VENDOR TERMS AND CONDITIONS
Thirsty John’s Ventures an affiliate of Mailman Express LTD operating as Thirsty John’s (referred to in the agreement as “Thirsty John’s”, “we”, “us”, “our”, or the “Company”) acts as a market place for local liquor stores and restaurants (the "Supplier", “Vendors”). The contract for the provision of products/services is between you and Thirsty John’s.
DEFINITIONS
The following terms have the respective meanings given to them below:
"Activation Fee" means a Fee paid by Vendor/Store to Thirsty John’s in consideration of Thirsty John’s work to activate Vendor/Store on the Thirsty John’s App.
"Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership of a party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
"Agreement" means the Order Form, the Definitions and the Supplemental Terms.
"Aggregate Data" means aggregated, anonymized data related to Vendor/Store's transactions in connection with the Thirsty John’s Services.
"Aggregator Cash Collections" means the funds to be collected by the Aggregator Delivery Partner in connection with an Aggregator Cash Order.
"Aggregator Cash Order" means an order where Thirsty John’s permits a Customer to pay for a given Aggregator Item provided by Vendor/Store and all associated charges resulting from that transaction in cash.
"Aggregator Delivery Charge" means a delivery charge collected by Thirsty John’s on behalf of Vendor/Store from Customers for Items transferred via the Aggregator Method.
"Aggregator Delivery Partner" means an employee, contractor, worker or agent of Vendor/Store who provides delivery services on a Vendor/Store’s behalf, arranged independently of Thirsty John’s.
"Aggregator Item" means an Item transferred by Vendor/Store to Customer via the Aggregator Method.
"Aggregator Item Payment" means the Retail Price of the Aggregator Item(s) sold by Vendor/Store via the Thirsty John’s App (including any VAT or other taxes).
"Aggregator Item Revenue" means the total (i) Aggregator Item Payment earned by Vendor/Store (other than with respect to Aggregator Cash Orders); (ii) Aggregator Delivery Charge collected from Customers on Vendor/Store’s behalf. (iii) gratuity paid by a Customer in respect of delivery services, if applicable, (iv) less (1) the Aggregator Service Fee and (2) any refunds given by Thirsty John’s on behalf of Vendor/Store to Customers.
"Aggregator Order" means any combination of food/beverages/any other consumables transferred by Vendor/Store to Customer via the Aggregator Method.
"Aggregator Method" means a Method whereby Vendor/Store may use Aggregator Delivery Partners to fulfil delivery of Items requested by Customers.
"Applicable Law" shall mean all applicable laws, statutes, regulations and codes from time to time in force (including without limitation all applicable data protection and privacy laws).
"Brand Matter" means an event that, in Thirsty John’s reasonable judgement, causes it or its Affiliates to have concern for the reputation of its brand, including, but not limited to, matters related to the alleged violation of any Applicable Laws.
"Cash Order" means an order where Thirsty John’s allows a Customer to pay for a given Item provided by Vendor/Store, and all associated charges resulting from that transaction, in cash.
"Confidential Information" means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (the "Disclosure") to the other (the "Recipient"), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes, without limitation, transactional, operational, performance and other data or information (including, Thirsty John’s Data, Customer’s information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational) and/or that is related to the sale of Vendor/Store’s Items to Customers through the Thirsty John’s App and the terms and conditions of this Agreement. Confidential Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Please refer to our privacy policy for further details.
"Criteria" means any quality, portion, size, ingredient, allergen, origin or nutritional information or rules and regulations that govern the adequacy of Items.
"Customer" means a customer of the Vendor/Store.
"Customer Feedback" means the information provided by a Customer in response to prompting by the Thirsty John’s App, including rating of Item(s) and comments or feedback related to the Customer’s experience with Vendor/Store, the relevant Item(s) on the Thirsty John’s App, and either the delivery services (provided by either a Store Direct Delivery Partner or Aggregator Delivery Partner) or the Pickup Method experience.
"Damage Fee" means a Fee paid by Vendor/Store to Thirsty John’s for the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear.
"Delivery Partner" means a Store Direct Delivery Partner or an Aggregator Delivery Partner. References to "Delivery Partners" should be read to include both Store Direct Delivery Partners and Aggregator Delivery Partners.
"Device" means a tablet or other portable device made available by Thirsty John’s and/or its Affiliates to Vendor/Store to access and use the Thirsty John’s Services.
"Dispute" means any dispute, action, claim, controversy or cause of action among the parties arising out of or in connection with the Agreement or any term condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of the Agreement.
"Effective Date" means the date specified in the Order Form.
"Fees" means any applicable fees charged by Thirsty John’s to Vendor/Store, including the Service Fee, the Activation Fee, and the Damage Fee and any other applicable fees such as transaction fee incurred.
"Feedback" means the information provided by Vendor/Store to Thirsty John’s including feedback, suggestions, comments, ideas, or other concepts relating to Thirsty John’s products and services.
"Force Majeure Event" means occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labour disturbances, war or sabotage.
"Indemnified Party" means the party receiving indemnification from the Indemnifying Party.
