aircooks - Terms And Conditions 

1. Introduction


1.1 The Aircooks Marketplace Terms and Conditions, together with our Privacy Policy, comprise the terms of a legal agreement between the person listed in the Registration Portal (you or your) and Silver Holding Australia Pty Ltd trading as Aircooks Technology (ACN 625 545 066) (Aircooks, we, our or us) (collectively, the agreement).

1.2 By accessing and using the Aircooks Platform, you warrant that you have read this agreement, and agree to be bound by this agreement. If you are using the Aircooks Platform as a representative of an entity, you are agreeing to the agreement on behalf of that entity.


2. Aircooks Platform


2.1 The Aircooks Platform is a portal or online marketplace through which Customers can order and purchase Food Products made available by Partners on, or via, the Aircooks Platform. We are a mere online marketplace or conduit for introducing Customers and Partners and we act as a payment collection agent each time a Customers and Partner transact on, or via, the Aircooks Platform. We are not a producer or supplier of Food Products, consumer of Food Products or a delivery service and our role in providing you with access and use of the Aircooks Platform should be construed strictly in this context only.


2.2 When you create an Account on the Aircooks Platform, Aircooks grants you a non-exclusive, non-transferable, personal, revocable and non-sublicensable licence to access and use the Aircooks Platform for the Term. You will not acquire or be entitled to any rights other than those rights expressly set out in this agreement.


3. Changes


We reserve the right to change any provision of this agreement in any way and we may, in our absolute discretion, add, change or remove any functions or features of the Aircooks Platform, Customer or Partners, Food Products, our Subscription Fees, Service Fee, Sponsorship Fees, Charges or any other ancillary products or services offered on, or via, the Aircooks Platform with, or without notice, to you. If we provide you with notice of changes to this agreement, we shall do so either by email or by posting it on the Aircooks Platform or on our Site.


4. Term


This agreement commences on the date you create an Account with us on, or via, the Aircooks Platform and continues unless terminated in accordance with clause 18 (Term).


5. Account

5.1 If you wish to access and use the Aircooks Platform:

(a) as a Partner, you must create a vendor account with us via the Site; or
(b)as a Customer, you can either enter as a guest or create a customer account via the Site.


5.2 Your vendor account or customer account (Account) will be operated by a username and password (Password). You will be issued with a default username and Password, which you may change online at your convenience. The owner of the Account is solely responsible for the activity conducted on the Account. We may at any time that happens through your Account(s); and request that the owner of the Account provide identification to verify their identity.


5.3 In order to open an Account or otherwise access and use the Aircooks Platform and our Site:

(a) you must be over 18 years of age and legally able to enter into contractual relations. If you are not over 18 years of age, you should not access or use the Aircooks Platform or Site. We reserve the right to ask for proof of age from you and your Account may be suspended until satisfactory proof of age is provided; and
(b) provide accurate and complete registration information as described in clause 8 (if you are a Partner) or clause 7 (if you are a Customer).

5.4 In relation to your Account, you undertake that you will:


(a) not disclose your Password to any third party and take reasonable measures to prevent disclosure of your Password to any third parties. You are liable for all use of the Aircooks Platform using your Account or Password. Please notify us immediately if you become aware that your Account or Password is being used without authorisation or any other security breach relating to your Account or Password;
(b) provide only accurate, complete registration information and Personal Information (such as your name, address, email address and telephone number), and you will update that information if it changes. All Personal Information as well as the information you provide to register is subject to our Privacy Policy. A Partner may create multiple Accounts if you have multiple stores or locations and you will remain responsible for anything that happens through your Account(s); and
(c) not impersonate another account holder or provide false identity information to gain access to or use the Aircooks Platform.


5.5 Aircooks has the right to suspend or terminate any Account or Password or your access or use of all or any part of the Aircooks Platform, at any time, if, in our opinion, you have failed to comply with any of the provisions of this agreement.


6. Your general obligations


6.1 To access and use the Aircooks, you must:


(a) open an Account with us via the Site;
(b) provide us with all necessary co-operation and information to facilitate and provide the Aircooks Platform including (but not limited to) proof of identity;
(c) ensure that all information is true, accurate and not misleading;
(d) obtain and maintain all equipment, hardware and software required by you to use and/or access the Aircooks Platform and the Site;
(e) comply with all reasonable directions, policies and guidelines of Aircooks as advised from time to time; and
(f) carry out all of your responsibilities set out in this agreement in a timely and efficient manner.


