“Agreement” means the contract that exists between the Customer and FD whereby FD agrees to provide the Customer with the services set out in the selected Services for the Services Fee, with such contract comprising these Terms and Conditions.
“Application” means an application for Services forwarded to FD for acceptance.
“Customer” means a person or entity who completes an application for a service package offered by FD and enters into an Agreementwith FD to provide on or more Services.
“Day” means business day.
“FD” means “Foodydeal”.
“Foodydeal” is a business name (ABN 44 168 758 263), means Bodcity Pty Ltd (ACN 168758 263) and is abbreviated in these Terms and Conditions to “FD”.
“Services” means all services of the type and nature as described in the schedule for each package and may include amongst other things advertising space, feature articles and or reviews.
“Service Fee” means the specified rate, price or lump sum amount for the performance of each item of the Services as adjusted in accordance with the Agreement.
“Terms and Conditions” means the terms and conditions of the Agreement.
“User” means any browser or subscriber who consumes material on the Website or any Customer Website.
“Website” means the FD website through which the Services are provided.
2.1 The Customer is deemed to have accepted these Terms and Conditions if they:
(a) tick the box in the Application acknowledging that they have read, understood and agree to be bound by these Terms and Conditions;
(b) provide a written acceptance to these Terms and Conditions by email or by any other form of written communication:
(c) accept by conduct, that is, they place an order with FD by any means or otherwise instruct FD to provide the Services:
2.2 These Terms and Conditions are to be read in conjunction with any other contractual documentation produced by FD in relation to the Services including the Customer Application.
2.3 FD is deemed to have accepted these Terms and Conditions on receipt of the Service Fees as cleared funds in its nominated bank account.
2.4 The date of the Agreement is the date on which FD receipts the Service Fees in its nominated bank account as cleared funds.
2.5 The User is deemed to have accepted the Terms and Conditions by navigating away from the home page on the Website.
3. WARRANTIES BY CUSTOMER
3.1 The Customer warrants that it is the registered proprietor of the domain name of its website, business or entity and is authorised to contract on behalf of the registered proprietor of the domain name of the website, business or entity.
3.2 If the party engaging the Services of FD and the proprietor of the domain name of the website or business are different persons, both or all, are deemed to be the Customer in these Terms and Conditions and are jointly and severally liable for the obligations of the Customer.
3.3 The Customer further warrants that on request it will provide FD with any and all documents it may require to evidence such ownership.
4. CUSTOMER’S RESPONSIBILITIES
4.1 The Customer will:
(a) disclose to FD all information in the Customer’s possession relevant to the provision of the Services;
(b) comply with all legal requirements and requirements of all relevant statutory authorities relating to the Services;
(c) provide FD with access to the Customer’s website on request and provide all necessary assistance to enable FD to provide Services safely in accordance with the Agreement;
(d)make available as soon as is reasonably possible to FD all material requested by FD asrequired to complete the Services.
(e) notify FD in writing within 14 days prior to any proposed change in the legal entity, structure, management, change, control of the Customer’s business or change of the registered proprietor of the domain name of the website.
4.2 The Customer will remain liable under this Agreement unless released by FD in writing.
5. PERFORMANCE LEVELS
5.1 The Customer acknowledges that:
(a) whilst FD takes all care in ensuring that its Services including all other content on the Website is presented in a manner that optimises traffic it is unable to guarantee rankings in major search engines;
(b). FD makes no warranty that the Services will generate any increase in sales, business activity, profits or any other form of improvement for the Customer’s business or any other purpose;
(c). The use of FD Services is undertaken at the Customer’s own risk.
5.2 FD will endeavor to ensure that any Services they provide in respect to the development of Website content will display/function correctly on the server which it is initially installed on and that it will function correctly when viewed with the latest version at the date of the Agreement of the web browsing software Microsoft Internet Explorer and to an acceptable level with Mozilla browsers. FD can offer no guarantees of a correct function with all browser software.
