Terms of Service
Last updated: May 31, 2022
Contractual Relationship
1. Effect of GrubUp Terms of
Service
a.
GrubUP is an online
marketplace that permits Customers to view and search for the menus of Independent
Service Providers (Partners) and/or place orders for food or other products
from Partners which Partners receive through the Partner Platform.
b.
Subsequently, GrubUP software
then notifies other Independent Service Providers (Captains) which are (independent
contractors/ riders) that a delivery opportunity is available.
c.
After a Captain communicates
their acceptance of the delivery, the GrubUP software facilitates the Captain's
completion of the delivery of the Partner Products to the Customer.
d.
You acknowledge and agree
that GrubUP is not a merchant, food preparation business, reseller, or delivery
service; it is an online marketing and connection platform.
e.
These Terms of Service
govern GrubUp’s provision or facilitation to you of the Services, services
provided by Independent Service Providers, the App, GrubUp website, content and
associated materials.
f.
You access, continued use of
the Services, or acceptance by clicking the ‘I Accept’ tick box on the App or
our website constitutes your agreement and consent to be bound by these Terms
of Service, which established a contractual relationship between you and
GrubUp. If you do not agree to these Terms of Service, you must not access or
use the Services.
g.
By agreeing to be bound by
these Terms of Service you agree and acknowledge that you have fully understood
and comprehended these Terms of Service.
h.
There Terms of Service
supersede all prior agreements, understandings, or communications with you,
whether oral or written, unless expressly reference in these Terms of Service.
i.
From time to time, we may
vary these Terms of Service by uploading them to our website or App. Amendments
or variations shall be effective upon posting of such updated Terms of Service.
Your continued use or access of the Services after such posting constitutes you
consent to be bound by the Terms of Service.
2.
GrubUp Services
a.
All GrubUp Services are
provided to you in accordance with these Terms of Service. By continuing to use
any of the GrubUp Services you irrevocably consent and agreed to these Terms of
Services.
b.
Any GrubUp Services are made
available to you for non-commercial personal use, unless otherwise agreed by
GrubUp in writing or an agreement superseding these Terms of Service is
executed between you and GrubUp.
c.
You acknowledge and agree
that, at all time:
i. GrubUp does not provide any transportation services whatsoever in connection
with the Services;
ii. All transportation services providers are contractors of GrubUp and are
not their employees, agents or affiliates; and
iii. GrubUp does not provide any delivery services whatsoever in connection
with the Services.
d.
GrubUp does not accept any
liability whatsoever in connection with the services provided to you by Independent
Service Providers.
e.
The Company makes available
a network of independent third-party contractors (“Captains”) who provide
delivery services to our users and the Partners (food or beverage service
providers). It is up to each Captain to provide such delivery services. The Partners
also operate independently of the Company. When you order any food, beverages
or other items (an “Order”) from a Partner via the GrubUP platform, that Order
will be fulfilled by the relevant Partner (and not by GrubUP). The Services are
a marketplace to help you place an order with the Food Service Provider and
have that order delivered by a Captain as soon as possible within the time slot selected on the app. Considering it's long distance delivery, Captains may take up to 4 hours to deliver the orders after pick-up from Food Service Providers.
f.
The Company will not assess
the suitability, legality or ability of any Captain or Food Service Provider.
The Company is not responsible for the Food Service Providers’ Order, or any
food or beverage preparation or safety, and does not verify their compliance
with applicable laws or regulations. The Company has no responsibility or
liability for acts or omissions by any third-party Food Service Provider or
Captain, other than as stated herein.
3. Provision of GrubUp Services
a.
You agree and acknowledge
that any portion of the Services may be made available to you under any GrubUp
brands or associated partner brands from time to time.
b.
GrubUp reserves the right to
make the Services available to you in connection with any GrubUp subsidiaries,
partner brands or affiliates in its absolute discretion from time to time.
c.
The Services that are made
available to you are available in designated areas through the App from time to
time. Under no circumstances, does GrubUp guarantee that you will be able to
use the App to request such Services within a specific designated area on
demand.
d.
You are responsible for
obtaining the data network necessary to use the Service or App. Obtaining data
network access may require you to incur additional fees which you shall be
responsible for at all times.
e.
You are solely responsible
for procuring and maintaining hardware which supports the App and the provision
of the Services.
f.
