Terms and Conditions of Use
Table of Contents
Access and use of Casper and the Services is subject to the terms and conditions of use outlined in these Terms.
1. Definitions and Interpretation
1.1. In these Terms unless the context otherwise requires:
“Account Information” has the meaning given in clause 4.2;
“Casper” means the website and mobile or tablet application that provides you access to the Services, as identified in the Schedule;
“Content” means all material, content and information, including but not limited to written text, graphics, images, photographs, logos, trademarks, audio material, video material and any other forms of expression;
“Dispute” has the meaning given in clause 15.1;
“Dispute Notice” has the meaning given in clause 15.2;
“Intellectual Property” or “Intellectual Property Rights” includes all present and future rights in relation to copyright, trade marks, designs, patents or other proprietary rights, or any rights to registration of such rights whether created before or after the date of these Terms;
“Meal Provider” means an independent third party who offers and sells food products or goods, or a service to supply food products or goods, using Casper;
“Member” or “Membership” has the meaning given in clause 4.1;
“Owner”, “We”, “Our” or “Us” means the owner of Casper, as identified in the Schedule, and includes our directors, officers, employees and agents, and expressly excludes Meal Providers;
“Parties” means You and Us;
“Schedule” means the schedule to these Terms;
“Services” has the meaning given in clause 3.1;
“Site Content” means all Content made available on Casper by Us;
“Terms” means this agreement (including the recitals and the Schedule), as amended from time to time;
“Third Party Content” means Content made available on Casper by a third party or Meal Provider; and
“You”, “Your” or “Yourself” means you as the user of Casper.
1.2. In these Terms, unless the context otherwise requires:
(a) headings are for convenience only and do not affect their interpretation or construction;
(b) the singular includes the plural and vice versa;
(c) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to these Terms;
(d) words importing a gender include other genders;
(e) the word “person” means a natural person and any association, body or entity whether incorporated or not;
(f) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re‑enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
(h) a reference to time refers to Eastern Standard Time;
(i) “includes” is not a word of limitation;
(j) no rule of construction applies to the disadvantage of a Party because these Terms are prepared by (or on behalf of) that Party;
(k) a reference to any thing is a reference to the whole and each part of it;
(l) a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
(m) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document.
2. Acceptance to the Terms
2.1. Access to and use of Casper and the Services is governed pursuant to these Terms.
2.2. You accept the Terms by:
(a) reading, reviewing or browsing the Content on Casper;
(b) clicking to accept or agree to the Terms, where this option is made available to You on Casper; or
(c) creating a Membership.
2.3. Notwithstanding clause 2.2, You may not accept the Terms or access Casper if:
(a) You are not 18 years of age or older; or
(b) You are a person barred from entering into contracts under legislation,
in which case, You must immediately leave, remove and cease to use Casper.
2.4. By accepting the Terms, You agree that this is clear and unequivocal proof that the Terms herein are not unconscionable, that there is no unfair bargaining power or position, that there is no duress, and that You have carefully read and understood the Terms.
2.5. If You do not understand any part of the Terms You should seek independent legal advice prior to accessing or using Casper.
2.6. Before You continue, You should print off or save a local copy of the Terms for Your records.
2.7. The Terms are periodically reviewed by Us and We reserve the right to amend or vary the Terms at any time and at Our sole discretion. You should review this page regularly as any changes to the Terms take immediate effect from the date of publication on Casper.
3. The Services
3.1. We provide an electronic and technological platform that enables You to connect with Meal Providers for the purchase of and pick up or delivery of food products or goods (“Services”).
3.2. We do not offer, provide, sell, supply or deliver food products or goods. You acknowledge and agree that all food products or goods or services for the supply of food products or goods purchased by You while using Casper, are purchased from and supplied by the Meal Providers alone.
3.3. Any payment made by You and collected by Us is collected as the Meal Provider’s agent, and such payments will be for all purposes, considered as a payment made directly from You to the Meal Provider.
3.4. We may, in Our absolute discretion and without notice, amend, vary or remove the whole or any part of the Services or Casper. You cannot object to or claim compensation for any amendment, variation or removal of the whole of any part of the Services or Casper.
4.1. In order to use Casper, You will need to provide personal information about Yourself, which may include Your name, address, phone number and email address, as well as details of one valid payment method, to become a registered member (“Member” or “Membership”).
4.2. In becoming a Member, You will also need to nominate a valid User ID and password (“Account Information”).
4.3. You agree that any information You provide to Us will always be accurate, correct and up to date. We may suspend or terminate Your access to Casper or the Services if any information provided is inaccurate, outdated or incomplete.
4.4. In creating a Membership, You understand and agree that:
(a) access and use of Your Membership is limited, non-transferable and allows for the sole use of Casper and the Services by You;
(b) You must keep Your Account Information confidential and must not disclose or make available Your Account Information to any third party; and
(c) You are solely responsible for all activity conducted, orders submitted and purchases made under Your Membership.
4.5. In creating a Membership, You agree to receive commercial messages from Us. You may unsubscribe from such commercial messages at any time by using the “unsubscribe” function within the message.
