsistently with these Terms and Conditions or any of our policies, then without limiting our other Rights and remedies FoodXS reserves the Right to limit, suspend or terminate any Services and Service User accounts, prohibit access to Services, delay or remove hosted content, remove, delete, modify or not display listings, apply fees and/or recover expenses, and take technical and legal steps to keep Service Users off the FoodXS website
5. FoodXS also has the Right to cancel unconfirmed accounts or accounts that have been inactive for a long time, or to modify or discontinue all or any Services.

Role of FoodXS

6. The FoodXS website is a venue or platform to allow Service Users to offer, sell, buy or otherwise trade at any time, from anywhere within the jurisdiction of Australia, in a variety of pricing formats and locations. FoodXS is not involved in the actual transaction between buyers and sellers. We have no control over and do not guarantee the quality, safety or legality of products or services advertised, the truth or accuracy of Service Users' content or listings, the ability of sellers to sell products or services, the ability of buyers to pay for products or services, or that a buyer or seller will actually complete a transaction or return any product. You are not to hold FoodXS responsible for other Service Users' content, actions or inactions, or products or services that they list.

7. When you enter into a transaction through the use of any of our Services you create a legally binding contract with another Service User. You must ensure that you comply with your obligations to that other Service User and are aware of any laws relevant to you as a buyer or seller. If another Service User breaches any obligation to you, then you and not FoodXS will be responsible for enforcing any Rights that you may have.

8. You alone, and not FoodXS, are responsible for ensuring that your listing, selling, buying or any other activities conducted on the FoodXS website are lawful. You must ensure that you comply with all applicable laws in Australia, and with these Terms and Conditions and any policies which form part of a User Agreement.

9. FoodXS does not take ownership of any products at any time and does not transfer legal ownership of products from a seller to a buyer. Further, FoodXS cannot guarantee continuous or secure access to the Services, and their operation may be interfered with by numerous factors outside of our control.

11. FoodXS is not your agent for any purpose including in relation to any User Agreement, your use of any Services, or your sale or acquisition of any products or services.

Using the Services

12. While using the Services, you must not:

(a) fail to deliver payment for any product or service purchased by you, unless you cannot authenticate the seller's identity; fail to deliver products or services purchased from you, unless the buyer fails to meet your listed terms or you cannot authenticate the buyer's identity;

(b) manipulate the price of any product or service, interfere with other Service Users' listings;

(c) circumvent or manipulate the FoodXS fee structure or billing process;

(d) post on the FoodXS website any false, inaccurate, misleading, defamatory or offensive content (including personal information);

(e) assign or transfer your FoodXS account and/or user ID to a third party without our consent;

(f) distribute or post spam, unsolicited or bulk electronic communications;

(g) collect information about Service Users, including email addresses, without their consent.

 

13. By listing any product or service on the FoodXS website, you agree to pay FoodXS' fees for the

(a)  when you list any product or service on the FoodXS website, your listing may not appear or be searchable for up to 24 hours;

(b)  we may revise data on the FoodXS website to supplement, remove, or correct information. If your listing uses data that has been revised, those revisions may modify your listing accordingly;

(c)  where your listing appears in search and browse results may be based on certain factors including listing format, title, end time, keywords, price and postage cost;

(d)  your listing must, at all times, comply with our requirements;

(e)  you must list your product or service in the most relevant category. When you list a product in two categories or more and there is a difference in fees between the categories, the higher applicable fee will apply when your product or service sells.

Listing Content

14. When you upload content to the FoodXS website or otherwise provide FoodXS with any content, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub- licensable Right to exercise any and all Intellectual Property Rights (including copyright and trademark Rights) you may have in the content, in any media known now or in the future and for any purpose.

