Please read these terms and conditions (the Terms) carefully before using our website, koolaa.com.au, any of our mobile applications, or our online ordering system (collectively the Platform). The Platform is operated by Kula Australia Pty Ltd (ACN 669 026 082) (we, our or Kula Australia), trading as Koolaa. Access to and use of the Platform, or any of its associated services, is provided by Kula Australia.
The Platform is a mobile and web based marketplace and online ordering platform that allows Consumers and Merchants to more easily connect with each other so that the Consumer has an opportunity to browse and purchase a selection of Products that have been listed for sale through the Platform by the Merchant.
Kula Australia reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Kula Australia updates the Terms, it will use reasonable endeavours to provide you with notice of updates of the Terms, but will not be obligated to do so. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
Acceptance of the Terms
By using and / or browsing the Platform, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Platform, or any of our Services, immediately.
You may also accept the Terms by clicking ‘I Accept’ or ‘I Agree’ to the Terms where this option is made available to you by Kula Australia in the user interface of the Platform.
These Terms are the agreement between you and Kula Australia.
If you are accessing and using the Platform on behalf of a corporation or other entity, you warrant that you have been authorised by the corporation or other entity to enter into and agree to these Terms on the corporation’s or entity’s behalf and bind them to these Terms.
You may not access the Platform or use the Services and may not accept the Terms if:
you are below the age of 18 years old; or
you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are a resident in or from which you use the Services.
By accepting these Terms, you warrant that you have familiarised yourself with, and agree to be bound by the Terms, the Additional Terms (if and the Privacy Policy found at [insert privacy policy] (the Privacy Policy). If you do not agree to the Terms or the Privacy Policy, you must cease usage of the Platform and any of its associated products or Services immediately. For the avoidance of doubt, if there is any conflict between the Additional Terms and the Terms, or the Privacy Policy, any conflicting term of the Additional Terms will be severed.
Kula Australia recommends that you regularly check these Terms for any material changes and to keep a copy of the Terms for your records, as the Terms may change.
Definitions
Additional Terms mean the term and conditions specific to the Merchant’s business uploaded to the Platform through the “Merchant Portal” and posted to the Merchant’s profile.
Consumer means a User who purchases the Product from the Merchant and agrees to pay the Purchase Price.
Delivery Personnel refers to a User who provides Delivery Services to other Users of the Platform.
Delivery Services mean the provision of delivery-based services for the delivery of Product between Merchants and Consumers.
Merchant means the User who posts a Merchant Listing onto the Platform for Consumers to purchase the Product.
Merchant Listing means the listing of the Product made by the Merchant on the Platform available for purchase.
Order means the successful offer to purchase a Product from a Merchant that has been accepted by the Merchant.
Product means the food or grocery items and related goods that the Merchant is selling on the Platform.
Purchase Price means the price for the Product on the Merchant Listing payable by the Consumers with the successful Order.
Services means the provision of the Platform that allows Consumers and Merchants to more easily connect with each other so that the Consumer has an opportunity to browse and purchase a selection of food or groceries that have been listed for sale through the Platform by the Merchant.
User means any user of the Platform.
Registration
You acknowledge and agree that
to obtain certain elements of the Services, you may need to provide Kula Australia with your personal information, including the following:
your name;
your email address;
your phone number; and
a valid payment method; and
any other information required during the account registration process,
to register, you may need to provide Kula Australia with your personal information, including the following:
a preferred username; and
a preferred password;
providing false and misleading personal information is grounds for immediate termination of your account or banning you from the Platform without notice;
by supplying Kula Australia with your email address and phone number, you may receive regular emails, newsletters, telephone calls or SMS updates from Kula Australia in order to keep you informed about Kula Australia’s activities. If you do not wish to receive updates from Kula Australia, you may contact Kula Australia at support@koolaa.com.au
any personal and registration information you provide to Kula Australia will always be accurate, correct and up to date. If at any time the personal information you have provided to Kula Australia changes, you must update it immediately; and
Kula Australia is only providing you the Services, and does not participate in any transaction between the Consumer, the Delivery Personnel and the Merchant.
You may not use the Services and may not accept the Terms if:
you are not of legal age to form a binding contract with Kula Australia; or
you are a person barred from receiving the Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Services.
The Services
Kula Australia offers a Platform that provides the Consumer with an opportunity to:
view and browse Merchant Listings posted by the Merchant;
ensure that the Products listed on the Merchant Listing are suitable for the Consumer, including, but not limited to, any dietary or allergy requirements;
purchase the Product(s) set out in the Merchant Listing for the Purchase Price; and
to Order the Products from Merchants. Kula Australia only offers the Services and is in no way responsible for the Products or Delivery. Kula Australia offers the Services across Australia.
Delivery of the Products will be supplied by the Merchant and organised by Delivery Personnel. If your delivery location is outside of the delivery area where Products are available to be purchased, a message will appear on screen notifying you that ordering the Products for delivery will not be possible.
If you access or download Kula Australia’s mobile application from:
the Apple App Store, you agree to Apple’s Licensed Platform End User License Agreement and any Usage Rules set forth in the App Store Terms of Service; or
the Google Play Store, you agree to the relevant Android, Google Inc. Terms and Conditions, including the Google Apps Terms of Service.