"Indemnifying Party" means the party providing indemnification to the Indemnified Party.
"Initial Term" means a period which will commence on the Effective Date and, unless earlier terminated as provided in the Agreement, will continue for one (1) year from the Effective Date.
"Invoice Details" means the information required for the accurate calculation and preparation of invoices by Thirsty John’s.
"Order" means food, beverage, or any other product made available by Vendor/Store to Customer via the Thirsty John’s platform.
"Order Revenue" means the Retail Price (plus VAT and any other fees collected on Vendor/Store’s behalf) less the retained Fees (including the Service Fee, Activation Fee, and/or Damage Fee, where applicable), the Delivery Fee for delivery services provided by a Store Direct Delivery Partner (where applicable), and any refunds given to the Customers on behalf of Vendor/Store.
"Losses" means any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees).
"Store Direct Cash Collections" means the funds to be collected by the Store Direct Delivery Partner in connection with a Store Direct Cash Order.
"Store Direct Cash Order" means an order where Thirsty John’s allows a Customer to pay for a given Store Direct Item provided by Vendor/Store and all associated charges resulting from that transaction in cash.
"Store Direct Delivery Charge" means a delivery charged by Vendor/Store from Customers for Items transferred via the Store Direct Method.
"Store Direct Delivery Fee" means an amount paid by Vendor/Store to a Store Direct Delivery Partner for delivery services, which may be comprised of multiple components including, but not limited to: pick up fee, drop off fee, time spent, distance travelled, as well as other promotions and incentives.
"Store Direct Delivery Partner" means an independent contractor who intends to provide on-demand delivery services on a Vendor/Store’s behalf using the Thirsty John’s App. Store Direct Delivery Partners are not employees or workers of Thirsty John’s or any of its Affiliates. They can be employees of the Vendor/Stores and mostly work directly and under stores.
"Store Direct Discount/Coupon" means a discount of the Store Direct Service Fee, provided by Thirsty John’s to Vendor/Store, equal to the difference between the Store Direct Delivery Fee (excluding any VAT or other sales tax) less the Store Direct Delivery Charge (excluding any VAT or other sales tax), in the event the Store Direct Delivery Fee exceeds the Store Direct Delivery Charge.
"Store Direct Order" means an Item transferred by Vendor/Store to Customer via the Store Direct Method.
"Store Direct Item Payment" means the Retail Price of the Item(s) sold by Vendor/Store via the Thirsty John’s platform (including any VAT or other sales tax).
"Store Direct Item Revenue" means the total Store Direct Item Payment (including any VAT or other sales tax collected on Vendor/Store’s behalf) earned by Vendor/Store, together with the Delivery Charge collected from Customers on behalf of Vendor/Store, less (1) the Store Direct Delivery Fee, (2) the Store Direct Service Fee (modified to reflect the Store Direct Discount, if any) and (3) any refunds given on behalf of Vendor/Store to Customers.
"Store Direct Order" means any combination of food and/or beverage transferred by Vendor/Store to Customer via the Store Direct Method.
"Store Direct Item" is a subset of "Store Direct Order."
"Store Direct Method" means a Method whereby Vendor/Store may access and request on-demand delivery services provided by Store Direct Delivery Partners to fulfil delivery of Items requested by Customers.
"Marks" means the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party or its Affiliates.
"Order" means any combination of food and/or beverage transferred by Vendor/Store to Customer via the Thirsty John’s App.
"Order Item" is a subset of "Order," and any terms and conditions related to "Items" also apply to "Orders."
"Store Direct Order," "Aggregator Order," and "Pickup Order" are subsets of "Order."
"Order Voucher Order" means an order where Thirsty John’s allows a Customer to pay for a given Order provided by Vendor/Store, and some or all associated charges resulting from that transaction, with an Order voucher.
"Vendor/Store" means the party who entered into the Agreement with Thirsty John’s.
"Vendor/Store Marketing Materials" means videos, still images or other materials provided by Vendor/Store to Thirsty John’s for use in connection with the display of Vendor/Store’s Items on the Thirsty John’s App.
"Method" means a method by which Items requested by a Customer through the Thirsty John’s App may be transferred from Vendor/Store to such Customer.
"Pickup Order" means an Item transferred by Vendor/Store to Customer via the Pickup Method.
"Pickup Order Payment" means the Retail Price of the Item(s) sold by Vendor/Store via the Thirsty John’s App (including any VAT or other sales tax).
"Pickup Method" means a Method whereby Vendor/Store may allow Customers to collect Items requested from a specified location without the involvement of a Delivery Partner.
"Notice Period" means a period of reasonable notice, as allowed by Applicable Law, after which amended Supplemental Terms will take effect.
"Offer" means a short-term promotional offer that is created and fulfilled by Vendor/Store that is intended to stimulate Customer demand through the Thirsty John’s App (e.g., discounts).
"Offer Costs" means the amount spent by Vendor/Store on an Offer.
"Offer Materials" means, concerning an Offer, all suitable material to be provided by Vendor/Store including artwork of Vendor/Store’s trademarks and trade names.
