Last Updated: April 2017
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS.
1. INTRODUCING FOODIKTED
1.1 WHO WE ARE
Key words and terms used in these Terms are defined below.
1.2 WHAT WE DO
Foodikted provides an online platform that connects Hosts who wish to provide Guests with a dining and food experience at their premises (collectively, the "Services"), which Services are accessible at http://www.foodikted.com/ and any other websites through which Foodikted makes the Services available (collectively, the "Site") and as applications for mobile devices (the "Application").
If you sign up as a Host or Guest, then you are a Member for the purposes of these Terms.
1.3 WHAT WE DO NOT DO
Foodikted cannot and does not control the content contained in any Host’s Dining Menu or the food served at the Meal, or the condition, legality or suitability of any premises, kitchen or food, the attendance at which is facilitated by Foodikted. Foodikted is not responsible for and disclaims any and all liability related to the premises, any and all food provided or supplied. Any food offered will be accepted at the Member's own risk.
You understand and agree that Foodikted is not a party to any agreements entered into between Hosts and Guests, nor is Foodikted an agent, restaurant, café, caterer or any other provider of food or food related services. Foodikted has no control over the conduct of Hosts, Guests and other users of the Site and Application or any food, and disclaims all liability in this regard to the maximum extent permitted by law.
2 JOINING FOODIKTED
The Site and Application are intended solely for persons who are 18 or older. Any access to or use of the Site, Application or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 18 or older.
2.2 ACCOUNT REGISTRATION
In order to access certain features of the Site and Application, and to become a Host or Guest, you must register to create an account ("Foodikted Account") and become a Member. You may register to join as a Member directly via the Site or Application or as described in this section.
You can also register to join by logging into your account with certain third-party social networking sites ("SNS") (including, but not limited to, Facebook; each such account, a "Third-Party Account"), via our Site or Application, as described below. As part of the functionality of the Site and Application, you may link your Foodikted Account with Third-Party Accounts, by either:
(a) providing your Third-Party Account login information to Foodikted through the Site, or Application;or(b) allowing Foodikted to access your Third-Party Account, as permitted under the applicable terms and conditions that govern your use of each Third-Party Account.
You represent that you are entitled to disclose your Third-Party Account login information to Foodikted and/or grant Foodikted access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Foodikted to pay any fees or making Foodikted subject to any usage limitations imposed by such third-party service providers.
By granting Foodikted access to any Third-Party Accounts, you understand that Foodikted will access, make available and store (if applicable) any Content that you have provided to and stored in your Third-Party Account ("SNS Content") so that it is available on and through the Site and Application via your Foodikted Account and Foodikted Account profile page.
All SNS Content, if any, will be considered to be Member Content for all purposes of these Terms. Foodikted is not responsible for any SNS Content.
You have the ability to disable the connection between your Foodikted Account and your Third-Party Accounts, at any time, by accessing the "Settings" section of the Site and Application.
Your relationship with any Third-Party service providers is governed solely by your agreement(s) with such Third-Party service providers.
2.3 ACCOUNT INFORMATION
Your Foodikted Account and your Foodikted Account profile page will be created for your use of the Site and Application based upon the personal information you provide to us or that we obtain via an SNS as described above. You may not have more than one (1) active Foodikted Account. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Foodikted Account, whether or not you have authorised such activities or actions. You will immediately notify Foodikted of any unauthorised use of your Foodikted Account.
2.5 SMS COMMUNICATIONS
By creating a Foodikted Account, you agree that Foodikted may send you informational text (SMS) messages as part of the normal business operation of your use of the Services, Site and Application. You may opt-out of receiving text (SMS) messages at any time. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services, Site and Application.
3 RESPONSIBILITY AS A FOODIKTED MEMBER
3.1 MEMBER CONTENT
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site and Application, you hereby grant to Foodikted a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, though, by means of or to promote or market the Site and Application. Foodikted does not claim any ownership rights in any such Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Member Content.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site and Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site and Application or you have all rights, licenses, consents and releases that are necessary to grant to Foodikted the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Foodikted' s use of the Member Content (or any portion thereof) on, through or by means of the Site, Application and the Services will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
3.2 MEMBER CONDUCT
You understand and agree that you are solely responsible for your own acts and omissions and compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Site and Application and Collective Content.
You are solely responsible for all of your communications and interactions with other users of the Site, Application or Services and with other persons with whom you communicate or interact as a result of your use of the Site or Application including, but not limited to, any Hosts or Guests.