By using this Platform, you acknowledge and accept that our Platform acts as a digital intermediary, connecting you with Merchants such as restaurants, grocery stores, as well as independent third party Delivery Personnel. We are not a retailer, restaurant, grocery store, Delivery Service, or a business involved in food packaging and/or preparation. Consequently, we cannot be held accountable for any actions or oversights by any Merchants or Delivery Personnel using our Platform. The Merchants on our Platform are the direct sellers of the Products you order through our Platform. We do not engage in Delivery Services nor do we function as a common carrier. Our Platform is designed to facilitate the transfer of Orders from Merchants to Consumers and arrange pickups or deliveries through Delivery Personnel. We do not guarantee the legality, capability, or overall suitability of any Delivery Personnel or Merchant that uses our Platform. Similarly we are not responsible for the safety, preparation, or handling of any food or goods or other Product sold by the Merchants on our Platform. The User agrees that Kula Australia does not guarantee that images, menu listings, catalogues, descriptions or any other information (including ingredients, nutritional, or allergen details) displayed through our Platform accurately represent the Products sold and/or delivered by the Merchants and/or Delivery Personnel. The verification of Merchants’ adherence to applicable laws or regulations does not fall within our purview. Therefore, we cannot be held responsible or liable for any actions or omissions by any Merchants using our Platform.
USER TERMS
Your obligations as a User
As a User, you acknowledge and agree with the following:
to comply with the Terms;
use the Platform and the Services only for purposes that are permitted by:
the Terms;
any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
you have the sole responsibility for protecting the confidentiality of your password and / or email address and you will not disclose to any third party the password used to access your account. You agree to immediately notify Kula Australia of any unauthorised use of your password or email address or any breach of security of which you have become aware. Use of your password by any other person may result in the immediate cancellation of the Services;
any use of your registration information by any other person, or third parties, is strictly prohibited;
access and use of the Platform is limited, non-transferable and allows for the sole use of the Platform by you for the purposes of Kula Australia providing the Services and only for the duration that you are a User;
that you are personally liable for the account, even if you are acting on behalf of a third party;
to not disclose to any third party the password used to access your account. If you discover that a third party has accessed your account or knows your account password, you must immediately notify Kula Australia in writing at support@koolaa.com.au
that you are solely responsible for the activity that occurs under your account, including but not limited to any direct messages you send, or any Orders that you make for a Product;
you may be entitled to “points”, “referral", or “loyalty” system, and if any is offered will be subject to additional terms and conditions;
you must not:
expressly or impliedly impersonate another User or use the account or password of another User at any time.
use the Services or Platform for any illegal and/or unauthorised use which includes collecting email addresses of Users by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Platform;
provide false information including false names, addresses and contact details;
use the Platform unlawfully or in a manner that violates any applicable laws, regulations or these Terms;
hack into any part of the Platform or attempt to circumvent Kula Australia’s security, systems, infrastructure or network to access data not intended for you;
interfere with the servers or networks connected to the Platform or the Services, or violate any of the procedures, policies or regulations of networks connected to the Platform or the Services;
engage in conduct or access the Platform in a way that will impose an unreasonable or large burden of traffic demands on Kula Australia’s infrastructure;
introduce or transmit files that contain a virus, malware, “spam”, “chain letters” promotional materials, or “junk mail”;
upload or post content to the Platform which is false, misleading, defamatory or contains sexually explicit material, references or innuendos;
act in a way that is unlawful, harassing, threatening, abusive, violent, discriminatory, intimidating, or predatory, or that otherwise would disrupt others’ enjoyment of the Platform.
use the Platform or Services in connection with any commercial endeavours except those that are specified or approved by the Terms;
use the Platform or Services for any illegal and/or unauthorised use which includes collecting email addresses of other Users by electronic or other means for the purpose of sending unsolicited communication or unauthorised framing of or linking to the Platform;
create derivative works of the Platform or an application substantially similar or a direct copy of the Platform such that confusion may occur as to which Platform is operated by Kula Australia;
resell or export the software associated with the Platform or any of the videos uploaded on the Platform; and
automate the use of the Website or the Services; and
you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Platform without notice and may result in termination of the purchase Services. Appropriate legal action will be taken by Kula Australia for any illegal or unauthorised use of the Platform.
User Content
The Platform contains interactive opportunities, including, the ability to post User ratings and reviews (collectively, User Content). The User represents and warrants that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Platform. You grant Kula Australia a perpetual, irrevocable, transferable, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with Kula Australia’s business without notification to and/or approval by you. You further grant Kula Australia a license to use your username and/or other User profile information, including without limitation your ratings history, to attribute User Content to you in connection with such uses, without notification or approval to you.
Your ratings and reviews are considered User Content. Ratings and Reviews are not endorsed by Kula Australia and do not represent the views of Kula Australia. Kula Australia does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Given the impact of ratings and review’s on a Merchant or Delivery Personnel’s business, all Users agree:
to base any rating or review on first-hand experience with the Merchant or Delivery Personnel.
to avoid rating or reviewing any Merchant for which you have an ownership interest, employment relationship or other affiliation or for any of that Merchant’s competitors;
to not submit a rating or review in exchange for payment, or other gifts or benefits; and
your reviews will comply with these Terms.
We reserve the right to remove any rating or review without notice that is found to be falsely submitted or inaccurate, at our sole discretion.
CONSUMER TERMS
Using the Platform as a Consumer
When purchasing the Products through the Platform, the Consumer agrees to pay the Purchase Price once the Order is accepted.
The Consumer acknowledges that all payments of the Purchase Price will be processed through a third party payment gateway provider Stripe (the Payment Gateway Provider). In using the Services the Consumer warrants that you have familiarised yourself with, and agrees to be bound by, the applicable Terms and Conditions of Use, Privacy Policy and other relevant legal documentation provided by the Payment Gateway Provider prior to placing an Order.