7. Partner obligations


7.1 At the time a Partner creates an Account with us, the Partner must also create a Partner Profile, which will include your business information and Personal Information, such as:


(a) your business name, business owner’s names, ABN, main business contact details (including contact person, email, address and telephone and mobile numbers and website address) and Third Party Payment Processor account details;
(b) a description and photographs of the Food Products to be offered for sale on, or via, the Aircooks Platform;
(c) the Food Product delivery options used by the Partner; and
(d) any other information that Aircooks may require to verify your identity, Partner Profile and the accuracy of any advertisements displayed or listed on, or via, the Aircooks Platform.


7.2 At any time you may (either by using the Partner Dashboard or by requesting that Aircooks do so on your behalf):


(a) edit your Account or update or change your Partner Profile; or
(b) update, change, delete or add Food Products advertised, listed or displayed by you on, or via, the Aircooks Platform.


7.3 Aircooks will not be liable to you, any other Partner, Customer or any third party in connection with, arising out of, any:


(a) failure to update or change your Account, Partner Profile or any Food Products advertised, listed or displayed by you on, or via, the Aircooks Platform following your request; or
(b) loss, damage, claim, liability, expense or cost incurred by you, any other user of the Aircooks Platform or any third party as a result of, or in connection with, any content or information supplied by you which is uploaded, published or submitted by you to the Aircooks Platform.


7.4 You (as a Partner) will:


(a) create, open and maintain an account with a Third Party Payment Processor nominated by us and you will provide such account details to Aircooks;
(b) prepare, package, label and deliver the Food Products to: (i) Customers in accordance with all Relevant Laws and Food Safety Standards; (ii) the reasonable satisfaction of Customers or as the Customer may otherwise reasonably direct; and (iii) in accordance with this agreement.
(c) ensure any Food Products supplied by you will be: (i) fit for purpose and in accordance with the standard of professional care customarily observed by independent contractors rendering similar services; and (ii) accurately described in the Partner Profile (including with respect to ingredients, portion size and nutritional information);
(a) pay the Subscription Fee and Service Fee in accordance with this agreement;
(d) when accessing and using the Aircooks Platform act in our best interests and not act in any manner which could bring Aircooks Platform and Aircooks into disrepute;
(e) comply with all reasonable directions, policies and guidance provided by us from time to time; and
(f) notify Aircooks as soon as is reasonably practicable if you are unable to provide or deliver the Food Products ordered or purchased by a Customer on, or via, the Aircooks Platform (Food Order).


7.5 You (as a Partner) acknowledge and agree:


(g) you are solely responsible for: (i) preparing, packaging, labelling and delivering the Food Products to the Customer, including any obligations or liabilities to Customers or anyone else arising out of, or in connection with, the provision of Food Products; and (ii) complying with all Relevant Laws and Food Safety Standards;
(h) Aircooks does not control or direct you in the performance of your obligations under this agreement, including, in the preparation, packaging, labelling and delivery of Food Products to the Customer; and
(i) you retain the sole right to determine when and how often you utilise the Aircooks Platform. You retain the right to accept, decline or ignore any Food Order; however, once you accept a Food Order, you may only cancel the Food Order in accordance with clause 13 (Cancellation Policy).


7.6 You (as a Partner) warrant and guarantee that:


(a) any Food Products supplied by you will be: (i) fit for purpose and in accordance with the standard of professional care customarily observed by independent contractors rendering similar services; and (ii) accurately described in the Partner Profile (including with respect to ingredients, portion size and nutritional information);
(b) all Food Products supplied by you will be prepared, handled, packaged, labelled and delivered in accordance with all Relevant Laws and Food Safety Standards;
(c) all Food Products will be available to be purchased through the Aircooks Platform during your normal business hours;
(d) you will complete Food Orders or otherwise deliver all Food Products to the Customer at the Customer’s nominated address within the timeframe specified in the Aircooks Platform; and
(e) you have all necessary permits and licences to offer, distribute, sell or supply Food Products, including, but not limited to, food business licence and liquor licence or permit.


7.7 If the Partner fails to comply with clauses 7 or 9 (for example, the Partner fails to maintain a satisfactory quality of service or fails to complete the Food Order or fails to prepare and deliver Food Products in accordance with Food Safety Standards), Aircooks may, at our absolute discretion and with or without notice to you:


(f) remove your Partner Profile or delete particular menu items listed or displayed on your Partner Profile; or
(g) to restrict, suspend or terminate your Account or Partner Profile.


