Next Door Kitchen
Version: 20 December 2019
Welcome to Next Door Kitchen, a marketplace platform for delicious home-made food delivered to your door that connects Home Kitchen Users to Customers (that’s you) and Delivery Providers based on real-time availability, demand and location. The Next Door Kitchen Platform is owned and operated by Next Door Kitchen Pty Ltd (ACN 632 925 743) (NDK, us, we, our), and we provide our Services to you in connection with the Platform.
The following terms set out the NDK Platform rules for Customers and your key obligations and promises in relation to your use of the Platform and any Order you place through use of the Platform. It is important you understand your obligations as you may be liable to us for any unauthorised use of the Platform.
1. USE OF THE PLATFORM AND USER ACCOUNT
1.1 You acknowledge and agree that, in order to use the Platform and make an Order on the Platform, you must establish a User Account on the Platform. You may use the Platform both as a Home Kitchen, a Customer, and/or a Delivery Provider, but you may be required to create a separate User Account on the Platform for each User role.
(a) your name, address and contact details;
(b) credit card details and credit card authorisations; and
(c) bank account details.
1.3 NDK relies on information provided to it by each User and you warrant that all User Information provided by you is accurate, current, complete, correct and complies with all relevant Laws.
1.4 With regard to your use of your User Account, you warrant and represent to NDK and to each other User that:
(b) you will protect and keep secure all information relating to your User Account, including your password;
(c) you are responsible for all actions, communications, enquiries and purchases made using or in respect of your User Account;
(d) you are solvent and otherwise able to pay your debts as and when they become due;
(e) you will only use the Platform in compliance with all Laws;
(f) all information supplied by you or on your behalf to NDK or another User is accurate, current, complete and correct in every respect and, if you provide information about or from a third party to NDK or another User, you are authorised to do so; and
2. LICENCE TO USE THE PLATFORM
2.2 Your licence to use the Platform is conditional upon you:
(a) following and complying with all reasonable directions from NDK concerning access to and use of the Platform;
(b) refraining from disruptive activities which may include but which are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and viruses, use of the Platform to gain unauthorised access to any other computer system, the sending of harassing, obscene, offensive or threatening electronic communications, forgery of electronic communications and the placement, transmission or storage of any defamatory material on the Platform;
(c) refraining from using the Platform, or permitting any other person to use the Platform for any purpose or activity of an illegal or fraudulent nature;
(d) refraining from entering into any Order Agreement or using the Platform in any way:
(i) that would cause you, as a Customer, or NDK to breach any Law, regulation, rule, code or other legal obligation, including by entering into an Order Agreement where that would constitute an infringement or cause any other person or User to infringe any Law, regulation, rule, code or other legal obligation;
(ii) 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, blasphemous, in breach of confidence or in breach of privacy;
(iii) that would bring NDK, or the Platform, into disrepute; or
(iv) that could infringe any person’s rights, including rights in respect of Intellectual Property; and
(e) agreeing not to, and not permitting any other person to (without the prior written consent of NDK):
(i) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Platform;
(ii) enable or develop methods to enable unauthorised persons to use the Platform; or
(iii) purport to sell, distribute, provide, licence, lease, lend, share or otherwise make available the Platform or any performance information or analysis of the Platform to or with any third party.
2.3 NDK may immediately terminate or suspend your licence to use the Platform and/or your User Account without notice if, as determined by NDK in its sole discretion:
(b) such action is otherwise required by Law or order of a court or relevant authority, without incurring any liability in respect of that termination or suspension.
2.4 By using the Platform, you acknowledge and agree that:
(a) NDK has the absolute right in the exercise of its sole discretion to control, manage, alter, suspend, terminate, add, remove or vary the Platform, any User Account, and any advertised Order or other information or materials on the Platform; and
(b) from time to time, the Platform may be unavailable for maintenance and/or updates, or due to unexpected technical issues, and NDK will not incur any liability in respect of outages due to maintenance and/or updates.