Following payment of the Purchase Price being confirmed by Kula Australia, the Consumer will be issued with an Order Confirmation and Receipt through the Kula Australia Platform, to confirm that the Order has been received. The Merchant and Kula Australia may record the Consumer’s purchase details for future use.
The Consumer acknowledges that Merchants have the discretion to reject Orders at any time, at their discretion. We will attempt to notify you as soon as reasonably practicable if a Merchant rejects your Order.
The Consumer acknowledges and agrees:
that by submitting an Order for a Product, they are making an offer to purchase the Product and, if accepted, entering into an agreement to buy that Product from the Merchant, not Kula Australia;
that Kula Australia only offers the Services across Australia and is in no way responsible for the Products or Delivery;
that Kula Australia is not responsible for the information provided by the Merchant regarding them holding a valid alcohol licence or the delivery of any alcohol. Your offer to purchase alcohol is subject to acceptance of your offer by the Merchant holding a valid alcohol licence and evidence of you being over the age of 18 years of age;
that Kula Australia reserves its right, at any time and without prior notice, to remove or disable your access to the Platform at Kula Australia’s discretion and for any reason, including but not limited to, if Kula Australia believes that you have caused any abusive, threatening, sexist or racist comments or actions made towards other Users;
that all Products may include allergens not listed on the Product Listing, and they are responsible to inquire regarding any dietary or allergy requirements before placing an Order;
to communicate with the Merchant respectfully and professionally;
to check all the information entered is error-free before placing an Order, as errors cannot be corrected after an Order is placed; and
to provide the proof of age to the Merchant at the time of placing the Order and/ or the delivery of the Products if the Products include any alcohol.
The Consumer agrees that the Products that you purchase will be prepared by the Merchant you have selected, that title to the Products passes from the Merchant to you at the Merchant’s location, and for delivery Orders, the Delivery Personnel will be directed by your instructions to transport the Products to your designated delivery location. Neither the Delivery Personnel nor Kula Australia holds title to or acquires any ownership interest in any Products that are ordered through the Platform.
Consumer Fees
Purchase Prices for individual items are quoted on the Platform in AUD. These prices include any applicable taxes but exclude any delivery costs (if applicable) and any Payment Gateway Provider charges. These will be added to the total amount due where applicable.
The Consumer understands that the prices for menu or other items displayed on the Platform may differ from the prices offered or published by Merchants for the same menu or other items and/or from prices available at other third-party websites and that such prices may not be the lowest prices at which the menu or other items are sold.
Payments for Orders must be made by an accepted credit or debit card, online payment systems (such as PayPal), promotional codes or any other payment methods that our Platform may make available from time to time. We reserve the right to add or remove payment methods at our discretion. Please note that from time to time there may be delays with the processing of card payments and transactions; this may result in delays in sums being deducted from your bank account or charged to your credit or debit card.
By providing a payment method, you express your intent to purchase and place an Order and you authorise us to charge your provided payment method.
Kula Australia, or the Merchant, may make promotional offers with different features and different rates to any of the Consumers. Any promotional codes or other promotions provided by our Platform cannot be used in conjunction with any other promotion or offer, and are only valid for the specified period stated.
If payment fails at any point, due to insufficient funds, invalid or expired payment details, or otherwise, your Order will not be deemed to be placed.
If a Merchant has a minimum Order amount in place, you may not place an Order with that Merchant until the value of your Order exceeds that amount. The minimum Order amount must be met after applying any discounts or specials that reduce the total Order amount.
Once you have submitted an Order that you are paying for by credit or debit card and your payment has been authorised, you will be charged the full amount of your Order. If your Order is subsequently rejected by the Merchant or cancelled for any other reason, your bank or card issuer will refund the relevant purchase amount. However, this may take between 3 to 5 working days (or longer, depending on your bank or card issuer). You acknowledge and agree that neither we nor the relevant Restaurant will be responsible or liable to you in relation to this delay by your bank or card issuer in the release of funds back into your account.
If you believe a payment has been processed in error, you must provide notice to us within a reasonable time after the transaction has taken place, providing details of the transaction and the basis for dispute.
For Orders placed with Merchants, to the extent permitted by law, charges paid by the Consumer for completed and delivered Orders are final and non-refundable and Kula Australia has not obligation to provide refunds or credits. Merchants will be liable for any major or minor problems with Orders for which they are responsible, though Kula Australia may assist, at its discretion, with remedies such as refunds or credits.
By making an Order, the Consumer acknowledges that where the Consumer or the recipient are not at the location of delivery and the delivery provider is required to wait for more than ten (10) minutes prior to being able to complete the delivery as arranged, a fee for the delay may apply to the Order, at the Merchant’s sole discretion (the Delay Fee).
Kula Australia reserves the right to change the fees for our Platform as we deem necessary or appropriate.
Consumers must pay before the processing method, such as clean, clean and cut, fillets, curry pieces, fry pieces, cut and skin off, is applied by meat and seafood merchants who charge based on item weight.
When the delivery is made Koolaa or merchant partner Service fee applied Certain delivery orders are subject to a service charge, which is determined by the kind of merchant and the order value, among other things. The service charge contributes to order-related expenses. $10 is the maximum service cost per order. You will always be informed of the service charge, which is 10% up to $10, at the time of checkout before you place your order.
MERCHANT TERMS
Using the Platform as a Merchant
As a Merchant, the Platform provides you with an opportunity to post Merchant Listings and sell Products to Consumers.