4.6. We may, in our absolute discretion, at any time and without notice, deny or restrict You from using Casper or creating a Membership or suspend or cancel Your Membership.
5. Provision of Services
5.1. By accepting these Terms and creating a Membership, You are granted a non-exclusive, non-transferable, revocable and limited licence to use the Services.
5.2. Should You submit an order through Casper for the purchase of food products or goods, or a service for the supply of food products or goods from a Meal Provider:
(a) You will pay for and be held liable for the total amount stated on Your order;
(b) You authorise Us to facilitate the payment of Your order using Your payment method provided under Your Membership;
(c) We will collect payment from You on behalf of the Meal Provider in the amount stated as the total amount of Your order;
(d) Upon the collection of payment from You, We will forward such payment to the Meal Provider;
(e) We may use a third party banking merchant to process payments made through Casper and, in these circumstances, Your use of these payment facilities may be subject to the terms and conditions of the third party banking merchant;
(f) the risk and title in any food products or goods You purchase through Casper is borne by You alone;
(g) You must not resell food products or goods to any third parties;
(h) You authorise Us to disclose Your personal information to the Meal Provider whom You have placed an order with; and
(i) any special conditions or terms of sale as specified in Casper prevail over this clause.
5.3. All orders submitted and payments collected as a result of a submitted order are final and non-refundable.
5.4. We will use reasonable endeavours to minimise disruption to the Services.
6.1. You may terminate Your Membership and these Terms at any time by giving Us written notice or selecting to cancel Your Membership in Your account settings on Casper.
6.2. We may terminate these Terms at any time by notifying You or cancelling Your Membership.
7. Third Party Content
7.1. You acknowledge that Third Party Content is made available on Casper. We do not own, are affiliated with, control, endorse, approve of or claim Intellectual Property Rights in any Third Party Content made available on Casper, including but not limited to advertisements and promotional Content or Content belonging to or provided by Meal Providers.
8. Intellectual Property
8.1. The Site Content is protected by copyright and We reserve all Intellectual Property Rights which may subsist in the Site Content and Casper.
8.2. By accepting the Terms, You are granted a non-exclusive, non-transferable licence to view, print pages from or download any Content from Casper for Your personal use only.
8.3. You must not, without Our prior written consent, which may be withheld at Our absolute discretion:
(a) copy, republish, reproduce, duplicate or extract Site Content;
(b) redistribute, sell, rent or licence any Site Content; or
(c) edit, modify or vary the Site Content.
9.2. You acknowledge that upon You submitting an order with a Meal Provider through Casper, We will disclose Your personal information to such Meal Provider.
10. Acceptable Use
10.1. You must not use the Services or Casper, or cause the Services or Casper to be used, in any way which:
(a) breaches any clause of the Terms;
(b) is fraudulent, illegal or unlawful;
(c) is misleading or deceptive;
(d) is inappropriate, indecent, obscene or foul;
(e) harvests or collects information about other Members or users of Casper;
(f) damages, impairs or interferes with the availability or accessibility of or another person’s use or enjoyment of the Services or Casper; or
(g) infringes on any person’s Intellectual Property Rights.
10.2. You must not use, or cause Casper to be used, as a medium which stores, hosts, transmits sends or distributes any Content or material which consists of:
(b) computer viruses;
(e) keystroke loggers; or
(f) any other malicious computer software.
10.3. You must not use the Services in an attempt to replicate the Services or for the purposes of becoming a competitor to Us. You must not or attempt to, reverse engineer or derive the structure or source code of the Services or Casper.
11. Internet Access
11.1. Casper requires the use of internet access. You are responsible for obtaining internet access and any charges or costs associated with obtaining internet access, including data and messaging rates, charges and fees. For the avoidance of doubt, should you access Casper through the use of a wired or wireless-enabled device, You are solely responsible for all charges, rates, fees and costs which may apply during Your access to and use of Casper and the Services.
11.2. We will not be responsible for any malfunctions, delays or issues caused as a result of Your internet access, network connections or electronic communication software. We do not guarantee that Casper will function and operate on any particular hardware, computer or device. Should We amend or update Casper, You are responsible for acquiring or updating any hardware, computer or device as necessary for the use of or access to Casper and the Services.
12. Warranties and Representations
12.1. Use of the Services and Casper is at the Your own risk. Casper, the Services and everything provided to You through Casper is on an “as is” and “as available” basis.
12.2. We do not make and disclaim any warranties, representations or guarantees, whether express, implied or statutory, in relation to the Services or Casper, including but not limited to warranties, representations or guarantees in relation to the:
(a) reliability, timeliness, accuracy or completeness;
(b) fitness for a particular purpose or suitability;
(c) non-violation or non-infringement;
(d) ownership or title;
(e) functionality or availability;
(f) safety; or
(g) merchantability or quality.
12.3. For the avoidance of doubt, We do not warrant:
(a) that the Services will meet Your expectations, requirements or needs; or
(b) that the operation or use of the Services will be uninterrupted or error free.