15. If you are the author or creator of that content, you also irrevocably and unconditionally consent, to the maximum extent permitted by law (whether current or future) to FoodXS and its licensees, contractors, assignees and successors and any other person authorised by any of them (Authorised Persons):

(a) disclosing, reproducing, copying, adapting, publishing, performing, exhibiting, communicating, renting, transmitting or otherwise using the content (and any adaptation or part of the content) anywhere in the world:

(i)  in whatever form and in whatever circumstances FoodXS and its Authorised Persons think fit, including adding to or otherwise altering the content (or any adaptation or part of the content); and

(ii)  without making any identification of you as the author in relation to the content (or any adaptation or part of the content);

(b) doing anything or omitting to do anything in relation to the content (or any adaptation or part of the content) anywhere in the world that would otherwise infringe the moral Rights, or any similar non-assignable, personal Rights, that you might have.

16. By listing, assume full responsibility for the content of the listing and product or service offered, and accept the following conditions:

Fees and Charges

17. FoodXS charges fees for the use of our Services. When you list any product or use a service that has an applicable fee or charge, you have the opportunity to review and accept or reject the fees disclosed in our Schedule of Fees and Charges.
18. If you are a seller, you are liable for transaction fees arising out of all sales made using some or all Services, even if sales terms are finalised or payment is made outside of FoodXS. In particular, if you provide your contact information or ask a buyer for their contact information in the context of buying or selling outside of FoodXS, you will be liable to pay the applicable fee for that product or service as if it had been procured, facilitated, performed and completed through FoodXS.
19. You are responsible for paying all fees and applicable GST associated with your use of our Services in a timely manner and with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using debt collection processes.
20. Payment by you for any Service may be made by cash, bank cheque, electronic/on-line banking, credit card (plus the maximum credit card bank fee, merchant fee and administration surcharge permitted by law), or by any other method as agreed in writing between you and FoodXS.
21. FoodXS may charge interest at the Interest Rate on all moneys due and owing by you to FoodXS from time to time for the period from the due date for payment of such moneys until the date upon which payment is ultimately received by FoodXS.
22. Should FoodXS become your creditor, you authorise FoodXS to collect, retain, use, record, and disclose credit information about you for the purpose of assessing and reporting matters related to your credit-worthiness.
23. If you breach the payment terms, FoodXS may, as its discretion, terminate the User Agreement and report the breach to any credit provider or credit reference organisation. You understand that this may affect your credit rating.
24. In the event that we believe that:
(a)  you have breached a User Agreement, which includes breach of any of our policies, in any way;
(b)  we are unable to verify or authenticate any information you provide to us;
(c)  your actions may cause loss or damage to our Service Users, third parties or to FoodXS or our related bodies corporate, directors, employees or agents; or
(d)  any of your information (which includes any product or service listed on the FoodXS website) is inappropriate or of an offensive nature; then without limiting our other remedies we may, at our sole discretion and without prior notice to you, delay listing your product or service, delete your listing, restrict your activities through the FoodXS website (including buying, selling and listing activities), suspend or terminate your account with FoodXS, refuse to provide Services to you, or require you to pay additional fees.
25. Under applicable State, Territory and Commonwealth law (including, without limitation, the ACL), certain Non-Excludable Conditions may be implied into these Terms and Conditions. Nothing in these Terms and Conditions purports to modify or exclude the Non-Excludable Conditions.
26. Except as expressly set out in these Terms and Conditions or in respect of the Non-Excluded Conditions, FoodXS makes no warranties or other representations under these Terms and Conditions or the User Agreement generally including, without limitation, as to the quality or suitability of any Services. FoodXS’ liability in respect of any such warranties is limited to the fullest extent permitted by law.
27. If you are a consumer within the meaning of the ACL, FoodXS’ liability in relation to Services which are not used for personal, domestic or household purposes is limited to either:
(a)  re-supplying Services or reimbursing you for paying someone else to supply the Services (at the election of FoodXS); or
(b)  is otherwise limited to the extent permitted by section 64A of Schedule 2 or to similar remedies under any applicable state or territory fair trading legislation.
28. If you are not a consumer within the meaning of the ACL, FoodXS’ liability for any defect in any Services is:
(a)  limited to the value of any express warranty provided to you by FoodXS, at our sole discretion;
(b)  limited to the extent of the benefit of any warranty to which FoodXS is entitled; or
(c)  otherwise negated absolutely.
28. Except as provided in these Terms and Conditions and to the maximum extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of Services for any purpose or otherwise are expressly excluded.
29. FoodXS is not liable for any loss or damage, loss of income, loss of profits, loss of markets, loss of reputation, loss of buyers, loss of use, loss of opportunity, loss of business, loss of reputation or goodwill, loss of value or use of Intellectual Property or other proprietary Rights even if FoodXS had knowledge that such loss or damage might arise or for any other indirect, incidental, special or consequential loss or damage howsoever arising out of the supply of Services or out of your relationship with FoodXS connected to a User Agreement including, without limitation, FoodXS’s breach of contract, negligence, wilful act or omission or otherdefault including to the extent that such conduct or default is outside the “four corners” of the User Agreement, or deviates from it or defeats its main object.