8.Customer obligations


8.1 When creating an Account with Aircooks, the Customer must provide accurate and complete registration information, which will include your Personal Information, such as your full name, email address, phone number and delivery address.


8.2 You acknowledge and agree that we may, at any time during the Term, edit your Account or update or change the Food Products offered for sale by Partners, on, or via, the Aircooks Platform.


8.3 We do not recommend or endorse any Partners (including Partner Profiles) or any content, comments or submissions published, posted or appearing on a Partner Profile, the Aircooks Platform, the Site or our related social media pages. You acknowledge and agree that, to the maximum extent permitted by Relevant Laws:


(h) Aircooks makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Aircooks Platform, the Food Products or any other ancillary products or services made available to you on, or via, the Aircooks Platform. You acknowledge that the Food Products or any other ancillary products or services made available to you on, or via, the Aircooks Platform are provided ‘as is’;

(i) it is your responsibility to determine that the Food Products or any other ancillary products or services made available to you on, or via, the Aircooks Platform, meets your specific needs and/or are suitable for the purposes for which they are used or consumed; and


(j) Aircooks makes no representations, warranties or guarantees in relation to: (i) the standard or quality of any Food Products supplied by a Partner; (ii) the reliability, legitimacy, repute, or credibility of any Partner; or (ii) the Partner’s ability or willingness prepare and/or to deliver the Food Products to you.

8.4 You must pay us the Charges as displayed on the Partner Profile when you order or purchase Food Products from a Partner or otherwise transact on, or via, the Aircooks Platform.


8.5 During the Term, you (as a Customer) will not (directly or indirectly):


(a) enter into any contract, communications or negotiations with any Partner outside of the Aircooks Platform for the purpose of ordering or purchasing Food Products from Partners; or
(b) circumvent the obligation to pay any Charges to Aircooks when you order or purchase Food Products from a Partner or otherwise transact on, or via, the Aircooks Platform.

9. Restrictions


9.1 You must not:


(a) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Aircooks Platform available to any third party;
(b) violate Aircooks’ Intellectual Property Rights. For example, a Partner cannot upload or display photographs of Food Products that belong to another person, unless you have consent from the copyright owner;
(c) impersonate or pose as any other person, or misrepresent your true legal identity in your dealings with us or any other user of the Aircooks Platform;
(d) modify, alter, adapt, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Aircooks Platform, the Site or your Account, including any images contained on the Aircooks Platform which belong to other advertisers or us;
(e) access all or any part of the Aircooks Platform or Site in order to build a product, service or code which competes with the Aircooks Platform or Site; and
(f) data mine the Aircooks Platform, conduct penetration testing of the Aircooks Platform nor access, store, distribute or transmit any viruses, worms, trojans or other malicious code, or any material when using the Aircooks Platform that is unlawful, unethical, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive or a contravention of the rights of any third party or corrupts, damages, degrades or disrupts the operation of the Aircooks Platform.


9.2 We reserve the right to limit your use of the Aircooks Platform, your right to purchase or advertise Food Products and/or any other ancillary products or services made available to you on, or via, the Aircooks Platform, including the right to restrict, suspend or terminate your Account or User Profile if we believe you are in breach of this agreement or you are misusing the Aircooks Platform.


9.3 During the Term, you (as a Partner) will not:


(k) you will not accept Food Orders through the Aircooks Platform that you do not intend to deliver;
(l) you will not sell or deliver alcohol unless (i) you have a liquor licence or permit to deliver alcohol with meals, and (ii) the Customer is 18 years or older, and you have verified the Customer’s name and age using a valid photo identification at the time of alcohol delivery;
(m) you will not provide false geographic location information;
(n) you will not sell (or offer for sale) any goods or services to Customers on, or via, the Aircooks Platform, other than the Food Products;
(o) (directly or indirectly): (i) enter into any contract, communications or negotiations with any Customer outside of the Aircooks Platform for the purpose of selling or offering to sell Food Products to Customers; or (ii) circumvent the obligation to pay any Service Fee to Aircooks when a Customer orders or purchase Food Products from a Partner or otherwise transact on, or via, the Aircooks Platform;
(p) order or purchase Food Products from your own Partner Profile. You are not prevented from ordering or purchasing Food Products from another user of the Aircooks Platform; and
(q) publish, submit or post Customer testimonials about your business or Food Products on your Partner Profile. You are not prevented from requesting that a Customer publish or post a genuine testimonial on your Partner Profile.


