FAQ's


1. Why some dishes/chefs are not showing sometimes?
To avoid disappointment, we only show the available dishes/chefs near you by the time you use the app.
 
2. Can I provide delivery service to Freshtoz? And what’s the requirement?
Yes! Simply sign up with us and the requirements will be explained in the process. Please feel free to contact us if you have more questions.
 
3. What’s ABN, do I have to register it?
Yes you do if you want to be the chef or driver with Freshtoz. ABN is short for “Australian Business Number” you need an ABN to run your own business on Freshtoz by law. Don’t worry, registering an ABN only takes a few minutes and it is completely free! This is the link where you can apply for ABN:
 
4. How do I contact Freshtoz?
If you have any questions or complaints please email us at Support@Freshtoz.com we will respond you within 24 hours.
 
5. Can I be chef, driver and customer the same time?
Yes, absolutely! You can cook your food and do your own delivery. You can set up your own delivery charges and you can also purchase food from other chefs. We encourage chefs to post your cooking show YouTube videos on your profile page to market your business better. If you need any business support, please do not hesitate to contact us, we would love to help!
 
6. What if I’m not happy with the quality of the food?
You can contact the chef to request for refund. But unfortunately the delivery charge is not refundable. You also have the option to pick up food on your own. So there is no delivery fee occurs on your end.
 
7. What’s the requirement to become a chef?
You need your an ABN, Food safety supervisor certificates (FSS), and council approval to run a home-based business.
This link provided the list of approved training providers for Food safety supervisor certificates (FSS):


Privacy & Security 

We are committed to protecting the privacy of all visitors to the Website, including all visitors who access the Website or Service through any mobile application or other platform or device. Please read the following Privacy Policy which explains how we use and protect your information.

By visiting and/or using the Service on the Website, you agree and, where required, you consent to the collection, use, storage, disclosure and transfer of your information as set out in this policy.

1. INFORMATION THAT WE COLLECT FROM YOU

1.1. When you use the app to make an order from a vender, you may be asked to provide information about yourself including your name, address, contact details (such as telephone and mobile numbers and e-mail address) and payment information (such as credit or debit card information). We may also collect information about your usage of the Website and Service and information about you from the materials (such as messages and reviews) you post to the Website and the e-mails or letters you send to us. Your telephone calls to us may also be recorded for training and quality purposes.

1.2. By accessing Freshtoz information and/or the Website or Service using mobile digital routes such as (but not limited to) mobile, tablet or other devices/technology including mobile applications, then you should expect that our data collection and usage as set out in this Privacy Policy will apply in that context too. We may collect technical information from your mobile device or your use of the Website or the Service through a mobile device, for example, location data and certain characteristics of, and performance data about, your device, carrier/operating system including device and connection type, IP address, mobile payment methods, interaction with other retail technology such as use of NFC Tags, QR Codes or use of mobile vouchers. Unless you have elected to remain anonymous through your device and/or platform settings, this information may be collected and used by us automatically if you use the Website or Service through your mobile device(s) via any Freshtoz mobile application, through your mobile's browser or otherwise.

2. USE OF YOUR INFORMATION

2.1. Your information will enable us to provide you with access to the relevant parts of the Website and to supply the Service. It will also enable us to bill you and enable us and/or a vender with whom you have placed an order to contact you where necessary concerning the Service. For example, we and/or the vender may use your information to provide you with status updates or other information regarding your Order by e-mail, telephone, mobile or mobile messaging (e.g. SMS, MMS etc.). We will also use and analyse the information we collect so that we can administer, support, improve and develop our business, for any other purpose whether statistical or analytical and to help us
2.2. We may use your information to contact you for your views on the Service and to notify you occasionally about important changes or developments to the Website or the Service. 

2.3. When you register with Freshtoz, you consent to Freshtoz using your personal information for direct marketing purposes to communicate with you by phone, email or SMS and, if you use our mobile application, via push notification, to tell you about offers, updates and our products and services that may be of interest to you. 

You may choose to stop receiving direct marketing communications from a channel at any time by using the unsubscribe mechanism in the marketing communication itself. To opt-out of communications via email click the "unsubscribe" link at the bottom of the email and to opt-out of communications by SMS reply with "STOP". You may also decline marketing messaging sent by push notifications by refusing the relevant permission to our app in your phone or tablet settings, however this will also prevent you from receiving order updates via push. 

2.4. Where you have given express consent, you agree that we may also share information with third parties (including those in the food, drink, leisure, marketing and advertising sectors) to use your information in order to let you know about goods and services which may be of interest to you (by post, telephone, mobile messaging (e.g. SMS, MMS etc.) and/or e-mail) in accordance with the Spam Act and the Privacy Act. 

We may also disclose your information to help us analyse the information which we collect so that we can administer, support, improve and develop our business and services to you. 

2.5. You agree that we may disclose personal information which we collect from you to other companies that also hold information about you.  We may also collect personal information from those other companies. We and/or those companies may combine the information in order to better understand your preferences and interests, thereby enabling them and us to serve you better. 
2.6 If you do not want us to use your data in this way or change your mind about being contacted in the future, please let us know by using the contact us as soon as possible.

2.7. Please note that by submitting Reviews regarding the Website, Service and/or venders, you consent to us to use such Reviews on the Website and in any marketing or advertising materials. We will only identify you for this purpose by your first name and the city in which you reside (and any other information that you may from time to time consent to us disclosing). 


3. DISCLOSURE OF YOUR INFORMATION

3.1. The information you provide to us will be transferred to and stored on our servers which may be in or outside Australia, and may be accessed by or given to our staff working outside Australia and third parties including companies within the Freshtoz group of companies (which means our subsidiaries and affiliates, our ultimate holding company and its subsidiaries and affiliates) who act for us for the purposes set out in this policy or for other purposes notified to you from time to time in this policy. We may disclose your information to overseas recipients, including, without limitation, recipients located inIndia, China. Where we disclose your personal information to overseas recipients, we will always take reasonable steps to ensure that your information is treated in accordance with this policy and the Australian Privacy Principles.

3.2. The third parties with whom we share your information may undertake various activities such as processing credit card payments and providing support services for us. In addition, we may need to provide your information to any venders that you have placed an Order with so as to allow the vender to process and deliver your Order. By submitting your personal data, you agree to this transfer, storing or processing. We will take all steps reasonably necessary to ensure that your data is treated securely and in accordance with this Privacy Policy. 

3.3. If our business enters into a joint venture with, purchases or is sold to or merged with another business entity, your information may be disclosed or transferred to the target company, our new business partners or owners or their advisors. 

3.4. We may use the information that you provide to us if we are under a duty to disclose or share your information in order to comply with (and/or where we believe we are under a duty to comply with) any legal obligation; or in order to enforce the Website Terms and any other agreement; or to protect our rights or the rights of venders or other third parties. This includes exchanging information with other companies and other organisations for the purposes of fraud protection and prevention. 

4. SECURITY AND DATA RETENTION

4.1. We take steps to protect your information from unauthorised access, modification or disclosure and against misuse, interference, loss, destruction and damage. Once your information is no longer required for any purpose for which it may be used or disclosed by us, and we are not required by law to retain the information, we will destroy the information or ensure that it is de-identified.

4.2. Where you have registered an account with Freshtoz and chosen a password which allows you to access certain parts of the Website, you are responsible for keeping this password confidential. We advise you not to share your password with anyone. Unless we negligently disclose your password to a third party, we will not be liable for any unauthorised transactions entered into using your name and password.

4.3. All user details captured by Freshtoz are stored securely at all times and will never be provided to any unauthorised third parties. All credit card details are protected using SSL (Secure Socket Layer) encryption. Freshtoz has been verified for security and compliance to PCI standards by Vectra Corporation, an independent third party. Credit card details are handled by leading PCI compliant providers of secure credit card processing solutions. Freshtoz will never save your actual credit card details. We will simply save a reference to your card, which is called a token.  This token is provided to us by the payment provider. Saving the token means that for future credit card transactions we can give you the option to charge the same card you used previously without having to re-enter the card details. If, at any time, you wish the token to be removed please email us at support@freshtoz.com and we will have these removed. In that case you would need to re-enter your card details on the next order.

4.4. However, the transmission of information via the internet is not completely secure. Although we will take reasonable steps to protect your information and make sure it is safe and secure and we use a number of physical, administrative, personnel and technical measures to protect your personal information, we cannot guarantee the security of your data transmitted to the Website; any transmission is at your own risk. For the avoidance of doubt, Freshtoz will not in any circumstances be liable to you, or third parties, for loss or damage arising from credit card fraud or identity theft.

5. COOKIES AND THIRD PARTY ANALYTICS AND ADVERTISING

5.1. We may collect personal information about you when you use and access our website. While we do not use browsing information to identify you personally, we may record certain information about your use of our website, such as which pages you visit, the time and date of your visit and the internet protocol address assigned to your computer. 

5.2. We may also use 'cookies' or other similar tracking technologies on our website that help us track your website usage and remember your preferences. Cookies are small files that store information on your computer, TV, mobile phone or other device. They enable the entity that put the cookie on your device to recognise you across different websites, services, devices and/or browsing sessions. You can disable cookies through your internet browser but our websites may not work as intended for you if you do so.

5.3. We may also use cookies to enable us to collect data that may include personal information. For example, where a cookie is linked to your account, it will be considered personal information under the Privacy Act. We will handle any personal information collected by cookies in the same way that we handle all other personal information as described in this Privacy Policy. 