"Offer Tools" means proprietary, automated tools provided by Thirsty John’s to Vendor/Store which allow Vendor/Store to create and provide Offers to Customers.
"Personal Data" means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
"Renewal Term" means a one (1) year period where the Agreement automatically renews.
"Representatives" means concerning a party, it’s or its Affiliates’ respective officers, directors, employees or agents.
"Required Documentation" means all documentation required by Thirsty John’s from Vendor/Store, including but not limited to a business license, identification, tax identification, information regarding VAT status, banking documentation, Store location and all Invoice Details.
"Retail Price" means the original listed price determined by Vendor/Store for each Item to be made available for sale via the Thirsty John’s App before any discounts or promotions.
"Service/Subscription Fee" means a Fee paid by Vendor/Store to Thirsty John’s in consideration for the use of the Thirsty John’s Services. Vendor/Store's Service Fee for each specific Method is specifically set forth in the Order Form.
"Substandard Item" means any Item that fails to meet the criteria or standards required by Applicable Laws.
"Supplemental Terms" means the Definitions, the General Supplemental Terms, the Specific Supplemental Terms and any other terms applicable to the use of the Thirsty John’s Services, Thirsty John’s Tools, and/or Thirsty John’s App and shared with the Vendor/Store.
"Term" means the Initial Term together with all Renewal Terms.
"Territory" means Australia
"Thirsty John’s" means Thirsty John’s Ventures, a Mailman Express LTD affiliated Company., a company registered under the laws of the Australia whose registered address is Melbourne,Victoria
"Thirsty John’s Competitor" means any person engaged in the lead-generation, demand prediction, payment processing or other related services for the delivery of food and beverages who, in the reasonable determination of Thirsty John’s, is deemed to be a competitor of the Thirsty John’s App.
"Thirsty John’s Data" means all data related to the access and use of the Thirsty John’s Services and Thirsty John’s Tools, including but not limited to all Personal Data related to Vendor/Store and Customers.
"Thirsty John’s App" means a website, application or other technology interface made available by Thirsty John’s and/or its Affiliates to Customers, on a royalty-free basis, to purchase Items and, if applicable, delivery services from Vendors/Stores.
"Thirsty John’s Marketing Materials" means video, still images and/or other materials created by Thirsty John’s (or a party designated by Thirsty John’s acting on Thirsty John’s behalf) for marketing and other efforts related to the Thirsty John’s App.
"Thirsty John’s Services" means certain services made available by Thirsty John’s and/or its Affiliates to Vendor/Store to facilitate the marketing, sale and provision Items by Vendor/Store to Customers, including on-demand lead generation, payment processing, marketing, operational and other support.
"Thirsty John’s Tools" means a website, application and/or other technology interfaces, as well as a Device, made available by Thirsty John’s and/or its Affiliates to Vendor/Store, on a royalty-free basis, in connection with the Thirsty John’s Services.
"VAT" means any VAT, GST and/or similar sales taxes.
"Virtual Menu" means an additional menu that is made available from Vendor/Store’s premises on a digital platform.
GENERAL SUPPLEMENTAL TERMS
Thirsty John’s may amend the Supplemental Terms from time to time, as allowed by Applicable Law, upon giving a reasonable Notice Period and by Thirsty John’s posting such amended Supplemental Terms on this website or Thirsty John’s otherwise making such amended Supplemental Terms available to Vendor/Store. However, the Notice Period will not apply where an amendment is required by law or relates to the expansion or introduction of new services or functionalities to the existing Thirsty John’s Services and/or Thirsty John’s Tools or any other change which is effectively favourable to Vendor/Store and does not reduce the scope of its rights or increase its responsibilities. Vendor/Store’s continued access to or use of the Thirsty John’s Services and/or Thirsty John’s Tools after such amended Supplemental Terms become effective constitutes Vendor/Store’s consent to be bound by the amended Supplemental Terms. If Vendor/Store objects to any amended Supplemental Term, Vendor/Store may terminate this Agreement as agreed.
1. Thirsty John’s Services.
a. General. Thirsty John’s and/or its Affiliates will make the applicable Thirsty John’s Services available to Vendor/Store including, but not limited to, on-demand lead generation, payment processing, marketing, operational and other support. Neither Thirsty John’s nor its Affiliates provide Vendor/Store or its Customers with delivery services. The Thirsty John’s Services are solely for use by Vendor/Store, subject to the terms of this Agreement.
b. Appointment of Limited Payment Collection Agent.
i. Vendor/Store hereby appoints Thirsty John’s as Vendor/Store’s limited payment collection agent solely for: (A) accepting payment of the Retail Price of Items (plus any applicable VAT and other fees collected on Vendor/Store’s behalf) sold by Vendor/Store via the Thirsty John’s App, via the payment processing functionality facilitated by the Thirsty John’s Tools, and(B) transferring to Vendor/Store the Retail Price (plus VAT and any other fees collected on Vendor/Store’s behalf) less the retained Fees (including the Service Fee, Activation Fee, and/or Damage Fee, where applicable), the Delivery Fee for delivery services provided by a Store Direct Delivery Partner (where applicable), and any refunds given to the Customers on behalf of Vendor/Store ("Item Revenue");
ii. Vendor/Store agrees that payment collected by Thirsty John’s on Vendor/Store’s behalf will be considered the same as a payment made directly to the Vendor/Store.