10. Aircooks obligations


10.1 Aircooks shall use reasonable endeavours to provide you with:


(a) access and use of the Aircooks Platform as described on the Site; and
(b) payment collection services when a Customer and Partner transact on, or via, the Aircooks Platform.


10.2 In the event that Aircooks fails to provide you with access and use of the Aircooks Platform in accordance with clause 10.1, we will use reasonable endeavours to correct any such non-conformance or provide you with an alternative means of accomplishing the desired performance. The foregoing constitutes your sole and exclusive remedy for any breach of clause 10.1.


11. Fees and Charges


11.1 To access and use the Aircooks Platform, a Partner must pay an annual subscription fee as specified on the Aircooks Platform (Subscription Fee). We do not charge a fee for a Customer to create an Account.


11.2 When a Customer orders or purchases Food Products offered for sale by a Partner on, or via, the Aircooks Platform, we will (as the Partner’s payment collection agent) charge the Customer the full price to purchase the Food Products as displayed on the Aircooks Platform (Charges).


11.3 In addition to Subscription Fee, the Partner must pay us a service fee equal to 2% of the total value of the Food Products ordered or purchased on, or via, the Aircooks Platform plus $0.55 (Service Fee), per transaction or each time a Partner provides or sells Food Products to a Customer or otherwise transact with a Customer on, or via, the Aircooks Platform.


11.4 Aircooks may, at our absolute discretion and subject to the payment of a Sponsorship Fee, grant certain Partners the right to sponsor the Aircooks Platform or particular Food Product categories within the Aircooks Platform (Sponsor Partner). The business and Food Products of a Sponsor Partner will be prominently displayed or advertised on, or via, the Aircooks Platform (including enhanced search engine optimisation within the Aircooks Platform) for the duration of the sponsorship arrangement. Sponsorship Fees are payable within 7 Business Days of invoice date.


11.5 The Subscription Fees, Service Fees, Charges and Sponsorship Fee displayed on the Aircooks Platform are current at the time of issue. The Charges and availability of Food Products and any other ancillary products or services made available to you on, or via, the Aircooks Platform, are subject to change effective immediately upon posting to the Aircooks Platform. You agree to pay the price current at the time of payment.


11.6 Charges for Food Products displayed on third party websites which are linked to the Aircooks Platform may not be correct and Aircooks are not bound by them.


11.7 Subject to clause 11.7, Aircooks will collect the Charges from the Customer and will pay the Partner the Charges (after deducting Service Fee from the Charges), within 3 Business Days of receiving payment of the Charges from the Customer.


11.8 Aircooks will collect the Charges from the Customer (as the Partner’s collection agent) and we will, provided no complaint has been raised by the Customer in writing in accordance with clause 11.8(c), pay the Partner the Charges (after deducting Service Fee from the Charges), within 7 Business Days of receiving payment of the Charges from the Customer.


11.9 Aircooks is under no obligation to pay the Partner the Charges (less the Service Fee) if:


(a) the Customer does not pay us for the Food Products supplied by the Partner for whatever reason;
(b) the Partner fails to provide the Food Products to the Customer for whatever reason; or
(c) we receive a written complaint from the Customer within 24 hours after the scheduled delivery of the Food Products to the Customer, that: (i) the Food Products provided by the Partner were not provided or supplied to the Customer’s reasonable satisfaction; or (ii) the Food Products were not delivered within a reasonable timeframe or at all. We may, at our absolute discretion, with or without notice, remove your Food Products and/or Partner Profile from the Aircooks Platform.


11.10 We reserve the right to vary the Subscription Fee, Service Fee, Sponsorship Fee or Charges by providing you with 14 days’ written notice of these changes. If you do not agree to these changes, you may terminate this agreement no later than 14days after you have received written notice of the new fees. If Aircooks does not receive the written notice within 14 days you will have deemed to have accepted the new fees.


12. Payment


12.1 All fees shown on the Aircooks Platform are in Australian Dollars (AUD) and are inclusive of GST.


12.2 In addition to the Subscription Fees, Service Fees, Sponsorship Fees and/or Charges (as the context permits) you agree to pay:


(a) any other taxes and government charges, levies or fines in relation to the purchase of the Food Products;
(a) Cancellation Fees.


12.3 To the maximum extent permitted by Relevant Laws and unless otherwise stipulated in this agreement, you agree that all Subscription Fees, Service Fees, Sponsorship Fee and/or Charges (as the context permits) or any other amounts owing to us under the agreement are non-refundable.


