1.Application of this Agreement

1. This Agreement constitutes the terms and conditions upon which the Seller agrees to adhere in consideration for its use of the Platform. This Agreement form a binding legal agreement between the Seller and CooQu.

2. This Agreement commences on your first use of the Platform and continues for as long as you use the Platform.  

3. By listing Goods and Seller Services on the Platform you agree to be bound by this Agreement, which apply to all Listings on the Platform. Subject to your compliance with this Agreement, CooQu grants you a licence to use the Platform as a Seller during the Term

 

2.Services

1. Subject to the Seller's compliance with this Agreement, CooQu will:

   1. provide the Services to the Seller on the terms of this Agreement; and

   2. grant the Seller a licence to use the Platform during the Term.

2. Subject to the Seller's compliance with this Agreement, the Platform will enable the Seller to:

   1. offer for sale, the Goods and Seller Services, including dine-in services (Experience Services) to Purchasers;

   2. obtain, receive and fulfil Orders for Goods and Seller Services from Purchasers;

   3. communicate with Purchasers regarding their Orders for Goods and Seller Services, including any returns, and to arrange delivery and pick up; and

   4. use its own delivery Personnel to provide the Delivery Services.

3. The Seller agrees that CooQu merely provides the Platform to enable the performance of the Seller Services, the Seller acknowledges and agrees that the Seller is solely liable and responsible for the delivery of the Seller Services including any Goods, any delivery or pick up of Goods, Delivery Services and any Purchaser enquiries, disputes or complaints.

4. The Seller acknowledges and agrees that CooQu does not have any control over the Goods and Seller Services nor the suitability, legality or condition of any kitchen, storage space or food ingredients utilised in the production of the Goods and provision of the Seller Services, and that the Seller is solely liable for any liability in connection with those matters.

5. The Seller further acknowledges and agrees that CooQu is not party to any agreements made between the Seller and Purchasers, nor is CooQu an agent, café, restaurant, caterer or any other related food provider or provider of food services.

6. CooQu may, as part of the Services, but is not obliged to:

   1. advertise or promote the Seller or its Goods and Seller Services from time to time on the Platform, social media platforms, websites, online, in print media and electronic media;

   2. respond to complaints or disputes on the Seller's behalf arising from or in connection with, Goods and Seller Services sold by the Seller via the Platform; and

   3. manage refunds to Purchasers in relation to Goods and Seller Services sold by the Seller via the Platform.

 

3. User accounts

1. To access and use the Services, you will be required to register for a user account or you may be provided with a user account.

2. You agree that you are solely responsible for maintaining the confidentiality of your account details, including your password.  When you register an account with us, please note that your Personal Information will be accessible by us, Sellers and Payment Gateways in accordance with our Privacy Policy.

3. You agree that User Content you provide to us may be made publicly accessible to third parties, including other users or visitors of the Services.  You agree that we are not liable to you for the use or access of User Content by third parties.

4. We retain the right to screen and verify you or your business and identity and compliance in our sole discretion.  You agree to submit to such screening and to provide to us at your cost, immediately upon request, complete, accurate and current information confirming your identity and eligibility to use the Services, including company records, permits, approvals, copies of photo identification (such as drivers licence and passport) or other identifying documentation.  

5. You understand that we may, in our absolute discretion, investigate, take legal action, terminate or cancel your access to the Services and/or your account, at any time, including if it is found that you have, or are suspected of, violating these Terms.

 

4. Listing and Compliance 

1. The Seller acknowledges and agrees that its details, including but not limited to business and brand name, logos, location, opening hours, contact phone number, contact email and general description of the Seller will be listed publicly on the Platform, pursuant to this clause 4.1.

2. The Seller warrants and represents to CooQu that it has all necessary permits and approvals required to offer the Seller Services on the Platform and that is registered with its respective local council, relevant government body, complied with all applicable laws and regulations in the Seller’s state/territory/countryand has obtained information and instructions with respect to:

   1. suitability of its premises for food preparation;

   2. the suitabilityof the premises for the provision of any Services;

   3. developing a food safety program;

   4. its food business class and classification;

   5. its registration under the Food Act 1984 (Vic) as a food business (or equivalent legislation in the Sellers respective state/territory/country); and

   6. if applicable, use of the Streatrader online system of registration.

3. The Seller warrants and represents to CooQu that it is registered under GST Law, if applicable or as required by law.

4. The Seller agrees to provide CooQu with all information required by CooQu from time to time to list the Seller on the Platform, including but not limited to:

   1. the Seller's name or entity name;

   2. the Seller's location or address (or addresses) including pickup addresses;

   3. the Seller's contact phone number and email address for dealing with Purchaser communications, enquiries, issues and disputes;

   4. names and details of the Seller's Personnel as required from time to time;

   5. written evidence of its registration with its respective local council;

   6. evidence of its compliance with all legal obligations relating to the preparation, marketing and sale of its Goods; and

   7. written evidence of the Seller's business registration and its Australian Business Number (ABN) or such other verification details as required by CooQu from time to time.

5. CooQu reserves the right, in its sole discretion, to reject the Seller for listing on the Platform or to remove the Seller from being listed on the Platform, for any reason and without notice to the Seller.

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5.Listing Goods and Seller Services for sale

1. The Seller must ensure that Goods or Services that it lists on the Platform are appropriate for sale via the Platform and comply with all of CooQu's policies from time to time, including that the Goods and Seller Services must not be illegal, products containing tobacco (unless otherwise agreed in writing by CooQu), dangerous, unsafe for use, unsafe for consumption (if applicable), contaminated, stolen or goods that are listed or sold without appropriate authority or licensing.