Under no circumstances does
GrubUp guarantee that the Services will be support by or be available on any
particular hardware or devices.
g. The provision of the Services is subject to delays, corruptions or malfunctions that may occur from time to time.
h. GrubUP has the right to decline or cancel any order for any reason including it being outside delivery radius or below minimum order. Refunds are provided for such cancellations that would be issued in 5 business days and it could take 5 more business days to reflect in your account.
4.
User Licence
a.
Subject to your acceptance
of these Terms of Service, GrubUp grants to you a limited, non-exclusive,
non-sublicensable, revocable, no transferrable licence to:
i. access and use the App on your personal mobile device solely for
personal use in connection with the Services; and
ii. access and make use of any information, content and materials that may
be made available to you through the App by GrubUp in connection with the
Services.
b.
Any rights of licences not
expressly set out in these Terms of Service are reserved by GrubUp.
5.
Restrictions on Use
a.
You must not:
i. reproduce, modify, distribute, license, sell, commercialise, transfer,
publicise, transmit or exploit the Services;
ii. modify, decode, reverse engineer, duplicate or copy the App of Services,
unless expressly permitted or compelled by any applicable law;
iii. make use of any programs, codes or scripts for the sole purpose of data
mining, coding, indexing, scraping or hindering the functionality or operation
of the GrubUp Services or App;
iv. attempt to obtain unauthorised access to the Services, App or any
related networks, systems or servers for any reason whatsoever.
6.
Third Party Content
a.
The Services may be made
available to you through third party services and/or content outside the
control of GrubUp. You agree and acknowledge that direct terms of service,
privacy policies and restrictions may apply to your use of such third-party
services and/or content.
b.
In any event, GrubUp does
not endorse or accept any liability whatsoever for any third-party services,
content, applications or materials of such third parties.
7.
Ownership and Intellectual
Property
a.
The Services, App, Intellectual
Property and all rights set out under these Terms of Service shall remain
GrubUp’s property or the property of any of its licensors.
b.
The Terms of Service or your
use of any of the Services, the App or any related content does not grant or
assign you any rights whatsoever in connection with:
i. the Services, except as expressly provided for under these Terms of
Services; and
ii. the use of GrubUp’s or GrubUp licensor’s logos, company names, product
and service names, trademarks or any other Intellectual Property, unless
expressly provided for under these Terms of Service.
8.
GrubUp User Accounts
a.
To be provided access to the
Services, you must be at least 18 years of age and effect and maintain
registration of a GrubUp account.
b.
GrubUp accounts registration
requires you to provide GrubUp with Personal Information.
c.
You agree and acknowledge
that you shall maintain the account in terms of currency, accuracy and
completeness at all time. Your failure to maintain the account may result in
account suspension or your inability to access the Services.
d.
GrubUp only permits users to
register a single account, unless otherwise agreed by GrubUp in writing.
e.
You are solely responsible
for any and all activity that occurs under your accounts, and you agree to
maintain the security of your account data (including any passwords usernames
and access codes).
9.
Conditions of Registration
and User Conduct
a.
You may not under any
circumstances whatsoever permit a third party (not register under the
respective account) or a person under the age of 18 to use and/or gain access
to the Services from your personal device.
b.
You may not assign or
transfer your account to any other person or entity without the express written
consent of GrubUp;
c.
Under no circumstances will
you cause nuisance, inconvenience or property damage, whether to the
Independent Service Provider or any other party, including GrubUp or its
Related Bodies Corporate in connection with your use of the Services.
d.
You may only access the
Services for a lawful purpose and in accordance with these Terms of Service.
e.
You acknowledge and agree
that you may be refused access to or use of the Services in GrubUp’s absolute
discretion.
10.
Electronic Communication
Methods
a.
You acknowledge and agree
that by registering an account with GrubUp, you consent to GrubUp or its
affiliates contacting you via electronic communication methods, including but
not limited to text messages, email, App notifications and telephone or any
other communication methods as determined by GrubUp from time to time.
b.
You also acknowledge and
agree that GrubUp is not required to include ‘unsubscribe’ buttons for
communication methods where it may be impracticable for GrubUp to do so.
11.
User Furnished Data
a.
In some circumstances,
GrubUp may require you to upload, publish or otherwise furnish to GrubUp video,
audio or text files in connection with the Services.
b.
The ownership over such
content shall remain with you, however you must grant GrubUp and its affiliates
a worldwide, royalty free, perpetual, irrevocable, transferrable, sublicensable
licence to use, copy, modify, create or exploit such data in any manner
whatsoever, without further notice or any consent from you.
c.