To use the Platform, including posting a Merchant Listing on the Platform, Merchants must:
provide an accurate description and price of the Product(s);
disclose all ingredients, including any allergens, in the Product and in a manner as required by law (if any);
respond to any Consumer inquiry prior to accepting an Order, including regarding dietary or allergy requirements;
upload the Additional Term in the Platform (if any);
maintain at its own cost, all the applicable registrations, certifications, insurances, permits, and the like;
supply the Products at the highest standard; and
ensure the Products are:
fit and suitable for the relevant purpose;
free from any defects in design, material and workmanship;
free from all liens and encumbrances; and
in a safe working condition.
The Merchant acknowledges and agrees:
that by accepting an Order for a Product, you are entering into an agreement to sell that Product to the Consumer, not Kula Australia;
not to post any unauthorised items which includes services, jobs, real-estate, animals, event tickets, expired food and drink, gift vouchers, prescription medication or illegal substances and tobacco products;
to adhere to, and ensure that its agents, employees, contractors, officers, and directors adhere to, the Privacy Policy and all relevant standards, directives, codes, regulations, and laws (including but not limited to OHS and Food Safety);
the Product will be sold to the Consumers when you accept the Order;
you will be responsible for providing the Product stipulated in the Orders;
you will be available to accept Orders on the Platform during your restaurant or store’s opening hours;
if the Consumer requests to pick up Order, and you agree, you will use best efforts to arrange pick-up of the Product by the Consumers and that you will meet with the Consumers at the arranged time and location to give the Product to the Consumers;
if the Consumer requests delivery, and you agree, you will hand over the Products to the Delivery Personnel;
the Merchant Listing will be of a professional standard and will not violate any applicable laws;
the Merchant Listing posted does not infringe any intellectual property rights or other rights under the law;
you have any required permissions or authorisations to upload the Merchant Listings onto the Platform;
any text, photos and information uploaded or posted onto the Platform in relation to the Merchant Listing is accurate, current and correct to the best of your knowledge;
Kula Australia facilitates the acceptance of payments by the Consumer to you, using a Payment Gateway Provider or payment method selected by Kula Australia;
ou are responsible for payment of all fees stipulated below and any incidental charges to Kula Australia for the Services, as specified in these Terms;
you will be fully liable for collection and payment of GST, and your GST obligations rest solely on you;
you are responsible for removing Merchant Listings if the Merchant Listing breaches any relevant laws or upon Kula Australia’s request; and
to promote the Platform:
at its premises where a Consumer or Delivery Personnel collects an Order
on the Merchant’s social media accounts; and
conduct all marketing related to the Platform,
pursuant to the instruction of Kula Australia and the media or promotional guidelines (if any).
The Merchant acknowledges and agrees that Kula Australia reserves the right, at any time and without prior notice, to remove the Merchant Listing from or disable your access to the Merchant Portal of the Platform at Kula Australia’s sole discretion without notice and for any reason, including, but not limited to, if Kula Australia finds that:
the Merchant Listing is misleading or false;
the Merchant Listing is offensive;
the Merchant Listing is abusive, threatening, or discriminatory;
the Merchant Listing violates these Terms;
the Merchant Listing is harmful or damaging to the Platform, the Services, and the Users;
Kula Australia is required to by law, or requested to by law enforcement; or
a claim is made that the Merchant Listing violates the intellectual property rights of a third party.
The Merchant warrants that it holds a valid alcohol licence if it intends to provide alcohol to the Consumers who are above the age of 18 years, and the Merchant will make all reasonable inquiries about the eligibility of the Consumers that they are above the age of 18 years before the delivery of the Product. Additionally, the Merchant will comply with all laws and codes of conduct regarding the delivery of alcohol.
Merchant Fees
The fees payable by Merchants to Kula Australia (Merchant Fees) depend on the subscription option selected by the Merchant.
Option 1 – Subscription Fee
Under this option, the Platform will deduct a fee equal to 30% of the total value of each Order including GST placed by a Consumer through the Platform (Subscription Fee) requiring delivery. The Subscription Fee will be deducted from the total value of the Order before the remaining balance is paid to the Merchant.
Where a Consumer elects to pickup their Order from the Merchant directly, the Platform will deduct a fee equal to 30% of the total value of each Order including GST. This fee will be deducted from the total value of the Order before the remaining balance is paid to the Merchant. For the avoidance of doubt, this Merchant will only be charged a 30% fee for pickup-based Orders. Subscription Fee stipulated in 11.1(a)(i).
Where the Merchant provides delivery services and elects to deliver a delivery Order to the Consumer directly, the Platform will deduct a fee equal to 14% of the total value of each Order including GST. This fee will be deducted from the total value of the Order before the remaining balance is paid to the Merchant. For the avoidance of doubt, this Merchant will only be charged a 14% fee for Orders the Merchant is delivering itself and not the 30% Subscription Fee stipulated in 11.1(a)(i).
Where a Merchant chooses to deliver an Order themselves, they are bound by the terms in clause 12.2.
Option 2 – Membership Fee
Under this option, the Merchant pays a weekly flat fee of $49 AUD (Membership Fee), or as otherwise agreed between Kula Australia and the Merchant . In addition to the Membership Fee, a fee of $5 AUD will be charged to the Merchant for each Order that requires delivery (Flat Delivery Fee).
In addition to the Subscription Fee or Membership Fee, the Merchant shall also pay a Payment Processing Fee per Order (Payment Processing Fee). The Payment Processing Fee will be deducted from the total value of the Order before the remaining balance is paid to the Merchant.