2. The Seller may list its Goods and Seller Services for sale on the Platform by following the prompts on the Platform and providing specific details of a Goods and Seller Services in accordance with CooQu's requirements, including the name of the Goods and Seller Services, brand, category of product, ingredients list, description, quantity available, retail price and photographs of the Goods and Seller Services (Listing).

3. The Seller agrees that it is solely liable for ensuring that all Listings are kept up to date, accurate and free from error, including where descriptions in a Listing have changed (such as a Good's ingredient list or price or any restrictions on participating in a Service) or otherwise updated (including product photography).

4. The Seller acknowledges and agrees that by submitting a Listing, the Listing will be published on the Platform and accessible by Purchasers. The Seller agrees that it is solely liable for the content, imagery and any other representations made in any Listing.  The Seller agrees that CooQu is not liable in any way, for any content in the Listings and the Seller indemnifies CooQu from all liability relating to such Listings.

5. The Seller warrants and represents to CooQu, that at all times, the Goods and Seller Services, the Listings, and any content and imagery relating to the Goods and Seller Services:

   1. correctly and accurately describes and depicts the Goods and Seller Services, including that the overall impression of the Listing is not misleading or deceptive;

   2. is kept up to date and free from error, including in any ingredient list and any product photography; and

   3. are true and accurate.

6. The Seller warrants and represents to CooQu, that at all times, that it will ensure that:

   1. the Seller Services, including any Experience Services will be provided in accordance with the laws, regulations and guidelines of the Seller’s location or any place in which the Seller provides the Experience Services such as any food, work, health, welfare and safety regulations and standards, licensing and restaurant/takeaway licences, COVID-19 regulations;

   2. the Seller Services, including any Experience Services will be provided in a safe, clean and tidy and well-maintained location;

   3. it will not breach any laws, regulations, guidelines, industry best practice and advertising guidelines and standards including Australian Consumer Law and any mandatory food standards;

   4. it will exercise due care and diligence at all times in the provision of Seller Services and that it will not, by act or omission, bring about any circumstance that could compromise safety, cause danger or injury to any other person;

   5. it will not infringe upon any third party rights, including Intellectual Property rights and are used with the authority or licence of the owner or licensee of such Intellectual Property;

   6. it has the right to enter into this Agreement to provide the Services including the right to work and the ability to provide the Services (including by any employee or contactor used); and

   7. they have all necessary authorisations, licenses, permits, qualifications, permissions, consents, approvals required by applicable law including in order to provide the Services in the jurisdiction of delivery and handle any personal information obtained from the Purchasers.

7. The Seller acknowledges and agrees that it is solely the obligation of the Seller to:

   1. acquire any qualifications required to perform the Services at the Sellers sole expense;

   2. exercise caution and consider personal safety when interacting and meeting with Purchasers;

   3. control and supply the methods, materials and all aspects required to perform the Services;

   4. obtain all necessary authorisations, licenses, permits, qualifications, permissions, consents including from the Purchasers in order to provide the Services including to collect, use, disclose or otherwise handle any personal information of Purchasers in compliance with applicable law and your privacy policy;

   5. maintaining and obtaining any relevant insurance required for the provision of the Services; and

   6. corresponding with and resolving disputes with Purchasers including authorising and confirming any refunds, cancellations, rescheduling and replacements of Services.

8. CooQu reserves the right, in its sole discretion, to reject any Goods from being listed on the Platform or remove any Listings for any reason and without notice to the Seller.

9. Nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy that under law cannot be excluded, modified or restricted such as your statutory consumer guarantee rights, including under the Australian Consumer Law. Subject to such legislation, the Seller acknowledges and agrees that CooQu:

   1. has no liability for any act, omission or default, whether negligent or otherwise of any Purchaser or third party;

   2. makes no warranty or representation regarding the standard of the Services provided by the Seller including the quality, standard, delivery or provision of the Servicesor that they will be fit for purpose and that such representations are solely the responsibility of the Seller;

   3. has no liability for any loss or damage occasioned by any negligent act or omission of any Purchaser or third party.

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6.Pricing of Goods

1. The Seller is responsible for setting the retail price of each Good it makes available for sale on the Platform (Retail Price) and for specifying any taxes or other fees which may be applicable, apart from the CooQu Fees.

2. In setting its Retail Prices, the Seller is solely responsible for considering any applicable fees, taxes (including GST) and/or CooQu Fees.  It is the sole responsibility of the Seller to ensure that it conducts its own evaluations and calculations regarding the Retail Price of the Goods and to ensure that the Retail Price is correct, accurate and free from error. CooQu will not be liable to any party for any issues, errors or miscalculations or representations with respect to the Retail Price of Goods.

   1. The Seller must honour any prices for Goods listed on the Platform.  If there is a gross error including a gross error by CooQu, the Seller must immediately contact CooQu and CooQu may, but is not obliged to, work with the Seller, to determine whether it is appropriate to cancel Orders of the erroneously priced Goods or honour the sales, taking into consideration Australian Consumer Law and any applicable laws in your state/territory/country.

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7.Managing Orders

1. The Seller must update the status of an Order for Goods made via the Platform as soon as reasonably possible (for example, accepting an Order, updating the status of an Order to note it is in processing or in transport, etc.). The Seller is solely liable for updating the status of any Orders to ensure that the status is up to date and accurate via the Platform.  If the Seller does not update an Order for Goods within a reasonable time, CooQu reserves the right to cancel an Order in its sole discretion and charge the Seller by direct debit, for the CooQu Fees it would have been entitled to had the Order been fulfilled.

2. The Seller acknowledges and agrees that it is their sole responsibility to notify the Purchaser as soon as reasonably possible if it is unable to fulfil an Order or part of an Order in which case the Purchaser may cancel all or part of the Order.  