iii. Vendor/Store further authorises Thirsty John’s to collect gratuities (if any) that are paid on the Thirsty John’s App voluntarily by Customers to Delivery Partners acting on behalf of Vendor/Store. For Store Direct Delivery Partners, Vendor/Store agrees that Thirsty John’s may remit the full value of such gratuities directly to Store Direct Delivery Partners on behalf of the Vendor/Store. For Aggregator Delivery Partners, Thirsty John’s shall remit the full value of any gratuities to Vendor/Store. It is the sole responsibility of the Vendor/Store to make sure that any applicable gratuities are properly transferred to Aggregator Delivery Partners.
iv. If reasonable, Thirsty John’s may adjust the transfer of Item Revenue collected on Vendor/Store’s behalf for reasons including, but not limited to, failure to fulfil the provision of an Item as ordered. Vendor/Store may dispute any such adjustments through the Thirsty John’s Tools within fourteen (14) calendar days of Vendor/Store being notified of such adjustment. Thirsty John’s reserves the right to, and Vendor/Store authorises Thirsty John’s to, collect the amount of such adjustments via a deduction from the Item Revenue collected on Vendor/Store’s behalf, or by debiting Vendor/Store’s payment method on record, or otherwise seeking reimbursement from Vendor/Store.
v. In exceptional circumstances only (as determined by Thirsty John’s in its sole discretion, acting reasonably), Thirsty John’s reserves the right to temporarily or permanently cancel or suspend payment to Vendor/Store. The foregoing exceptional circumstances shall include, but not be limited to, any legal or regulatory risk or potential breach of Applicable Laws associated with the transfer of such payment to Vendor/Store, the actual or expected initiation of insolvency or bankruptcy proceedings against Vendor/Store and any failure by Vendor/Store to provide the Required Documentation under clause 1(j) of these General Supplemental Terms.
vi. Thirsty John’s may, from time to time, request information from Vendor/Store to confirm Vendor/Store’s identity as may be necessary under any applicable compliance obligations before transferring any payments to Vendor/Store and may refuse to process payments owed to Vendor/Store under clause 1(b)(vi) of these General Supplemental Terms if there exists a legal or regulatory risk or potential breach of law or regulation associated with such transfer to Vendor/Store.
vii. Thirsty John’s may engage any of its Affiliates to perform the activity of limited payment collection agent. Such engagement may be subject to additional terms.
C. Cash. Thirsty John’s and/or its Affiliates may allow Customers to pay for a given Item (and, if applicable, delivery services) provided by Vendor/Store, and all associated charges resulting from that transaction, in cash (a "Cash Order").
D. Order Vouchers. Thirsty John’s and/or its Affiliates may allow Customers to pay for a given Order provided by Vendor/Store and some or all associated charges resulting from that transaction with an Order voucher (an "Order Voucher Order"). In certain circumstances, Thirsty John’s will not act as limited payment collection agent for Order Voucher Orders and Vendor/Store will receive a direct settlement of Item Revenue from a third-party Order voucher issuer.
E. Thirsty John’s Tools. Thirsty John’s may make available certain Thirsty John’s Tools to Vendor/Store, and Vendor/Store may access and use those Thirsty John’s Tools solely in connection with Vendor/Store’s use of the Thirsty John’s Services. The Thirsty John’s Tools, including all intellectual property rights therein, are and shall remain the property of Thirsty John’s, its Affiliates or their respective licencors. Neither this Agreement nor Vendor/Store’s use of the Thirsty John’s Tools or Thirsty John’s Data conveys or grants to Vendor/Store any rights in or related to the Thirsty John’s Tools or Thirsty John’s Data, except for the limited licence granted above.
F. Thirsty John’s App. Vendor/Store acknowledges and agrees that once it has accepted a request for an order of Items, the Thirsty John’s App may provide certain information about Vendor/Store to the Customer, including Vendor/Store’s name and contact number. As between Vendor/Store and Thirsty John’s, Thirsty John’s will retain sole and absolute control over the Thirsty John’s App (and all elements of the user experience and user interface relating to the Thirsty John’s App), including, without limitation, concerning: i. the personalisation of the Thirsty John’s App for Customers; ii. the prioritisation and display of options available to Customers; iii. the search functionality and results provided to Customers; and iv. adding, removing or otherwise modifying any feature or functionality made available through the Thirsty John’s App to optimise reliability or efficiency on the Thirsty John’s App.