3. PRINCIPAL USERS
3.1 Companies or organisations may apply to NDK to become a Principal User. A Principal User allows its representatives, agents, officers, directors, employees, and contractors to use the Platform as an agent or representative of the Principal User. Your use of the Platform as a Principal User is subject to NDK’s prior approval.
3.2 A person who wishes to use the platform as a representative of a Principal User must first be accepted as a User pursuant to clause 1.1.
3.3 A Principal User must supply to NDK User Information as required from time to time, including but not limited to:
(a) company or organisation details;
(b) payment and insurance information;
(c) director’s guarantees; and
(d) undertakings as to the conduct of its Users.
3.4 A Principal User is responsible, and indemnifies NDK for, the conduct of its Users and any loss, cost, damage or expense which NDK suffers or incurs due to the conduct of a Principal User’s, Users.
4.1 The Services and Platform
(a) NDK makes available Services that facilitate the sale and fulfilment of Orders for Goods from Home Kitchens to Customers; and
(b) In connection with the Services, NDK may make access to the Platform available to Customers.
5.1 Home Kitchens and Customers may enter into an Order with each other via the Platform. NDK is not a party to an Order Agreement, nor is NDK responsible for completion of an Order, or liable for either party’s failure to complete an Order.
5.3 You agree not to attempt to create a separate agreement in respect of an Order advertised on the Platform other than via the Platform, or to otherwise bypass or attempt to bypass the Platform or its integrated payment systems in order to derive a benefit from another User and, if you do so or attempt to do so, you agree that NDK may determine, with or without notice to you, that your licence to use this Platform ceases immediately.
(a) the Customer will request the type and quantity of Goods they wish to be the subject of an Order from a Home Kitchen. Subject to availability of the Goods, an Order Agreement is formed between the Home Kitchen and the Customer immediately upon Acceptance as described in clause 5.5;
(b) the Customer must pay the Price via the Platform (as set out in clause 6.1) immediately upon the formation of an Order Agreement;
(c) each User is responsible for ensuring the accuracy of information it provides regarding the Order;
(d) all risk in the Order remains with the Home Kitchen at all relevant times;
(e) NDK is not a party to any Order Agreement or Delivery Agreement and is in no way responsible for any breach of the terms of those agreements by any User, or for any loss, cost, damage, claim, liability (including in negligence), injury, or death arising from or in connection with the formation or performance of those agreements by any person;
(f) all Users, being the Home Kitchen, Delivery Provider, and Customer must ensure that they do not breach, or cause the other User to breach any applicable Laws; and
(g) a breach of the Order Agreement or Delivery Agreement by any User may expose that party to liability for additional costs, expenses, or losses suffered by NDK or the other party to the Order Agreement or Delivery Agreement.
5.5 Acceptance of an Order Agreement will occur as follows:
(a) the Goods are advertised on the Platform and the Price is fixed by the Home Kitchen; and
(b) the Customer requests the Goods and makes payment of the Price.
5.6 If a User fails to complete or pay for an Order Agreement or a Delivery Agreement, or in any way performs its duties in an unsatisfactory manner, the affected User may within 48 hours of placing the Order lodge a claim via the Platform to be investigated by NDK. Following the investigation, NDK may in its sole and absolute discretion, without any right of review of a Home Kitchen, a Delivery Provider or Customer:
(a) take no action;
(b) partially or fully refund the affected User (in which case the same amount must be reimbursed by the party in breach or will be deducted from amounts payable to that party under this Agreement); and/or
(c) alter the User Rating of a User.
6.1 The Customer must make all payments due in respect of an Order Agreement as instructed by NDK, including:
(a) only via the third-party payment platform(s) or any other means made accessible by NDK through the Platform (including as a deduction against in-Platform credit) from time to time;
(b) subject to acceptance of, and in accordance with, any third party terms and conditions or terms that may apply; and
the Customer must not make payment in addition to the Price or through any means other than as described.