12.4 If you fail to pay the Subscription Fees, Service Fees, Sponsorship Fee and/or Charges (as the context permits) or any other amounts owing to us under the agreement by the due date, without limiting any other remedies available to us under this agreement or under any Relevant Law, Aircooks, may, in our absolute discretion, do all or any of the following:


(a) charge interest on all outstanding amounts that are due Aircooks under this agreement, charged at an interest rate of 1.25% per month (15% per annum); or
(b) suspend access to the Aircooks Platform until all outstanding amounts (including interest) that are due to Aircooks under this agreement are paid in full; or
(c) terminate in the agreement in accordance with clause 18.


12.5 You will pay Aircooks all costs and expenses incurred in recovering any outstanding amounts (including interest) that are due to Aircooks under this agreement, including legal costs or other expenses incurred by Aircooks in relation to enforcement steps or mercantile or collections agents.


12.6 A Customer must pay the Charges or any other amounts owing to us under the agreement by credit card (Visa or Mastercard). We use a Third Party Payment Processor to process payments made to us. By making payment of our Fees or any other amounts owing to us under the agreement, you agree to provide Aircooks with accurate and complete billing information, and you authorise us to your share billing information with our Third Party Payment Processor for the purpose of processing your payment.


12.7 We may, at our absolute discretion and without notice to you, change the payment methods that can be used to access and use the Aircooks Platform, at any time.


13. Cancellation


13.1 Each Partner must have their own cancellation and refund policy (Cancellation Policy) and Customers should read the Refund Policy before ordering or purchasing Food Products from a specific Partner on, or via, the Aircooks Platform.


13.2 If a Customer wishes to cancel any Food Products purchased on, or via, the Aircooks Platform, the Customer must contact:


(a) the Partner using the contact details displayed on the Partner Profile; and
(b) Aircooks by email at info@aircooks.com.


13.3 If a Customer cancels the order or purchase of any Food Products for any reason, Aircooks is not liable to the Partner or anyone else arising out of, or in connection with, such cancellation, and the Customer is entitled to a refund of the Charges in accordance with Partner’s cancellation and Cancellation Policy (less the Third Party Payment Processor fees).


13.4 Except where a Customer breaches the terms of this agreement, if the Partner cancels any order or purchase Food Products, the Customer is entitled to a refund of the Charges in accordance with the Partner’s Cancellation Policy (less the Third Party Payment Processor fees).


13.5 If the Partner has no Cancellation Policy and the:


(a) Partner cancels any order or purchase of Food Products, the Customer will receive a refund of the Charges (except where a Customer breaches the terms of this agreement) and the Partner will be liable to Aircooks a cancellation fee equal to 2% of the Food Order: or
(b) Customer cancels the order or purchase of any Food Products for any reason, Aircooks is not liable to the Partner or anyone else arising out of, or in connection with, such cancellation, and we are entitled to charge the Customer a cancellation fee, by way of liquidated damages, (Cancellation Fee), equal to (i) 2% of the Charges where the Customer cancels the Food Order before the Food Products have been prepared and/or dispatched to the Customer; or (ii) 100% of the Charges where the Customer cancels the Food Order after the Food Products have been prepared and/or dispatched to the Customer.


14. Intellectual Property Rights


14.1 You acknowledge that, notwithstanding anything else, Aircooks and/or its licensors own all Intellectual Property Rights in the Aircooks Platform and the Site (and anything arising or generated therefrom) (collectively, the Aircooks IP). Accessing and using Aircooks Platform and the Site does not give you (or anyone else) ownership of, or any right, title or interest in any of the foregoing (or any Aircooks IP contained therein), or any information, content or technology that may be provided to, or accessed by, you in connection with their use, all of which is, and will remain, owned by Aircooks or its licensors.


14.2 All Intellectual Property Rights discovered, developed or otherwise coming into existence as a result of, for the purposes of, or in connection with, the Aircooks Platform or the Site will automatically vest in, and are assigned to, Aircooks.


14.3 By creating an Account on, or via, the Aircooks Platform, you grant Aircooks for the Term a royalty-free, non-exclusive, transferable and worldwide licence to use your User Profile (including registration information, Personal Information and photographs of menu items (whether uploaded to the Aircooks Platform by Customers or Partners) ) for the purpose of providing you with access to, and use of the Aircooks Platform, the Site, any ancillary products or services made available on, or via, the Aircooks Platform or for marketing purposes.


