Terms of Use – Food ResQ Pty Ltd (ACN 667 265 894) 1 Acceptance

1. 1.1  This website, app, platform and any service offered under the name “Food ResQ” (“Platform”) is operated by Food ResQ Pty Ltd (ACN 667 265 894) and its related entities or body corporates (“us”, “we” and “our”).

2. 1.2  Your use of this Platform is subject to these Terms of Use (“Terms of Use”). The Terms of Use constitute a binding legal agreement between you and us, and your continued use of the Platform constitutes your acceptance and acknowledgement of these Terms of Use, our Privacy Policy [click here], and any other policy displayed on the Platform, all of which constitute a part of the Terms of Use. If you do not agree to the Terms of Use, you must not use the Platform.

3. 1.3  Any time you visit the Platform, purchase any goods or services on the Platform, or enter into any transaction on the Platform whatsoever, you are taken to accept these Terms of Use.

4. 1.4  We may amend or modify the Platform, the Terms of Use and/or the Privacy Policy at our sole discretion and at any time. Any amendments are effective 14 days after publication on the Platform. Your continued use of the Platform indicates your continued acceptance of the Terms of Use as modified.

5. 1.5  These Terms of Use will prevail over any other terms or agreement between you and us.

2 Preconditions to use

1. 2.1  To use the Platform:

   1. (a)  you must be at least 18 years old (and have the legal capacity to enter into binding contracts); or

   2. (b)  if you are under 18 years old, you must obtain parent or guardian approval before using the Platform.

2. 2.2  By visiting, registering, or using the Platform in any way, you warrant to us that you meet the requirements above. If the above requirements are not met, please cease using the Platform immediately.

3 Registration

1. 3.1  You may be required to register an account to use certain features of the Platform. We may

   refuse, review or cancel any account registration at our discretion.

2. 3.2  When you register and activate your account, you may provide us with personal information such as your name and email address and other details. You must ensure that this information is accurate and current. We will handle all personal information we collect in accordance with our Privacy Policy.

3. 3.3  You are responsible for keeping your account credentials secure, and you are responsible for all use and activity carried out under your account. You must not share your account credentials with any third party. We do not authorise anyone to use the service on your behalf, and we will not be liable for any loss or damage arising from any kind of unauthorised activity that takes place under your account.

3.4 You must not impersonate some other individual, business or company. In case you try to present yourself as another individual or company, your account may be suspended or terminated, and we may take such further action as we deem necessary.

4 Uploaded Content
4.1 Where the Platform allows you to upload any Uploaded Content, you:

1. (a)  represent and warrant to us that you have all rights, title, interest and authority in the Uploaded Content;

2. (b)  represent and warrant to us that you have the permission to use the name and likeness of each person whose image appears in any Uploaded Content in the manner contemplated by these Terms;

3. (c)  represent and warrant to us that the use or exploitation of Uploaded Content will not infringe the rights of any third party (including, but not limited to, intellectual property rights and privacy rights); and

4. (d)  agree and undertake to us to pay all amounts which become owing to any person (whether by way of royalty or otherwise) as a result of or in connection with your submission of the Uploaded Content to or via the Platform.

5. (e)  It is your responsibility to back up any Uploaded Content to your own systems. We do not guarantee that the Platform will always be available at all times.

6. (f)  You agree that we can store Uploaded Content on our servers.

7. (g)  To the maximum extent permitted by law, you release us and indemnify us from any claim or loss in relation to Uploaded Content being stored on our servers.

5 Your Conduct
5.1 In using the Platform, you must:

1. (a)  always act courteously and politely with us and any other User;

2. (b)  strictly comply with any policy displayed on the Platform;

3. (c)  obey all laws whatsoever (including international law) which may apply in respect of your use of the Platform.