5.4. This site uses the Google Analytics cookie, and other cookies and identifiers to collect anonymous, aggregated audience data in order to measure user interactions on our site and improve our service. This includes the use of Google Analytics Advertiser Features which provides Demographic and Interest reports, Re-marketing, GDN Impression Reporting, and the DoubleClick Campaign Manager integration.


6. ACCESSING AND UPDATING

You have the right to see the information we hold about you  and to ask us to make any changes to ensure that it is accurate and up to date. If you wish to do this, please contact us using the contact details set out in paragraph 8 below.

7. CHANGES TO OUR PRIVACY POLICY

Any changes to our Privacy Policy will be posted to the Website and, where appropriate, through e-mail notification. We encourage you to check our website periodically to ensure that you are aware of our current Privacy Policy.



Terms & Conditions 


Terms of Use

IMPORTANT LEGAL NOTICE

This page sets out the terms and conditions ("Application Terms") on which we, Freshtoz Pty Ltd (ACN 645 994 270) ("we", "us" or "Freshtoz"),  provide our services through our Freshtoz mobile application through which you access our Application or services (together, "Application"). Please read these Application Terms carefully before ordering any products through the Freshtoz

Application, as your use of the Freshtoz Application and purchase of any products offered on the Application is subject to these Application Terms. By ordering products via the Freshtoz Application (whether now or in the future) or continuing to use the Application, you agree to be bound by these Application Terms.

We reserve the right to change these Application Terms from time to time by changing them on this page. We advise you to print a copy of these Application Terms for future reference. These Application Terms are only in the English language. Use of your personal information submitted via the Application is governed by our  Privacy Policy . For the avoidance of doubt, please note that references to "Application" in these Application Terms include any current or future version of our Application www.Freshtoz.com.au and any Freshtoz mobile application through which you access our Application or services, in each case whether accessed through any current or future platform or device (including without limitation any mobile Application, mobile application, affiliate Application or related Application for accessing our Application or services that may be developed from time to time).

By accessing any part of the Application, you indicate that you accept these Application Terms. If you do not accept these Application Terms, you should leave the Application immediately, and you will not be able to order any products through the Application.

I. TERMS AND CONDITIONS OF USE AND SALE

1. INTRODUCTION AND OUR ROLE

1.1. Company details: Freshtoz Pty Ltd (ACN 645 994 270) is a company registered in New South Wales, Australia.

1.2. Service: We provide a way for you to communicate your orders ("Orders") for products ("Products") to delivery or takeaway home-chefs ("home-chefs" displayed on the Application (the "Service").

2. APPLICATION ACCESS AND TERMS

2.1. Application access: You may access some areas of the Application without making an Order or registering your details with us. Most areas of the Application are open to everyone.  When you use the Application or register an account, you will provide us with personal information such as your name, email address, telephone number, credit or debit card information and address. You must ensure that this information is accurate and current. We will handle all personal information we collect in accordance with our  Privacy Policy If you choose to register an account or when you place your first order, You are responsible for keeping this user name and password secure and are responsible for all use and activity carried out under this user name.

2.2. Acceptance of terms: By accessing any part of the Application, you indicate that you accept these Application Terms. If you do not accept these Application Terms, you should leave the Application immediately, and you will not be able to order any Products through the Application.

2.3. Revision of terms: We may revise these Application Terms at any time. You should check our website regularly to review the current Application Terms, because they are binding on you. You will be subject to the terms and conditions in force at the time that you place an Order through us.

2.4. Responsibility: You are responsible for making all arrangements necessary for you to have access to the Application. You are also responsible for ensuring that all persons who access the Application through your Internet connection are aware of these Application Terms and that they

comply with them.

3. YOUR STATUS

3.1. Capacity and age: By placing an Order through the Application, you warrant that:

3.1.1. You are legally capable of entering into binding contracts; and 

3.1.2. You are at least 18 years old.

3.2. Alcohol and cigarettes: Furthermore, you acknowledge and agree that: 

3.2.1. it is an offence for any person under the age of 18 to buy, or attempt to buy, intoxicating liquor, or for any person over the age of 18 to buy intoxicating liquor on behalf of any person under the age of 18;

3.2.2. Cigarettes are not for sale to persons under the age of 18; and

3.2.3. Orders containing either alcohol or cigarettes can therefore not be accepted from or on behalf of persons under the age of 18. In the event that you place an order for alcohol or tobacco products, you will be required by the home-chef to show ID on delivery. For the avoidance of doubt, if your Order includes alcohol or tobacco, the home-chef is providing you with these and Freshtoz is not selling alcohol or tobacco to you. Freshtoz supports the Responsible Service of Alcohol.

4. HOW TO MAKE AN ORDER AND HOW IT IS PROCESSED

4.1. Compiling your Order: Once you select the Products you wish to order from the menu of your chosen home-chef and provide other required information, you will be given the opportunity to submit your Order by clicking or selecting the "proceed", "place my order""checkout"or similar button. It is important that you check all the information that you enter and correct any errors before clicking or selecting this button; once you do so we will process your Order and errors cannot be corrected.

4.2. Minimum Order Amount: If a home-chef has a minimum order amount in place, you may not place an order with that home-chef until the value of your Order exceeds that amount. The minimum order amount must be met after applying any discounts or specials that reduce the total Order amount. 

4.3. Amending or cancelling your Order: Once you submit your Order and your payment has been authorised, you will not be entitled to change or cancel your Order online (please refer to paragraph 4.4 for details of the process relating to rejected Orders). If you wish to change or cancel your Order, you may contact the home-chef directly or our Customer Care team as described in paragraph 6.3 and they will attempt to contact the home-chef in order to communicate your requests. However, there is no guarantee that we will be able to reach the home-chef or that the home-chef will agree to your requests as they may have already started to process your Order.

4.4. Payment authorisation: Where any payment you make is not authorised, your Order will not be processed by or communicated to the relevant home-chef.

4.5. Processing your Order and home-chef rejections: On receipt of your Order, we will begin processing it by sending it to the relevant home-chef and will notify you by email that your Order has been received and is being processed. Any confirmation page that you may see on the Application and any Order confirmation e-mail that you may receive each merely indicate that your Order has been received and is being processed by us, and does not necessarily mean that your Order has been accepted by the home-chef. home-chefs have the discretion to reject Orders at any time because they are too busy, due to weather conditions or for any other reason. We encourage all our home-chefs to accept all Orders and to communicate any rejection promptly, and we will notify you (generally by email) as soon as reasonably practicable if a home-chef rejects your Order.  When a home-chef confirms receipt of the order and expected collection or delivery time, we will send you a notification through our Application.

4.6. Delivery of your Order: Estimated times for deliveries and collections are provided by the home-chefs and are only estimates. Neither we nor the home-chefs guarantee that Orders will be delivered or will be available for collection within the estimated times. All food preparation and deliveries are the sole responsibility of the home-chef accepting the Order. To the extent permitted by law, including the Australian Consumer Law, Freshtoz accepts no liability associated with food preparation or delivery by the home-chef accepting the order.

5. PRICE AND PAYMENT

5.1. Taxes and delivery costs: Prices for individual menu items will be as quoted on the Application in Australian dollars. These prices include any applicable taxes but may exclude delivery costs (if you opt for delivery instead of collection) and any online payment administration charge imposed by the home-chef (if you pay for your Order online). These will be added to the total amount due where applicable.

5.2. Incorrect pricing: This Application contains a large number of menus and it is possible that some of the menus may include incorrect prices. The products will be sold for the displayed price even if the correct price for an Order is higher than the price stated on the Application.

5.3. Payment methods: Payment for Orders must be made by an accepted credit or debit card, or Stripe through the Application. 

5.4. Card payments: If you pay by credit or debit card, you may be required to show the card to the home-chef at the time of delivery as proof of identification and so that they can check that the card conforms with the receipt data for the Order. Please note that from time to time there may be delays with the processing of card payments and transactions; this may result in delays in sums being deducted from your bank account or charged to your credit or debit card.

5.5. Credit and discount vouchers: A credit or discount may apply to your Order if you use a promotional voucher or code recognised by the Application and endorsed by Freshtoz, and you pay for any balance by credit or debit card. Please refer to our Voucher Terms & Conditions for the full terms and conditions applicable to the use of credit and discount vouchers.

5.6. Rejected Orders: Once you have submitted an Order that you are paying for by credit or debit card and your payment has been authorised, you will be charged the full amount of your Order. If your Order is subsequently rejected by the home-chef (as described in paragraph 4.4 above) or cancelled for any other reason, your bank or card issuer will refund the relevant amount. However, this may take between 3 to 5 working days (or longer, depending on your bank or card issuer). You acknowledge and agree that neither we nor the relevant home-chef will be responsible or liable to you in relation to this delay by your bank or card issuer in the release of funds back into your account.

CUSTOMER CARE

6.1. General: Customer care is extremely important to us. Subject to paragraphs 6.5 and 11, our Customer Care team will therefore try to assist you where possible if you have any problems with your Order. You can contact our Customer Care team by emailing us or by calling the telephone

number shown under the "contact us"on the Application. Alternatively, you can access the list of frequently asked questions  FAQ

6.2. Questions about your Order: If your Order is taking longer than expected or you have any other problems with your Order, in the first instance you should contact the home-chef directly. Alternatively, you can contact our Customer Care Team as described above and one of our Customer Care Advisers will attempt to contact the home-chef in order to follow up on your query.