You represent and warrant at
all times that you:
i. are the sole owner of User Furnished Data provided by you; and
ii. the User Furnished Data provided by you will not infringe or violate any
third Party’s Intellectual Property ownership, privacy or any applicable law or
regulation.
d. You must not provide any User Furnished Material that is unlawful, pornographic, defamatory, violent offensive or contrary to the requirements of these Terms and Conditions, as determined by GrubUp in its absolute discretion. GrubUp is under no obligation and is not liable in any way for User Furnished Content, however it may request the review, monitoring or deletion of any User Furnished Content.
12. Payment for Services
a.
You agree and understand
that the use of Services may result in charges to you for the services, goods
that you receive from Independent Service Providers and/or use of the GrubUp
website, platform of App.
b.
Upon delivery of the
services or goods from Independent Service Providers, GrubUp will facilitate
your payment of the applicable fees on behalf of the Independent Service
Provider. For the avoidance of doubt, payment of such fees shall be considered
the same as a direct payment by you to the Independent Service Provider.
c.
Independent Service Provider
fees shall be inclusive of GST, applicable taxes.
d.
Independent Service Provider
fees paid by you are non-refundable, unless otherwise determined by GrubUp or a
requirement under the Australian Consumer Law.
e.
All Independent Service
Provider fees are due immediately and payment will be facilitated by GrubUp
using any of the selected payment methods under your account, after which you
shall be sent a receipt by GrubUp.
f.
You acknowledge and agree
that any Independent Service Provider fees may increase within a particular
geographical area due to high demand.
g.
Any promotional codes,
discounts or vouchers provided to you for no fee have no monetary value, cannot
be redeemed for cash and are not transferrable, however they may result in
different amounts being charged for the same or similar services or good
obtained through the use of the Services and App.
h.
Any promotional codes,
discounts or vouchers provided to you must not be exploited, used on multiple
accounts, applied or redeemed in duplicate or otherwise be used in any manner
contrary to these Terms of Service or any other GrubUp policies.
i.
Independent Service Provider
fees serve as financial compensation for the services or good provided by the
Independent Service Providers to you.
j. You reserve the right, but are under no obligation to provide additional payments to the Independent Service Provider as a gratuity.
13. Cancellations
a.
You may cancel your request for
both the delivery services and purchased items within 24 hours of the scheduled
date and time of the Independent Service Provider’s collection of the purchased
items from a GrubUp partner’s designated pickup location.
b.
You acknowledge and agree that,
where GrubUp determines in its absolute discretion that the cancellation of the
delivery services and purchased items are attributable to you, you may be
charged a fee up to the value of both the delivery services and the purchased
items.
c.
In GrubUp’s absolute
discretion, if the delivery services are cancelled for any reason not directly
attributable to you, you shall be refunded any fees paid in connection with the
cancelled delivery service and/or purchased items.
14.
Accounts
a.
Unless otherwise agreed, we
generally issue accounts electronically on a monthly basis and at completion of
the work.
b.
Accounts are payable within
10 days of the date of issue. We reserve
the right to charge interest on overdue accounts at the rate equal to the cash
rate target set by the Reserve Bank of Australia (as at the date the account
was rendered) plus 2%.
c.
Credit card payments may
incur a surcharge of 1.29% (Visa, Mastercard) or 2.19% (AMEX).
d.
You authorise us to pay an
account from money held in trust on your behalf for fees and costs, if we
notify you in writing that trust money will be transferred from trust to pay
the account.
e.
Nothing in this section is
intended to limit your rights as a consumer under the Australian Consumer Law.
15.
Repair and Damage
a.
Any damage or required
cleaning services attributable to your use of the Services to the Independent
Service Provider’s vehicles and/or property in excess of reasonable
amortisation shall be borne directly by you.
b.
In the event the Independent
Service Provider is able to substantiate that damage was made or cleaning is
required of the Independent Service Provider’s vehicle or property to the
reasonable satisfaction of GrubUp, GrubUp reserves the right to facilitate
payment for the reasonable cost of such repair or cleaning on behalf of the
Independent Service Provider using any of the payment methods selected under
your account. Such amounts shall be transferred by GrubUp to the relevant
Independent Service Provider and are not refundable.
16.
Services Disclaimer
a.