12.4. We do not make and disclaim any warranties, representations or guarantees, whether express, implied or statutory, in relation to the food products or goods or the services for the supply of food products or goods purchased by You from Meal Providers through Casper or any Third Party Content, including but not limited to:
(a) Meal Providers compliance with the law or food standards or regulations;
(b) Meal Providers ability to supply or deliver food products or goods;
(c) preparation or delivery times for the supply of food products or goods;
(d) the actual supply of food products or goods;
(e) the quality, standard or safety of food products or goods; or
(f) the accuracy of Content used to describe or illustrate food products or goods.
12.5. You accept that the entire risk arising out of your use of Casper and the Services, and any goods or services provided or obtained in connection with your use of Casper and the Services, is borne by You alone to the maximum extent permitted by law.
12.6. This clause 12 will survive termination of these Terms.
13.1. You undertake and agree to indemnify, defend and hold Us harmless against any loss, damage, claim, cost, expense, fee or liability, including but not limited to any claim, demand or action by a third party, any infringement of the Intellectual Property Rights of a third party and any court or legal costs, incurred by or brought against Us, whether as a direct or indirect result of or in connection with:
(a) Your use of or reliance on the Services;
(b) any goods or services obtained through Your use of Casper;
(c) Your failure or delay in making payment for orders submitted on Casper;
(d) the information or Content provided by You to Us or Our use of Your personal information or Content;
(e) any termination or breach of these Terms by You; or
(f) any wilful, incidental, illegal or negligent act or omission by You.
13.2. You agree and accept that the indemnity provided in this clause is reasonable.
13.3. This clause 13 will survive termination of these Terms.
14. Limitation of Liability
14.1. You acknowledge and agree that We are not responsible or liable for any goods or services provided to You by Meal Providers or other third parties, including but not limited to food products or goods or services for the supply of food products of goods.
14.2. To the fullest extent permitted by law, We will not be liable for any loss, damage, claim, cost or liability whatsoever, regardless of whether such claim arises out of breach of contract, infringement, tort, strict liability or otherwise, including but not limited to any loss of profit, anticipated profit, revenue, savings, opportunity, product, use, content, data or business, personal injury or property damage, whether direct, indirect, incidental, special, consequential, exemplary or punitive, regardless of whether We have been advised of the possibility of such damages, as a result of or in connection with the provision of the Services or Your use of Casper, including but not limited to:
(a) Your reliance on the Services;
(b) any variation, suspension or cancellation of the whole or any part of the Services or Your Membership;
(c) the supply, non-supply delay or failure in the supply of any food products or goods purchased through Casper;
(d) any transaction or relationship created between You and a Meal Provider;
(e) anything beyond the Our reasonable control;
(f) the quality or suitability of any food products or goods purchased through Casper;
(g) any termination or breach of the Terms by Us or You; or
(h) any act, omission, negligence or failure by Us, You or a Meal Provider.
14.3. Our total liability for any loss, damage, claim, cost or liability howsoever occurring, regardless of whether We have been advised of the possibility of such damages, will be limited to a refund of the payment amount collected by Us on behalf of the Meal Provider. Such refund shall be provided at Our absolute discretion.
14.4. You agree and accept that the limitation of liability provided in this clause is reasonable.
14.5. This clause 14 will survive termination of the Terms.
15. Dispute Resolution
15.1. Neither Party shall start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of these Terms (“Dispute”) unless it has complied with this clause.
15.2. A Party claiming that a Dispute has arisen must give notice as soon as practicable to the other Party to these Terms specifying the nature of the Dispute (“Dispute Notice”).
15.3. During the fourteen (14) day period after a Dispute Notice is served (or any longer period agreed in writing by the Parties), each Party must use its best efforts to resolve the Dispute.
15.4. If the Dispute is not resolved following the expiration of the fourteen (14) day period pursuant to clause 15.3, the Parties must endeavour to jointly engage a mediator and endeavour to agree on the mediator’s terms of engagement.
15.5. If the Parties fail to agree on the engagement of a mediator and/or the mediator’s terms of engagement within twenty-five (25) days of service of a Dispute Notice, either Party may apply to a local body of accredited mediators to appoint a mediator and determine the terms of the mediator’s engagement.
15.6. Any information or documents disclosed by either Party under this clause:
(a) is on a without prejudice basis;
(b) must be kept confidential; and
(c) may not be used except to attempt to resolve the Dispute.
15.7. Each Party must bear its own costs of complying with this clause, and the Parties must bear equally the costs of any mediator engaged under clauses 15.4 or 15.5.
16. General Provisions
16.1. All notices, demands and other communications between the Parties for the purposes of these Terms shall be in writing and addressed to the Party’s address stipulated in the Schedule. Such notice, if delivered personally or sent by facsimile or email, shall be deemed received on that day or if delivered by other means, after two (2) business days of sending.
16.2. Any provision of, or the application of any provision of these Terms which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
16.3. Any provision of, or the application of any provision of these Terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
16.4. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these Terms.
16.5. These Terms shall be governed by and construed in accordance with the law for the time being applicable to Our registered place of business and You agree to submit to the non-exclusive jurisdiction of the Courts in that jurisdiction.
Casper: http://www.chefcasper.com and related mobile and tablet applications
Owner: Chef Casper Pty Ltd A.C.N. 609 911 980