6.3. Changing or canceling your Order: If you wish to change or cancel your Order after it has been submitted and payment has been authorised, you may contact our Customer Care team as described above and they will attempt to contact the home-chef in order to communicate your requests. However, there is no guarantee that we will be able to reach the home-chef or that the home-chef will agree to your requests as they may have already started to process your Order.

6.4. Complaints or feedback: In the event that you would like to express your opinion on the quality of any Products or the service provided by a home-chef, please consider providing feedback in the form of ratings, comments and reviews on the Application (together, "Reviews"). The Reviews are an important part of our quality control process. 

6.5. Compensation: If you are dissatisfied with the quality of any Products or the service provided by a home-chef and wish to seek a refund, a proportionate price reduction or any other compensation, you should contact the home-chef directly to lodge your complaint and, where appropriate, follow the home-chef's own complaint procedures. If you are unable to contact the home-chef, or the home-chef refuses to deal with your complaint, you can contact our Customer Care Team as described above within 48 hours of placing your Order and one of our Customer Care Advisers will attempt to contact the home-chef in order to request compensation on your behalf. Please note that we have no control over home-chefs and the quality of the individual Products or service that they provide, and we are not able to provide, and have no responsibility or liability for providing, any compensation to you on behalf of any home-chef.

7. LICENCE

7.1. Terms of permitted use: You are permitted to use the Application and print and download extracts from the Application for your own personal non-commercial use on the following basis:

7.1.1. You must not misuse the Application (including by hacking or "scraping").

7.1.2. Unless otherwise stated, the copyright and other intellectual property rights in the Application and in material published on it (including without limitation photographs and graphical images) are owned by us. These works are protected by copyright laws and treaties around the world and all rights are reserved. For the purposes of these Application Terms, any use of extracts from the Application other than in accordance with paragraph 7.1 is prohibited.

7.1.3. You must not modify the digital or paper copies of any materials that you print off in accordance with paragraph 7.1 and you must not use any pictures, photographs or any other graphics, video or audio sequences separately from any accompanying text.

7.1.4. You must ensure that our status as the author of the material on the Application is always acknowledged.

7.1.5. You are not allowed to use any of the materials on the Application or the Application itself for commercial purposes without obtaining a licence from us to do so.

7.2. Limitation on use: Except as stated in paragraph 7.1, the Application may not be used, and no part of the Application may be reproduced or stored in any other Application or included in any public or private electronic retrieval system or service, without our prior written permission.

7.3. Reservation of rights: Any rights not expressly granted in these Application Terms are reserved.

8. SERVICE ACCESS

8.1. Application availability: While we try to ensure the Application is normally available twenty four (24) hours a day, we do not undertake any obligation to do so, and we will not be liable to you if the Application is unavailable at any time or for any period.

8.2. Suspension of access: Access to the Application may be suspended temporarily at any time and without notice.

8.3. Information security: The transmission of information via the internet is not completely secure. Although we take the steps required by law to protect your information, we cannot guarantee the security of your data transmitted to the Application; any transmission is at your own risk.

9. VISITOR MATERIAL AND REVIEWS

9.1. General: 

9.1.1. Other than personally identifiable information, which is covered under our  Privacy Policy, any material you post, upload or transmit or upload to the Application (including without limitation Reviews) ("Visitor Material") will be considered non-confidential and non-proprietary. By posting, uploading or transmitting any Visitor Material, you represent and warrant that you own or otherwise control all of the rights to such Visitor Material. You agree that we will have no obligations with respect to any Visitor Material, and that we and anyone we designate will be free to copy, disclose, distribute, incorporate and otherwise use any Visitor Material and all data, images, sounds, text and other things embodied in it for any and all commercial or non-commercial purposes.

9.1.2. You represent and warrant that any Visitor Material you post, upload or transmit does not and will not breach any of the restrictions in paragraphs 9.2 to 9.3 below. 

9.2. Visitor Material Policy: You are prohibited from posting, uploading or transmitting to or from the Application any Visitor Material (including any Reviews) that:

9.2.1. breaches any applicable local, national or international law;

9.2.2. is unlawful or fraudulent;

9.2.3. amounts to unauthorised advertising; or

9.2.4. contains viruses or any other harmful programs.

9.3. Visitor Reviews Policy: In particular (but without limitation), any Reviews that you submit through the Application must not:

9.3.1. contain any defamatory, obscene or offensive material;

9.3.2. promote violence or discrimination;

9.3.3. infringe the intellectual property rights of another person;

9.3.4. breach any legal duty owed to a third party (such as a duty of confidence);

9.3.5. promote illegal activity or invade another's privacy;

9.3.6. give the impression that they originate from us; or

9.3.7. be used to impersonate another person or to misrepresent your affiliation with another person.

9.4. Removal of Reviews: The prohibited acts listed in paragraphs 9.2 and 9.3 above are non-exhaustive. We reserve the right (but do not undertake, except as required by law, any obligation) and have the sole discretion to remove or edit at any time any Reviews or other Visitor Material posted, uploaded or transmitted to the Application that we determine breaches a prohibition in paragraphs 9.2 or 9.3 above, is otherwise objectionable or may expose us or any third parties to any harm or liability of any type, or for any other reason. Notwithstanding the foregoing, Freshtoz will not remove or edit reviews where Freshtoz believes that doing so would be in breach of the Australian Consumer Law.

9.5. Use of Reviews: The Reviews and other Visitor Material contained on the Application are for information purposes only and do not constitute advice from us. Reviews and Visitor Material reflect the opinions of customers who have ordered through the Application or other third parties, and any statements, advice or opinions provided by such persons are theirs only. Accordingly, to the fullest extent permitted by law, including the Australian Consumer Law we assume no responsibility or liability to any person for any Reviews or other Visitor Material, including without limitation any mistakes, defamation, obscenity, omissions or falsehoods that you may encounter in any such materials.

9.6. Liability: You agree to indemnify us against any losses, damages and claims (and all related costs) incurred by or made against us by a home-chef or any other third party arising out of or in connection with any Reviews or other Visitor Material that you provide in breach of any of the representations and warranties, agreements or restrictions set forth in this paragraph 9. 

9.7. Disclosure to authorities and courts: You acknowledge that we will fully co-operate with any competent authority requesting or directing us to disclose the identity or location of anyone posting any Reviews or other Visitor Material in breach of paragraph 9.2 or 9.3 or any other applicable restriction and you release us to the fullest extent permitted by law from all liability in relation to such disclosure.

10. LINKS TO AND FROM OTHER APPLICATIONS

10.1. Third Party Applications: Links to third party applications on the application are provided solely for your convenience. If you use these links, you leave the application. We have not reviewed and do not control any of these third party applications (and are not responsible for these applications or their content or availability). We do not endorse or make any representation about these applications, their content, or the results from using such applications or content. If you decide to access any of the third party applications linked to the application, you do so entirely at your own risk. 

10.2. Linking permission: You may link to the application's homepage (www.Freshtoz.com.au), provided that:

10.2.1. you do so in a fair and legal way which does not damage or take advantage of our reputation;

10.2.2. you do not establish a link from a application that is not owned by you or in a way that suggests a form of association with or endorsement by us where none exists;

10.2.3. any application from which you link must comply with the content standards set out in these Application Terms (in particular paragraph 9 (Visitor Materials and Reviews));

10.2.4. we have the right to withdraw linking permission at any time and for any reason.

11. DISCLAIMERS

11.1. Application information: We may make changes to the material on the Application, or to the Service, Products and prices described on it, at any time without notice.

11.2 Specials listed on the Application are subject to change. home-chefs may alter their specials at any time, including removing or changing the terms of any loyalty discount program. Loyalty credits earned through a loyalty discount program from a home-chef are non-transferrable and are not redeemable for cash.

11.3. Allergy, dietary and other menu information: We try to accurately copy the item names, descriptions, prices, special offer information, heat and allergenic warnings and other information ("Menu Information") from the menus that are provided to us by home-chefs. However, it is the home-chefs that are responsible for providing this Menu Information and ensuring that it is factually accurate and up-to-date, and we do not undertake any such responsibility. If you are in doubt about allergy warnings, contents of a dish or any other Menu Information, you should confirm with the home-chef directly before ordering. Some of the pictures shown are indicative of the style of cuisine only and may not be an actual photo of the dish from the home-chef.

11.4. home-chef actions and omissions: The legal contract for the supply and purchase of Products is between you and the home-chef that you place your Order with. We have no control over the actions or omissions of any home-chefs. Without limiting the generality of the foregoing, you acknowledge and accept the following by using the Application:

11.4.1. We do not give any undertaking that the Products ordered from any home-chef through the Application will be of satisfactory quality or suitable for your purpose and we disclaim any such warranties. 

11.4.2. Estimated times for deliveries and collections are provided by the home-chefs and are only estimates. Neither we nor the home-chefs guarantee that Orders will be delivered or will be available for collection within the estimated times. 

11.4.3. home-chefs have the discretion to reject Orders at any time because they are too busy, due to weather conditions or for any other reason. We encourage all our home-chefs to accept all orders and to communicate any rejection promptly, and we will notify you (generally by email or notification within our application) as soon as reasonably practicable if a home-chef rejects your Order.

11.4.4. The foregoing disclaimers do not affect your statutory rights against any home-chef. 

11.5. Exclusion of terms: We provide you with access to the Application and Service on the basis that, to the maximum extent permitted by law, including the Australian Consumer Law, we exclude all representations, warranties, conditions, undertakings and other terms in relation to the Application and Service (including any representations, warranties, conditions, undertakings and other terms which might otherwise apply to the Application or Service, or be otherwise implied or incorporated into these Application Terms, by statute, common law or otherwise).