15. Warranties


15.1 To the maximum extent permitted by Relevant Laws, Aircooks excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the provision of the Aircooks Platform or the Site.


15.2 Nothing contained in this agreement excludes, restricts or modifies the application of any condition, warranty or other obligation, the exercise of any right or remedy, or the imposition of any liability under the Competition and Consumer Act 2010 (Cth) or any other national, State or Territory legislation where to do so is unlawful.


15.3 You acknowledge and agree that, to the extent permitted by Relevant Laws, Aircooks makes no representations, warranties or guarantees in relation to the availability, continuity, reliability, accuracy, currency or security of the Aircooks Platform, the Food Products or any other ancillary products or services made available to you on, or via, the Aircooks Platform. You acknowledge that the Food Products or any other ancillary products or services made available to you on, or via, the Aircooks Platform are provided ‘as is’ and Aircooks will not be liable if the Aircooks Platform, the Food Products or any other ancillary products or services made available to you on, or via, the Aircooks Platform, are unavailable for any reason, including directly or indirectly as a result of:


(a) telecommunications unavailability, interruption, delay, bottleneck, failure or fault;
(b) negligent, malicious or wilful acts or omissions of third parties (including Aircooks’ third party service providers and Partners);
(c) maintenance (scheduled or unscheduled) carried out by Aircooks or any third party service provider, including in respect of any of the systems or network used in connection with the provision of the Aircooks Platform;
(d) products or services provided by third parties (including internet service providers and Partners) ceasing or becoming unavailable; or
(e) a Force Majeure Event.


15.4 You warrant, acknowledge and agree that:


(a) your use of the Aircooks Platform has not been made on the basis of any representations made by Aircooks regarding future features or functionality of the Aircooks Platform;
(b) you (as a Partner) have the right to post, publish and reproduce the materials and menu items listed or displayed on the Partner Profile (and all Intellectual Property Rights contained therein), and to grant us the right to post, publish and reproduce the foregoing on the Aircooks Platform, the Site or any of our social media pages;
(c) you have the full power and authority to enter into this agreement and perform your obligations contemplated by this agreement, and in doing so, you will not breach any third party rights;
(d) Aircooks makes no representations, warranties or guarantees that you (as a Partner) will make any profit, revenue, a minimum number of sales or increase your market share or client base by accessing, using and advertising on, or via, the Aircooks Platform; and
(e) fraudulent transactions between a Partner and Customer arising out of, or in connection with your access to, and use of, the Aircooks Platform.


16. Limitation of Liability


16.1 To the fullest extent permitted by Relevant Laws, Aircooks will not be liable to you or any third party for:


(a) indirect, consequential, incidental, special or exemplary damages, expenses, losses or liabilities; or
(b) loss of income, loss of profits, business interruption, loss of revenue, economic loss, loss of goodwill, loss, corruption or alteration of data, downtime costs, loss of use, failure to realise anticipated savings, loss of opportunity or expectation loss; or
(c) loss of or damage to any property or any personal injury or death to you or any third person,
arising out of, relating to or connected to the provision or consumption of the Food Products, access to or use of the Aircooks Platform (or any other ancillary products or services made available to you on, or via, the Aircooks Platform), the Site and this agreement, regardless of the cause of action on which they are based, even if advised of the possibility of such damage occurring.


16.2 Under no circumstances will Aircooks’ aggregate liability, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed:


(a) in the case of Customers, the Charges paid by you to Aircooks; or
(b) in the case of Partners, the Service Fees paid by you to Aircooks,
in relation to the Food Order subject of the claim.


16.3 You agree to defend, indemnify and hold Aircooks, its Related Bodies Corporate and its Personnel (the Indemnified) harmless from and against any and all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Indemnified or which the Indemnified may pay, sustain or incur as a direct or indirect result of, or arising out of:


(a) the access and use by you or any third party of the Aircooks Platform or the Site; or
(b) any fraudulent transactions resulting from, or in connection with, your access to, or use of, the Aircooks Platform or the Site (except where we have prior notice of such fraudulent transaction);
(c) any breach by you or your Personnel of the Intellectual Property Rights of a third party; or
(d) any breach by you or your Personnel of any Relevant Laws or Food Safety Standards; or
(e) any breach by you or your Personnel of this agreement.