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8.Custom Orders

1. A Purchaser may make a written request via the Platform for a Custom Order and the Seller may elect to accept or reject such a request. If the Seller accepts such a request, the Seller must provide the Purchaser with a quote for the Retail Price of the Custom Order. Once this quote has been provided to the Purchaser and if the Purchaser elects to accept this quote, then the Custom Order will be linked via the Platform between the Purchaser and Seller and the clauses within this Agreement that relate an Order will continue to apply.

2. The abovementioned process relating to a Custom Order will apply until a particular Seller and the Purchaser making the request have been linked via the Platform. 

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9.Recurring Orders

1. The Purchaser may place a Recurring Order via the Platform under a subscription service. The Recurring Order amount and billing interval are set out on the relevant Seller page of the Platform and confirmation correspondence.

2. When the Purchaser places a Recurring Order, they enter into an agreement to receive the selected Goods on a recurring basis for a period specified at the time of placing the Order, in the frequency they choose e.g. monthly until cancelled by the Purchaser or CooQu or the Seller (Order Period).

3. The Purchaser may cancel or amend the Recurring Order at any time, at least 3 days prior to the next scheduled delivery, via the Platform.

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10.Stock, quality, preparation, labelling, storage and transport of Goods

1. The Seller must ensure that stock quantities for Goods on the Platform are up to date and accurate via the Platform, and the Seller must ensure that it has the Goods and Seller Services available for sale and in stock.  

2. The Seller must ensure that all aspects of food preparation are compliant with food safety laws and regulations including but not limited to the Food Act 1984 (Victoria), the Australia New Zealand Food Standards Code (Food Standards Code) and other health and food safety laws as applicable in your state, territory, or country.

3. The Seller must ensure that all Goods are checked for defects prior to delivery or pickup, and that the Goods comply with the following requirements:

   1. eggs and glass products must be free from breakage or shattering;

   2. packaged goods are free from tampering and holes;

   3. cans are free from dents;

   4. fresh produce is reasonably free from bruising;

   5. the expiry date of the Goods is reasonable, taking into consideration time for delivery or pickup of the Goods and the nature and price of the goods and ensuring that the Goods will not be expired or be unreasonably close to expiry at the time of delivery or pickup; and

   6. Goods that are purchased by weight are equivalent to, or greater than, the weight ordered by the Purchaser.

4. The Seller must ensure that all Goods are appropriately packaged in consideration of the type of Good and manner of transportation of the Goods, including:

   1. providing insulated bags and ice packs for cold or frozen Goods, including dairy and meat products;

   2. bubble wrapping or otherwise appropriately padding packaging for eggs and glass or like Goods to avoid breakage; and

   3. providing boxes, where appropriate, to avoid bruising of Goods in transit.

5. The Seller must ensure that all Goods are appropriately labelled with information providing:

   1. any warning statement relating to royal jelly; and

   2. if requested by the Purchaser, the Seller must provide information relating to whether the food contains any of the following, providing allergen or intolerance advice either verbally or in writing:

      1. cereals containing gluten and their products – namely wheat, rye, barley, oats and spelt – including their hybrid strains;

      2. crustacea and their products;

      3. egg and egg products;

      4. fish and fish products;

      5. milk and milk products;

      6. peanuts and peanut products;

      7. tree nuts and tree nut products (this does not include coconut);

      8. sesame seeds and sesame seed products;

      9. soybean and soybean products

      10. added sulphites in concentrations of 10 mg/kg or more; and

      11. lupin

6. The Seller must provide the following information to the Purchaser on request:

   1. the name of the food;

   2. any advisory statements and declarations;

   3. information relating to nutrition, health and related claims; and

   4. any other information listed under Standard 1.2.1-9 of the Food Standards Code.

7. The Seller must ensure that all food is stored as per food storage guidelines including following all temperature requirements so as to avoid cross-contamination.

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11.Delivery Services

1. The Seller must manage its pickup and delivery settings on the Platform (if applicable) to ensure that the settings are suitable for its requirements. The Seller is solely liable for determining the amount charged to a Purchaser for delivery (Delivery Fees) and the area in which it offers Delivery Services (including pick up services) (Delivery Zone), however CooQu reserves the right to set any minimum or maximum delivery thresholds, fees or distances.

2. The Seller agrees that Purchasers will not be required to meet any minimum Order commitments to qualify for Delivery Services. The Seller agrees to deliver to any Orders within such Delivery Zone and accept such Delivery Fees as its sole payment for providing the Delivery Services.

3. If a Purchaser Orders Goods under the pick up option, the Seller agrees to coordinate the collection. The Seller agrees that it will offer pick up services free of charge to Purchasers.

4. The Seller must comply with, and honour any of CooQu's policies, including the Delivery Policy, with respect to Purchaser's Orders for Goods and its provision of Delivery Services and do all things necessary to ensure that they are not in breach of any Purchaser-facing polices or terms provided by the Seller.

5. CooQu may, but is not obliged to, intervene in relation to any issues with an Order or delivery of Goods and the Seller agrees, at its cost, to comply with CooQu's reasonable instructions or directions regarding delivery issues relating to Goods.

6. Risk in, and title to, the Goods is held by the Seller until they are delivered to the Purchaser's nominated delivery address or picked up by the Purchaser from the Seller (as applicable).