12. LIABILITY

12.1. Exclusion of liability: your statutory rights under the Australian Consumer Law more generally, we will under no circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, even if foreseeable, arising under or in connection with the Service or the Application (including the use, inability to use or the results of use of the Service or the Application) for:

12.1.1. any food poisoning or death caused by food sold by home-chefs;

12.1.2. loss or corruption of data, information or software;

12.1.3. loss of business opportunity;

12.1.4. loss of anticipated savings;

12.1.5. loss of goodwill; or

12.1.6. or any loss not arising naturally or not arising according to the usual course of things from the relevant breach or acts or omissions. 

12.2. Limitation of liability: Subject to clauses 11, 12.1, and your statutory rights under the Australian Consumer Law more generally, our total liability to you in respect of all other losses arising under or in connection with the Service or the Application, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed  twice the value of your Order or $100, whichever is lower.

12.4. Additional costs: You assume full and sole responsibility for any additional or associated costs that you may incur in connection with or as a result of your use of the Application, including without limitation costs relating to the servicing, repair or adaptation of any equipment, software or data that you may own, lease, license or otherwise use.

12.5 Indemnity: You agree to indemnify and hold Freshtoz and applicable affiliates, officers, directors, agents, and employees, harmless from and against any claims, demands, proceedings, losses and damages (actual, special and consequential) of every kind and nature, known and unknown, including legal fees on the indemnity basis, made by any third party due to or arising out  of your breach of these Terms or the terms and policies it incorporates by reference, or your violation of any law or the rights of a third party.

13. TERMINATION

13.1. Grounds for termination: We may terminate or suspend (at our absolute discretion) your right to use the Application and the Service immediately by notifying you in writing (including by email) if we believe in our sole discretion that:

13.1.1. you have used the Application in breach of paragraph 7.1 (Licence);

13.1.2. you have posted Reviews or other Visitor Material in breach of paragraphs 9.2 or 9.3 (Visitor Material and Reviews);

13.1.3. you have breached paragraph 10.2 (Links to and from other Applications); or

13.1.4. you have breached any other material terms of these Application Terms.

13.2. Obligations upon termination: Upon termination or suspension you must immediately destroy any downloaded or printed extracts from the Application.

14. WRITTEN COMMUNICATIONS

14.1. Applicable laws require that some of the information or communications we send to you should be in writing. When using the Application or ordering Products via the Application, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Application. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.

15. EVENTS OUTSIDE OUR CONTROL

15.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Application Terms that is caused by events outside our reasonable control ("Force Majeure Event").

15.2. A Force Majeure Event includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

15.2.1. strikes, lock-outs or other industrial action;

15.2.2. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

15.2.3. fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;

15.2.4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

15.2.5. impossibility of the use of public or private telecommunications networks; and

15.2.6. the acts, decrees, legislation, regulations or restrictions of any government.

15.3. Our performance under these Application Terms is deemed to be suspended for the period that any Force Majeure Event continues, and we will have an extension of time for performance for

the duration of that period. We will use our reasonable endeavours to bring any Force Majeure Event to a close or to find a solution by which our obligations under these Application Terms may be performed despite the Force Majeure Event.

16. ADDITIONAL TERMS

16.1. Privacy Policy: We are committed to protecting your privacy and security. All personal data that we collect from you will be processed in accordance with our  Privacy Policy . You should review our Privacy Policy, which is incorporated into these Application Terms by this reference and is available here  Privacy policy

16.2. Other terms: You should also review our Voucher Terms and Conditions for information regarding the use of credits and promotional discounts on the Application, and our Competitions Terms and Conditions for information regarding the terms applicable to competitions that we may run from time to time. All of these are incorporated into these Application Terms by this reference. 

16.3. Severability: If any of these Application Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

16.4. Entire agreement: These Application Terms and any document expressly referred to in them constitute the whole agreement between you and us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to the subject matter of any contract.

16.5. No waiver: Any failure or delay by you or us in enforcing (in whole or in part) any provision of these Application Terms will not be interpreted as a waiver of your or our rights or remedies. 

16.6. Assignment: You may not transfer any of your rights or obligations under these Application Terms without our prior written consent.

16.7. Headings: The headings in these Application Terms are included for convenience only and shall not affect their interpretation.

17. GOVERNING LAW AND JURISDICTION

17.1. These Application Terms shall be governed by and construed in accordance with the law of New South Wales. Disputes or claims arising in connection with these Application Terms (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of New South Wales.

18. PROMOTION TERMS & CONDITIONS

18.1 A discount on an order price of up to 25% may apply to the first order at a participating home-chef made by a Freshtoz Customer via the Application www.Freshtoz.com.au or the Freshtoz App. Discounts are provided by the home-chef if specified on the home-chef page on the Freshtoz Application or App. Not all Freshtoz home-chefs provide discounts and the offer may not be available in all areas.

18.2 Further terms and conditions may apply.

GRATUITIES

You understand and agree that, while you are free to provide gratuities to any Delivery Person who is subcontracted to provide you with services obtained through the Freshtoz Delivery Services, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Freshtoz Delivery Services, you will have the opportunity to rate your experience and leave additional feedback about the Delivery Person.


Terms & Conditions 


Terms of Service - Australia

Freshtoz Merchants

 BEFORE YOU USE THE Freshtoz MARKETPLACE OPERATED BY Freshtoz TECHNOLOGIES AUSTRALIA PTY LTD (“Freshtoz,” “WE” OR “OUR”) PLEASE READ THESE TERMS CAREFULLY. BY SIGNING UP TO OUR SERIVCE, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR EMPLOYEES ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS.

 

SECTION 19 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 19 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

 

1. Definitions.

 a. “Driver” means independent third-party delivery contractor.

b. “Delivery API” means the Freshtoz application programming interface (API) that allows the Merchant to exchange information with Freshtoz.

c. “Freshtoz Data” shall mean any information that Freshtoz provides or makes accessible to Merchant through the Freshtoz Platform, including without limitation Personal Information. 

d. “Freshtoz Marketplace” means Freshtoz’s proprietary online communication platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the Freshtoz mobile application for delivery by a Driver to the Customer or for pickup by Customer. 

e. “Customer” means the customer who places an order for Merchant Products through the Freshtoz Application.

h. “Freshtoz Driver Application” means the platform that enables delivery fulfillment for orders placed directly with the Merchant by the Customer.

i. “Freshtoz Services” means Freshtoz Platform and, Freshtoz Driver Application, as applicable.

j. “Drive Orders” means orders placed by Merchant for delivery fulfilled by Freshtoz.

k. “Drive Term” means the term of the agreement between Freshtoz and Merchant for Freshtoz Driver Application. 

l. “Marketplace Orders” means orders for Merchant Products through the Freshtoz Platform from Customers for delivery by Drivers.

m. “Merchant” means the the home-chef or other entity that has agreed to participate in the Freshtoz Services.

n. "Merchant Portal" is an online website and an application, accessible at https://freshtoz.com/product/ or Freshtoz application through which Merchant may and regularly should review and confirm its transactions, fees and charges and account on the Platform.

o. “Merchant Products” includes all products offered for take-out or delivery orders at Merchant Stores.

p. “Merchant Stores” means the Merchant the home-chef locations that participate in the Freshtoz Services and includes: (i) Merchant Stores owned and operated by Merchant or its affiliates, and/or (ii) Merchant Stores owned and operated by Franchisees of Merchant or its affiliates.

q. “Marketplace Term” means the term of the agreement between Freshtoz and Merchant for the Freshtoz Platform.

r. “PickUp Orders” means orders for Merchant Products through the Freshtoz Platform from Customers for pickup by the Customer.

s. “PickUp Program” means Customers can view and search for the menus of Merchants and place an order for Merchant Products via the Freshtoz Platform for pickup by the Customer. 

t. “Order” means a Marketplace Order, a PickUp Order, or a Drive Order, as applicable.

u. “Order Equipment” means and includes any equipment reasonably required by Freshtoz for Merchant to receive and process Orders, including, without limitation, a smart phone, fax machine, or other automated, electronic means of receiving Orders.

v. “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).

w. Commission Rate means the commission fees collected by Freshtoz in exchange for promoting and featuring the Merchant and Merchant Store(s) on the Freshtoz Platform, which is charged as a percentage of revenues transacted on the Freshtoz Platform calculated on a pre-tax basis. 

x. “Schedule for Later Order” shall mean an Order to be fulfilled at a particular time later in the same day or at a later date.

y. “Terms” means the provisions herein.

z. “Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form and the Delivery API that enables Merchant to request delivery fulfillment and provide information necessary to enable such delivery fulfillment.

 

2. The Parties' Relationship. Freshtoz provides the Freshtoz Marketplace and the Freshtoz Marketplace using web-based technology that connects Merchants, independent delivery contractors ("Drivers") and Customers , as described in these Terms for Freshtoz Platform. From time to time, Freshtoz may list Merchant on the Freshtoz Marketplace and/or the Freshtoz Marketplace subject to the Commission Rate(s) set forth in the Sign-Up Sheet upon advance written notice to Merchant. Freshtoz is not a merchant, seller of goods, or delivery service; it is an online connection platform. Merchant and Freshtoz agree they are independent businesses whose relationship is governed by the Sign-Up Sheet, these Terms, and any applicable terms between the Parties. Nothing in the Parties' agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between Freshtoz and Merchant (or Merchant's employees, representatives or locations), Freshtoz and Driver, or Freshtoz and Customers. Except as expressly set forth in the Sign-Up Sheet, these Terms, and any applicable terms between the Parties, each Party shall be responsible for its own expenses, profits and losses. 