In connection with your use of the Site and Application and Collective Content, you may not and you agree that you will not:
(a) violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, zoning restrictions and Tax regulations;(b) use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the Site and Application or Collective Content;
(c) access or use our Site and Application or the Foodikted API to use, expose, or allow to be used or exposed, any Foodikted Content:
(d) use the Site and Application or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;(e) copy, store or otherwise access or use any information contained on the Site and Application or Collective Content for purposes not expressly permitted by these Terms;(f) infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;(g) interfere with or damage our Site or Application including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;(h) use our Site, Application or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;(i) use our Site and Application or Collective Content in connection with the distribution of unsolicited commercial email ("spam") or advertisements unrelated to lodging in a private residence;(j) "stalk" or harass any other user of our Site and Application or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as a Foodikted Host or Guest;(k) offer, as a Host, any goods or services that you do not yourself own, create or have permission to create;(l) register for more than one (1) Foodikted Account or register for an Foodikted Account on behalf of an individual other than yourself;(m) contact a Host or Guest for any purpose other than asking a question related to transacting on Foodikted or use of the Site and Application;(n) recruit or otherwise solicit any Host or other Member to join third-party services or websites that are competitive to Foodikted, without Foodikted' prior written approval;(o) impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;(p) use automated scripts to collect information from or otherwise interact with the Site and Application or Collective Content;(q) use the Site and Application or Collective Content to find a Host or Guest and then complete a transaction independent of the Site or Application in order to circumvent the obligation to pay any Event Fees related to Foodikted's provision of the Services or for any other reasons;(r) as a Host, make any offer to a Guest with false or misleading information;(s) post, upload, publish, submit or transmit any Content that:
(i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy;(ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;(iii) is fraudulent, false, misleading or deceptive;(iv) is defamatory, obscene, pornographic, vulgar or offensive;(v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;(vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or(vii) promotes illegal or harmful activities or substances;
(t) systematically retrieve data or other content from our Site, Application or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;(u) use, display, mirror or frame the Site and Application or Collective Content, or any individual element within the Site and Application or Collective Content, Foodikted' name, any Foodikted trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site or Application without Foodikted' express written consent;(v) access, tamper with, or use non-public areas of the Site or Application Foodikted' computer systems, or the technical delivery systems of Foodikted' providers;(w) attempt to probe, scan, or test the vulnerability of any Foodikted system or network or breach any security or authentication measures;(x) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Foodikted or any of Foodikted' providers or any other third party (including another user) to protect the Site, Services, Application or Collective Content;(y) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services, Application or Collective Content to send altered, deceptive or false source-identifying information;(z) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Application or Collective Content;(aa) advocate, encourage, or assist any third party in doing any of the foregoing; or(bb) accept or make a payment outside of Foodikted. If you do so, you acknowledge and agree that you:
(i) would be in breach of these Terms;(ii) accept all risks and responsibility for such payment, and(iii) hold Foodikted harmless from any liability for such payment.
Foodikted has the right to investigate and prosecute violations of any of the above to the fullest extent of the law.
You acknowledge that Foodikted has no obligation to monitor your access to or use of the Site and Application or Collective Content or to review or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site and Application (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Foodikted reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that Foodikted, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Application or hinder its provision of the Services.
Members agree to cooperate with and assist Foodikted in good faith, and to provide Foodikted with such information and take such actions as may be reasonably requested by Foodikted, in connection with any complaints or claims made by Members relating to the provision of the Services.
3.3 REPORTING MISCONDUCT
If you become aware of a Member wrongfully utilising the Site or Application or breaching any of these Terms, you are requested to immediately report such conduct to Foodikted.
3.4 THE RESPONSIBILITY OF BEING A HOST
As a Host, you are responsible for all aspects of food preparation, health and safety compliance, certifications, compliance with laws, customer service and service delivery. You acknowledge and agree that, as a Host, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who may assist in the preparation and delivery of food and creation of Dining Menus’ or the Meal or who may assist in any other way that arises out of or relates to the use of this Site and Application or the supply of Services.
3.5 HOSTS - COMPLIANCE WITH LOCAL LAWS
Hosts should understand how the laws work in their respective jurisdictions. Some jurisdictions have laws that restrict their ability to sell or provide certain types of homemade food to Guests. These laws are often part of a state’s food authority laws or regulations. In some states, Hosts must register, get a permit, or obtain a licence before making food or accepting orders from Guests. Certain types of food made at home may be prohibited altogether. State and local governments vary greatly in how they enforce these laws. Penalties may include fines. Hosts must review and comply with all local laws before listing on Foodikted. While in no way diminishing the Host’s responsibilities under this clause, or giving rise to any positive obligation on the part of Foodikted, Foodikted may, in its absolute discretion, provide the Host’s details to any food or other regulatory authority to assist with the Host’s compliance obligations generally.