6. EXCLUSION OF LIABILITY OF FD
6.1 To the fullest extent permissible by law, FD will not be liable to the Customer or User for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of goodwill or loss of use of facilities or equipment), or any other damages whether arising from the negligence of FD or otherwise and where liability cannot be legally excluded, the liability of FD shall be limited to the cost of supplying the Services again.
6.2 The Customer or User agrees to indemnify FD for any third party claim for damages arising out of or in any way connected with the supply of Services by FD to the Customer or User, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of FD or otherwise.
6.3 The Customer or User expressly agrees to indemnify and hold harmless FD, its subsidiaries, affiliates, officers, agents and partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable legal fees, disbursements and court costs) arising from or in connection with the Customer or User’s information and the Customer or User’s use of the Website.
6.4 Whilst every endeavour will be made to ensure that the Website and any scripts or programs are free of errors, FD cannot accept responsibility for any losses incurred due to malfunction of the Website or any part of it.
6.5 FD cannot take responsibility for any copyright infringements and any other infringements of intellectual property rights including but not limited to patents and confidential information caused by materials submitted by the Customer. It reserves the right to refuse to use, incorporate or implement any material of a copyrighted or other legally protected nature unless adequate proof is given of permission to use such material.
6.6 Any additions to the Services will be carried out at the discretion of FD and where no charge is made by FD for such additions, FD accept no responsibility to ensure such additions are error free and reserves the right to charge an appropriate amount for any correction to the additions.
6.7 FD will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.
6.8 FD will not be liable or become involved in any disputes between the registered proprietor of the domain name and its customers and cannot be held responsible for any wrongdoing on the part of a site owner.
6.9 FD shall not be responsible for delays or failure of performance resulting from Internet Service Provider delivery problems or failure, or any communication or delivery problems associated with Customer’s receipt of the account service data.
6.10 FD shall not be responsible for acts or causes beyond its control, including but not limited to: acts of God, strikes, lockouts, communications line or equipment failures, power failures, earthquakes, or other disasters.
6.11 FD does not warrant nor represent that the use or the results of the use of the materials available through the FDServices or from third parties will be correct, accurate, timely, reliable or otherwise.
6.12 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside FD’s control and could result in a breach of security. Accordingly, FD cannot guarantee that Customer or User’s data will be free from corruption or piracy. The Customer or User hereby expressly waives any claim against FD arising out of the loss of data through corruption, piracy, breach of security or for any other reason.
6.13 In relation to database applications and e-commerce development, FD cannot take responsibility for any losses incurred by the use of any software created for the Customer (where applicable). Whilst every care has been taken to ensure products are problem free and accurate, the ultimate responsibility lies with the Customer in ensuring that all software is functioning correctly before use.
6.14 FD reserves the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and also to terminate any Service should the necessity arise.
7. SERVICE FEES AND PAYMENTS
7.1 FD’s are payable monthly in advance and payment options are detailed on the Website.
7.2 If the Customer fails to pay the Service Fees as required, FD may at its sole discretion continue to provide the Services for up to 30 days without suspending or terminating the Agreement.
7.3 If additional Services are supplied by FD as a result of changes requested by the Customer which were not contemplated by the parties at the date of the Agreement or which resulted from a default by the Customer, FD may make a reasonable additional charge for the additional work performed by it.
7.4 In the event that the Customer fails to make payment of FD invoices, without prejudice to any other rights FD has under the Terms and Conditions, interest will accrue at the rate of 2 per centum per month on any outstanding amount.
7.5 In the event of default of payment by the Customer, the Customer hereby indemnifies FD against all costs and expenses however arising from such default and further all debt recovery costs including legal costs on a solicitor/own client basis and any mercantile agent’s cost at a commission rate of not exceeding 18 per centumper annum or otherwise incurred by FD or for which FD has a liability shall be deemed to be part of the indebtedness of the Customer to FD.
7.6 FD has the right to suspend the provision of the Services in the event of non payment for the same by the Customer of accounts rendered by FD for the period of 30 days;
7.7 Due to the nature of the Services there are no refunds available on Service Fees paid to FD.
7.8 All FD charges are to be paid via the paypal shopping cart option on the Website or otherwise by prior written arrangement with FD.