7. The Seller will, and will ensure its Personnel (including delivery Personnel) will:

   1. provide the Seller Services safely, in accordance with law and policies and performed in the most effective, efficient and safe manner and in a professional manner with due skill, care, courtesy and diligence;

   2. hold and maintain valid licences as applicable, to operate the relevant delivery vehicle;

   3. provide all details to CooQu via the Platform as reasonably required by CooQu from time to time and consents to CooQu sharing such details with Purchasers;

   4. provide all necessary equipment and vehicles for the purpose of providing the Seller Services, at its own cost;

   5. take reasonable precautions to ensure the safe delivery or pickup of the Goods; and

   6. not use Personal Information of Purchasers for any purpose other than as required under this Agreement and in accordance with the Privacy Policy.

8. The Seller acknowledges and agrees that:

   1. it is solely liable for the Delivery Services and all acts or omissions relating to delivery or pickup of Goods, including the conduct of delivery Personnel and any incidents with Personnel and that it must comply with clause 16.4 in respect of delivery Personnel;

   2. it is solely liable for, and will make all payments for, any employment obligations, occupational health and safety, remuneration, expenses, taxes, leave entitlements, superannuation, workers' compensation and other insurances and payments in respect of its Personnel;

   3. it will, and it will ensure that its Personnel will, use best endeavours to deliver the relevant Order in accordance with the CooQu Delivery Policy;

   4. it is solely liable for the acts, omissions, negligence, fault, fraud or breach of this Agreement or the Platform Terms of its Personnel, including delivery Personnel; and

   5. CooQu is not responsible or liable for the acts, omissions, negligence, fault, fraud or breach of this Agreement or the Platform Terms by the Seller or any of the Seller's Personnel.

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12.CooQu Fees

1. The Seller must:

   1. ensure that any payment, bank or card details provided to CooQu are accurate and up to date at all times; and

   2. provide any such information as reasonably required by CooQu to process payments, including providing any business and taxation information required by CooQu.

2. CooQu will collect payments from Purchasers via its third party payment processors.  CooQu will deduct a Commission on the total price of each Order placed by a Purchaser with the Seller (CooQu Fees).  The CooQu Fees will be deducted from the amounts payable to the Seller for the Goods (Seller Payment) and CooQu will remit the Seller Payment to the Seller.

3. CooQu reserves the right, in its sole discretion, to seek reimbursement from the Seller if it discovers any payment processing error. The Seller agrees that if there has been a payment processing error, CooQu may deduct any amounts payable to CooQu from the Seller Payment or charge the Seller credit card or bank account on record or seek reimbursement in any other lawful manner.

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13.Cancellations of Orders and refunds for Goods

1. The Seller must manage and respond to Purchaser communications regarding any Order(s) for Goods and Seller Services, including any refund for Goods and Seller Services.

2. The Seller must comply with, and honour CooQu's Return Policy, as varied from time to time. CooQu may, but is not obliged to, intervene in relation to a return of Goods and the Seller must comply with CooQu's reasonable instructions or directions regarding a return and refund of Goods.

3. The Seller may arrange to provide refunds to a Purchaser directly, or if it wishes, may use the Platform to do so. The Seller must work with and communicate with CooQu, in good faith, for CooQu to process refunds to Purchasers.  

4. To the maximum extent permitted under the Australian Consumer Law and laws of any applicable state/territory/country, once an Order has been placed, a Purchaser is unable to cancel the Order.

5. However, if a Purchaser cancels an Order of Goods due to the fault of the Seller or any of its Personnel, the Seller is liable to refund the Purchaser for all amounts paid by the Purchaser and no such timeframe exists for this type of cancelation.  The Seller agrees that such fees may be charged to the Seller by direct debit from its nominated account by CooQu.

6. The Seller agrees to pay any fees associated with such processing of refund.

7. The CooQu Fees remain payable in respect of a returned Good or refunded cancelled Order, and must be borne by the Seller even if the Seller is required to provide a refund for the Order or Goods, and the Seller indemnifies CooQu in respect of such losses.

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14.Ratings and reviews

1. The Seller acknowledges and agrees that Purchasers may leave a review or rating of any of its Goods, the Seller’s delivery Personnel and/or the Seller (Review) and that Reviews will be displayed publicly on the Platform without prior approval of Seller.

2. In accordance with Australian Consumer Law, the Seller may not remove any Reviews, however the Seller may report a Review to CooQu and CooQu may, in its sole discretion, remove the Review in accordance with the process set out in the Purchaser Terms and Conditions.

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15.Purchaser disputes

1. The Seller agrees that it is solely liable for managing and responding to Purchaser enquiries, complaints, issue and disputes (Enquiry) and that CooQu may intervene, however it is not obliged to do so.

2. A Purchaser may make an Enquiry, including If a Purchaser is not satisfied with any of the Goods or Seller Services supplied by a Seller, by issuing a ticket on the CooQu Platform within 48 hours from when the Goods or Seller Services were supplied (Ticket).

3. All amounts paid for the Goods or Seller Services are non-refundable, except to the extent that the Purchaser is entitled to a refund or other remedy for Goods or Seller Services under Australian Consumer Law, or in CooQu’s sole discretion (Refund Policy).  

4. The Seller acknowledges and agrees that it may be given a rating in relation to the quality of its Goods or Seller Services and that such rating may be made available to the public.  The Seller will not be able to amend such ratings however it may submit a complaint to CooQu regarding a rating and CooQu may, in its sole discretion, remove such rating including if it is deemed to be fraudulent.

5. If a Purchaser is not satisfied with Goods or Seller Services, CooQu reserves the right to suspend or block the Seller from selling the Goods or Seller Services via the Platform, in its sole discretion.

6. If the Seller cannot reach resolution with the Purchaser in relation to an Enquiry, or if the matter is escalated further including but not limited to, being referred to CooQu or to legal representatives, the Seller agrees that CooQu may resolve the matter with the Purchaser in a manner that preserves CooQu's reputation, on the Seller's behalf and at the Seller's cost.