Hosts should take particular care with the provision or sale of alcohol to Guests or with permitting the consumption of alcohol by Guests as this conduct may be unlawful. Hosts are advised that liquor licensing laws in Australia are strict and are strictly enforced. Foodikted does not provide for or facilitate the sale of alcohol as part of the Services. Any provision or consumption of alcohol by Hosts or Guests is entirely at their own risk.
3.6 HOSTS’ MEAL DINING MENUS AND POSTING TO THE SITE AND APPLICATION
As a Host, you may create Dining Menus. Dining Menus may be made publicly available via the Site and Application. You may be asked a variety of questions about the food, including, but not limited to, the location, capacity, cleanliness, ingredients, cooking methods, packaging and food allergens. All Hosts must provide a valid physical address of the premises in which the food will be made. You understand and agree that once a Guest accepts an offer from you, you may not request the Guest to pay a higher price than in the offer.
You acknowledge and agree that you alone are responsible for any and all Dining Menus you post. Accordingly, you represent and warrant that any Dining Menu you post will
(a) be in compliance with all applicable laws (such as food safety laws), Tax requirements, and rules and regulations that may apply to the preparation of food in your jurisdiction (including having all required permits, licenses and registrations), and(b) not conflict with the rights of third parties(c) accord with any representation you make regarding the quality, ingredients or preparation process.
Foodikted assumes no responsibility for a Host’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. Foodikted reserves the right, at any time and without prior notice, to remove or disable access to any Dining Menu or Meal offering for any reason, including Dining Menus that Foodikted, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or Foodikted's then-current policies or guidelines, or otherwise harmful to the Site or Application or provision of the Services.
3.7 HOSTS’ INSURANCE
Foodikted recommends that Hosts obtain appropriate insurance for inviting Guests to their premise for a Meal. Please review any insurance policy that you may have carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy, including, but not limited to, whether or not your insurance policy will cover the actions or inactions of Guests.
3.8 RESPONSIBILITY AS A MEMBER
Guests: As a Guest, you are responsible for treating the Host, other Guests and the location in which the Meal is served in a respectful manner and complying with the Host’s reasonable requirements. You agree to pay the Host for any damage you cause. In the event that a Host claims that you have caused damage and provides evidence of damage, including but not limited to, photographs, or Foodikted is satisfied that you have otherwise not acted in a respectful manner or in accordance with the Host’s reasonable requirements, Foodikted may suspend or terminate your Foodikted Account.
Hosts: As a Host, you are responsible for treating the Guests in a respectful manner and providing the Meal you have promised. In the event that you do not go through with the provision of the Meal or a Guest validly claims that you have misled the Guests or Foodikted including failure to provide the Meal in the form substantially promised or Foodikted is satisfied that you have otherwise not acted in a respectful manner towards your Guests, Foodikted may suspend or terminate your Foodikted Account.
3.9 RELATIONSHIP BETWEEN THE PARTIES
If you are a Host, you understand and agree that Foodikted does not act as an insurer or as your contracting agent. If a Guest accepts the Hosts offer and attends the premises for a Meal, any agreement or transaction you enter into with such Guest is between you and the Guest and Foodikted is not a party to it.
Notwithstanding the foregoing, Foodikted serves as the limited authorised payment collection agent of the Host for the purpose of accepting, on behalf of the Host, payments from Guests of such amounts stipulated by the Host (including delivery or other fees and/or Taxes).
3.10 MEMBERS DUE DILIGENCE
Foodikted recommends that you always exercise due diligence and care when deciding whether to offer to invite a Guest or accept an offer from a Host or to have any other interaction with any other Member. You agree to take reasonable precautions in all communications and interactions with other users of the Site, Application or Services and with other persons with whom you communicate or interact as a result of your use of the Site or Application including, but not limited to, Guests and Hosts, particularly if you decide to meet offline or in person regardless of whether such meetings are organised by Foodikted. If you are a Host, Foodikted makes certain tools available to you to help you to make informed decisions about which Members you choose to invite for a Meal. You acknowledge and agree that you are responsible for your own decisions about offers you make.