6.2 The following payment process will apply to all Orders: the Customer will be charged the Price automatically by the Platform upon the formation of the Order Agreement, whereupon the Price will be charged first as a deduction against any credits the Customer has in its digital wallet on the Platform and then against the Customer’s nominated payment method and, if the Platform is unable to charge the Customer the Price, the Order Agreement will be automatically rescinded by the Customer.
6.3 If you pre-order any Goods from a Home Kitchen, then you will be required to pay at least 50% deposit of the Price at the time of submitting your Order. The remainder of the Price will be due prior to the Home Kitchen commencing work on the Order. If your Order is cancelled by the Home Kitchen prior to commencement of work, you will be provided with a refund in accordance with any applicable policy. Pre-order function is only available through selected Home Kitchens, is subject to availability and further conditions in relation to your use of the promotional initiatives described at clause 7.2.
6.4 NDK will not be liable for any loss, cost, damage, expense, or Claim (including for negligence) suffered or incurred by any person in connection with use of a third-party payment platform or service.
6.5 If, during the Order, a User discovers that there has been an error in the Order or Delivery information resulting in a material change to the Price or Delivery Price, all parties will:
(a) continue with the Order and Delivery;
(b) advise the relevant parties via the Platform of any discrepancy in the Price or Delivery Price and agree with the other parties on the updated Order or Delivery including any variation in the applicable Price; or
(c) refuse to accept the Order or Delivery (at which point the Order or Delivery shall be treated as rescinded by the User responsible for the error).
6.6 In the event that an Order Agreement or Delivery Agreement is formed but terminated by a User for any reason prior to the Goods being delivered by the Delivery Provider, additional Charges may apply.
6.7 Upon payment of the Price in accordance with these terms the Platform will generate a record of payment for the Customer, inclusive of any applicable GST.
7. REVIEWS AND OTHER MATTERS
(a) A User may, upon the cessation of an Order Agreement, submit a Review of the other party to that Order Agreement or the Delivery Provider (a User Review);
(b) A User Review must comply with NDK’s policies with respect to the contents of a review as applicable from time to time. Notwithstanding any such policy, a User Review must be honest and accurately reflect the User’s experience with the Platform and the other party to an Order Agreement, or the Delivery Provider. A User Review must not:
(i) be defamatory, dishonest or misleading;
(ii) contain advertising or any other commercial content;
(iii) contain any spam;
(iv) use language or contain any content that is discriminatory, profane, vulgar, obscene, violent, threatening or harassing;
(v) purport to originate from a person or entity other than the User; or
(vi) be the subject of consideration provided outside the Platform or in any way be motivated by a threat or reward by another User;
(c) NDK does not verify or review the content of any User Review and is not responsible or liable for any User Review; and
(d) NDK reserves the right to amend or remove a User Review in its sole discretion.
7.2 Loyalty and Referral Incentive Schemes
(a) NDK may, in its sole discretion, introduce from time to time various promotional initiatives that may be redeemed for discounts on the Platform;
(b) NDK may introduce or revoke a promotional initiative for any reason without liability to any Users; and
(c) Users agree to use the benefits of any promotional initiative in accordance with any applicable policy and NDK reserves the right to withhold or deduct credits or other features or benefits from a User for any reason which it may determine.
8. INTELLECTUAL PROPERTY
8.3 In the event that you post or submit any Content to or via the Platform or otherwise provide us with Content by any means, you grant NDK the following non-exclusive, irrevocable, royalty-free licence in perpetuity throughout the Territory:
(a) to use the Content;
(b) to reproduce the Content;
(c) to modify or amend the Content;
(d) to communicate the Content to the public via the Platform; and
(e) to authorise any other person to use and exercise NDK’s rights in respect of the Content, including by grant of sublicense,
for the purpose of, or in connection with, operating the Platform and supplying the Services.