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16.Seller obligations and warranties

1. The Seller warrants and represents to CooQu that it:

   1. has legal capacity, power and authority to enter into and be bound by this Agreement;

   2. will comply with any directions given to it by CooQu from time to time;

   3. has and will utilise the necessary skills, experience and expertise to perform the Seller Services in accordance with this Agreement;

   4. will comply with any other agreements, terms and conditions and policies provided by CooQu from time to time, such as the Platform Terms;

   5. has, or will enter into and comply with any agreements, terms and conditions and policies of any third party platforms, as necessary to enable performance by CooQu under this Agreement (for example, to allow for the functionality of the Platform such as the processing of payments and refunds);

   6. will not, and will ensure that its Personnel will not, represent itself to be affiliated with, or an employee of CooQu;

   7. will not, and will ensure its Personnel will not, use the CooQu trade mark, CooQu  name and other Intellectual Property relating to CooQu other than in connection with the Platform and for related marketing purposes;

   8. will act lawfully and in performing is obligations under this Agreement, will comply with any applicable licenses, laws, regulations, industry standards or codes of conduct, health and safety requirements; and

   9. holds, will maintain and comply with all valid and up to date licences, permits, consents or other permissions as required by law, to operate its business, offer for sale and sell its Goods.

2. The Seller agrees that it will immediately notify CooQu of any changes to its location or hours of operation, business structure or any change in ownership of the business (including any Change of Control as defined in the Corporations Act.

3. If the Seller does not trade for more than 30 days on the Platform, CooQu may remove the Seller from the Platform.

4. In providing the Seller Services to the Purchaser, the Seller will, and will ensure that its Personnel will:

   1. fulfil Orders made via the Platform, through the Platform only and not attempt to circumvent the Platform or circumvent the paying of any CooQu Fees in any way, such as by soliciting, enticing away or otherwise encouraging Purchasers to place Orders with the Seller directly or by any other means outside of the Platform;

   2. provide any and all packaging required to fulfil Orders made via the Platform at its cost and will further ensure that all packaging used must take into consideration the nature of the Goods;

   3. not advertise or promote any third party competitors of the Platform or CooQu;

   4. perform the Seller Services with due care, skill and diligence in a professional and ethical manner and to CooQu's satisfaction and comply with the reasonable directions of CooQu; and

   5. except for the Retail Price which may differ from the Seller's usual prices, not to disadvantage or treat unfavourably, Purchasers that make purchases via the Platform.

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17.Seller obligations relating to alcohol sales

1. The Seller agrees that before listing any alcohol on the Platform it will:

   1. provide a copy of its valid liquor license;

   2. at all times hold a valid licence and permit required to sell alcohol Australia wide via the Platform; and

   3. verify customer identification (including age).

2. The Seller agrees that it will only sell alcohol in compliance with its liquor licence and if there is any change, lapse, notice issued under, or cancellation to its liquor licence it will immediately advise CooQu, where relevant update its listings and will ensure that it acts at all times in accordance with the terms of its licence including if relevant ceasing to sell or supply alcohol.

3. The Seller agrees that at any time and for any reason CooQu may remove any listings of alcoholic products and may impose immediate suspension or termination of a Seller’s account for a breach of this clause 17.

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18.Intellectual Property

1. The Seller agrees that CooQu and its licensors own or hold the Intellectual Property rights to, the Platform, Purchaser lists and Purchaser details, and all related materials and data except for Seller Content (CooQu IP).

2. The Seller must not copy, modify, publish, adapt, sub-licence, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher decompile or otherwise disassemble any portion of the CooQu IP or our Services.

3. The Seller grants to CooQu an irrevocable, non-exclusive, transferable, sublicensable, royalty-free, perpetual, worldwide license and right to use, publish, modify, alter, reproduce and make derivative works from the Seller Content for the purposes of CooQu performing its obligations under this Agreement and providing the Platform to the Seller and Purchasers, including but not limited to, listing the Seller on the Platform, listing the Goods on the Platform and providing the Services, including the Seller's trade marks, brand names, logos, images of Goods, descriptions of Goods, and the Seller's details  including address, location, operating hours and description.

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19.Promotions and advertising

1. The Seller may elect to offer discounts or other promotional offers via the Platform (Promotion).  For the avoidance of doubt, Promotions will be deducted from the Seller Payment in accordance with clause 12.

2. The Seller agrees to comply with any Platform-wide promotion, such as a Platform-wide discount etc. (Platform-Wide Promotion), at CooQu's cost or as otherwise agreed between the parties.  If such Platform-Wide Promotion exceeds the CooQu Fees, the Seller will be liable for such amounts that exceed the CooQu Fees.

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20.Termination

1. Termination for convenience

Without affecting any other right or remedy available to it, either party suspend the Sellers use of the Platform by following the prompts on the Platform, and CooQu may with immediate effect, for any reason in its sole discretion, terminate or suspend this Agreement.

1. Termination for breach

Either party may terminate this Agreement with immediate effect by giving written notice to the other if:

1. either party commits a material breach of any term of this Agreement and either:

   1. the breach is irremediable; or

   2. the breach is remediable and the breaching (or allegedly breaching) party fails to remedy that breach within a period of 20 Business Days' after the other party has, or is deemed to have, received written notice requesting it to do so,

2. an Insolvency Event occurs in relation to either party (and the Corporations Act does not prevent the non-defaulting party from terminating this Agreement because of that Insolvency Event); or

3. CooQu may terminate this Agreement immediately by written notice to the Seller, if any warranty given by the Seller in this Agreement, including in clause 16 of this Agreement, is found to be untrue, incorrect or misleading.