 

3. Freshtoz Marketplace and Freshtoz Marketplace Core Responsibilities. For Merchants that have agreed to participate in the Freshtoz Marketplace and Freshtoz Marketplace, Freshtoz and Merchant shall have the following responsibilities during the Marketplace Term:

a. Freshtoz Core Responsibilities. Freshtoz will, in a timely manner:

i. Display Merchant’s logo; a listing of the Merchant Stores; and a menu of Merchant Products on the Freshtoz Platform;

ii. Accept Marketplace Orders from Customers;

iii. Forward each Marketplace Order to the relevant Merchant Store; and

iv. Forward each Marketplace Order to a Driver, so that the Driver can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer. 

v. Pay the Merchant in accord with the Parties' agreements, deduct the applicable Commission Rate, marketing fees (for identifiable orders), subscription fees, Activation Fees, and any other fees (in each case, as may be adjusted by Freshtoz as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature).  

b. Merchant Core Responsibilities. Merchant will, in a timely manner:

i. Provide Freshtoz with the Merchant’s in-store or take-out menu, including the price of each item on such menu;

ii. Monitor Merchant’s menu and store information on the Freshtoz Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify Freshtoz of any errors or changes in writing;

iii. Accept all Marketplace Orders placed by Freshtoz from Merchant’s then-current menu;

iv. Confirm all Marketplace Orders from Freshtoz;

v. Prepare the Merchant Products for each Marketplace Order for pickup by a Driver at the designated time;

vi. Process Marketplace Orders in the order in which they are received;

vii. Notify Freshtoz of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;

viii. Notify Freshtoz of its days and hours of operation, and remain open for business on Freshtoz the same days and hours of operation as Merchant’s in-store business; notify Freshtoz of any changes to Merchant’s hours of operations on holidays; and notify Freshtoz if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;

ix. Notify all Merchant store staff members of the relationship with Freshtoz immediately upon execution of this Agreement; 

x. Provide the same utensils, napkins, bags and other materials that Merchant would typically provide in a standard take-out or delivery order, subject to Section 15(3)(i); and

xi. On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to Freshtoz any inaccuracies.

 

4. Freshtoz Driver Application Core Responsibilities. For Merchants that have agreed to participate in Freshtoz Driver Application, Freshtoz and Merchant shall have the following responsibilities during the Drive Term:

a. Freshtoz Core Responsibilities. Freshtoz will, in a timely manner:

i. Provide Merchant with an online order form or access to the Delivery API to submit requests for deliveries, or receive information through a Third Party Platform; However Freshtoz can not guarantee the service will always be available due to technical issues, system updates or internet disruption. 

ii. Forward requests to a Driver, so that the Driver can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer.

 

b. Merchant Core Responsibilities. Merchant will: 

i. Keep customers’ private information such as the Customer’s address, contact information confidential;

ii. Accept and collect payments from Customers for their respective orders; 

iii. Notify Customers prior to placing a Delivery Order once product is ready for delivery as well as once the driver picked up the product.

iv. Notify Freshtoz if a Customer has cancelled the order or merchant not able to provide the ordered product as soon as possible.

v. On an ongoing basis, review and confirm the transactions, fees and charges on invoices and via the Merchant Portal, and promptly communicate to Freshtoz any inaccuracies.

 

c. Drive Operating Procedures.

i. Order Placement. Merchant agrees to submit a Delivery Order for delivery fulfillment at least twenty-four (24) hours in advance of scheduled delivery, and in no event less than two (2) hours in advance of scheduled pick-up. Exceptions will be mutually agreed to by the Parties.

 

ii. Hours of Operation. Merchant agrees to abide by the following standard procedures: (i) to notify Freshtoz of any changes to its hours of operations on federal holidays with reasonable advance notice; and (ii) to notify Freshtoz with reasonable advance notice if a Merchant location closes earlier than advertised hours of operation on Freshtoz Application or plans to close earlier than advertised hours of operation on Freshtoz Application.

iii. Delivery Radii. Freshtoz will only accept Drive Orders to be delivered within a certain preset delivery radius based on either the Merchant or the End-Customer location, which will be communicated to Merchant.

iv. Cancellations. Fees owed for any Delivery Orders cancelled after a Driver has accepted a delivery opportunity will be non-refundable.

v. Notification. Merchant agrees to notify all staff members in Merchant Stores of Merchant’s relationship with Freshtoz prior to submitting any delivery requests to Freshtoz.

 

6. Refunds and Re-Orders. Refunds and re-orders will be addressed as follows:

 

a. Marketplace Order Refunds. In the event that Freshtoz, in its sole reasonable discretion, has to issue a refund, credit or re-order on an Customer’s Order, Merchant will prepare the product to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the fault of the Driver or Freshtoz.

 

b. Delivery Order Refunds. Merchant acknowledges and agrees that Freshtoz shall be responsible only for facilitating the delivery of Merchant Product(s) to Customers. Merchant shall be solely responsible for any customer complaints regarding Merchant Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant Product(s). Merchant agrees not to refer any Customer complaints directly to Freshtoz. Any complaints regarding the timeliness or quality of a Driver’s delivery service shall be reported by Merchant to Freshtoz. If the completion of a Delivery Order is more than 45 minutes late and due to fault of Freshtoz, Freshtoz will reimburse Merchant for all or a portion of the delivery cost of the applicable Drive Order. If Merchant elects to refund a Customer for any reason, such election shall not obligate Freshtoz to provide a corresponding reimbursement to Merchant. In the event that a Merchant Product has been visibly damaged with proof from Customer, Freshtoz may reimburse Merchant for all or a portion of the order subtotal. For the purposes of this agreement, “Merchant Product” is the actual product or beverage item, not the packaging that contains the Merchant Product. In no event shall Freshtoz be obligated to issue any refunds directly to Customers.

 

c. PickUp Order RefundsFreshtoz shall be responsible for customer support issues relating to the ordering of Merchant Products and issues relating to Customer’s Freshtoz account. All other customer issues or complaints will be Merchant’s sole responsibility. In the event that Freshtoz, in its sole discretion, determines to issue a refund, credit or re-order for an Customer’s Order, Merchant will prepare the product to the same specifications as the original PickUp Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order.

 

7. Order Equipment. With respect to the Freshtoz Platform, Merchant will install any equipment reasonably required by Freshtoz for Merchant to receive and process Orders (including, without limitation, a smart phone, fax machine, or other automated, electronic means of receiving Orders) (“Order Equipment”). If any Order Equipment is provided by Freshtoz, Merchant will pay Freshtoz an Order Equipment Fee, as set forth in the Sign-Up Sheet, in exchange for the right to use the Order Equipment to access the Freshtoz Platform in order to receive, process, and accept Marketplace and PickUp Orders. Any Order Equipment provided by Freshtoz will remain Freshtoz’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware, and shall notify Freshtoz in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Freshtoz may restrict or rescind Merchant’s right to use the Freshtoz Platform at any time by giving notice. Merchant will be responsible for any damage to or loss of any Order Equipment provided by Freshtoz (excluding ordinary wear and tear), which will be promptly reimbursed by Merchant (at the replacement cost thereof). Freshtoz may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all subscription fees and deposits reasonably charged by Freshtoz for Order Equipment, and agrees Freshtoz may deduct such fees and deposits from amounts payable by Freshtoz to Merchant.

8. Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows:

a. Freshtoz Marketplace. Freshtoz will facilitate payments from customers for delivery orders and PickUp Orders fulfilled by Merchant.Merchant can withdraw the fund from Freshtoz Application once Freshtoz can confirm no refund to customer required.Freshtoz shall be entitled to deduct from such payments: Freshtoz’s Commission Rate, marketing fees (for identifiable orders), Activation Fees, subscription fees, and any other fees which Freshtoz may notify you regarding with at least 7 days advance written notice. If Merchant has opted for Freshtoz to provide Order Equipment, Freshtoz will also deduct a weekly Order Equipment Fee, as set forth on the Sign-Up Sheet, in exchange for the Merchant’s right to use the Order Equipment to access the Freshtoz Platform in order to receive, process, and accept Orders. Merchant agrees Freshtoz may charge the Customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable in Freshtoz's sole discretion. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Merchant raises the price for a menu item, Freshtoz shall not be required to remit the higher price to the Merchant until 3 business days after the Merchant first provides notice to Freshtoz of such pricing change.

 

b. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to Freshtoz in writing any claimed inaccuracies, so that Freshtoz has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Freshtoz and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to Freshtoz any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 30 days of the transaction, fee or order. Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Merchant does not communicate a written claim or objection to Freshtoz regarding such transaction, fee, charge or order within such 30-day period. 

 

c. Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Platform until the goods are picked up from Merchant, and that title passes from the Merchant to the Customer upon pickup at the Merchant’s location. Merchant agrees that neither the Driver nor Freshtoz holds title to or acquires any ownership interest in any goods or products that Merchant prepares or provides through the Platform.