G. No Service Guarantee. Thirsty John’s and its Affiliates do not guarantee the availability or up-time of the Thirsty John’s Tools or Thirsty John’s App. Vendor/Store acknowledges and agrees that the Thirsty John’s Tools and Thirsty John’s App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Thirsty John’s Tools and Thirsty John’s App may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Thirsty John’s and its Affiliates are not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
H. Disclaimer of Warranties. This clause applies only to the maximum extent permitted by Applicable Law, and does not (and is not intended to) override any rights that Vendor/Store has according to Applicable Law. Thirsty John’s and its Affiliates provide, and Vendor/Store accepts, the Thirsty John’s Tools and Thirsty John’s App on an "as is" and "as available" basis. Thirsty John’s and its Affiliates do not represent, warrant or guarantee that its access to or use of the Thirsty John’s Tools or Thirsty John’s App: (i) will be uninterrupted or error-free; or (ii) will result in any requests for orders of Items (and delivery, if applicable). Thirsty John’s and its Affiliates make no representations, warranties or guarantees as to the actions or inaction of Customers who may request or receive Items (and delivery services, if applicable), and Thirsty John’s and its Affiliates do not screen or otherwise evaluate Customers. By using the Thirsty John’s Tools, Vendor/Store acknowledges and agrees that Vendor/Store or a Delivery Partner may be introduced to a third party that may pose harm or risk to Vendor/Store, Delivery Partners or other third parties. Vendor/Store and their Aggregator Delivery Partners are advised to take reasonable precautions concerning interactions with third parties encountered in connection with the use of the Thirsty John’s Services and Thirsty John’s Tools. Thirsty John’s does not represent, warrant or guarantee the safety of any Items. Notwithstanding Thirsty John’s appointment as limited payment collection agent of Vendor/Store to accept payment from Customers on its behalf, Thirsty John’s and its Affiliates expressly disclaim all liability for any act or omission of Vendor/Store, any Aggregator Delivery Partners, any Customer or other third party.
I. Complaints. In connection with the provision of Thirsty John’s Services to Vendor/Store, Thirsty John’s, on behalf of Vendor/Store, may respond to complaints by Customers about Items and/or delivery sold by Vendor/Store via the Thirsty John’s App.
J. Suspension of Thirsty John’s Services. Thirsty John’s, at its sole discretion, reserves the right to temporarily or permanently suspend, in whole or in part, Vendor/Store’s access to the Thirsty John’s Services and Thirsty John’s Tools if: i. Vendor/Store fails to provide Required Documentation promptly; ii. Vendor/Store’s account is in arrears; iii. A Brand Matter has occurred following clause V of the Order Form; or iv. Vendor/Store is, or Thirsty John’s reasonably believe Vendor/Store is, in breach of this Agreement.
2. Vendor/Store’s Obligations.
A. Availability of Items. Vendor/Store will make Items available for purchase through the Thirsty John’s App during its normal business hours.
i. Vendor/Store will prepare, handle and store all Items per Applicable Laws, which shall include, without limitation, all laws, rules and regulations governing time or temperature controls required for food hygiene and safety.
ii. Vendor/Store will determine any Criteria that apply to Items and Vendor/Store is responsible for ensuring that the Items meet the applicable Criteria as displayed to Customers in the Thirsty John’s App. Thirsty John’s, at its sole discretion, reserves the right to remove from the Thirsty John’s App any Item for sale by Vendor/Store deemed unsuitable for sale on the Thirsty John’s App.
B. Item Inventory and Delivery Services.
i. Vendor/Store acknowledges and agrees that neither Thirsty John’s nor any Store Direct Delivery Partner takes title to any Item. Vendor/Store remains responsible for the delivery of Items and shall maintain possession, control and care of the Items at all times in full compliance with Applicable Laws.
ii. Vendor/Store shall remain responsible for complying with all health and safety laws and regulations applicable to all Items, up to and including the time of delivery of the Items to a Customer. Vendor/Store agrees that, for purposes of delivery of Items, Delivery Partners shall operate under cover of the Vendor/Store’s retail and health and safety licenses, registrations, authorisations and privileges and control.
iii. Vendor/Store is responsible for costs related to reimbursement to Customers in the event any such Customer(s) request a refund for Substandard Items or otherwise unsatisfactory Item(s) (including, without limitation, any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable). Thirsty John’s may deduct refunds from the Item Revenue transmitted to Vendor/Store under this Agreement under Thirsty John’s refund policy below, (or as otherwise provided to Vendor/Store), as updated from time to time, provided always that Vendor/Store has received notification of such refund policy.
C. Refund Policy. When item(s) are missing in an order or the order/item(s) are incorrect we may refund customers on your behalf and then make adjustments from your pay. Customers may not report the order error in the same week the order was fulfilled. In those cases, adjustments may be reflected in subsequent weeks. Customers may be refunded and you may be responsible for covering those costs for the reasons below:
-Undelivered Orders: the customer did not receive their entire order (only when using your own delivery staff).
-Incorrect orders: the customer received an entire order that was incorrect (unless the delivery person was given multiple orders at once) Example: the customer ordered 1x Vodka and 1x Soda, but received a 1x Jameson and Krest.
-Incorrect items: the customer received an item but the item, or part of the item, was not as ordered. Example: the customer ordered 1x Beer but received 2x Beer, or the customer ordered 1x 1 Litre Coke received a 1x 500ml Coke.
-Missing items: the customer didn't receive an item, or part of an item. Example: the customer ordered 1x Crisps but did not receive the Crisps.