8.6 Each user is solely responsible for ensuring the accuracy and completeness of their Content. NDK will not be liable for any mistake or misrepresentation in connection with your Content, and you indemnify NDK for and against any loss, cost (including legal fees on a full indemnity basis), damage, expense, or Claim (including for negligence) suffered or incurred by NDK in connection with your misrepresentation, mistake, infringement of any person’s rights (including in respect of Intellectual Property), or breach of Law in connection with your User Content.
9. CONFIDENTIALITY & PRIVACY
9.1 NDK will keep confidential all information provided by or on behalf of a User that is marked as confidential or should otherwise reasonably be presumed to be confidential, and will only use or disclose such confidential information: (a) for the purpose of operating the Platform; (b) with the consent of the User; (c) in anonymised and aggregated form; or (d) as may otherwise be required or permitted by Law.
9.3 All Users undertake and continuously warrants to NDK that:
(a) where the User is an individual, the User will only supply Personal Information in respect of that User; and
(b) where the User is a Principal User:
(ii) the individual to whom the Personal Information relates has been made aware of the NDK’s identity, of how to contact NDK, of the nature of the NDK’s role with the Platform, and of all other matters of which NDK has expressly required that the person be informed, or of which that NDK or User is required to inform a person about whom it collects Personal Information under applicable Law and in accordance with best practice; and
10.1 All Users acknowledge and agree that, in using the Platform, including by uploading or creating any Content via the Platform:
(a) Content will be transmitted over the internet any other network used by the Platform, which may include transmission to servers located in other states or countries;
(b) while NDK will take all reasonable security precautions, the transmission, upload, download, or storage of Content via the Platform is not guaranteed to be, and may not be, secure;
(c) transmitting, uploading, or downloading Content via the Platform may render the User’s systems vulnerable to viruses, malware, or other forms of attack that are beyond the reasonable control of NDK; and
(d) the User is at all times responsible for the security of its own systems, and the security of the Content.
10.2 NDK will comply with any Laws requiring NDK to notify a User or any other person regarding any notifiable data breach. Otherwise, to the maximum extent permitted by Law, NDK will not be liable or responsible for protecting the security of Content transmitted, uploaded, or downloaded via the Platform, or for any loss, cost, expense or damage suffered by the User as a result of any unauthorised access or use of the Content or NDK’s systems.
11. WARRANTIES & LIABILITY
11.1 A User must not, and must not permit its Related Parties to, use the Platform in any way that might defame, offend, insult, embarrass, injure, damage, or otherwise breach the rights of any person or contravene any applicable Laws.
11.2 All Users acknowledges that, to the maximum extent permitted by law, NDK provides the Platform “as is” and:
(a) NDK makes no warranties that the Platform is error free, that the Platform will be accessible on the User’s systems, or that the User’s access to the Platform will be uninterrupted; and
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
(a) the Price most closely connected to the Claim; or
(b) AUD $10.
11.6 You indemnify NDK, its agents, officers and employees against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which is suffered or incurred by NDK, its agents, officers or employees as a direct or indirect result of:
(b) any third-party action, claim, demand or proceedings instituted against NDK in connection with the use of the Platform by you (or as authorised by you), or any Order Agreement or Delivery Agreement to which you or your Related Parties are party.
12.2 A User must not commence court proceedings in relation to a Complaint until it has exhausted the procedures in this clause 12.2. If a Complaint arises:
(a) the User must first notify NDK of the nature of the Complaint against NDK or dispute in writing via email at firstname.lastname@example.org or using contact us option within the website;
(b) NDK will, to the extent reasonably possible, consider and respond to the User’s notice of Complaint within a reasonable period of time;
(c) the User must respond to any communication from NDK in respect of the Complaint as soon as possible, including providing any additional information or material that may be reasonably required by NDK;
(d) the User and NDK will use best efforts to resolve the Complaint in a timely manner; and
(e) if the Complaint is not resolved within 90 days of NDK first receiving notice of the Complaint, NDK will instruct the President of the Law Institute of Victoria to appoint an independent mediator to resolve the dispute by mediation and the parties must participate in the mediation in good faith and equally share the costs of the mediation.