 

9. Merchant Content and Trademark; Photographs of Menu Items.

a. During the Marketplace Term Merchant grants to Freshtoz a royalty-free, non-exclusive, limited, revocable, and non-transferable right and license to use and display the Merchant Content in the provision of services to Merchant, including, where applicable, listing Merchant as a merchant on the Freshtoz Platform, referencing Merchant as a Freshtoz partner, promoting Freshtoz’s products and services, and sharing Merchant Content with third parties, including third party services which enable Freshtoz Customers to access the Freshtoz Platform (including its web pages) for Orders. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), business information and Merchant Product descriptions (either provided by Merchant or on Merchant’s website), trademarks, logos, Merchant name, location, url, phone number, and other materials provided by Merchant to Freshtoz.

b. If photographs of Merchant’s menu items are not available or if they do not meet Freshtoz’s requirements, as reasonably determined by Freshtoz, then Merchant consents to Freshtoz (i) engaging a professional photographer to take photographs of Merchant’s menu items (ii) enhancing the quality of Merchant’s existing photographs or (iii) using stock photos of the menu item, and displaying such photographs on the Freshtoz Platform as representations of Merchant’s menu items; provided that Merchant may contact Freshtoz support to have such photographs removed from the Merchant’s store listing and, in such event, Freshtoz will comply in a timely manner.

 

11. Confidential Information.

a. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, Freshtoz Data is the Confidential Information of Freshtoz.

b. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.

c. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 11(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.

d. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 11(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.

 

12. Data Privacy and Security.

a. General. Merchant acknowledges and agrees that (i) the rights, title and interest in Freshtoz Data is owned by Freshtoz and that Freshtoz will access, collect, store, retain, transfer, use, disclose or otherwise process in any manner Freshtoz Data, including without limitation Personal Information (including information about Merchant’s franchisees provided by Merchant to Freshtoz under this Agreement) in accordance with its privacy policy available at: https://freshtoz.com/faq-s/#ws-block-text-tzA7L4J1, and (ii) Freshtoz may disclose data and information relating to, or in connection with, transactions between Merchant’s franchisees and Customers with Merchant. Merchant agrees not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Freshtoz Data, including without limitation Personal Information, except as required to perform under this Agreement and in accordance with the Privacy Act 1988 (Cth). Merchant shall keep Freshtoz Data secure from unauthorized access and maintain the accuracy and integrity of Freshtoz Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Freshtoz Data, Merchant will immediately notify Freshtoz, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Freshtoz. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Freshtoz and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the Freshtoz Platform and will be responsible for damages resulting from sharing Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Merchant’s account. Merchants may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Freshtoz Platform; damage, destroy or impede the services provided through the Freshtoz Platform; transmit injurious code; or bypass or breach any security protection on the Freshtoz Platform. Where Merchant party becomes aware of any “Eligible Data Breach” (as that term is defined in the Privacy Act 1988 (Cth)) in respect of Personal Information in its possession or control received from Freshtoz, Merchant must promptly notify Freshtoz and cooperate with investigations regarding the same.

 

b. Delivery API. During the Drive Term, Freshtoz grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery API solely to transmit information to facilitate the Freshtoz Driver Application services. Merchant will not and will not permit or authorise any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Delivery API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery API; (iv) use the Delivery API in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Delivery API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.

 

13. Termination. Merchant may terminate this Agreement for any reason at any time upon seven (7) days prior written notice. Freshtoz may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Merchant nor Freshtoz will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Merchant or Freshtoz.

 

14. Modifications. Freshtoz reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. Freshtoz may, at its sole discretion, remove Merchant Products or Stores from the Freshtoz Platform if Freshtoz determines that such Merchant Product or Merchant Store could subject Freshtoz to undue regulatory risk, health and safety risk, or other liability. Freshtoz also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be athttps://freshtoz.com/faq-s/#ws-block-text-tzA7L4J1. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the revised Terms, you may terminate this Agreement by notice to Freshtoz.

 

15. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.

  1. Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.

  2. Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights. 

  3. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, product packaging and accessory items (including but not limited to productware, plasticware, and other disposable the home-chef supplies), and product safety and sanitation, (ii) it has informed Freshtoz of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform Freshtoz of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items listed on the Freshtoz Platform, (iv) it will only list menu items or products for sale, product descriptions, and prices on the Freshtoz Platform, (v) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the Freshtoz Platform or request delivery of any age-restricted products through the Freshtoz Platform without first entering into a separate agreement with Freshtoz memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (vi) it will not disclose any information related to a Driver or a Customer to a third party (except as required to comply with law or pursuant to a court order), (vii) it will comply with the guidelines Freshtoz publishes that govern any content Merchant posts on the Freshtoz Platform or Merchant Portal, and (viii) it will comply with its obligations under Section 4(b)(iii) and 4(b)(iv) of this Agreement.

  4. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, Freshtoz HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE Freshtoz PLATFORM, THE DELIVERY API, EQUIPMENT OR Freshtoz SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR ANY GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION, IMPLIED OR IMPOSED BY ANY LEGISLATION WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED. IF ANY GUARANTEE, WARRANTY, TERM OR CONDITION IS IMPLIED OR IMPOSED IN RELATION TO THIS AGREEMENT UNDER THE AUSTRALIAN CONSUMER LAW OR ANY OTHER APPLICABLE LEGISLATION AND CANNOT BE EXCLUDED (A NON-EXCLUDABLE PROVISION), AND A PARTY IS ABLE TO LIMIT ITS LIABILITY FOR A BREACH OF THE NON-EXCLUDABLE PROVISIONS, THEN THE LIABILITY OF THAT PARTY FOR BREACH OF THE NON-EXCLUDABLE PROVISIONS IS LIMITED TO ONE OR MORE OF THE FOLLOWING AT THAT PARTY’S OPTION: (1) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR (2) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN. Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and, subject to the Non-Excludable Provisions, Freshtoz shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Freshtoz services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

 

16. Indemnification. Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of Freshtoz, Drivers (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 11 and Section 12, and Section 15 of this Agreement; or (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”). In addition, Merchant will defend, indemnify and hold harmless Freshtoz from any and all Losses related to any violation or alleged violation of any applicable retail product or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Freshtoz. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. Freshtoz assumes no liability, and shall have no liability, for any infringement claim pursuant to section 15(4) above based on Merchant’s access to and/or use of the Freshtoz Platform following notice of such an infringement claim; any unauthorized modification of the Freshtoz Platform by Merchant; or Merchant’s combination of the Freshtoz Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

 

17. Limitation of Liability. SUBJECT TO THE NON-EXCLUDABLE PROVISIONS AND EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO Freshtoz BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY (INCLUDING NEGLIGENCE). THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

All food preparation and deliveries are the sole responsibility of the merchant accepting the order. To the extent permitted by law, including the Australian Consumer Law, Freshtoz accepts no liability associated with food preparation or delivery by the merchant accepting the order.

 

18. Dispute Resolution. PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH Freshtoz AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

  1. Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Freshtoz may seek injunctive relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Freshtoz and Merchant agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST Freshtoz—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH Freshtoz, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST Freshtoz IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

  2. Arbitration Rules and Forum. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Freshtoz’s registered agent. The arbitration will be conducted by the Australian Disputes Centre (“ADC”) under its then-current arbitration rules and pursuant to the terms of this Agreement. ADC’sarbitration rules are available at https://www.disputescentre.com.au/adc-rules-for-domestic-arbitration/. Payment of all filing, administration, and arbitration fees will be governed by ADCs rules. If ADC is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.

  3. Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and Freshtoz. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Freshtoz.

  4. Waiver of Jury Trial. YOU AND Freshtoz WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Freshtoz are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 19(1) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

  5. Waiver of Class or Consolidated Actions; Severability. YOU AND Freshtoz AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Freshtoz is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 20, and all other provisions of this Section 19 (Dispute Resolution) shall remain in force. If any provision of this Section 19 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 19. Nothing in this provision shall prevent you or Freshtoz from participating in a class-wide settlement of claims.

  6. Survival. This Arbitration Agreement will survive any termination of your relationship with Freshtoz.

  7. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Freshtoz makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.

 

20. Litigation Class Action Waiver. To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 19, Merchant agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Merchant opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.

 

21. Communications from Freshtoz. Merchant agrees to accept and receive communications from Freshtoz, its affiliated companies and/or Drivers, including via email, text message, calls, and push notifications to the mobile telephone number Merchant provides to Freshtoz. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Freshtoz, its affiliated companies and/or Drivers.

22. Attorneys Fees. In any legal action to enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs from the other party. 

23. General Provisions. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.

 

 






Terms & Conditions 


Driver Agreement 

Scope and Application

 1.1. These terms and conditions (the Terms) and the Requirements (which together form the Agreement) govern any contract for services arising between you (you) and Freshtoz Pty Limited (ACN 645 994 270) (Freshtoz, Company, we, our or us) for the provision of Services.

1.2. We provide the Freshtoz Platform to pair home-chefs with users (Customer/s) which allows Customers to purchase food and other goods from home-chefs and have them delivered.

1.3. The Company has agreed with home-chefs to use commercially reasonable efforts to procure independent contractors to collect and deliver food and other goods from the home-chefs to the Customers.

1.4. By applying and logging in through our mobile application (the Driver Application), you have shown your interest in providing Services from time to time.

1.5. If we provide you with the opportunity to perform Services, and you agree to provide Services, the following contract for services will arise.

1.6. By ticking a box to indicate your acceptance of these Terms on the Freshtoz Driver Application, you agree that the Agreement and the scope of work provided to you for each Delivery Opportunity will govern each contract for services that arises between us and you. You acknowledge and agree that you have had the opportunity to read, understand, and properly consider your obligations and the consequences arising under these Terms and the Requirements and that you agree to be bound by them. You also acknowledge that you have read and understood the Guides available on the Freshtoz website.

 

The Services 

2.1. We will advertise Delivery availability on the Driver Application.

2.2. You may register your availability to provide Services by registering for one or more Delivery trips.

2.3. While you are signed into the Driver Application during any Delivery trips, we may make available Delivery Opportunities to you which you may accept.