The Payment Processing Fee is determined by the Payment Gateway Provider and is subject to change. The Merchant agrees to pay this fee for each transaction processed through the Platform.
The Merchant acknowledges and agrees that Kula Australia is entitled to add on an additional delivery fee for all Orders involving delivery, chargeable to the Consumer.
Each Merchant is required to commit to a minimum of five (5) promotions per week, with a minimum discount of 15% per Order. This means that, within each calendar month, the Merchant must offer at least five (5) Products at a promotional price.
All refunds and returns are subject to the discretion of the Merchant. In the event of a refund, the payment must be returned from the Merchant to the Platform for processing. For the avoidance of doubt, Kula Australia may also require the Merchant to process a refund or return, which the Merchant must comply with.
The Merchant is solely responsible for all communications with Consumers regarding refunds and returns for making decisions on such matters. Kula Australia does not hold responsibility for the Merchant’s decisions on refunds and returns.
Kula Australia reserves the right to modify, adjust, or change the Merchant Fees at any time. We will provide the Merchant with a notice of any changes at least thirty (30) days prior to the change coming into effect. Continued use of the Platform after the effective date of any changes constitutes acceptance of the revised Merchant Fees.
In the event of late payment or non-payment of the Merchant Fees by the Merchant, Kula Australia reserves the right to suspend or terminate the Merchant’s access to the Platform, in addition to any other remedies available under law.
DELIVERY TERMS
Using the Platform as Delivery Personnel
As Delivery Personnel, the Platform allows you an opportunity to earn fees for delivering Orders between Merchants and Consumers.
The obligations under this clause 12, 13 and 14 that apply to Delivery Personnel also apply to Merchants that opt to deliver Orders to Consumers themselves, and do not require separate Delivery Personnel from the Platform to facilitate the Order.
The Delivery Personnel acknowledges and consents that, prior to onboarding you as a Delivery Personnel on the Platform, we may conduct a Visa Entitlement Verification Onlince (VEVO) check to confirm your work rights in Australia. This is in accordance with our compliance and Australian immigration laws and regulations. Your acceptance of these Terms includes your agreement to cooperate fully with this process and provide all necessary information and documentation to facilitate the VEVO check. Failure to provide such consent, information, or documentation, or a negative result from the VEVO check may result in your inability to be onboarded or continue as Delivery Personnel on our Platform.
In accordance with clause 4, you:
represent and warrant that any registration information (including drivers’ licence details and vehicle details) you provide to Kula Australia is true, accurate and current and that you will notify Kula Australia immediately of any changes to that information; and
understand that by supplying Kula Australia with information such as an email address and phone number, you may receive regular emails, telephone calls, SMS updates or in-app notifications from Kula Australia in order to keep you updated, including in relation to potential Orders and to keep you informed about invoices or other matters regarding the Platform and/or its features;
You acknowledge and agree that, in using the Platform, and by providing Delivery Services:
you are not employed by Kula Australia in any capacity and, accordingly, you do not have any rights as employees of Kula Australia; and
nothing in these Terms, or otherwise, creates, or will be deemed to create, any partnership, the relationship of principal and agent, or the relationship of employer and employee.
Your relationship with Kula Australia is limited to being a User of the Platform, and not an employee, agent, joint venturer, or partner of Kula Australia. You must not do anything to create any false impression that you have such a relationship with Kula Australia as Kula Australia is only a facilitator.
Delivery Services
If you accept an engagement on the Platform to deliver an Order, you acknowledge that you are solely responsible for providing those Delivery Services and agree that those Delivery Services are to be performed:
in accordance with all applicable laws and regulations which apply to your provision of the Delivery Services, including but not limited to Consumer Guarantees with respect to Delivery Services, delivery of alcohol/tobacco, road rules and licensing or permit requirements;
with due care, skill and diligence, and to a standard expected of a person both competent and experienced in providing services the same or similar to the Delivery Services;
within a reasonable period of time, if no time for the performance of Delivery Services is suggested;
in a proper, workmanlike, professional and ethical manner;
honestly, faithfully, diligently and in a competent, courteous, respectful and professional manner; and
in accordance with these Terms.
Where you accept a Delivery Service engagement on the Platform to deliver an Order, you agree to:
proceed to the applicable Merchant(s);
retrieve the Product(s) in a safe and timely fashion;
ensure the Delivery Service is accurately performed according to the instructions, specifications, or guidelines of the Consumer, Merchant, or any other party requesting the service; and
complete delivery of the Product(s) to the Consumer(s) in a safe and timely fashion without taking any action that would change the quality or presentation of the Products and while adhering to reasonable expectations of food safety, quality, and health standards as required by the Merchant(s) and/or applicable law.
A Delivery Service is considered complete when all Products have been delivered to the Consumer, or when applicable, placed in a designated area as instructed by the Consumer. You must mark each delivery as completed in a timely manner upon completion.
If the Consumer is not available, you agree that the delivery will only be considered complete if:
you make reasonable efforts to contact the Consumer and wait a reasonable time for the Consumer to accept the Products;
you leave the Products at the Consumer location or return the Products if a return is required.
Under no circumstances is the Delivery Personnel to take or keep the Products.
Kula Australia may at any time suspend your access to the Platform indefinitely if it reasonably believes that you do not have the requisite licenses or permits to perform the Delivery Services or have engaged in misconduct or are incompetent or negligent or are otherwise failing to deliver the Delivery Services in accordance with these Terms.
You acknowledge that Kula Australia has discretion as to which, if any, Delivery Service engagements to present to the Delivery Personnel, just as you have the discretion whether to accept any Delivery Service engagement.
