Terms and conditions agreement
Effective: 15/10/2024
These Terms and Conditions apply to any person (“you”, “your”) who uses our automated lockers (“Lockers”), mobile application (“App”), Website Services (located at http://www.foodifox.com) (“Website”) and/or otherwise engages with Foodifox relating to the access and use of the Lockers (“Service”).
Foodifox may amend these Terms and Conditions from time to time, which will be published on our App and/or Website and any amendment will become effective immediately. Your continued use of our App, Website, Lockers and/or Services after amendment constitutes an agreement to abide by and be bound by those amended Terms and Conditions.
Each party acknowledges that it is not relying on any statements, warranties or representations given or made by the other whether actual or implied other than expressly incorporated into this Agreement in writing.
If you have any query in relation to the Terms and Conditions or for any reasons related to the Service, please contact us at hello@foodifox.com
1.Definitions
In this Agreement, unless the context indicates a contrary intention:
Agreement means this Terms of Service document, including any cover page containing your details and payment details, any schedules and any other document or materials it specifies form part of it.
App means the mobile application of Foodifox.
Carrier means authorised agents of third party logistic providers, delivery services and carriers
Foodifox means One Plus Kitchen Pty Ltd (ACN 635 084 114).
Locations means the areas/premises in which the Foodifox Lockers are installed at.
Locker means the physical, automated, and secure lockers and all associated hardware, accessories, add-ons, internal wiring and connections, to be installed at the Locations
Package means any goods or products, whether perishable or non-perishable
User means a person who licenses the use of a Locker in accordance with this Agreement.
You or Your is a reference to a User and/or Carrier (as the context requires).
2. Refund policy
2.1 Foodifox grants the User and/or the Carrier a non-exclusive, non-transferable license to access and use the Locker at the Location in accordance with this Agreement.
2.2 The User and/or the Carrier warrant that the Locker may only be used for the strict and limited purposes of storing the Package in accordance with this Agreement.
2.3 By using the Lockers or its Services via the App and/or on the Website, the User and/or the Carrier are taken to accept these Terms and enter into a legally binding agreement with Foodifox under which you will be given access to the Locker subject to these Terms and our Privacy Policy as may be amended from time to time.
2.4 If the User and/or the Carrier are entering into these Terms on behalf of a business or organisation, you warrant that you have the necessary authority to bind that business or organisation to these Terms.
2.5 If the User and/or the Carrier do not have such authority, or if you do not otherwise agree to be bound by the Terms, you are not authorised to use or access any Locker.
3. User and/or Carrier information
3.1 In using the Locker, the Carrier acknowledges and agrees to the following:
(a) to provide his/her telephone number;
(b) to provide the platform name the Carrier is acting for; and
(c) to accept and/or confirm our verification process.
3.2 In using the Locker, the User acknowledges and agrees to the following:
(a) to provide his/her telephone number;
(b) to accept and/or confirm our verification process.
3.3 The User and Carrier represent and warrant that such information is accurate, correct and up-to-date.
3.4 The User and Carrier acknowledge and agree that the information provided and cookies created from the App and Website respectively will be stored, processed and maintained in our system solely for the purpose under this Agreement.
3.5 The information provided by the Carrier will be anonymised by our third-party telecommunications provider.
3.6 Please note that we can only communicate with the User and/or the Carrier through our third-party telecommunications provider on an [encrypted] basis.
3.7 The User and Carrier acknowledge and agree that all information collected by Foodifox will be dealt with in accordance with our Privacy Policy ([https://www.foodifox.com/privacy-policy]). We will not store this information or use it for any other purposes unless otherwise specified.
4. Accessing the Lockers
4.1 The User may direct a Carrier to deliver a Package to the Locker and the Carrier may elect to effect that delivery by delivering the Package to the relevant Locker for your collection.
4.2 The User and/or Carrier acknowledge and agree to scan the QR code available on the Lockers to gain access to the Lockers. Once your Package has been delivered to a Locker by a Carrier, the Carrier will receive a 4 digit pick up code and/or secured QR code (“Code”)
4.3 To retrieve a Package, the User will need to enter Code at the designated location or your selected Locker to unlock it. The Carrier agrees and acknowledges to be responsible in informing and /or providing the Code to the User through any preferred means of communication.