-Order damage and quality rules (only when these are unrelated to order damage as a result of delivery partner transport e.g. spilt drinks)
D. Documentation. Vendor/Store will provide all documentation required by Thirsty John’s (including but not limited to a business license, identification, tax identification, information regarding VAT status, banking documentation, and all Invoice Details) ("Required Documentation"). Vendor/Store is solely responsible for providing Thirsty John’s with, and maintaining, accurate bank account and Stripe information.
E. Restrictions. Vendor/Store will not, and will not allow any third party to: (i) use the Thirsty John’s Services, the Thirsty John’s Tools, or any other transactional, operational, performance or other data or information that is related to the sale of the Items (and, if applicable, delivery) to Customers through the Thirsty John’s App to compete with Thirsty John’s, its Affiliates or the Thirsty John’s Services; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Thirsty John’s Services or Thirsty John’s Tools (except to the extent that Applicable Law prohibits reverse engineering restrictions); or (iii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Thirsty John’s Services or Thirsty John’s Tools (except as otherwise authorised by Thirsty John’s).
F. Tax. Vendor/Store is responsible for ensuring the accuracy of its own tax filings.
3. Ratings.
Vendor/Store acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Thirsty John’s App to provide a rating of such Item(s) (and, if applicable, delivery) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Vendor/Store, the relevant Item(s) on the Thirsty John’s App, and either the delivery services (provided by either a Store Direct Delivery Partner or Aggregator Delivery Partner) or the Pickup Method experience ("Customer Feedback"). Thirsty John’s reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of Thirsty John’s without attribution to or approval of Vendor/Store. Thirsty John’s reserves the right to edit or remove comments if such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy laws and regulations or other Applicable Laws, or violate Thirsty John’s content policies.
4. Reporting.
Thirsty John’s will provide Vendor/Store with information regarding the number of Items sold by Vendor/Store to its Customers. Thirsty John’s will also provide information to Vendor/Store regarding any refunds given to its Customers by Thirsty John’s on Vendor/Store’s behalf, including the date of the transaction, the Item(s) refunded, the reason for the refund and any other information Thirsty John’s is permitted to provide under applicable privacy laws and regulations.
5. Fees, Retail Price of Items and Taxes.
a. Fees and Taxes.
i. Fees. In consideration for the use of the Thirsty John’s Services, Thirsty John’s will charge Vendor/Store a "Service Fee" for each specific Method as specifically outlined in the Order Form (together with the Activation Fee, the Damage Fee, and any other applicable fees charged by Thirsty John’s to Vendor/Store, the "Fees").
ii. Payment Terms. All Fees under this Agreement will be paid in Australian Dollars. Thirsty John’s will deduct any fees from the payment Thirsty John’s collects from Customer on Vendor/Store’s behalf, as detailed below.
iii. Costs and Expenses. Except as may be expressly outlined in this Agreement, each party will be responsible for its expenses and costs in connection with this Agreement.
iv. Taxes on Fees. 1. All Fees payable according to this Agreement shall be deemed to be exclusive of Value Added Tax (VAT). The term "VAT" includes any VAT, GST and/or similar sales taxes. 2. If VAT is chargeable on any Fees, the Vendor/Store shall pay to Thirsty John’s an amount equal to the amount of the VAT in addition to and at the same time as payment of the Fees. 3. Fees shall be paid free and clear of and without deduction for or on account of withholding tax (if applicable). If Vendor/Store is required to make such a deduction or withhold such tax, the sum payable by Vendor/Store shall be increased to the extent necessary to ensure that Thirsty John’s receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made.
b. Retail Price of Items and Taxes
i. Vendor/Store is the "retailer" or "seller" of all Items (including delivery services related to such Items, if applicable). Vendor/Store is responsible for determining and setting the original listed price, before any discounts or promotions, for each Item to be made available for sale via the Thirsty John’s App (the "Retail Price"). The Retail Price for each Item will include VAT and Digital Services Tax, but Vendor/Store is solely responsible for determining and setting all applicable VAT and identifying and informing Thirsty John’s of the appropriate VAT amount for Thirsty John’s to charge Customers on Vendor/Store’s behalf for Items available on the Thirsty John’s App where applicable. To the extent that applicable VAT and Digital Services Tax rate is not determined by Vendor/Store, Vendor/Store expressly authorizes Thirsty John’s to make such determination on its behalf and Vendor/Store hereby acknowledges and agrees that Thirsty John’s will have no liability for the accuracy of any such determination. Vendor/Store expressly authorises Thirsty John’s, at Vendor/Store’s direction, to collect such VAT and Digital Services Tax, on Vendor/Store’s behalf. ii. Vendor/Store is solely responsible for the remittance of all applicable VAT, sellers use, transaction privilege, privilege, general excise, gross receipts, Orders tax and similar transaction taxes in connection with the sale of Items.