You authorise Kula Australia, during the course of any Delivery Services, to communicate with the Delivery Personnel, the Consumer, and the Merchant, and/or facilitate direct communication between the parties for the purposes of assisting the Delivery Personnel in their performance of the Delivery Service engagement.
You must advise Kula Australia immediately, or as soon as reasonably practicable, of any damage, injury, delay or expected delay in respect of performance of the services.
You must:
provide Kula Australia with evidence of your permit or licence number (if required by law) within seven (7) days upon request by Kula Australia;
keep and maintain accurate and complete records relating to the Delivery Services, including but not limited to, hours logged, deliveries completed, income received and GST for the purposes of complying with your obligations under any applicable law; and
turn on your GPS location service on your mobile phone at all times during a delivery to enable to Consumers to view the location of the Products while they are being delivered. By turning on the GPS location service on your mobile phone, you authorise Kula Australia, the Consumers and the Merchants to view your GPS location for the purpose of tracking the Products and any related matters.
Under no circumstance shall Kula Australia be authorised to control the manner or means by which you perform the Delivery Service engagement, including but not limited to the following:
Kula Australia does not require any specific type, or quality of, choice of transportation;
The Delivery Personnel does not have any supervisor or individual at Kula Australia to whom they report;
The Delivery Personnel is not required to use any signage of Kula Australia on their vehicle or person; and
Kula Australia has no control over the Delivery Personnel’s appearance, including uniform.
From time to time, Kula Australia may enable the Delivery Personnel to receive services from third parties while performing the Delivery Services. You understand that these services are subject to the terms and conditions of each such third party provider. You agree that Kula Australia is not responsible and may not be held liable for these services or actions or omissions of any third party provider. By way of example, the Delivery Personnel may use Google Maps when performing the services, and will be subject to Google’s terms and privacy policy.
Delivery Personnel Obligations
As a User of the Platform and its features, you agree to be bound by the obligations stipulated in clauses 4, 5, 6 and 7.
In addition to your obligations as a User of the Platform, you are required to provide Kula Australia with:
An Australian Business Number (ABN);
The type or model of the vehicles you will use to deliver the Products; and
a valid driver’s licence.
You acknowledge and agree Kula Australia may be required to verify your identity, the vehicle registration details, your ownership of the vehicle and/or any other information that Kula Australia reasonably believes would increase the level of risk associated with your provision of the Delivery Services. Accordingly, you consent and authorise Kula Australia to obtain such information for the purpose of assessing your risk.
At all times, you must take out and maintain at your own cost, adequate and appropriate insurance, including workers compensation insurance in compliance with the Work Health and Safety Act 2011 (Cth) as amended from time to time and any other insurance that may be required under statute or reasonably required by Kula Australia, including but not limited to motor vehicle insurance and compulsory third party insurance.
You must pay all premiums for insurances and must bear the cost of any excesses and deductibles under those insurance.
You must produce certificates of currency for any of the insurance policies taken out by you within seven (7) days upon request by Kula Australia.
You warrant that any information that you provide pursuant to these Terms will be true and correct to the best of your knowledge and belief. Failure to comply with this clause will warrant an immediate termination of your account.
You carry all risk associated with providing the Delivery Services.
You must complete, if required by the Platform, mandatory Delivery Personnel training and induction programs prior to commencing the Delivery Services.
You must provide and maintain, at your own expense, all equipment and tools necessary to perform the Delivery Services, including vehicles and food thermal bags. In respect of the vehicle which you use for the provision of Delivery Services, you must, at your own expense, regularly service the vehicle in accordance with manufacturer recommendations, and pay for any associated expenses, including but not limited to, vehicle maintenance, petrol, traffic fines or penalties, parking fees and mobile device costs and fees.
Payments for Delivery Services
The standard payment rate for Delivery Personnel is determined by Kula Australia’s standard pay model, unless an alternative rate is agreed upon, or Kula Australia provides written notification of a different rate, or as otherwise detailed in these Terms. The standard pay model is stipulated below:
Flat Fee of $4 per Order + $0.65 per KM per Order. Maximum earning of $15 per Order. This standard pay model is inclusive of GST.
The Delivery Personnel will be paid by weekly direct debit deposit into their nominated bank account. Occasionally, Delivery Personnel may have the chance to earn extra by performing tasks at certain times or places. Kula Australia can withhold or modify payment if there's reasonable suspicion of the Delivery Personnel attempting fraud or misuse of the Platform. Delivery Personnel can choose to accept or decline different payment opportunities.
Consumers can choose to leave a tip for the Delivery Personnel through the Platform. Any tips received, whether in cash or by card, belong entirely to the Delivery Personnel.
Kula Australia handles all payments made by Consumers or Merchants through its Platform, transmitting the due payment for the Delivery Services to the Delivery Personnel on a weekly basis. Delivery Personnel are responsible for ensuring their bank account or debit card details are correct to receive payments on time. Kula Australia is not liable for delayed or lost payments due to inaccurate account information.
Kula Australia occasionally runs promotions or referral programs. Delivery Personnel must not exploit or manipulate these offers by, for instance, tampering with their mobile phone's location feature, falsely claiming incentive or promotional pay, or creating multiple accounts. Such fraudulent activities are a severe violation of these Terms and could result in the termination of the Delivery Personnel’s account.