All Services are provided on
an ‘as is’ basis and GrubUp disclaims all representations and warranties
whatsoever, both express and implied in connection with the Services.
b.
In no event does GrubUp
guarantee the suitability, quality, accuracy, safety or availability of the
Services, App or any services or items provided by any Independent Service
Provider.
c.
You acknowledge and agree
that, to the maximum extent permitted by law, any risk arising from your use of
the Services remains solely with you.
17.
Liability
a.
GrubUp’s liability for
failure to comply with a consumer guarantee is limited to:
i. in the case of goods supplied to you as part of the Services, the repair
or replacement of the relevant good;
ii. in the case of services supplied to you as part of the Service, the
re-supply of the relevant services or the payment of the cost of resupplying
the services.
b.
GrubUp’s total aggregate
liability to you in connection with the Services for all damages, losses and
causes of action, by operation of law or otherwise, shall not exceed the value
of the respective Service provided to you.
c.
GrubUp’s liability to you
for a breach of any condition, warranty or term of these Terms of Service that
is not a breach of a consumer guarantee is limited as follows:
i. GrubUp shall not be liable for any indirect, incidental or consequential
losses, including loss of profits, loss of data, death, personal injury,
property damage in connection with, or resulting from the Services.
ii. GrubUp shall not be liable for any damages, liability or losses arising
out of your use or reliance on the Services, your inability to access the
Services or any transaction between you and any Independent Service Provider.
iii. In no event shall GrubUp be liable for delay or failure in performance
resulting from causes beyond the reasonable control of GrubUp.
d.
You acknowledge and agree
that GrubUp has no responsibility or liability to you in connection with any
transportation, good or delivery services provided to you by Independent
Service Providers, unless expressly provided for under these Terms of Service.
e.
You acknowledge and agree
that GrubUp is not responsible for the Food Service Providers’ Order, or any
food or beverage preparation or safety, and does not verify their compliance
with applicable laws or regulations. The Company has no responsibility or
liability for acts or omissions by any third-party Food Service Provider or
Captain, other than as stated herein.
18.
Reports, Complaints and
Feedback
a.
GrubUp shall effect and
maintain a complaints management and feedback system consistent with the
requirements of the Australian Consumer Law.
b.
Where complaints are
attributable to purchased items and/or services from independent Service Provides,
they shall be addressed by the Independent Service Providers directly. If the complaint results in a refund it would be processed within 5 business days of such resolution.
c.
GrubUp shall not be liable
for any compliances, authorisations, permits, health and safety requirements of
the Independent Service Providers or approvals whatsoever in connection with
the Independent Service Providers.
19.
Termination of the Services
a.
GrubUp may in its absolute
discretion restrict or terminate your access to the Services where GrubUp
suspects (acting reasonably) that:
i. you have, or are likely to breach these Terms of Service;
ii. any applicable law prohibits you from accessing the Services;
iii. you are not 18 years of age; or
iv. operate more than one account at one time.
b.
Upon providing [#insert
days’ written notice, GrubUp may terminate these Terms of Service or the
Services for any commercial, legal or regulatory reason whatsoever.
20.
Indemnity
a.
You shall indemnity and hold
GrubUp, its officers, directors, employees and agents harmless form any and all
claims, demands, losses, liabilities and expenses arising out of or in
connection to:
i. your use of the Services or services or goods obtained through our use
of the Services;
ii. your breach of these Terms of Service;
iii. GrubUp’s use of your User Furnished Data; or
iv. your violation of the rights of any third party, including Independent
Service Providers.
b.
Your liability under this
clause shall be limited proportionately to the extent that, GrubUp directly
caused or contributed to any of the indemnifiable events under this clause.
21.
Dispute Resolution
a.
GrubUp operates a complaints
process enabling you to lodge complaints about GrubUp or Independent Service
Providers.
b.
GrubUp shall operate the
complaints process in a reasonable manner and manage any refunds to you in
relation to those complaints (where applicable).
c.
In addition, you may have
rights to lodge a complaint to fair trading or consumer law bodies under
applicable consumer laws, including the Australian Consumer Law.
d.
In the event of a dispute,
either party may file for proceedings in the courts of New South Wales, pursue
final and binding arbitration, in which case the seat of arbitration shall be
in Sydney, NSW, or any other dispute resolution as agreed between the parties.
e.
Any proceedings whatsoever,
to the extent permitted by law, including any correspondence, orders and awards
awarded by a mediator, arbitrator or otherwise, shall remain strictly
confidential and not be disclosed to any third party without the express written
consent from the other party.