4.4 The Carrier and/or User agree that Foodifox will be in no extent responsible or liable for the transmission of Code between the Carrier and the User.
4.5 The User agrees to collect the Package within the timeframe specified. If you fail to collect your Package within the specified time, your Package may be returned to the Carrier or in the case of food, it may be destroyed. The specified time for food is 2 hours and for all other packages, the specified time is12 hours.
4.6 Subject to the instruction on the App and/or Website, the Code may also be used to reopen the Locker in the event of an incorrect item delivery and/or incomplete order.
5. Using the Lockers
5.1 The User acknowledges and agrees that each Carrier may be bound by its own terms and conditions and policies in relation to what it is permitted to transport. We do not endorse these services and you agree that we will be in no extent responsible or liable for the services that the Carrier provides.
5.2 It is the responsibility of the Carrier to deliver the Packages to the Locker at the Location. If the Packages could not fit into the Lockers, it is the Carrier’s responsibility to deliver the Packages to the Users in person.
5.3 We are not responsible for the failure of any Carrier to deliver Packages into the Lockers or the failure of any Carrier to take reasonable measures to prevent damage or harm to the Packages.
5.4 Subject to clause 7, we only take possession of the Packages for the limited purposes described in these Terms, and we are not liable for the contents or the condition of the Packages.
6. Risks and Responsibility
6.1 The User and/or the Carrier are at all times responsible for the usage of the Locker. Foodifox is merely providing a space for you to store your package, regardless of whether or not the User chooses to provide access to a Carrier.
6.2 Unless Foodifox exercises its rights under this Terms of Service, the use of the Locker and storage of the Locker is the responsibility of the User and/or the Carrier and the User and/or the Carrier assume all risks and liability in relation to the Locker.
6.3 The User and/or the Carrier acknowledge and accept that the provisions of this clause are fair and reasonable given your possession and control over the Locker.
6.4 It is the User’s responsibility to educate the Carrier on the steps required in using and accessing the Locker.
7. Your Obligations (User and Carrier)
7.1 (Use of Your Locker) You must only use the Locker strictly for the storage food and beverage products only (“Permitted Purpose”) and no other business or activity. Your Locker must not at any time be used to store:
(a) any product related to illegal activities or which is prohibited by law, including but not limited to:
(ⅰ) hazardous substances, chemicals, flammable or radioactive materials;
(ⅱ) drugs, narcotics, and psychotropic substances;
(ⅲ) weapons;
(ⅳ) livestock;
(ⅴ) objects, documents, or substances of which the importation, exportation, distribution, circulation, use or possession is prohibited by law;
(ⅵ) objects that can be (by their form, nature or packaging), dangerous and can endanger, pollute, or damage the Locker or the Location, third party property, or third parties; and
(ⅶ) goods that relate to illegal activities;
(b) any products that infringe any intellectual property or other proprietary rights of any party;
(c) any products that you do not have a right to possess under any law or under contractual or fiduciary relationships;
(d) any products that are unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libellous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable;
(e) any products that require an adult signature upon delivery; and
(f) any product requiring specific licences to store or distribute.
7.2 (Securing Your Locker)You are responsible for ensuring that the Locker is always securely locked and where applicable, you must ensure that you will not use the Lockers or the Service for any unlawful, illegitimate, or fraudulent purpose.
(a) You agree that by accessing the Lockers or the Service, you will comply with all applicable laws.
(b) You agree that you will not, and will not aid, abet, or assist another person to:
(ⅰ) cause any damage to the Lockers or the Location;
(ⅱ use the Service in a manner that interrupts or disrupts the integrity or performance of the Service or otherwise breaches our Terms;
(ⅲ) modify, adapt, or hack the Service or otherwise gain unauthorised access to the Lockers or the Location; and
(ⅳ) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
7.3 (Repair and Responsibility for the User and Carrier) You must notify Foodifox of any damage you or any person authorised by you (including at your request, direction, or as facilitated by you, including by the provision of a QR Code) cause to the Location or Your Locker and you are responsible for such damage and must reimburse Foodifox on demand for the cost of Foodifox to make good the damage. You acknowledge that you licensed the Locker at the Location and that it is reasonable for you to be accountable for persons you bring onto, or authorise to enter, the Location.