(b) a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
(c) the singular includes the plural and vice versa;
(d) a reference to any gender includes a reference to all other genders;
(e) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
(f) an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
(g) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
(h) headings are inserted for convenience only and do not affect the interpretation of this Agreement.
13.2 In the case of a Principal User, unless otherwise requested in writing by the Principal User, NDK may use the Principal User’s corporate identity (if applicable) as part of promoting the Platform.
Acceptance means in relation to an Order Agreement, the time in which a Customer consents to enter into an Order Agreement offered by a Home Kitchen in accordance with clause 5.5;
Charges means the transaction fees payable to NDK and any applicable third-party fees or charges as notified by NDK in writing from time to time;
Claim means any demand, claim for loss or damage or claim for any remedy whatsoever whether originating by writ, summons, cross claim, counterclaim, application, other originating legal or arbitral process, proceeding or investigation or inquiry by a governmental agency arising out of or in any way connected to the use of the Platform or the Order of Goods using the Platform but excluding any such claim which cannot be excluded or released by Law;
Content means any information, material, image, data, design, schematic, or Intellectual Property provided by a User to NDK or another User in connection with the Platform, and includes User Information;
Customer or you means a User who agrees to purchase Goods from a Home Kitchen pursuant to an Order Agreement;
Delivery Agreement means the agreement between a Home Kitchen and a Delivery Provider for the delivery of Goods to a location specified by a Customer;
Delivery Provider or you means a user of the Platform engaged in, or seeking to be engaged in, a Delivery Agreement to perform the transfer of Goods from a Home Kitchen to another location;
Delivery Price means the portion of fees payable to Delivery Providers in respect of delivery services provided by a Delivery Provider in respect of a Delivery Agreement;
Goods means food, beverages and other products offered for sale on the Platform by a Home Kitchen;
Goods means food, beverages, and other items which are permitted to be advertised for sale via the Platform;
GST means goods and services or value added tax as provided for under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or any associated, replacing, or equivalent legislation in the Territory;
Home Kitchen means a User of the Platform who offers or opens an account by which they are able to offer Goods (or any non-permitted goods) for sale to Customers on the Platform;
Intellectual Property means all present and future intellectual property or related rights, including copyright, trade mark, designs, patents, circuit layouts, business or domain names, inventions, know how, confidential information and trade secrets arising anywhere in the world, whether registered or unregistered and including applications, and any associated moral rights;
NDK or us or we or our means NEXTDOOR KITCHEN PTY LTD (ACN 632 925 743);
Order means the selection of Goods the subject of an Order Agreement;
Order Agreement means the agreement formed between a Customer and a Home Kitchen for the supply of selected Goods;
Personal Information means as that term is defined in the Privacy Act 1988 (Cth) or any replacing or amending legislation, and includes any identifying information provided by a User or by NDK or any other person about a User;
Platform means the software, websites, and/or mobile applications known as “Next Door Kitchen” which are owned, controlled, managed, maintained and/or hosted by NDK and on which the Services are made available;
Price means the price specified by a Home Kitchen to be paid by a Customer for an Order (including the Delivery Price);
Principal User means a User who applies as a company or organisation for a User Account;
Processing Fee means a fee charged to a User by NDK as a result of a cancellation of an Order Agreement or Delivery Agreement;
Related Party of a person means an “associate” or “related body corporate” of that person as determined under the Corporations Act 2001 (Cth);
Services means the provision of access to the Platform, including integrated payment processing, onboarding, operational and other support services;
Territory means Australia;
User means any person who accesses the Platform, including a Home Kitchen, Delivery Provider, Customer or a Principal User;
User Account means an account that permits a User to use the Platform; and