4. (d)  not take any action that is likely to impose upon the Platform (or our servers, or the servers of our or third-party providers) a disproportionately large load;

5. (e)  not interfere with the proper working of the Platform or any activities conducted via the Platform, including by using any automated or manual software or process to "crawl", "spider" or engage in similar conduct in relation to the Platform;

6. (f)  not collect content or information from the Platform, or otherwise access the Platform, using automated means, such as through harvesting bots, robots, spiders, or scrapers;

7. (g)  except to the extent the Copyright Act allows you to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Platform;

8. (h)  not to do anything:

   1. (i)  that may be considered harassment or bullying;

   2. (ii)  that may result in you, us or any other User breaching any law, regulation, rule, code or other legal obligation;

3. (iii)  that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, profane, in breach of confidence, in breach of privacy or harassing;

4. (iv)  that would bring us or the Platform into disrepute;

5. (v)  that infringes the rights of any person;

6. (vi)  that you know (or ought reasonably to suspect) is false, misleading, untruthful or inaccurate;

7. (vii)  that contains or constitutes unsolicited or unauthorised advertising (including junk mail or spam).

6 Marketplace

1. 6.1  Consumers and Retailers may use the Platform in order to enter commercial discussions in

   relation to the sale of Products.

2. 6.2  Every time a Consumer purchases any Products from a Retailer using the Platform, the Consumer and Retailer enter into a separate Sale Agreement with one another for the Retailer to sell, and Consumer to buy, the relevant Product in exchange for the relevant Price.

3. 6.3  You acknowledge and agree that all Products listed on the Platform are subject to availability. It is possible that certain Products may become unavailable after the Sale Agreement has been entered into. In such cases, the Retailer reserves the right to cancel the Sale Agreement or provide an alternate Product. Neither us nor the Retailer will not be liable for any inconvenience or loss arising from the unavailability of Products.

4. 6.4  You agree that all dealings between you and any other User must be conducted exclusively through the Platform. We are not liable in any way whatsoever for any dealings or business transacted outside of the Platform, and transacting outside of the Platform may result in your removal from the Platform.

5. 6.5  You agree that the Price will consist all of the remuneration or payment between Consumer and Retailer and that if any additional amounts are later negotiated, they are taken to be included as an adjustment to the Price which must be recorded on the Platform or notified to us accordingly.

6. 6.6  You irrevocably agree that we are entitled to do all actions that we deem necessary (at our sole discretion) in order to facilitate, oversee or supervise the Sale Agreement. You further agree that we may terminate a Sale Agreement if we determine at our reasonable discretion that you or any other relevant User are in breach of these Terms of Use.

7 Warranties and acknowledgements 7.1 You acknowledge, agree and warrant to us that:

1. (a)  the only service we provide to you is access to the Platform. We merely provide an online marketplace, and we do not sell, or buy, any of the products advertised on the Platform;

2. (b)  a Sale Agreement is a separate agreement directly between the Consumer and the Retailer. We are not a party to the Sale Agreement in any way, and its formation will not, under any circumstance, create any relationship of

employment, agency, partnership or otherwise between us and you, or us and any User;

(c) each User is running a separate, independent business from our business. There is no relationship between us and any User beyond that of independent contractors;

4. (d)  in relation to each Sale Agreement, it is the Consumer, not us, who will be solely liable for payment of the Price. We merely act as a facilitator for such payment on the Platform and we will not be liable for the Price under any circumstance. You agree that you will not pursue any actions, legal or otherwise, against us for any non-payment, and that this provision constitutes a bar to any such actions or proceedings;

5. (e)  in relation to each Sale Agreement, it is the Retailer, not us, who will be solely liable for the provision of the Products. We will not be liable for any issue arising with the Products under any circumstance. You agree that you will not pursue any actions, legal or otherwise, against us for any issue arising in connection with the Products, and that this provision constitutes a bar to any such actions or proceedings;

6. (f)  you will not breach any term of the Sale Agreement.

8 Fees

1. 8.1  You agree to pay us all applicable Fees as advertised on the Platform or during registration. These Fees may include (without limitation), a flat transaction fee for Consumers on each Sale Agreement, and commission on each transaction for Retailers. Commissions may vary between Retailers.