2.4. We are not obliged to notify you of a Delivery Opportunity and you are not obliged to accept a Delivery Opportunity during a Delivery trip.

2.5. You are not contractually required to provide any particular volume of Services and we are not contractually required to provide you with any particular volume of business.

2.6. You acknowledge that you are required to use your business judgment in providing the Services, and that, based upon your exercise of your own business judgment, and your efficiency in providing the Services in connection with the Agreement, you will experience a potential range of business outcomes including the chance for profits and the risk of losses.

2.7. Subject to compliance with the Agreement, you have the absolute discretion to control the manner in which the Services are provided. You are not required to follow any suggested route or directions.

  

General

3.1. You warrant and represent that you operate an independent business (either as a sole trader, partnership or company) that provides delivery services, and, subject to clause 3.2, that you meet (and will continue to meet) the Requirements.

3.2. As a condition precedent to accepting any Delivery Opportunity, you must comply (to our satisfaction) with the Requirements as soon as you accepting the Terms. If you are unable to meet the Requirements, this condition will not have been met and no binding contract for services will be regarded to have come into effect between the Parties in respect to any Delivery Opportunity offered to you.

3.3. You must provide us with the documents specified in the Requirements including licences, permits and consents at our request. You must provide updated documents should any provided documents expire, or if they are revoked or cancelled for any reason.

3.4. You expressly consent to us to verifying your documents through any means we consider reasonable (including, but not limited to, conducting Australian government checks).

3.5. You warrant that you meet the Minimum Standards and you undertake to ensure that all of your Personnel are able to meet the Minimum Standards.

3.6. You must not previously have had any agreement with Freshtoz terminated by us for any reason.

3.7. You acknowledge that products and services, including the Freshtoz Application and the Driver Application, and all rights therein shall remain the property of Freshtoz.

 

 

Minimum Standard 

4.1. Personal Standards

You must be over 18 years old and not have a relevant criminal record. 

4.2. Equipment standards

 

You must:

a) have access to a smart phone capable of operating the Driver Application;

b) download the Driver Application and keep it updated;

c) have a sealable, commercial grade, insulated food transportation bag that can be used to provide the Services.

 

4.3. Vehicle Standards

a) You are solely responsible for obtaining, using and maintaining all Equipment required to provide services including but not limited to, a motor vehicle if you provide services as a Vehicle Driver, or a bicycle if you provide services as a Bicycle Driver.

b) If you are providing the Services as a Vehicle Driver:

 

you must have access to a registered motor vehicle or motorcycle which you will use (the Vehicle) to provide the Services;

you must have a valid driver's licence that is accepted in the Australian State in which you will be providing Services;

you must ensure that the Vehicle is in good operating condition and meets the industry safety standards for a motor vehicle of its kind;

if you are using a motorcycle, you must wear an Australian standards compliant helmet;

you will be solely responsible for any and all liability which results or is alleged as a result of the use of the Vehicle including, but not limited to personal injuries, death and property damages;

you will obey all laws related to the provision of the Services and will be solely responsible for any breach of applicable laws.

 

c) If you are providing the Services as Bicycle Driver:

you must have access to an electronic (pedal assisted) bicycle that you will use to provide the Services;

the bicycle must be in good operating condition and meet the required standards for a bicycle of its kind;

you must wear an Australian standards compliant bicycle helmet;

you will be solely responsible for any and all liability which results or is alleged as a result of the use of the bicycle including, but not limited to personal injuries, death and property damages;

you must obey all local laws related to providing services and will be solely responsible for any breach of the laws.

 

Performance and Personnel

5.1. You are not required to provide Services personally, and you may employ or engage Personnel. You are solely responsible for the hiring, direction, control, management, supervision and payment of any Personnel who provide the Services in connection with the Agreement.

5.2. You are permitted to provide your login details to your Personnel to enable them to log into the Driver Application and Freshtoz Portal, provided that you ensure that your Personnel keep those details confidential 

5.3. Other than in accordance with clause 5.2 you must at all times keep secure and confidential all login, password(s) or other identification details required to access the Freshtoz Application or as otherwise required in your dealings with us 

5.4. If you use Personnel to provide the Services, the Personnel must comply with the terms of the Agreement. You will not be relieved of any of your liabilities or obligations under the Agreement and you are liable to us for the acts and omissions of your Personnel as if they were your acts or omissions.

5.5. Neither you nor the Personnel will receive from us, and you acknowledge and agree that neither you nor the Personnel are entitled to receive from us, any wages, loadings, superannuation contributions, paid annual holidays, paid public holidays, long service leave, paid personal leave, PAYG payment summaries, workers compensation cover, or any other statutory or common law employment benefits.

5.6. If you employ Personnel you must comply with the provisions of the Fair Work Act 2009 (Cth) and any other applicable workplace laws.

5.7. You agree to indemnify us for any and all liabilities, obligations, claims, penalties or costs that we suffer or incur in relation to taxation, superannuation or employment matters for you or for any Personnel.

5.8. You may be required to submit to checks for records of criminal charges and convictions relating to you (or your Personnel) from time to time. You agree to provide your consent for the results of any such checks to be provided to us and, to the extent that any such checks are facilitated by us, you agree to provide us with any information and consents we may require for such purposes.

5.9. You undertake to notify us if you or any of your Personnel are charged with a criminal offence at any time after entering into the Agreement (for so long as the Agreement remains in force).

5.10. If you or your Personnel are not a permanent resident, you or your Personnel must: have a current visa issued by the Department of Home Affairs which enables you or your Personnel to provide the Services; and comply with any visa conditions imposed on you or your Personnel.

5.11. If your, or your Personnel's, visa status changes, you are required to notify us immediately and provide full details and information in respect of your changed circumstances.

5.12. From time to time, we (or our agents) may conduct a Visa Entitlement Verification Online with the Department of Home Affairs. Your, and your Personnel's, acceptance of these Terms constitutes your or your Personnel's consent to us (or our agents) undertaking any Visa Entitlement Verification Online.

5.13. Your Personnel must read and understand the Guides available on the Freshtoz website.

Health and safety

6.1. You will be responsible for your compliance and your Personnel’s compliance with all applicable work, health and safety legislation, as well as road and traffic laws including but not limited to your obligation to notify Safe work of any incidents.

6.2. You must immediately inform us if you are involved in any accident when using your vehicle while providing the Services, if you are arrested or if you are issued with a fine in respect of an offence while providing Services, or if you are suspended or disqualified from driving. As soon as practicable after any accident, arrest or fine, you must complete and provide to us an incident report through ouremail: support@freshtoz.com.

6.3. You are required to co-operate with us in the event that there is an investigation of any incident or accident, including any workplace safety incident or near miss.

 Delivery of alcohol

7.1. You agree that delivering alcohol, cigarettes or any other age-restricted items to anyone under the age of 18 is strictly prohibited by law. Before delivering such products, you are legally responsible for requesting satisfactory identification.

7.2. You have complete discretion whether to accept a Delivery Opportunity which includes an order for alcohol. If you do accept such a Delivery Opportunity, however, then in line with market practice regarding alcohol delivery we require you and your Personnel to ensure the Customer has a valid government issued photo identification that is not expired and matches the customer. You must never deliver alcohol to a customer that is visibly intoxicated.

Expenses

You agree that you are responsible for all costs and expenses arising from the provision of the Services, including, but not limited to, costs related to your Personnel, your Equipment and any costs associated with any parking or other traffic penalties.

Fees and Payment

 9.1. You will receive payment for the provision of the Services on a weekly basis, or more frequently if our technology enables us to do so, into your nominated Australian bank account. All payments from us to you shall be communicated to you via the FreshtozApplication.

9.2. If you are GST registered, we will generate a recipient created tax invoice (RCTI) on your behalf detailing the fees you will receive for providing the Services and you must not issue tax invoices in respect of these supplies. If you are not GST registered, we will send you a statement detailing the fees you will receive for providing the Services.

9.3. You understand and acknowledge that:

we will not withhold any income tax from any monies or fees paid to you; and you must hold and continue to hold an Australian Business Number (ABN) while you provide the Services.

GST 

10.1. While it is not an obligation for you to be GST registered, you must keep us updated as to your GST registration status at all times. If you inform us you are GST registered but then cease to be registered for any reason, you must inform us immediately.

 10.2. If any taxable supply made by a party under these Terms is subject to GST and you are registered for GST, the party making the supply may, in addition to consideration for the supply, recover an additional amount on account of GST.

 10.3. The additional amount payable under this clause:

 is equal to the consideration payable to you for the relevant supply multiplied by the prevailing GST rate; andis payable at the same time and in the same manner as the consideration for the supply to which the additional amount relates.

 Relationship of Parties

 

11.1. You will be providing the Services as an independent contractor. Nothing in this Agreement creates an employment relationship, partnership or other joint venture or enterprise between us and you. You acknowledge and agree that you are not an employee of ours or of any home-chef by operation of the Agreement.

11.2. Neither party has the right to bind the other by contract or otherwise except as specifically provided in these Terms.

11.3. Nothing in the Agreement and no verbal or written communication between the parties, will be construed as an express or implied employment agreement or a promise by Freshtoz to employ you, any Personnel or any of your agents or representatives.

11.4. You retain the right to provide services to or to undertake work for others and to hold yourself out to the general public as an independent business. These Terms do not restrict you from providing services or working for other businesses, customers or consumers at any time, even if that business directly competes with us.