3.11 MEMBERS RATINGS
Guests and Hosts will be asked to rate Members. Members must be honest and accurate in their appraisals. Members who Foodikted considers not to have acted genuinely and in good faith in their assessments or to have acted out of malice or with the intention of causing mischief may have their Foodikted Account suspended or terminated.
3.12 NO ENDORSEMENT BY FOODIKTED
Foodikted does not endorse any Member or any Dining Menu. No reference or description of a Member (including, but not limited to, Member ratings) on the Site or Application is an endorsement, certification or guarantee by Foodikted about any Member, including of the Member's identity and whether the Member is trustworthy, safe or suitable.
4.1 PAYMENTS BY GUESTS (EVENT FEES)
If as a Guest, you order through the Site or Application you are required to immediately pay the agreed fees of the services provided by the Host (“Event Fees”). These Event Fees are set by the Host not Foodikted. After you have ordered services or goods obtained through your use of the Site or Application Foodikted will facilitate your payment of the Event Fees on behalf of the Host as the Host’s limited payment collection agent. Event Fees will be inclusive of applicable Taxes where required by law. Event Fees paid by you are final and non-refundable, unless otherwise determined by Foodikted.
All Event Fees will be processed by Foodikted using the preferred payment method designated in your Foodikted Account, after which Foodikted will send you a receipt by email. If your primary Foodikted Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Foodikted may, as the Host’s limited payment collection agent, use a secondary payment method in your Foodikted Account, if available.
4.2 PAYMENTS TO FOODIKTED (SERVICE FEES)
In consideration for the use of the Site and Application and utilisation of the Services, Foodikted charges fees to Hosts and Guests in the amount of 12.5% of the Event Fees (“Service Fees”). As part of the registration process Hosts and Guests will be notified of the Service Fees. Where applicable, Taxes may also be charged in respect of the Service Fees.
Foodikted will deduct Service Fees due by the Hosts from the payments of Event Fees received from each of the Guests. Balances will be remitted by Foodikted to Hosts via cheque, PayPal, direct deposit or other payment methods. Where Foodikted is satisfied that the Meal was not provided substantially as promised it reserves the right to claim back the Event Fees or refund them to Guests subject to our cancellation policy detailed below.
As between you and Foodikted, Foodikted reserves the right to establish, remove and/or revise Service Fees for any or all services or goods obtained through the use of the Services at any time in Foodikted’s sole discretion. We will notify you of all changes.
Foodikted may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Service Fees applied to you.
4.3 CANCELLATIONS AND REFUNDS
It is important that Hosts commit to undertake the Meal when they have scheduled it. It is important for Guests to honour their commitment to attend. Hosts rely on the reservations received in buying ingredients and making preparations for the Meal.
(a) If a Guest requests a cancellation at least 3 days (72 hours) before the Event is scheduled, the Guest will be refunded 100% of the Event Fees.(b) If a Guest cancels their reservation less than 3 days (72 hours) before the Events is scheduled, Guest will not be entitled to any refund.
It is the responsibility of the Guest to inform Foodikted within 24 hours of the day of the scheduled Meal that the Host has not provided the Meal. If there is no notification Foodikted may assume that the Meal was served. In the event of a dispute Foodikted will use its reasonable judgement but reserves the right at all times to retain its Service Fees.
Hosts that do not provide the Meal or cancel a Meal without reasonable excuse will have their accounts suspended or terminated and will pay to Foodikted the amount of any Service Fees lost as a result.
If a Host must cancel an Event for reasons beyond their control, the Host must re-schedule the Meal and advise the Guests as soon as possible. If Guests are unable to attend a rescheduled Event notified to them no less than 72 hours prior to the previously scheduled time they will be refunded the Event Fee.
A reservation is not officially cancelled by a Guest until the Guest receives a cancellation confirmation e-mail from Foodikted.
Refunds in addition to the above due to any unforeseen events such as illness or hardship may be granted at the sole discretion of Foodikted.
5.1 ENTIRE AGREEMENT
These Terms constitute the entire and exclusive understanding and agreement between Foodikted and you and these Terms supersede and replace any and all prior oral or written understandings or agreements between Foodikted and you.
5.2 TERMS OF SERVICE
Your access and use of the Services, Site or Application constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Foodikted. If you do not agree to these Terms, you must not access or use the Services, Site and Application. These Terms expressly supersede prior agreements or arrangements with you.
Supplemental terms may apply to certain services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable services.
Failure to use the Site and Application in accordance with these Terms may subject you to civil and criminal penalties.