2. 8.2  Users must not do anything to effectively circumvent payment of a Fee, including but not limited to finalising a Sale Agreement off the Platform or making any changes to the Sale Agreement which are not reflected on the Sale Agreement recorded on the Platform. In such an instance, the relevant Users must indemnify us for the amount of the would-be Fee plus any administrative and other expenses suffered by us (including, without limitation, legal costs).

3. 8.3  All payments and Fees payable in connection with the Platform (including but not limited to the Price) must be paid using the payment processor currently being used on the Platform. You may be required to create an account with the payment processor and accept their terms of use.

4. 8.4  Any Fees are strictly non-refundable unless we determine otherwise, which we may do at our sole discretion and on a case-by-case basis.

5. 8.5  Notwithstanding the fee structure set out in these Terms of Use, we reserve the right to implement a new Fee, or modify an existing Fee, for certain current or future features of our Platform. If we implement a new or modified Fee, we will give you advanced notice such as by posting changes on our Platform or sending you an email.

9 Premium Subscriptions

1. 9.1  We may provide one or more premium subscription plans on the Platform that allow you to use additional inclusions and features during the chosen subscription period (“Premium Subscription”).

2. 9.2  You may purchase a Premium Subscription to the Platform by paying a subscription fee as set out on the Platform in advance on a monthly basis or some other recurring interval

disclosed to you prior to your purchase. You must pay us the subscription fee, using the payment service provider currently being used on the Platform, in accordance with these Terms of Use and the payment instructions set out on the Platform from time to time.

3. 9.3  We may change the subscription fee or the inclusions of any Premium Subscription from time to time and will communicate any price changes to you. Changes will take effect at the start of the next subscription period following the date of the change. Subject to applicable law, you accept the new price and inclusions by continuing to use the Platform after the price change takes effect. If you do not agree with a change, you have the right to reject the change by unsubscribing from the Premium Subscription prior to the change going into effect.

4. 9.4  Your Premium Subscription will automatically renew (and you will be automatically charged the subscription fee again) at the end of the applicable subscription period, unless you cancel your paid subscription before the end of the then-current subscription period. The cancellation will take effect the day after the last day of the current subscription period. We do not provide refunds or credits for any partial subscription periods.

10 Intellectual property rights

1. 10.1  Except where otherwise indicated or implied by context, we are the sole owners or licensees of all intellectual property comprised in the Platform (including all intellectual property comprised in the Platform content) and any improvements, updates, or modifications of the Platform, and nothing in these Terms of Use constitutes a transfer of any intellectual property rights in or related to the Platform or Platform content.

2. 10.2  You acknowledge and agree that the Platform and the content contained therein are protected by copyright, trademarks, service marks, patents, design registrations, and other proprietary rights and laws, and you agree to comply with and maintain all copyright notices and other restrictions on content accessed on or via the Platform.

3. 10.3  If you provide us with feedback, comments or suggestions relating to the Platform or our business, then all rights, title and interest in that feedback, and anything created as a result of that feedback (including new material, enhancements, modification, or derivative works), are owned solely by us, and we may use the feedback for any purpose.

4. 10.4  You must not do anything which breaches or otherwise interferes with our intellectual property rights or the intellectual property rights of any of its third-party licensors. You may not distribute, reproduce, publish, alter, modify or create derivative works from the Platform content without our prior written permission or the relevant third-party licensor or exploit such contents for commercial benefit.

5. 10.5  You acknowledge and agree that damages may not be an adequate remedy for a breach of this clause 10 and that equitable or injunctive relief may be necessary.

11 Third-party sites and services

1. 11.1  The Platform may contain links to websites that are owned and operated by third parties. This may include other suppliers and service providers who provide goods or services in connection with a Sale Agreement. We have no control over these external websites, which are governed by terms and conditions and privacy policies independent of us.

2. 11.2  You acknowledge and agree that when you access a third-party website available via a link contained on the Platform:

(a) you do so at your own risk and understand that you should review the privacy policy and terms and conditions of that website;

2. (b)  we are not liable for the content, accuracy, lawfulness, appropriateness, or any other aspect of that third-party website; and

3. (c)  you acknowledge and agree that to the full extent permitted by applicable law, we will not be liable for any loss or damage suffered by you or any other person as a result of or in connection with your access or use of any third-party website available via a link on the Platform.