22.
Communications
a.
GrubUp may communicate with
you including for the purposes of providing notice in connection with the
Services or these Terms of Service by phone, email, written communication sent
to your physical address or electronic notifications to your account.
b.
You may communicate with
GrubUp, including for the purposes of providing notice in connection with the
Services or these Terms of Service by email or by written communication to
GrubUp’s address at 79/ 421 Pacific Highway, Asquith New South Wales, Australia
2077.
23.
App Stores
a.
You acknowledge and agree
that the availability of the App may be dependent on any third parties from
which you receive the App’s license.
b.
You acknowledge and agree
that these Term of Service are between you and GrubUp and not with the respective
App Store and that GrubUp is only responsible for the provision of the Services
as described in these Terms of Service.
c.
Where you have downloaded
the App from an App Store, the App Store administrator (i.e. Apple, Google or
otherwise), shall have the right to enforce these Terms of Service against you
as a third-party beneficiary.
24.
Privacy
a.
GrubUp may collect and hold personal
information about you. This information
may be collected directly from you, indirectly or from third parties acting on
your behalf.
b.
How we use and disclose
personal information depends upon your interaction with us. Typically, we use and disclose personal
information to:
i. provide the Services to you;
ii. enable the Independent Service Providers to provide delivery services of
your purchased items to you;
iii. provide information about other services that we offer that may be of
interest;
iv. facilitate our internal business operations, including the fulfilment of
any legal requirements;
v. analyse our services and customer needs with a view to developing new
and improved services; and
vi. obtain a testimonial for us.
c.
We may disclose personal
information to:
i. third party service providers who assist us in operating our business,
some of which are not required to comply with our privacy policy and may be
based overseas or use overseas infrastructure;
ii. our related entities and other affiliated organisations so that you may
be given information about their services and various promotions; and
iii. another party for a purpose permitted or required by law.
d.
If personal information
given to us is incomplete or inaccurate, it may delay our internal operations
and we may not be able to effectively work with you or perform the Services.
25.
Interpretation
a.
In these Terms of Services,
unless the contrary intention appears, word, abbreviations and acronyms have
the meaning given to them as follows:
i. App means he mobile application made available by GrubUp to you through
any App Store to provide you with the Services.
ii. App Store means any platform, store or operating systems which may
enable you to download the App to your personal mobile device, including but
not limited to the Apple App Store, Google Play Store or Windows Phone Store.
iii. Australian Consumer Law means Schedule 2 to the Competition and Consumer
Act 2010 (Cth).
iv. GrubUp means Grubup Pty Ltd (ACN: 649 023 736) of 79/ 421 Pacific
Highway, Asquith New South Wales, Australia 2077.
v. Independent Service Provider means any independent contractors of GrubUp
providing delivery services or preparing the goods purchased by you through the
App.
vi. Intellectual Property means all industrial and intellectual property
rights, including but not limited to in connection with the Services and App,
both in Australia and throughout the world, and includes any copyright, patent,
registered or unregistered trade mark, registered or unregistered design,
registered or unregistered plant breeder’s right, trade secret, knowhow, right
in relation to semiconductors and circuit layouts, trade or business or company
name, indication or source or appellation of origin or other proprietary right,
or right of registration of those rights.
vii. Related Bodies Corporate means a body corporate related to GrubUp as
defined in section 9 of the Corporations Act 2001 (Cth).
viii.
Service means any applications,
websites, content, products, and services made available by GrubUp.
ix. Terms of Service means these terms and conditions of service pursuant to
which GrubUp provides the Services to you, which may be amended from time to
time.
x. User Furnished Data means any content provided by you to GrubUp either
by being uploaded, published or otherwise made available to GrubUp including
but not limited to textual, audio content, visual content, information,
commentary, feedback, reviews, complaints, support requests and competition
entries.
b.
In these Terms of Service:
i. the meaning of any general language is not restricted by any
accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for
example’ (or similar phrases) do not limit what else might be included;
ii. a reference to these Terms of Service includes the agreement recorded by
these Terms of Service;
iii. no rule of construction applies in the interpretation of these Terms of
Service to the disadvantage of the party preparing these Terms of Service on
the basis that it put forward these Terms of Service or any part of it; and
iv. a reference to a party is a reference to the you or GrubUp, and a
reference to the parties is a reference to both you and GrubUp.