17. Confidentiality and privacy


17.1 Save as required by law, all information and material supplied by us in relation to the Aircooks Platform, the Site, the Subscription Fees, Service Fees and Charges payable under this agreement are confidential and must not be disclosed by you to a third party (except your professional advisors) without our written consent. This includes, without limitation, the information provided to you in any form (including written and electronic) and by any means (including during any conversations with you). Upon the expiry or termination of this agreement, such confidential information must either be destroyed or returned to us, as directed by us.


17.2 To the extent that either party comes into possession of Personal Information in the course of providing you with access to, and use of, the Aircooks Platform, the parties agree to comply with the provisions of the Privacy Act. For more information relating to our privacy practices, please see our Privacy Policy, which forms part of this agreement.


18. Termination


18.1 Either party may terminate this agreement (without any liability to the other party, except you are liable to pay any unpaid Subscription Fees, Sponsorship Fees, Service Fees, Charges or any other amounts owing to Aircooks at the date of termination) at any time by giving the other party at least 15 Business Days’ written notice.


18.2 Either party may terminate this agreement by giving notice with immediate effect if the other party:


(a) breaches any material term of this agreement and such breach is not remedied within 5 Business Days after receiving notice of the breach;
(b) breaches any material term of this agreement and such breach is not capable of remedy; or
(c) suffers an Insolvency Event.

1.1 Aircooks may immediately terminate this agreement (without liability to you and without notice to you) if you fail to pay any Subscription Fees, Service Fees and/or Charges (as the context permits) or any other amounts owing to us under the agreement.

1.2 On termination or expiration of this agreement:
(d) all licences and rights of access granted under this agreement will immediately terminate;
(e) you must pay all outstanding Subscription Fees, Service Fees and/or Charges (as the context permits) and any other outstanding monies owing to Aircooks under this agreement within 7 days; and
(f) Aircooks will delete or de-activate your Account, except that Aircooks may retain certain information after your Account has been deleted as required by law.

19. Third party websites


19.1 The Aircooks Platform or any User Profile may contain third party content or content that may link to other websites, services, products or resources on the Internet, and other websites, services, products or resources may contain links to the Aircooks. These websites are not under our control and are not maintained by us. We are not responsible for the content of those websites, resources, products or services, and accept no responsibility for them or for any loss or damage that may arise from your use of them (notwithstanding anything else contained herein). We only provide links to third party websites for your information and convenience.


19.2 Links, references or other connections to these websites, resources, products or services do not imply any endorsement of them or any association with their owners, operators or advertising material (as the context permits).


19.3 Your linking to or from these sites, or use of, or reliance on, such websites, resources, products or services is at your own risk. You should carefully review the terms and conditions and privacy policies of all off-site pages and other websites or third-party suppliers that you visit or transact with.


20. Dispute Resolution


The parties may, before resorting to court proceedings (except interlocutory or interim relief), refer any dispute between the parties under or relating to this Agreement initially to a nominated representative of each party to endeavour to resolve the dispute within 20 days. If the dispute is not resolved within this period, then either party may, in its absolute discretion, initiate court proceedings.


21. Force Majeure


Aircooks will have no liability to you (whether you are a Customer or Partner) or anyone else under this agreement if it is prevented from or delayed in performing its obligations under this agreement or otherwise, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, failure of a utility service or transport or telecommunications network, act of God, natural disasters, pandemics, epidemics, mandatory government lock-downs, sabotage, war, riot, civil commotion, computer hacking, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of hosting or data centre providers or other suppliers or sub-contractors, shortage of suppliers, equipment and materials, (Force Majeure Event).


22. Notice


22.1 By accessing and using the Aircooks Platform or the Site, 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 Site.


22.2 You acknowledge that all contracts, notices, information and other communication (notices) we may provide electronically comply with any legal requirements that such documents be in writing.


22.3 Notice will be deemed received and properly served immediately when posted on the Aircooks Platform or 24 hours after an email is sent to you. As proof of service, it is sufficient that the email was sent to the email address specified by you in the Registration Portal.


23. General


23.1 A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
23.2 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
23.3 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23.4 Aircooks may deduct from any amounts owing to you under this agreement from any amounts due or owing to us under this agreement (including under the indemnity in clause 16.3).
23.5 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangements, understandings or agreements between them relating to the subject matter they cover.
23.6 Neither party shall, without the prior written consent of the other party (which will not be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement, except that Aircooks may assign, sell or transfer its rights or obligations under this agreement to a Related Bodies Corporate or bona fide third party purchaser of Aircooks’ business.
23.7 Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
23.8 The laws of the state of Victoria, Australia govern this agreement. You agree to submit to the exclusive jurisdiction of the courts of Victoria.