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21.Effect of termination

1. Termination of this Agreement will not release either party from any obligation or liability to the other party, including any payment and delivery obligation that:

   1. has accrued under this Agreement prior to termination;

   2. comes into effect because of the termination of this Agreement; or

   3. otherwise survives the termination of this Agreement.

2. Immediately upon termination of this Agreement, the Seller must:

   1. immediately cease using the Platform and any CooQu IP;

   2. to the extent that return is possible, return to CooQu, CooQu's Confidential Information and all copies of it; or

   3. to the extent that return is not possible, destroy all copies of CooQu's Confidential Information; and

   4. deliver to CooQu, all property belonging to CooQu that is in its possession or control.

3. Any amounts owing or payable to CooQu by the Seller under this Agreement, will be payable in full immediately upon termination.

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22.Confidentiality

1. Both parties agree to keep the Confidential Information of the other party confidential and to use such information only for the purposes of performance of their respective obligations under this Agreement.

2. A party must not disclose any Confidential Information of the other party to anyone else except as permitted under this Agreement.

3. The Seller agrees to not use the name of CooQu in its publicity releases, advertising or promotion unless CooQu has given its prior written consent (which shall not be unreasonably withheld).

4. The obligations of confidentiality in this clause 22 will not apply to information which:

   1. is generally available in the public domain except where such availability is as a result of a breach of this Agreement;

   2. CooQu may wish to disclose to a prospective purchaser or investor;

   3. was known prior to the disclosure of the information by the other party; or

   4. is required to be disclosed by law or court order.

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23.Limitation of liability

1. From time to time, CooQu may provide reports or recommendations to the Seller suggesting consumer trends, behaviour and recommendations as to Goods and Seller Services. However, such information is provided as a guide only and CooQu makes no guarantee regarding the amount of sales expected, location of Purchasers or similar information. CooQu will not be liable for any losses or claims (including loss of opportunity or profits) in connection with such reports or recommendations, including any error or omission in the reports or reliance by the Seller on such reports or recommendations.

2. The Seller acknowledges and agrees that CooQu is a technology platform provider and that liability for the provision of Goods to Purchasers is the sole responsibility of the Seller. The Seller acknowledges that the Platform may not operate at all times and that its functionality may change. The Seller agrees that CooQu has no liability to it if the Platform does not operate or looses or changes functionality.

3. Subject to the other terms of this clause 23, CooQu excludes any liability to the Seller, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this agreement, including any  profits, sales or business, production, agreements or contracts, business opportunity,  anticipated savings, cost of substituting the Goods or damage to goodwill, reputation or use or corruption of the Platform, software, data or information.

4. To the maximum extent permitted by law, Seller agrees that CooQu's total aggregate liability to Seller under or in any way connected with this Agreement, or the performance or non-performance of this Agreement, whether under the law of contract, tort or otherwise, is limited to the CooQu Fees paid by the Seller under this Agreement in the 12 month period immediately preceding the date on which the relevant claim arose.

5. To the maximum extent permitted by law, the Seller will not be entitled to commence any action or claim whatsoever against CooQu in respect of this Agreement, or the performance or non-performance of this Agreement, whether under the law of contract, tort or otherwise, after the expiration of one (1) year from the date on which the cause of action first arose.

6. To the maximum extent permitted by law, CooQu expressly excludes any conditions, warranties, guarantees, representations, undertakings, rights, remedies, liabilities or other terms, under the general law or by statute in favour of the Seller under this Agreement, except as expressly set out in this Agreement.

7. Nothing in this Agreement purports to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application of any provisions of the Australian Consumer Law which cannot be excluded, restricted or modified.

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24.Indemnity

1. The Seller indemnifies CooQu and its Personnel, and will keep all of them indemnified and holds CooQu and its Personnel harmless, against all actions, claims, charges, costs (including legal costs on a full indemnity basis), expenses, losses, damages and other liability that they may sustain or incur, directly or indirectly, arising out of or in connection with:

   1. an actual breach, or a suspected breach (in the opinion of CooQu), of this Agreement by the Seller or its Personnel (including a breach of any warranty);

   2. any act, omission, communication, inaccuracy or error by the Seller or its Personnel, in relation to any Good, Order or status of an Order;

   3. the delivery, recall or return of Goods, whether or not caused by the Seller or its Personnel;

   4. any act or omission of the Seller or its Personnel, including any negligent, unlawful, wilful or fraudulent act or omission, in connection with this Agreement;

   5. any loss of or damage to any property or injury to or death of any person caused by any negligent or fraudulent act or omission or wilful misconduct of the Seller or any of its Personnel; and

   6. any claim that CooQu infringes the intellectual property rights or other rights of any person.

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25.Insurance

1. The Seller shall effect and at all times maintain policies of insurance as a reasonably prudent seller or provider of the relevant Goods and Seller Services would be expected to hold in Australia and as further required by CooQu, as set out in the On Boarding Pack, in its own name and naming CooQu as an interested party.

2. At the request of CooQu, the Seller shall supply a copy of the insurance policies and certificates of currency to CooQu.

3. CooQu will not be liable for, and the Seller indemnifies and holds CooQu harmless for all claims, losses, liabilities, actions in relation to the provision of Goods and Seller Services, including where the Seller cannot for any reason, claim against its insurances as set out above.