Indemnity

30. You indemnify FoodXS (and our officers, directors, agents, subsidiaries, joint venturers and employees) from and against:

(b) any claim or demand, including legal fees and costs, made against us by any third party due to or arising out of your breach of any User Agreement, or your infringement of any law or the Rights of a third party in the course of using the Services;

(b) all costs and disbursements, including legal costs on a full indemnity basis, incurred by us in exercising our Rights under these Terms and Conditions.

Confidentiality and FoodXS Intellectual Property

31. You must keep strictly confidential all financial, technological, strategic and other business information of FoodXS which has been divulged to or become known by you in the course of your dealings with FoodXS and which is not generally known outside your and our respective organisations. You must only use such confidential information for the purpose for which it was disclosed, and only disclose the confidential information to those in its organisation who need to know in connection with the purpose for which it was disclosed. No disclosure may be made to anyone else without the written consent of FoodXS (with the exception of disclosure required by law, in which case prior notice of the required disclosure must be given to FoodXS).

32. FoodXS retains ownership in all Intellectual Property created by FoodXS in providing the Services. Provided that you pay all amounts due to FoodXS under any User Agreement, FoodXS will grant to you a royalty-free non-exclusive licence to the extent required only to use such relevant Intellectual Property for the purpose of obtaining the benefit of the Services only (but not to further exploit the Intellectual Property).

Notices

33. Any formal notice by one party to the other required by a User Agreement must be in writing and sent to the address for a party with which it normally deals (or to such other address for service of notices that a party has advised to the other). Notices are taken to be received:

(a)  if hand delivered, at the time of delivery;

(b)  if posted, on the 3rd day after posting; and

(c)  in the case of email or facsimile transmission, at the time of successful transmission.

General

34. The failure by FoodXS to enforce any provision of these Terms and Conditions will not be treated as a waiver of that provision, nor will it affect our Right to subsequently enforce that provision. If any provision of these Terms and Conditions is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired thereby.

35. These Terms and Conditions and any User Agreement arising out of them will be governed by the laws of the State of Queensland, Australia, and are subject to the exclusive jurisdiction of the courts in that State.

36. You shall not be entitled to set off against or deduct from any money owing to FoodXS, any sums owed or claimed to be owed to you by FoodXS nor to withhold payment for any Service because part of that Service, or the fees or charges payable for it, is in dispute.

37. FoodXS may assign, license or sub-contract all or any part of its Rights and Obligations without your consent.

38. Neither party will be liable for any default due to any act of god, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of that party.

39. You warrant that you have the power to enter into a User Agreement and have obtained all necessary authorisations to allow you to do so, you are not insolvent and that the User Agreement creates binding and valid legal Obligations on your part.

40. Neither these Terms and Conditions nor any User Agreement based on them will be interpreted, construed or applied adversely to FoodXS by reason of their having been drafted by or on behalf of FoodXS.

41. You and FoodXS both consent to the application of the Electronic Transactions (Queensland) Act 2001(Qld) and corresponding federal legislation, and agree to the formation of a User Agreement by electronic means.