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.
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.
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 Content14. 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 Charges17. 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.
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).
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.
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.