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26.Dispute resolution

1. Dispute resolution procedure

   1. If a dispute arises out of or relates to this Agreement, a party must not commence any court or other proceedings relating to the dispute unless it has first complied with the following procedure:

      1. the party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute;

      2. on receipt of that notice by that other party, the parties must endeavour in good faith to resolve the dispute using informal dispute resolution techniques such as mediation, expert evaluation, arbitration or similar methods agreed by them;

      3. if the parties do not agree within ten (10) days of receipt of the notice (or such further period as the parties agree in writing) as to:

         1. the dispute resolution method and procedures to be adopted;

         2. the timetable for all steps in those procedures; and

         3. the selection and compensation of the independent person required for such method,

the parties must mediate the dispute in accordance with the Mediation Rules of the Law Institute of Victoria.

1. Other proceedings

Nothing in this Agreement will prejudice the right of a party to seek injunctive or declaratory relief in respect of a dispute or any matter arising under this Agreement.

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27.GST

1. Words used in this clause 27 that have a defined meaning in the GST Law have the same meaning as in the GST Law unless the context indicates otherwise.

2. Unless expressly stated otherwise, the consideration for any supply under or in connection with this Agreement is exclusive of GST.

3. To the extent that any supply made under or in connection with this agreement is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under this agreement for that supply (unless it expressly includes GST) plus an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply.

4. The recipient must pay the additional amount at the same time as the consideration to which it is referable, and upon the issue of an invoice relating to the supply.

5. Whenever an adjustment event occurs in relation to any taxable supply to which clause 27.3 applies:

   1. the supplier must determine the amount of the GST component of the consideration payable; and

   2. if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.

6. If either party is entitled under this agreement to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative member.

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28.Notices

1. In this Agreement, Notices includes any approvals, consents, instructions, Orders, directions, statements, requests and certificates or other communications that may be given, or are required to be given, under this Agreement.

2. Unless expressly stated otherwise in this agreement, all Notices:

   1. must be:

      1. in writing; and

      2. left at the address, sent by prepaid ordinary post, sent by fax, email or given in any other way permitted by law.

   2. take effect from the time they are received unless a later time is specified.

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29.General

1. Amendments: The Platform is subject to updates and changes and as such, parts of this Agreement may need to be amended or varied.  CooQu may amend or vary this Agreement, in its sole discretion, by notice in writing to the Seller.  The Seller may, within 14 days' of receiving such notice, elect to terminate the Agreement if it does not agree with such amendments by notice in writing to CooQu.  If CooQu does not receive such notice of termination within the specified timeframe, the Seller is deemed to have accepted and agreed to be bound to such amendments and variations as at the date of receiving the notice of such amendment or variation.

2. Assignment: The Seller must not assign, transfer, novate or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of CooQu.  Any purported dealing in breach of this clause is of no effect.  A change in control (as defined in the Corporations Act) of the Seller constitutes a deemed assignment.

3. Costs: Each party must pay its costs of entering into and negotiation of this Agreement.

4. Entire agreement: This Agreement is the entire agreement between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written, between the parties in respect of the matters that are the subject of this Agreement.

5. Force majeure: If by reason of any fact, circumstance, matter or thing beyond the reasonable control of CooQu either is unable to perform in whole or in part any obligation under this Agreement then:

   1. CooQu is relieved of that obligation under this Agreement to the extent and for the period that it is unable to perform such obligation; and

   2. CooQu will not be liable to the Seller for failure to perform such obligation to the extent and for the period of non-performance contemplated by this clause.

6. No representations or warranties: The parties hereby acknowledge that no representations or warranties have been made other than those expressly recorded in this Agreement and that, in respect of this Agreement or any part of it including the transactions contemplated pursuant to this Agreement, no party has relied or will rely upon any representations or information, whether oral or written, previously provided to or discovered by it.

7. Relationship: Except as expressly stated in this Agreement, nothing in this Agreement is intended to create a relationship of partnership, joint venture, agency or employer-employee between the parties. Neither party has authority to create, assume or otherwise enter into any agreement that imposes rights or obligations on the part of the other party.

8. Powers, rights and remedies:  Unless otherwise stated in this Agreement, the powers, rights and/or remedies of a party under this Agreement are cumulative and are in addition to any other powers, rights and remedies of that party. Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any power, right, or remedy that a party may have at any time against the other party to this Agreement or any other person.

9. Set off: CooQu is authorised to deduct any amount due and payable by the Seller from amounts otherwise due and payable to the Seller under or in connection with this Agreement.  Any exercise by a party of its rights under this clause does not limit or affect any other rights or remedies available to it under this Agreement or otherwise.

10. Severance: If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

11. Survival: The following clauses are continuing obligations and will continue after termination or expiry of this Agreement: 30 (Definitions and interpretation), 4(Listing and Compliance), 18 (Intellectual Property), 16 (Seller Obligations and Warranties), 21 (Effect of termination), 22  (Confidentiality), 23 (Limitation of Liability), 24 (Indemnity), 26 (Dispute Resolution) and 29 (General).

12. Time of the essence: The parties agree that time is of the essence with respect to the Seller’s obligations under this Agreement.

13. Waiver: A failure by either party to take action to enforce its rights does not constitute a waiver of any right or remedy under this Agreement unless it is in writing signed by the party granting the waiver.

14. Jurisdiction: The parties irrevocably submit to the exclusive jurisdiction of the courts of the state of Victoria, Australia.

15. Governing law: This Agreement will be governed by and construed and interpreted in accordance with the laws of Victoria, Australia.

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30.Definitions and interpretation

1. Definitions

In this Agreement, unless the context requires otherwise:

Agreement or Seller Agreement means this agreement and its schedules and annexures and any subsequent variation.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Victoria, Australia.

Commencement Date means the date that you sign up to the Platform.

Commission means 20%.