5.3 MODIFICATION OF TERMS
Foodikted reserves the right, at its sole discretion, to modify the Site and Application or to modify these Terms at any time and without prior notice. If we modify these Terms, we will either post the modification on the Site or via the Application or otherwise provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms.
By continuing to access or use the Site and Application or utilising the Services after we have posted a modification on the Site or via the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you must cease using the Site and Application.
Subject to your compliance with these Terms, Foodikted grants you:
(a) a limited non-exclusive, non-transferable license to download and install a copy of the Application on each mobile device or computer that you own or control and run such copy of the Application solely for your own personal use; and(b) a limited, non-exclusive, non-transferable license, to
(i) access and view any Foodikted Content solely for your personal and non-commercial purposes; and(ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes.
You have no right to sublicense the license rights granted in this section.
It is an essential term of the license that you will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site and Application, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Foodikted or its licensors, except for the licenses and rights expressly granted in these Terms.
5.5 SUSPENSION, TERMINATION AND FOODIKTED ACCOUNT CANCELLATION
We may, in our discretion and without liability to you, with reasonable cause (including, but not limited to, breach of these Terms or other misconduct which damages the reputation of Foodikted), with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your Foodikted Account. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you:
(a) your Foodikted Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site and Application, your Foodikted Account, your Member Content, or receive assistance from Foodikted Customer Service;(b) any pending or accepted future orders as either Host or Guest will be immediately terminated;(c) we may communicate to your Guests or Hosts that a potential or confirmed order has been cancelled;(d) we may refund your Guests in full for any and all confirmed orders, irrespective of pre-existing cancellation policies;(e) we may contact your Guests to inform them about potential alternate options with other Hosts that may be available on the Site and Application, and(f) you will not be entitled to any compensation for orders (even if confirmed) that were cancelled as a result of a suspension, deactivation or termination of your Foodikted Account.
You may cancel your Foodikted Account at any time via the "Cancel Account" feature of the Services or by sending us an email. Please note that if your Foodikted Account is cancelled, we do not have an obligation to delete or return to you any Content you have posted to the Site and Application, including, but not limited to, any reviews or Feedback.
The content that you share with other users is neither private nor confidential and you should not have any expectation of privacy with respect to it. Information you upload will be posted along with other personal information. You must exercise caution and common sense when submitting and disclosing information. At the very least you should demonstrate the same degree of caution when publishing personal information by means other than the Internet and cellular services.
In particular, Members may choose to share personal information such as name, age, gender, their location information, appearance, messages, background personal information. This information may also be shared via third party services (such as social networks) which interact with the Site and Application.
5.7 OWNERSHIP OF INTELLECTUAL PROPERTY
The Site and Application, and Collective Content are protected by copyright, trademark, and other laws of Australia and other countries. You acknowledge and agree that the Site and Application and Collective Content, including all associated intellectual property rights, are the exclusive property of Foodikted and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site and Application, or Collective Content.
5.8 COPYRIGHT POLICY
Foodikted respects copyright law and expects its users to do the same. It is Foodikted policy to terminate in appropriate circumstances the Foodikted Accounts of Members or other account holders who infringe or are believed to be infringing the rights of copyright holders.
5.9 NO WARRANTIES
If you choose to use the Site and Application or Collective Content, you do so at your sole risk. You acknowledge and agree that Foodikted does not have an obligation to conduct background checks on any Member but may conduct such background checks in its sole discretion. The Site and Application and Collective Content are provided "as is", without warranty of any kind. Foodikted makes no warranty that the Site and Application, Collective Content, including, but not limited to, the Dining Menus, will meet your requirements or expectations or, in the case of the Site and Application, be available on an uninterrupted, secure, or error-free basis. Foodikted makes no warranty regarding the quality of any food, Dining Menus, Hosts, Guests, the Meal, the Services or Collective Content or the accuracy, timeliness, truthfulness, completeness or reliability of any Collective Content obtained through the Site and Application.
Foodikted makes no representations or warranties as to the conduct of users of the Site, Application or Services or their compatibility with any current or future users of the Site, Application or Services. Notwithstanding Foodikted's appointment as the limited payment collection agent of the Hosts for the purpose of accepting payments from Guests on behalf of the Hosts, Foodikted explicitly disclaims all liability for any act or omission of any Host, Guest or other third party.
No advice or information, whether oral or written, obtained from Foodikted or through the Site and Application or Collective Content, will create any warranty not expressly made herein.