8.1 If the Customer alleges that FD is in breach of any of the terms of the Agreement including the Terms and Conditions and FD is in such breach, the Customer cannot terminate the agreement without first giving FD an opportunity to remedy the alleged breach by serving FD with a notice specifying in detail the alleged breach and stating that FD has 14 days to remedy such breach, failing which the Agreement will be terminated.
8.2 The Customer may terminate the Agreement by giving written notice of its intention to do so at least 5 days before the end of the month, or Service Agreement period. If the Customer fails to do so, the Agreement will be renewed for the next months or Agreement period and be governed by the Terms and Conditions until terminated under this clause or under the other provisions of the Agreement.
8.3 FD may vary the Terms and Conditions by giving the Customer not less than 5 days written notice of such variation (including the fees and charges of FD) and the variation(s) will take effect if the Agreement is renewed or no objection is otherwise raised.
8.4 FD may terminate the Agreement immediately by written notice to the Customer where the Customer:
(a) becomes bankrupt, or insolvent, or becomes subject to external administration; or
(b) commits a substantial breach or default under the Agreement; or
(c) repudiates the Agreement;
8.5 Where FD issuesa notice in accordance with 8.4, the Customer must immediately pay FD the sum of all monies due and payable but unpaid.
9. FD’S RIGHTS
9.1 Any remedy of FD under these Terms and Conditions is in addition to and not in substitution for any remedy which FD has in law.
9.2 If the Customer unlawfully terminates, FD at its sole discretion may remove data which it placed on the Website.
9.3 Any scripts, cgi applications or software (unless specifically agreed) written by FD remain the intellectual property of FD and are subject to copyright and may only be commercially reproduced or resold with the express written permission of FD.
(a) provision of good & services;
(b) marketing of good & services; and
(c)processing any payment instructions.
11.1 Notwithstanding that this Agreement shall have terminated or expired, each party agrees to keep in confidence and prevent the unauthorised use or disclosure to any unauthorised person or persons of all Confidential Information which is received under this Agreement and to use such data only for the above stated purpose.
11.2 Confidential Information shall include information disclosed orally only if identified as proprietary information at the time of the first oral disclosure and reduced to writing and so designated within thirty (30) days thereof. No party will be liable for use or disclosure of any such Confidential Information if the same:
(a) is in the public domain at the time it is disclosed; or
(b) is known to the receiving party at the time of disclosure; or
(c) is used or disclosed with the prior, written approval of the disclosing party; or
(d) is used or disclosed after five (5) years from the date it was first disclosed by the disclosing party to the other party pursuant to this Agreement; or
(e) is independently developed by the receiving party; or
(f) becomes known to the receiving party from a source other than the disclosing party without a breach of this Agreement by the receiving party.
11.3 In maintaining the confidentiality of Confidential Information received hereunder, each party shall exercise the same degree of care that the receiving party takes to safeguard its own proprietary information.
12. GENERAL DISCLAIMER
12.1 Whilst every effort is made by FD to verify the information and articles it publishes on its site the Customer or user acknowledges that the information is intended to be general in nature only and may not be current at the time of its consumption or otherwise may not be suitable to theirspecific needs or circumstances of the Customer or User. No liability is accepted by FD for the use or misuse of this information and any reliance is undertaken at the sole risk of the Customer or User.
13.1 These Terms and Conditions shall be governed by, performed under, and construed in accordance with the laws of the State of Victoria and the parties hereto agree to submit to the jurisdiction of the courts of Victoria.
13.2 If any provision or any part of a provision of these Terms and Conditions is held invalid, unenforceable or illegal for any reason, these Terms and Conditions shall remain otherwise in full force apart from such provision or such part of a provision which shall be deleted.
13.3 FDcan assign it rights under the Agreement upon the provision of 30 days written notice to the Customer or User. The Customer or User cannot assign its rights under the Agreement without the express written consent of FD.
13.4 Where a dispute arises between the parties each party has an obligation to mediate that dispute before applying to the appropriate Court for a determination.