Confidential Information means:

1. the terms of this Agreement and its subject matter, including information submitted or disclosed by a party during negotiations, discussions and meetings relating to this Agreement;

2. any information relating to the business of CooQu;

3. any information relating to commissions, margins or pricing details of CooQu;

4. any Purchaser lists or Purchaser details;

5. any information of CooQu which is designated by CooQu as confidential;

6. any information of CooQu which is of a confidential or sensitive nature, which is marked or denoted as confidential or which a reasonable person to whom that information is disclosed or to whose knowledge the information comes would consider confidential; or

7. any information which is disclosed by CooQu to the Seller, directly or indirectly, or otherwise comes to the knowledge of that party in relation to or in connection with this Agreement, whether that information is in oral, visual or written form or is recorded or embodied in any other medium.

Corporations Act means the Corporations Act 2001 (Cth).

Custom Order means an Order containing a special request where a Purchaser may request a particular Seller to cook Goods with specific instructions and/or where a Purchaser may request an open Order of certain Goods a Seller is able to cook for them on a certain date.

Delivery Services means the delivery of Goods to Purchasers and related services as applicable, including, but not limited to:

1. arranging and facilitating pick up of Goods to Purchasers;

2. delivery of Goods to Purchasers;

3. managing and responding to Purchaser enquiries or disputes in relation to delivery;

4. managing delivery Personnel and conduct of delivery Personnel;

5. ensuring delivery Personnel follow CooQu and Seller procedures, including using relevant software;

6. updating Order details on the Platform; and

7. resolving issues with lost or delayed deliveries.

Goods means the Goods and Seller Services offered for sale or provided by Sellers to Purchasers via the Platform.

GST Law means the definition given to that term in the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

Insolvency Event means the occurrence of any one or more of the following events in relation to a party:

1. it is insolvent as defined by section 95A of the Corporations Act as disclosed in its accounts or otherwise, states that it is insolvent, is presumed to be insolvent under an applicable law (including under section 459C(2) or section 585 of the Corporations Act) or otherwise is, or states that it is, unable to pay all its debts as and when they become due and payable;

2. any step is taken to appoint a receiver, a receiver and manager, a liquidator or a provisional liquidator or other like person to it or any of its assets, operations or business;

3. an administrator is appointed to it under sections 436A, 436B or 436C of the Corporations Act;

4. a controller (as defined in section 9 of the Corporations Act) is appointed to it or any of its assets;

5. an application is made to a court for an Order, or an Order is made, that it be wound up, declared bankrupt or that a provisional liquidator, receiver or receiver and manager be appointed, and that application is not withdrawn, struck out or dismissed within 15 Business Days of it being made;

6. any step is taken to enter into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors;

7. it proposes a winding-up, dissolution or reorganisation, moratorium, deed of company arrangement or other administration involving one or more of its creditors;

8. it is taken to have failed to comply with a statutory demand under section 459F(1) of the Corporations Act;

9. a notice is issued under section 601AA or section 601AB of the Corporations Act [and not withdrawn or dismissed within 15 Business Days;

10. a writ of execution for its property which is not dismissed within 15 Business Days;

11. it ceases to carry on business or threatens to do so, other than in accordance with the terms of this Agreement; or

anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the events set out in the above paragraphs of this definition.

Intellectual Property means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs and unregistered designs, rights to use, and protect the confidentiality of, confidential information (including know-how, trade secrets, and datasets), technology and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future, anywhere in the world.

Moral Rights means the rights conferred by Part IX of the Copyright Act 1968 (Cth) and any similar rights existing or that may come to exist anywhere in the world, including:

1. a right of attribution of authorship;

2. a right not to have authorship falsely attributed; and

3. a right of integrity.

On Boarding Pack means the information pack issued to the Seller by CooQu at the commencement of this Agreement, which includes information relating to the listing of the Seller on the Platform.

Order means an order of goods by a Purchaser submitted using the Seller Services.

Personnel means an employee, director, officer, agent, representative, contractor or sub-contractor of a party.

Platform means the CooQu website or application (including mobile application) provided to the Seller for the purpose of receiving and obtaining Orders of Goods.

Platform Terms mean the Platform Terms and Conditions, which apply to all users of the Platform, which incorporate by reference, CooQu's Privacy Policy, and any other policies developed by CooQu from time to time.

Privacy Policy means CooQu's privacy policy as provided by CooQu, including as linked on the Platform, from time to time.

Promotions has the meaning given to it in clause 19.1.

Purchasers means the general public and actual or potential customers of Goods from the Seller via the Platform.

Recurring Order means an Order placed in advance by a Purchaser on a subscription basis.

Seller Content means Intellectual Property owned by or licenced to the Seller, including information and data provided to CooQu by the Seller, including information related to the Seller, information and description of Goods and images of Goods.

Seller Services mean the services that the Seller provides or offers to provide to Purchasers including dine-in services.

Services mean the provision of the Platform by CooQu to the Sellers as amended or updated by CooQu from time to time.

Term has the meaning set out in clause 1.2.

1. Interpretation

In this Agreement, unless the context requires otherwise:

1. words in the singular include the plural and vice versa;

2. headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Agreement;

3. a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of this Agreement;

4. if any act which must be done under this Agreement is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;

5. a reference to any legislation includes subordinate legislation and all amendments, consolidations or replacements from time to time;

6. a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity;

7. the words "includes" and "including" or words of similar effect are not words of limitation;

8. no clause of this Agreement shall be interpreted to the disadvantage of a party merely because that party drafted the clause or would otherwise benefit from it;

9. a reference to a party includes the party’s successors, assigns and persons substituted by novation;

10. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

11. a reference to time and date is to local time and dates in New South Wales, Australia; and

12. unless specified otherwise, a reference to “$” or “dollars” refers to Australian dollars.