6. Invoices.
For each order completed using the Thirsty John’s App, Thirsty John’s may issue an invoice and/or receipt for Items and (if applicable) delivery services to Customers on Vendor/Store's behalf provided that Vendor/Store has completed the required Invoice Details. Vendor/Store may dispute invoices and/or receipts issued by Thirsty John’s on Vendor/Store's behalf within a period not exceeding three (3) days from the issuance date of the invoice and/or receipt. Failing this, Vendor/Store is deemed to have validated said invoice and/or receipt.
7. Method Restrictions and Limitations.
a. Method Settings. Thirsty John’s only provides the Store Direct Method. Vendor/Store cannot modify its Method selection at any time where this feature is available. Thirsty John’s may modify delivery settings on Vendor/Store’s behalf. b. Delivery Radius Modification. Thirsty John’s, at its discretion, reserves the right to modify Vendor/Store’s delivery radius for reasons including, without limitation, to prevent or otherwise limited unfulfilled orders. c. Temporary Usage Restriction. Thirsty John’s, at its discretion, reserves the right to restrict or otherwise limit Vendor/Store’s access to the Thirsty John’s App for a period of time for reasons including, without limitation, to prevent or otherwise limited unfulfilled orders. d. Transfer Restrictions. The following restricted items may not be transferred via the Thirsty John’s App: people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, or any items that Vendor/Store does not have permission to transfer.
8. Marks.
Subject to this Agreement, each party hereby grants to the other party (and, in the case of Thirsty John’s, to its Affiliates) a limited, nonexclusive and non-transferable license during the Term to use such party’s respective Marks, on a royalty-free basis, in connection with the activities related to this Agreement. This license includes the right to reproduce, adapt and represent (in connection with all or part of the activities related to this Agreement) the Marks for the entire world, using all means and media, and without any restriction of any kind as regards exploitation methods, number of prints, dissemination or utilisation. All uses of a party’s Marks (owned or licensed, as applicable) by the other party will be in the form and format specified or approved by the party that owns (or is a licensee of, as applicable) such Marks. Other than as specifically outlined in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party. Any use or display of Vendor/Store’s Marks by Thirsty John’s in connection with making Items available through the Thirsty John’s App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the party that owns (or is a licensee of, as applicable) such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Vendor/Store agrees that it will not, and will ensure that Aggregator Delivery Partners do not, try to register or otherwise use and/or claim ownership in any of the Thirsty John’s Marks, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
9. Marketing and Promotional Activities.
a. Marketing. Thirsty John’s may showcase the availability of Vendor/Store’s Items via the Thirsty John’s platforms through various promotional activities including, without limitation, social media channels, websites, advertisements, blogs or other media available now or hereinafter created. Thirsty John’s (or a party designated by Thirsty John’s acting on Thirsty John’s behalf) may create video, still images and/or other materials for marketing and other efforts related to the Thirsty John’s App ("Thirsty John’s Marketing Materials"). Vendor/Store agrees that Thirsty John’s Marketing Materials (including, without limitation, all intellectual property rights therein) are and will remain the sole and exclusive property of Thirsty John’s.
Additionally, Vendor/Store may choose to provide videos, still images and/or other materials to Thirsty John’s ("Vendor/Store Marketing Materials") for use in connection with the display of Vendor/Store’s Items on the Thirsty John’s App, and Vendor/Store hereby grants Thirsty John’s a non-exclusive, royalty-free right to use, reproduce, adapt, represent, and display such Vendor/Store Marketing Materials in connection with Vendor/Store’s Items and other promotional activities relating to the Thirsty John’s Services, for the entire world, during the Term, using all means and media, and without any restriction other than as required by Applicable Law as regards exploitation methods, number of prints, dissemination or utilisation.
b. No Additional Amounts. Vendor/Store acknowledges and agrees that, through advertising and marketing, Thirsty John’s may seek to attract new Vendor/Stores to Thirsty John’s and to increase existing users of the Thirsty John’s Services and Thirsty John’s App. Vendor/Store acknowledges and agrees such advertising or marketing does not entitle Vendor/Store to any additional monetary amounts beyond the amounts expressly stated in this Agreement.
c. Vendor/Store Promotional Offers. Thirsty John’s may authorize Vendor/Store to use certain automated tools that allow Vendor/Store to provide promotional Offers to Customers through the Thirsty John’s App per the terms of this Agreement. Vendor/Store agrees that it is solely responsible for fulfilling and, subject to technical and functional limitations of the automated tools, defining the Offers provided by Vendor/Store to its Customers.
i. Vendor/Store Promotional Offers. Subject to this Agreement and any other guidelines or eligibility criteria for Offers that Thirsty John’s may make available from time to time, Thirsty John’s hereby authorises Vendor/Store to use Thirsty John’s proprietary, automated tools ("Offer Tools") to create and provide Offers to Customers. Unless otherwise specified by Thirsty John’s, Vendor/Store will be solely responsible for defining each Offer (within the scope of functionality provided by the Offer Tools), including, without limitation, the start date, end date, and budget for each Offer. Each Offer will be subject to Thirsty John’s approval. Vendor/Store is responsible for providing to Thirsty John’s Offer Materials in a format and within deadlines specified by Thirsty John’s for such to be reproduced for the provision of the Offer to Customers.