In the event of a payment dispute, the Delivery Personnel shall not be entitled to payment as described above. Any withholding of payment by Kula Australia shall be based upon evidence provided by the Consumer, Merchant, Delivery Personnel, and/or any other party with information relevant to the dispute. Kula Australia shall determine whether a failure to perform the Delivery Service was the result of a Delivery Personnel’s action or omission. The Delivery Personnel will be entitled to challenge the determination by Kula Australia, in accordance with the dispute resolution terms in these Terms.
You agree and acknowledge that you are responsible and liable for your own GST payments and other tax obligations.
GENERAL TERMS
Additional Terms
The Merchant agrees that they are responsible to provide any Additional Terms if they choose to do so. Kula Australia recommends that the Merchant have a lawyer or legal counsel review their Additional Terms before posting them on the Platform. The Additional Terms will be binding on the Merchant and will set out the relationship between the Merchant and the Consumer to the extent that they do not conflict with the Terms or Privacy Policy.
Kula Australia, and its affiliates, employees, agents, contributors and licensors shall not be liable to the Merchant in any way, including, but not limited to, for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by the Merchant, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss relating to any of your Additional Terms.
The Merchant shall indemnify and defend Kula Australia and its employees, agents and contractors (those Indemnified) against claims, liabilities, losses, damages, costs and expenses made against, or suffered or incurred by, those Indemnified as a result of using or not using Additional Terms.
Complaints and Cancellation
Any complaint or cancellation in relation to an Order will be organised directly between the Consumer and Merchant. The handling of a complaint and a cancellation of an Order is at the Merchant’s sole discretion pursuant to the Additional Terms. If a complaint is made to Kula Australia regarding an Order, then Kula Australia will review the complaint and make a binding determination if necessary.
Refund Policy
Any refunds pertaining to a Product are to be organised directly between the Consumer and Merchant. A refund is at the Merchant’s sole discretion pursuant to the Additional Terms and will not include any fees or commissions.
Copyright and Intellectual Property
The Platform, the Services and all of the related products of Kula Australia are subject to copyright. The material on the Platform is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the Platform (including text, graphics, logos, button icons, video images, audio clips and software) (the Content) are owned or controlled for these purposes, and are reserved by Kula Australia or its licensors.
Kula Australia retains all rights, title and interest in and to the Platform and all related Content. Nothing you do on or in relation to the Platform will transfer to you:
the business name, trading name, domain name, logo, trademark, industrial design, patent, registered design or copyright of Kula Australia; or
the right to use or exploit a business name, trading name, domain name, logo, trademark or industrial design; or
a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).
Kula Australia and each User retain all rights, title and interest (including copyrights, patents and trade marks) in its Merchant Listing and any of its other content uploaded on the Platform (the Uploaded Content). The User grants to Kula Australia a non-exclusive, transferable, royalty-free licence to use your Uploaded Content, trade marks and business name for marketing and promotional purposes via the Platform, social media and any other medium Kula Australia deems fit. Kula Australia will own any results, methodologies, data or meta data, including any analyses, index results, or reports, which is either contained within, gleaned through, derived from, captured by, or generated by your use of the Services or the Uploaded Content (Derivative Materials).
You acknowledge and agree that Kula Australia exclusively and unconditionally owns the Moral Rights in all the Derivative Materials, Uploaded Content, materials and documents relating to the Products or Services.
You acknowledge and agree that to the extent that you have Moral Rights in any of the Content, Derivative Materials, Uploaded Content, materials, and documents relating to the Terms, you will provide a Moral Rights Consent to Kula Australia.
You may read and copy the Material to the extent necessary to use the Services and receive the Products, but you may not publish, resell or sub-licence it. Kula Australia makes no guarantees, representations or warranties about the accuracy or correctness of any of the information on Kula Australia.
For purposes of clause 15.8, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified in the media or promotional guidelines (if any).
Subject to these Terms, you hereby grant to Kula Australia and its affiliates for no consideration, a limited, non-exclusive and non-transferable license to use your Marks, on a royalty-free basis, for the sole purpose of performing the promotional activities as set forth in media or promotional guidelines (if any). All goodwill related to the use of any Marks shall inure to the benefit of the owner of such Marks. Each Mark licensor reserves the right to revoke the licensee’s permission to use the licensor’s Marks should the use be noncompliant with the media or promotional guidelines (if any), or negatively impacts or disparages the Mark.
You may not, without the prior written permission of Kula Australia and the permission of any other relevant rights owners: broadcast, republish, upload to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose.
Privacy
Kula Australia takes your privacy seriously and any information provided through your use of the Platform and / or the Services are subject to the Privacy Policy.
General Disclaimer
You acknowledge and agree that Kula Australia does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.
Kula Australia will make every effort to ensure a Product listed by a Merchant is accurately depicted on the Platform, however, you acknowledge that ingredients, preparation methods, sizes, colours and packaging may differ from what is displayed on the Platform.
Kula Australia do not warrant or represent that the Products listed on the Platform are free from error or omission or that they have been accurately described.
Kula Australia does not provide any guarantees as to the quality of the Products listed on the Platform.
Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
Subject to this clause, and to the extent permitted by law:
all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
Kula Australia will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Services or these Terms (including as a result of not being able to use the Services or the late supply of the Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
Use of the Platform, the Services, and any of the products of Kula Australia is at your own risk. Everything on the Platform, the Services, and the Products of Kula Australia, are provided to you on an "as is" and "as available" basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Kula Australia make any express or implied representation or warranty about its Content or any products or Services (including the products or Services of Kula Australia) referred to on the Platform. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
the accuracy, suitability or currency of any information on the Platform, the Service, or any of its Content related products (including third party material and advertisements on the Platform);
costs incurred as a result of you using the Platform, the Services or any of the Products;
the Content or operation in respect to links which are provided for the User's convenience;
any failure to complete a transaction, or any loss arising from e-commerce transacted on the Platform; or
any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any
Limitation of Liability
All Parties’ total liability arising out of or in connection with the Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms, or where you have not paid the Purchase price, then the total liability of Kula Australia is the resupply of the Services to you.