7.4 (Food Safety) If you are a User and you order consumable food that is subsequently delivered to the Lockers, you agree that we are not responsible for ensuring that the goods are safe for consumption, or that they are consistent with your dietary requirements, including any intolerances or allergies.
7.5 (Compliance with Laws) You must, at your cost, comply with all laws applying to the use of Your Locker.
7.6 (Change in Details) You must immediately update your contact details or those of any Emergency Contact Person (if any) on the App.
8. Availability of the Service
8.1 The hours and times during which the Lockers will be available for access may vary depending on the Location, the Package, and various other factors from time to time. Details of the hours of operation for each Location and Locker are available on the App.
8.2 You acknowledge that your access to the Lockers may be interrupted, delayed, paused, or revoked:
(a) during periods of maintenance or repair;
(b) due to unreliable or no internet services;
(c) due to breach by you of these Terms;
(d) due to removal of the Lockers for commercial or operational reasons;
(e) due to circumstances beyond our control;
and that we are not responsible for any delays, interruptions, inconveniences, or any inability to access the Lockers or the Service for any of these reasons or any other reason.
8.3 If you are a User:
(a) you acknowledge that the Service is provided on an “as available” basis as there are a limited number of Lockers available at each Location; and
(b) you acknowledge that delivery of your Package may not be possible in circumstances where are no more available Lockers. In such cases, the individual Carrier will be responsible for how the Package may alternatively be delivered to you.
9. Refusal of Delivery or Storage
9.1 Foodifox may in their absolute discretion:
(a) refuse delivery or storage of any Package if it does not comply with the Terms, is undeliverable, is unfit for shipment, is improperly addressed, is unfit to be delivered due to the size of the Package, or is a prohibited item as described in these Terms;
(b) refuse delivery or storage of any Package if the Package is required to be signed by you, or by an adult, upon delivery; and
(c) at any time access a Locker without prior notice to you to ensure compliance with these Terms or for maintenance, upkeep, repairs, security, emergencies compliance with laws or similar purposes.
10. Liability, Release and Indemnity
10.1 At all times, the User and/or the Carrier acknowledge and agree to:
(a) release Foodifox (and its employees, contractors and agents) from;
(b) indemnify Foodifox (and its employees, contractors and agents) against, any costs, expenses, loss, damages, claims, action or liability, to the extent it is arising (including whether in contract, tort, statute, equity, indemnity or otherwise) from or in connection with this Agreement.
10.2 To the extent that your actions or omissions in relation to your use of Your Locker or your failure to comply with this Agreement cause any damage, expense, loss, liability (“Loss”) to Foodifox or any other related party, you agree and acknowledge that you are liable for such Loss and that Foodifox may recover such Loss incurred by it from you.
10.3 (Third Parties) You agree that your access to the Service is at your risk, and you accept and agree that:
(a) Foodifox does not assume any liability whatsoever for any acts, errors, or omissions (including, without limitation, negligence or wilful misconduct) of any third parties; and
(b) you will not seek to hold Fodifox accountable for any loss or damage that any third party may suffer as a result of your use of the Service.
10.4 (Carriers) You agree that we Foodifox not be liable for any acts, errors, or omissions of any Carrier, and we will not be liable for any damage, destruction, or loss of any Packages or issues with delivery, by the Carrier.
10.5 Nothing in this clause is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law (ACL), or the exercise of a right conferred by such a provision, or our liability in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
10.6 If Foodifox is liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, our total liability to you for that failure is limited to, at our option:
(a) in the case of services, the resupply of services or the payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
10.7 Nothing in these Terms will exclude Foodifox liability:
(a) for death or personal injury caused by our negligence or wilful misconduct or that of our employees, agents, or subcontractors as applicable;
(b) for fraud or fraudulent misrepresentation by us or our employees, agents, or subcontractors as applicable; or
(c) where liability cannot be limited or excluded by applicable law.
10.8 Notwithstanding the terms in clause 10, Foodifox liability will be reduced to the extent that the loss or damage is caused or contributed to by you, your employees, agents, or contractors.
11. Termination
11.1 Foodifox may terminate this Agreement at any time by giving not less than thirty (30) days written notice to the User.
11.2 If you fail to comply with any of your obligations under this Agreement after Foodifox gives you not less than fourteen (14) days notice requiring you to comply, Foodifox may immediately terminate this Agreement.