11.3 The Platform may utilise, incorporate or depend on other third-party services (including, without limitation, hosting services) and you agree that to the extent permitted by law, we will not be responsible or in any way liable for any interruptions to the availability of the Platform resulting from the failure of such third-party services.

12 Acceptance of Risk

1. 12.1  Generally, we assume no liability for any risk associated with or arising from purchasing the Products through the Platform. All Products are sold by the Retailers, not us. The Consumer buys all Products at its own risk.

2. 12.2  The Consumer acknowledges and accepts that any Products advertised for purchase on the Platform may be nearing or past their use-by or best-before date (Product Expiration Date), and that this will vary based on the Product in question.

3. 12.3  The Consumer accepts that we make no representations, warranties, guarantees or suggestions as to the quality, freshness, safety or usefulness of the Products, and that any Products which the Consumer purchases may be near or past the Product Expiration Date upon purchase or receipt by the Consumer. You acknowledge that we have no way of verifying or checking whether any Product Expiration Date is correctly advertised.

4. 12.4  The Consumer accepts sole responsibility to check with the Retailer regarding the Product Expiration Date and Product quality before making any purchase, and the Consumer accepts that failure to do so may limit any Claim to which the Consumer is entitled due to any Loss arising from use of these Products.

5. 12.5  If a Product is near or past its Product Expiration Date at the time of purchase, and this is displayed on the Platform, the Consumer accepts that by purchasing that Product they are doing so at their own risk, and neither us nor the Retailer will be liable for any Loss caused by use of that Product. The Consumer acknowledges that there is an inherent risk with purchasing Product near or past its Product Expiration Date and that even a Product which is near its Product Expiration Date may not always be safe for consumption.

6. 12.6  Nothing under this clause 12 shall be interpreted as limiting, excluding or modifying any rights or remedies to which the Consumer may be entitled under the Australian Consumer Law or any other statute or regulation within the jurisdiction of the governing law of these Terms of Use.

13 Disclaimer and limitation of liability

1. 13.1  To the maximum extent permitted by law, we exclude all Warranties whatsoever unless expressly stated, including but not limited to in relation to any other User of the Platform or any goods or services offered in connection with the Platform or a Sale Agreement.

2. 13.2  You acknowledge that when you use the Platform or enter into a Sale Agreement, you do so entirely at your own risk and rely on your own enquiries and judgement.

3. 13.3  We do not vet, endorse or recommend any particular User or their goods and services, and any rating information displayed on the Platform consists of statements of opinion and not statements of fact or recommendations.

4. 13.4  Any advice provided on the Platform is of a general nature only.

5. 13.5  To the extent that any law restricts our right to exclude Warranties under these Terms of Use, these Terms of Use must be read subject to those provisions and nothing in these Terms of Use is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, notwithstanding any other provision of these Terms of Use, to the extent that we are entitled to do so, we limit our liability pursuant to such provisions:

   1. (a)  in the case of goods:

      1. (i)  the replacement of the goods or the supply of equivalent goods;

      2. (ii)  the payment of the cost of replacing the goods or of acquiring equivalent goods; and

   2. (b)  in the case of services:

      1. (i)  the supply of the services again; or

      2. (ii)  the payment of the cost of having the services supplied again.

6. 13.6  Our liability arising in connection with these Terms of Use or the Platform is limited as follows:

   1. (a)  we exclude all liability for consequential, special, indirect or remote loss, including loss of opportunity or business;

   2. (b)  our total maximum total liability arising in connection with these Terms of Use is capped to the total amount of any Platform Fee relevant to the particular matter;

   3. (c)  our liability is excluded to the extent that you contributed to the liability;

   4. (d)  we exclude all liability for anything you have been aware of for longer than six months and you have not commenced a claim; and

   5. (e)  our liability is subject to your duty to mitigate your loss.