Insurance and permits

12.1. At all times, you must have in place at your own expense:

Compulsory Third Party (CTP) motor vehicle insurance; and

any other insurances required by law or reasonably requested by us (which may include public liability insurance and comprehensive motor vehicle insurance).

12.2. You must hold all permits, licences and approvals which may be required under any local laws to provide the Services.

12.3. You must, on request, promptly provide us with evidence of the insurance obtained by you in accordance with this clause, including certificates or currency and policy terms (including exclusions).

 Service Disputes

 13.1. You are responsible for the rectification of any errors and omissions in the provision of the Services.

13.2. In the event there is a Service Failure, you will not be entitled to payment, or part-payment, for any part of the Services affected by the Service Failure, as determined by us in our reasonable discretion.

 13.3. We reserve the right to interrupt, restrict or limit your access to the FreshtozApplication (or any part of it), or to temporarily or permanently withdraw, discontinue or terminate your access to the Freshtoz Application or your participation in it, at any time for the purpose of investigating alleged breaches of the Agreement or conducting maintenance or technical upgrading, development or repair of the FreshtozApplication.


Dispute Resolution

14.1. If there is any dispute between us relating to the provision of services or arising from these Terms, each party must use good faith efforts to informally resolve the dispute.

14.2. If the dispute or difference is not settled within 30 days (unless this period is extended by agreement), it must be submitted to arbitration in accordance with, and subject to, Resolution Institute Arbitration Rules. The decision of the arbitration on the dispute shall be final and binding on the parties.

14.3. Unless the parties agree upon an arbitrator an arbitrator will be nominated by the Chair of the Resolution Institute.

14.4. You agree that any claim you may have against us, including past and present related entities, officers, directors, employees and agents, must be brought individually and you shall not join such claim with claims of any other person or entity or bring, join or participate in a class action, collective or representative proceeding of any kind (existing or future) against us or a Related Entity.

14.5. This clause will remain operative after the Agreement has ended and notwithstanding its termination.

14.6. Nothing in this clause shall prevent Freshtoz suspending your access to the FreshtozApplication pending any resolution of a dispute if it considers it is prudent to do so.

Termination

15.1. The Agreement will terminate without any further action on the part of the Company or you if you do not provide any Services during any consecutive six (6) month period.

15.2. Either party may terminate the Agreement and end the relationship between you and us for any or no reason on the giving of seven (7) days written notice via email (support@freshtoz.com).

15.3. Without prejudice to any other right or remedy we may have against you, we may terminate the Agreement with immediate effect with no liability to make any further payment to you if at any time you or your Personnel:

l  breach the terms of the Agreement;

l  are charged with any criminal or traffic offence;

l  breach any relevant laws or regulations;

l  commit any fraud or dishonesty;

l  persistent failures to complete the Services in a manner consistent with the Community Respect Guide and the Community Health & Safety Guide;

l  acts in any manner which in our opinion brings or is likely to bring us into disrepute; or

lose the right to work in Australia.

15.4. You agree that you will assist us in the investigation of any customer complaints that may be made about you, or your Personnel or in relation to any incident in which you may be able to assist.

 15.5. Termination of the Agreement will not release you from liability in respect of any breach, non-performance of any obligation or any Service Failure by you prior to the date of termination.

 

Release

 

We make no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of our products or services to which your provision of the services relates. Our services and software may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. We are not responsible for any delays, delivery failures, or other damage resulting from such problems.

 

 

Indemnity

 

17.1. You are liable for and agree to indemnify us and any of our Related Entities, against any liability and any loss or damage directly arising out of your (or your Personnel’s) acts, omissions, breach of default whether or not the acts or omissions are in tort (including negligence), contract or otherwise in relation to your provision of the Services, except to the extent that liability or loss directly arises out of our negligent acts or omissions.

 

17.2. You agree that you will defend, indemnify and hold us harmless (including our officers, directors, members, employees) and any of our Related Entities from and against all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with: 

l  your (or your Personnel’s) breach of or failure to comply with the Agreement;

l  any applicable law or regulation, including any local laws or ordinances, whether or not referenced herein; andto the maximum extent permitted by law, your (or your Personnel’s)

l  ownership, use or operation of a motor vehicle or bicycle in connection with the Freshtoz Driver Application or FreshtozApplication, except to the extent that liability or loss directly arises out of our negligent acts or omissions.

17.3. Each indemnity is a continuing obligation separate and independent from other obligations and survives termination of these Terms.

17.4. It is not necessary for us to incur expense or make payment before enforcing a right of indemnity conferred by these Terms.

17.5. You will be solely responsible for any and all liability which results or is alleged as a result of the operation of the motor vehicle and/or bicycle including, but not limited to personal injuries, death and property damages.

Privacy

18.1. In the course of providing the Services, you may have access to Confidential Information, about us, our Related Entities or third parties including Customers, home-chefs and other merchants, and their employees and representatives, or others through our website or through other means, including names, addresses, email addresses, and telephone numbers, order information and other information about identifiable individuals (collectively Confidential Information).

18.2. You agree that while you are an independent contractor and at all times thereafter, you will not, and you must ensure that your Personnel do not, without our prior written consent, except where required by law or for you to obtain professional advice:

reveal, disclose or make known any Confidential Information to any person; or

use the Confidential Information for any purpose, other than for the purpose of providing the Services in connection with the Agreement.

18.3. You must not, under any circumstances, access or use any Personal Information for any purpose other than the sole purpose of providing the Services. You must at all times maintain the strict confidentiality of Personal Information and must not reveal, disclose or make known any Personal Information to any person. You must securely destroy any and all Personal Information immediately after completing any Service the Personal Information relates to. You agree to comply with the privacy policy posted at https://www.Freshtoz.com.au/info/privacy-policy as amended from time to time.

18.4. You will not use the Personal Information for your own purposes except with our prior written approval. In particular, you must not communicate with customers except via any masked telephone number, hardware or software provided by us to you. You must immediately notify us if you become aware of any actual or possible breach of this clause. You indemnify us for any loss, damage, dispute or third-party claim incurred by us as a result of your breach of this clause.

Modern Slavery

19.1. You represent and warrant that you have not been convicted of any offence involving slavery and human trafficking; nor have you been the subject of any investigation, inquiry or enforcement proceedings related to slavery and human trafficking. In providing your obligations under the Agreement, you must:

comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2018 (Cth); andnot engage in any activity, practice or conduct that would constitute an offence under the Modern Slavery Act 2018 (Cth), whether such activity, practice or conduct was carried out within, or outside Australia; andnotify us as soon as you become aware of any actual or suspected slavery or human trafficking that has a connection with the Agreement 

Further legal terms

20.1. The Agreement records the entire agreement between the parties and replace and supersede all prior agreements whether written or otherwise in relation to its subject matter.

20.2. The Agreement governs the legal relationship and all legal issues between the parties, including any dispute arising from or related to it or any previous agreement between the parties.

20.3. The Agreement is governed and construed by the laws of New South Wales. The parties submit to the jurisdiction of the courts of New South Wales, and courts of appeal from them. A party may only waive a breach of these Terms in writing signed by that party or its authorized representative.

20.4. Amendments will be effective upon the Company posting updated Terms or Requirements (and any schedules and annexures), as applicable, at this location. Your continued provision of the Services after the posting constitutes your consent to be bound by the amended Agreement.

 20.5. If any provision of the Agreement is for any reason found by a court of competent jurisdiction to be unenforceable, the remainder of the Agreement will continue in full force and effect.

20.6. Each party has entered into the Agreement without relying on the representation by any other party or any person purporting to represent that party.

 20.7. You must not assign, transfer or encumber (by registering a security interest) any rights or obligations under the Agreement without our prior written consent.

20.8. Nothing in these Terms nor your provision of the services shall operate as to grant you any rights:

in the product or services; orin our name, logo, trademarks or that of our Related Entities or the right to use our name, logo, or trademarks.

Definitions

 In these Terms, the following capitalized terms shall have defined meaning below:

 Agreement means these Terms and the Requirements.

 Bicycle Driver means the provision of Services by using a bicycle.

 Delivery Opportunity means a notification from the Freshtoz Platform to you of the opportunity to enter into a contract for Services.

 Delivery trips(s) means a period(s) of time for which you can register your availability to provide services on the Freshtoz Platform.

 Equipment means the tools, devices, and any vehicle or bicycle required to enable you to provide the Services as specified in the Requirements.

 GST means goods and services tax levied in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

 Guides means the Community Health and Safety Guide. and the Community Respect Guide posted on the Freshtoz Portal, as may be amended from time to time.

Freshtoz Platform means the Freshtoz web page or mobile application platform that connects independent contractors, home-chefs and/or other businesses, and consumers and includes, as applicable, the Driver Application or the Freshtoz Portal. Minimum Standards means the minimum standards specified at Clause 4. Parties means you and us. Personal Information has the meaning given to it in the Privacy Act 1988 (Cth).Personnel means any employees or subcontractors that you engage or employ to provide all or some of any Services.

Related Entities mean Freshtoz and all parent, subsidiary and/or affiliated companies, as well as past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees.

Requirements means the Driver Requirements document available on the Freshtoz Portal that describes the minimum Equipment, licenses and other requirements for a Driver to be able to provide Services.

Service Failure means any circumstance in which you fail to provide or complete all or part of any contract to provide Services.

Services means the collection of food and goods from home-chefs or other businesses and the delivery of such food and goods to Customers.

Vehicle Driver means the provision of Services by using a motor vehicle which includes a car, motorbike or scooter.