24. Contact Us


If you have any questions about this agreement, please contact us via email at info@aircooks.com.


25. Definitions


25.1 In this agreement, the following words shall have the following meanings:


(a) Account has the meaning in clause 5.1.
(b) Aircooks Platform means the online marketplace Site and/or mobile application (including all Intellectual Property Rights contained therein) operated and managed by Aircooks, which: (i) connects Customers with Partners who offer, list and advertise Food Products for sale on, or via, the Site; and (ii) acts as a payment collection agent.
(c) Business Days means each day excluding Saturdays, Sundays and public holidays in Victoria.
(d) Business Hours means 9:00am to 5:00pm on Business Days.
(e) Cancellation Fee has the meaning in clause 13.5(b).
(f) Cancellation Policy has the meaning in clause 7.5(c).
(g) Charges has the meaning in clause 11.2.
(h) Customer means a user of the Aircooks Platform who orders and/or purchases Food Products from Partners on, or via, the Aircooks Platform and who creates a Customer Profile.
(i) Customer Profile means the profile of a Customer that is displayed on the Aircooks Platform and which contains the Customer’s Personal Information, as further described in clause 8.1.
(j) Food Order has the meaning in clause 7.5(c).
(k) Food Products means the food, beverage and consumable menu items that are supplied, offered for sale and/or sold by Partners on, or via, the Aircooks Platform.
(I) Food Safety Standards means the Food Safety Standard Codes Australia New Zealand Food Standards Code and any other legislation, regulations and by-laws in relation to the preparation, cooking, storage, labelling and delivery of food and beverages.
(m) Force Majeure Event has the meaning in clause 21.
(n) GST has the meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(o) Insolvency Event means any of the following:
    (i) a receiver, receiver and manager, liquidator, provisional liquidator, controller or any form of external administrator has appointed over a party or any property belonging to the party;
    (ii) the party enters into a scheme, arrangement, agreement or compromise with its creditors or calls a meeting of creditors;
    (iii) the party becomes bankrupt or insolvent; or
    (iv) the party has a winding-up or bankruptcy petition presented against it.
(p) Intellectual Property Rights means designs, copyright, trade marks, patents, operations, software or systems, trade names and domain names, rights in goodwill, rights in confidential information, databases or other intellectual property rights, whether under statute, common law, equity, custom or usage, and whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights and all similar rights which subsist or will subsist now or in the future in any part of the world.
(q) Aircooks IP has the meaning in clause 14.1.
(r) Partner means a user who sells Food Products on, or via, the Aircooks Platform and who has created a Partner Profile.
(s) Partner Dashboard means the dashboard on the Aircooks Platform that a Partner uses to update or change their Partner Profile, including Charges and Food Products.
(t) Partner Profile means the profile of a Partner that is displayed on the Aircooks Platform and which contains the Partner’s business information and Personal Information, as further described in clause 7.1.
(u) Password has the meaning in clause 5.2.
(v) Personal Information has the meaning set out in section 6 of the Privacy Act 1988 (Cth).
(w) Personnel means any officer, employee, agent, contractor, sub-contractor or consultant of a party.
(x) Privacy Act means the Privacy Act 1988 (Cth).
(y) Privacy Policy means our privacy policy available at www.aircooks.com or any other internet site notified by Aircooks from time to time, which is incorporated into this agreement.
(z) Registration Portal means the registration portal on the Site used by you to subscribe to the Aircooks Platform, available at www.aircooks.com.
(aa) Related Bodies Corporate has the meaning in the Corporations Act 2001 (Cth).
(ab) Relevant Laws means any relevant rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings, or legal requirements anywhere in the world, and includes Food Safety Standards.
(ac) Term has the meaning in clause 4.
(ad) Service Fee has the meaning in clause 11.3.
(ae) Sponsorship Fee means the fees payable by a Sponsor Partner for sponsorship rights, as further specified on our Website or in writing by us.
(af) Sponsor Partner has the meaning in clause 11.4.
(ag) Subscription Fee has the meaning in clause 11.1.
(ah) Site means the Aircooks website located at www.aircooks.com ] and social media linked pages or any other internet site notified by Aircooks from time to time.
(ai) Third Party Payment Processor means Stripe and any other a third party payment processor permitted by Aircooks from time to time.
(aj) User Profile means a Customer Profile or Partner Profile (as the context permits).
(ak) you or your has the meaning in clause 1.1 and where the context permits, is a Customer or Partner.