7. 13.7  We provide the Platform on an “as is” and on an “as available” basis without any Warranties as to continuous, uninterrupted or secure access to the Platform, that its servers are free of computer viruses, bugs or other harmful components, that defects will be corrected, or that you will not have a disruption or other difficulties in using the Platform.

8. 13.8  In the event that we terminate the Platform or your access to the Platform pursuant to these Terms of Use, you release us from all liability, Loss or Claims suffered by you as a result of or arising out of such termination.

9. 13.9  All subclauses of this clause 12 are cumulative to one another.

14 Release and indemnity

14.1 To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.

2. 14.2  To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.

3. 14.3  In this clause:

   1. (a)  Claim means a claim, action, proceeding or demand made against a person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

   2. (b)  Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

   3. (c)  Released Parties means us and our officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, related parties, related body corporates, sponsors, and other third-party partners.

   4. (d)  Relevant Matter means anything in connection with:

      1. (i)  any Sale Agreement;

      2. (ii)  the action or omission of any User;

      3. (iii)  any damage to person, property, personal injury or death;

      4. (iv)  your breach of these Terms of Use;

      5. (v)  any matter for which we have purported to disclaim liability for under these Terms of Use;

      6. (vi)  any Product sold beyond its Product Expiration Date;

      7. (vii)  your use, misuse, or abuse of the Platform; or

      8. (viii)  your breach or failure to observe any applicable law.

15 Termination
15.1 You acknowledge and agree that:

1. (a)  we may terminate your access to the Platform at any time without giving any explanation;

2. (b)  we may terminate these Terms of Use or any Sale Agreement immediately by notice to you in writing if you are deemed to breach these Terms of Use or associated policies in any way, in our sole discretion; and

3. (c)  termination of these Terms of Use, a Sale Agreement or your access to the Platform does not release you from any of your obligations and liabilities that may have arisen or been incurred prior to the date of such termination.

16 General

1. 16.1  You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms of Use. We may assign, sublicense, novate or transfer our rights and obligations under these Terms of Use at our sole discretion.

2. 16.2  If a provision of these Terms of Use is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

3. 16.3  These Terms of Use are governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of the courts of New South Wales and all courts of appeal from there.

4. 16.4  Any waiver of any term on these Terms of Use by us can only be done in express writing. Any failure on our part to enforce a term does not constitute a waiver and we reserve the right in relation to all breaches unless expressly stated otherwise.

5. 16.5  The contents of these Terms of Use constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of these Terms of Use, whether orally or in writing.

6. 16.6  A provision of these Terms of Use that can and is intended to operate after its conclusion will remain in full force and effect despite the termination or expiration of these Terms of Use, including without limitation clauses 4 (Uploaded Content), 10 (Intellectual property rights), 13 (Disclaimer and limitation of liability), 14 (Release and indemnity) and all indemnities, releases, exclusions of liabilities and disclaimers.

17 Definitions

17.1 In these Terms of Use:

Agreement means these terms of use and includes any policy on our website (including the Privacy Policy).

Business Day means a day on which banks are open for business in the State other than on a Saturday or Sunday or a public holiday.

Consumer means a User who purchases Products on the Platform.
Fees means the fees we charge Users in relation to the use of the Platform, which are set out on the

Platform and may be modified from time to time.

Platform means this website, app, platform and any service offered under the name “Food ResQ”.

Price means the price for the sale of Products as advertised on the Platform.

Privacy Policy means our privacy policy available at www.foodresq.com.au

Products means anything that can be purchased or sold on the Platform.

Retailer means a User who sells Products on the Platform.

Sale Agreement means a binding legal agreement for a Retailer to sell Products to the Consumer in exchange for the Price.

Terms of Use means these Terms of Use which include the Privacy Policy.

Uploaded Content means any content whatsoever that you upload to the Platform or provide to us, including but not limited to any descriptions, reviews, usage data, feedback, comments, chats or media.

User means any person using or registering on the Platform whatsoever, including all Consumers and Retailers.

Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.

We, we, us, our means Food ResQ Pty Ltd (ACN 667 265 894) and its related entities or body corporates.

You or you mean any person who uses or accesses the Platform, including any User.