5.10 LIMITATION OF LIABILITY
Foodikted will not be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with these terms, the delivery of the services by the Hosts (or failure to deliver the services), from the use of or inability to use the Site and Application or Collective Content, from any communications, interactions or meetings with other users of the Site, Application, or services or other persons with whom you communicate or interact as a result of your use of the Site and Application, or any liability arising from your Dining Menu, the food or the Meal whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Foodikted has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
Except for our obligations to pay amounts to applicable Hosts pursuant to these terms, in no event will Foodikted' aggregate liability arising out of or in connection with these terms and your use of the Site and Application or Collective Content and in connection with any food, meals or interactions with any other Members, exceed the amounts you have paid or owe for goods or services via the Site and Application as a Guest in the twelve (12) month period prior to the event giving rise to the liability, or if you are a Host, the amounts paid by Foodikted to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred Australian dollars (AUD$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Foodikted and you.
5.11 CLAIMS AGAINST OTHER MEMBERS
By using the Site or Application you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Member/s or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy on Foodikted with respect to such acts or omissions. This limitation shall not apply to any claim by a Host against Foodikted regarding the remittance of payments received from a Guest by Foodikted on behalf of a Host, which instead shall be subject to the limitations described in the section above entitled "Limitation of Liability".
The Site and Application may contain links to third-party websites or resources. You acknowledge and agree that Foodikted is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Foodikted of such websites or resources or the content, products, opinions or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.
You agree to release, defend, indemnify, and hold Foodikted and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with
(a) your access to or use of the Site and Application, or Collective Content or your violation of these Terms;(b) your Member Content;(c) your
(i) interaction with any Member;(ii) attendance at any Meal;(iii) creation of a Dining Menu;(d) the consumption of any food by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of your ordering or consumption of any food.
5.14 DISPUTE RESOLUTION
Claims between Members
Foodikted may, but is not obliged to investigate claims by Members in relation to the provision of services by Hosts to Guests.
All claims by or between Members are personal to those Members and Foodikted is released and discharged from all claims and liabilities in relation to such claims.
Claims between Foodikted and Members
You and Foodikted agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, (collectively, "Disputes") will initially be subject to mediation, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
You may not assign or transfer these Terms, by operation of law or otherwise, without Foodikted's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Foodikted may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Foodikted (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
5.17 CONTROLLING LAW AND JURISDICTION
These Terms and your use of the Services will be interpreted in accordance with the laws of New South Wales and Australia. You and we agree to submit to the jurisdiction of the courts of that State and country.
5.18 NO WAIVER
The failure of Foodikted to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorised representative of Foodikted. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
5.19 THIRD PARTY BENEFICIARY
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms.
Nothing contained in these Terms shall constitute the relationship of partnership, joint venture, principal and agent or employer and employee between any of the parties. Save as expressly permitted under these Terms, no party may act nor has the authority to act as agent of, or to bind any other party to any obligation and no party shall hold itself out as being the agent of the other party or as having the authority to bind the other party
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Application ("Feedback"). You may submit Feedback by emailing us, through the "Contact" section of the Site and Application, or by other means of communication. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of Foodikted and you hereby irrevocably assign to Foodikted all of your rights, title, and interest in and to all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At Foodikted' request and expense, you will execute documents and take such further acts as Foodikted may reasonably request to assist Foodikted to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
5.22 CONTACTING FOODIKTED
If you have any questions about these Terms, please contact Foodikted.
5.23 KEY TERMS
"Foodikted Content" means all Content that Foodikted makes available through the Site, Application, or Services, including any Content licensed from a third party, but excluding Member Content.
"Collective Content" means Member Content and Foodikted Content.
"Content" means text, graphics, images, music, software, audio, video, information or other materials.
"Guest" means a Member who accepts an offer from a Host to attend a Meal prepared by the host via the Site, Application or Services.
"Host" means a Member who makes an offer to a Guest to attend a Meal prepared by the host via the Site and Application. Every Host is an independent entity offering their own food on the Site and Application.
"Dining Menu" means the menu proposed by a Host via the Site, Application, and Services
“Meal” means the dining experience offered by the Host to the Guest.
"Member" means a person who completes Foodikted's account registration process, including but not limited to Hosts and Guests, as described under "Account Registration" above.
"Member Content" means all Content that a Member posts, uploads, publishes, submits, transmits, and includes in their Dining Menu or Member profile to be made available through the Site, Application or Services.
"Tax" or "Taxes" mean any sales taxes, value added taxes (VAT), goods and services taxes (GST), that Hosts and sellers of food may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national indirect or other withholding and personal or corporate income taxes.