You expressly understand and agree that the Parties to these Terms, and their affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
Kula Australia is not responsible or liable for, including loss of profit, in any manner for:
any site content (including the Content and Third Party Content) posted on the Platform or in connection with the Services, whether posted or caused by Users of the Platform of Kula Australia, by third parties or by any of the Services offered by Kula Australia;
any loss, including loss of profit, if the Consumers fails to pay the Purchase Price to the Merchant;
any failure or delay due to matters reasonably beyond our control; or
if the Consumer or Merchant does not attend the pickup location at the time arranged.
Kula Australia does not control and is not responsible for:
the behaviours and actions of Users. Accordingly, Kula Australia is not responsible for any offensive, inappropriate, obscene or unlawful actions that you may encounter when liaising with the Consumers or Merchant, or in connection with your use of the Services; or
arranging the delivery or pick-up of the Product.
Termination of Contract
The Terms will continue to apply until terminated by either you or by Kula Australia as set out below.
If you want to terminate the Terms, you may do so by:
providing Kula Australia with a written notice at any time of your intention to terminate by writing to Kula Australia via the ‘Contact Us’ link on the Platform’s homepage; and
closing your accounts for all of the Services which you use, where Kula Australia has made this option available to you.
Your elected termination will be effective upon receipt of the notice of your intention to terminate by Kula Australia.
Kula Australia may at any time, terminate the Terms with you if:
you have breached any provision of the Terms or intend to breach any provision;
Kula Australia is required to do so by law;
the partner with whom Kula Australia offered the Services to you has terminated its relationship with Kula Australia or ceased to offer the Services to you;
Kula Australia is transitioning to no longer providing the Services to Users in the country in which you are resident or from which you use the service; or
the provision of the Services to you by Kula Australia is, in the opinion of Kula Australia, no longer commercially viable.
Subject to local applicable laws, Kula Australia reserves the right to discontinue or cancel your use of and access to the Platform at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Platform or the Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Kula Australia's name or reputation or violates the rights of those of another party.
When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Kula Australia have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
Indemnity
You agree to indemnify Kula Australia, its affiliates, employees, agents, contributors, third party content providers and licensors from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with your use of the Platform and/or Services, including, but not limited to:
any misuse of the Platform or Services by you, including and without limitation, any dishonest, inaccurate, incomplete, fraudulent, negligent, wrongful, unlawful, or criminal act or omission by you;
your breach of the Terms, including any misuse of the Content;
any interaction between the Consumers and Merchant, including but not limited to the consumption or use of a Product, sale of a Product, a Product or a Merchant Listing; or
any activity which you engage in on the Platform or through Kula Australia, including uploading or posting information.
This indemnity will survive termination of the Terms.
Force Majeure
Force Majeure Event means a cause beyond a Party’s reasonable control such as acts of God, regulation or other acts of civil or military authority, a change in laws, fires, riots, protests, embargoes, floods, epidemics or any communicable diseases, quarantine restrictions, delays in transportation, inabilities to obtain necessary labour, materials, or manufacturing facilities, or telecommunication or utility failure or outage.
No Party to the Terms will liable to any other Party for any loss or damages resulting from for the delay or failure to perform as required by any provisions of the Terms, or Additional Terms, that result from or related to a Force Majeure Event, excluding payment by the Consumer.
Dispute Resolution
If a dispute arises out of or relates to the Terms, any parties may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought):
A party to the Terms claiming a dispute (Dispute) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
On receipt of that notice (Notice) by that other party, the parties to the Terms (the Dispute Parties) must within seven (7) days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
If for any reason whatsoever, twenty-one (21) days after the date of the Notice, the Dispute has not been resolved, the Dispute Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee.
The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
The mediation will be held in Sydney, New South Wales.
For the avoidance of doubt, the Dispute Parties need not attend the mediation or other means of resolution in person. The Dispute Parties may attempt to resolve the matter via any means of electronic communications.
All communications concerning negotiations made by the Dispute Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as "without prejudice" negotiations for the purpose of applicable laws of evidence.
If thirty (30) have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Dispute Party may ask the mediator to terminate the mediation and the mediator must do so.
In the event that the Dispute is not resolved at the conclusion of the mediation, either pay may institute legal proceedings concerning the subject matter of the Dispute thereafter.
Venue and Jurisdiction
The Services offered by Kula Australia is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Platform, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
Governing Law
The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
Independent Legal Advice
Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
Entire Agreement
These Terms and any terms referenced or linked herein constitute the entire agreement between the parties concerning the subject matter of the agreement and supersede all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties.
Severance
If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
Waiver
A waiver of any right, power or remedy under these Terms must be in writing signed by the party granting it.
A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
The fact that a party fails to do, or delays in doing, something the party is entitled to do under these Terms does not amount to a waiver.
Assignment
You may not assign your rights or delegate your duties under these Terms or any Additional Terms without our prior written consent.
A purported assignment without written consent will be deemed to be void and convey no rights.
Kula Australia may assign its rights or delegate its duties under these Terms or any Additional Terms without our prior written consent.
Contact
If you wish to notify us about anything relating to these Terms, please contact us at support@koolaa.com.au
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