11.3 Subject to clause 9, in the event that your use of Your Locker is considered by Foodifox to be illegal or otherwise harmful to other persons, Foodifox may terminate this Agreement without notice. This will constitute a default under this Agreement.
11.4 On termination of this Agreement, you must immediately:
(a) Collect your Packages, if any from the Lockers within 5 business days from the termination of the Agreement;
(b) Cease arranging Packages to be delivered to the Location or the Lockers;
(c) pay to Foodifox any amounts which you owe to Foodifox within fourteen (14) days after the termination; and
(d) clean and remove all rubbish from and make good any damage caused by you to Your Locker. If you fail to do this, Foodifox may do so at your cost.
12. Disposal of Consumable Food
12.1 The User acknowledges and agrees that if they fail to collect the food within the time frame specified in Clause 4.5, this clause shall apply.
12.2 Foodifox reserves the right to dispose of the food as it may be deemed unsafe for consumption beyond the specified time frame for collection.
12.3 The User acknowledges that Foodifox are not responsible for any loss or damage you may incur by failing or neglecting to collect the food within the specified time frame. Accordingly, you agree that Foodifox may dispose of any or all of your food on such terms as Foodifox decides are reasonable.
12.4 The User acknowledges that Foodifox will incur costs (both internal and external) in having to deal with the disposal of food and that it is fair for you to and you agree to pay the costs of and indemnify Foodifox for all costs, expenses, damages, claims, action or liability whatever arising from or in connection with Foodifox exercising its rights under this clause.
13. Notices
13.1 A notice or other communication to a party under this Agreement must be:
(a) in writing and in English; and
(b) delivered by email to the other party, to the email address specified in this Agreement, or if no email address is specified in this Agreement, then the email address most regularly used by the parties to correspond for the purposes of the subject matter of this Agreement as at the date of this Agreement (“Email Address”). The parties may update their Email Address by notice to the other party.
(c) Unless the party sending the notice knows or reasonably ought to have known that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
(ⅰ) 24 hours after the email was sent; or
(ⅱ) when replied to by the other party,
whichever is earlier.
14. General
14.1 Nature of Obligations
Any provision in this Agreement which binds more than one person binds all of those persons jointly and each of them individually. Each obligation imposed on a party by this Agreement in favour of another is a separate obligation.
14.2 Collection of Data
By agreeing to these Terms, you authorise Foodifox to collect and aggregate any data related to the Service or your use of the Service (Aggregated Data). You expressly acknowledge that we own the Aggregated Data and have the right to use the Aggregated Data for any purposes related to the Service.
14.3 Indemnity
Except to the extent caused or contributed to by the negligent act or omission, wilful misconduct or breach of these Terms by us, our officers, directors, employees, agents, and contractors, you agree to indemnify, defend, and hold us harmless from and against all losses (including any direct, indirect, special or consequential losses), expenses, claims, proceedings and damages of every kind due to or arising out of any violation of these Terms, the rights of another party or any applicable law or arising out of any activity related to the Service, by you or any other person accessing the Service. The indemnity in this clause extends to and applies for the benefit of our officers, directors, employees, agents, and contractors.
Nothing in this clause 14.3 restricts or limits our general obligation at law to mitigate any loss we may suffer or incur because of an event that may give rise to a claim under this indemnity.
14.4 Assignment
You must not assign, sub-license or otherwise deal with your rights or obligations under this Agreement without the written consent of Foodifox.
14.5 Entire Understanding
This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications between the parties.
14.6 No Waiver
A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Agreement does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Agreement. A waiver of a breach does not operate as a waiver of any other breach.
14.7 No Variation
This Agreement cannot be amended or varied except in writing signed by the parties.
14.8 Non Merger
A term or condition of, or act done in connection with, this Agreement does not operate as a merger of any of the rights or remedies of the parties under this Agreement and those rights and remedies continue unchanged. Each term of this Agreement that has not been carried into effect at the termination of this Agreement survives the termination.
14.9 Governing Law and Jurisdiction
This Agreement is governed by and must be construed in accordance with the laws of the State of Victoria. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
14.10 Invalidity and Severability
If any provision of this Agreement offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and in any other case the offending provision must be severed from this Agreement in which event the remaining provisions of the Agreement operate as if the severed provision had not been included.