ii. Enhanced Promotional Placements. Subject to Thirsty John’s App functionality, Thirsty John’s may provide enhanced promotional placement or other visual treatment for the Offers through the start and end date identified by Vendor/Store. Vendor/Store acknowledges that the period of enhanced promotional placement for an Offer (if applicable) may vary due to several factors including Vendor/Store’s budget, the start and end date for an Offer, and other Thirsty John’s App functionality.
iii. Vendor/Store’s Responsibilities. Vendor/Store will honour and fulfil the terms of the Offer. Vendor/Store represents and warrants that Vendor/Store will run all Offers under all Applicable Laws which apply to the Offers. Vendor/Store represents and warrants that Vendor/Store possesses all necessary authority, rights, licenses, consents and permissions to run the Offer (including, without limitation, the rights to any Offer Materials provided to Thirsty John’s). Vendor/Store will not use an Offer to make charitable donations. For free or reduced Delivery Charge Offers, Vendor/Store will be solely responsible for the reduction to the amount that Thirsty John’s collects from Customers concerning the Delivery Charge.
iv. Reporting and Offer Costs. Thirsty John’s will use good faith efforts to provide Vendor/Store with reasonable information regarding Vendor/Store's Offers, which may include, without limitation, the Offer Costs and the number of Items sold in connection with an Offer. Thirsty John’s, in its sole discretion, may highlight Offers and/or the results of Offer in its marketing materials.
v. Service Fees. For Items where an Offer has been applied as a discount to the Retail Price of the Item, Thirsty John’s will charge Vendor/Store a Service Fee based on the discounted Retail Price and not the full Retail Price. If Vendor/Store's Offer consists of a discount on delivery, the Service Fee will be calculated as described in the Agreement and will not change. Vendor/Store agrees that Vendor/Store is solely responsible for Offer Costs and that Thirsty John’s may deduct Offer Costs from Vendor/Store's Item Revenue. If Vendor/Store is paid for an Item, it is responsible for the Service Fee and relevant Offer Costs.
vi. Modification, Suspension, Discontinuation. Thirsty John’s reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Offer Tools or the ability for Vendor/Store to provide Offers. Vendor/Store agrees that neither Thirsty John’s nor any of its Affiliates shall be liable to Vendor/Store (or to any third party) for the Offer or the Offer Tools, including for any modification, suspension or discontinuance of the Offer or the Offer Tools or providing Vendor/Store with the ability to provide Offers.
d. Publicity. Except as may be expressly outlined in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner concerning this Agreement or otherwise, without the prior written consent of such other party.
10. Virtual Stores.
a. Definition. A Vendor/Store who currently offers Orders via the Thirsty John’s App may, under certain conditions, operate a Virtual Store. All Virtual Store Orders are sold by Vendor/Store.
b. Vendor/Store’s Responsibilities. Without prejudice to any other provision of this Agreement, a Vendor/Store operating a Virtual Store must adhere to the following conditions:
i. Vendor/Store represents and warrants that Vendor/Store will prepare and sell all Orders from Virtual Store at Vendor/Store’s premises.
ii. If this premises address changes, Vendor/Store will provide Thirsty John’s with no less than seven (7) days’ advance written notice.
iii. The Virtual Store trading name is Vendor/Store’s Mark and is subject to the indemnification provision of the Agreement. Vendor/Store represents and warrants that (A) the Virtual Store trading name does not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights and (B) it has the right to display the Virtual Store trading name on the Thirsty John’s App. Vendor/Store agrees that Thirsty John’s may remove Virtual Store from the Thirsty John’s App if Thirsty John’s reasonably believes that it may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
iv. Thirsty John’s may provide Vendor/Store with Virtual Store Data. Vendor/Store agrees that any Virtual Store Data provided by Thirsty John’s or its Affiliates to Vendor/Store constitutes Confidential Information.
v. In consideration for access to Virtual Store Data, Vendor/Store will not enter into any agreement to make Orders available via Virtual Store, or using the same or similar menu or trading name to Virtual Restaurant, with any Thirsty John’s Competitor.
11. Confidential Information; Personal Data; Feedback.
a. Confidentiality. Each Recipient agrees that it will not disclose the Disclosure Confidential Information to any third parties other than Representatives, or use it in any way other than as necessary to perform this Agreement. Each Recipient will ensure that Confidential Information will only be made available to those of its Representatives who have a need to know such Confidential Information and who, before any disclosure of such Confidential Information, are bound by written obligations of confidentiality concerning such Confidential Information that are no less stringent than those outlined in this Agreement. The recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorise others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Disclosure Confidential Information. The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent: (i) the Disclosure has authorised such use or disclosure (and Vendor/Store hereby authorises Thirsty John’s to disclose the terms of this Agreement to Vendor/Store’s franchisees in connection with executing contracts that reference this Agreement with such franchisees) and (ii) a Recipient is required to disclose certain Confidential Information of the Disclosure as a matter of law or by order of a court, provided that the Recipient gives the Disclosure prior written notice of such obligation to disclose (to the extent legally permissible) and reasonably assist in obtaining a protective order before making such disclosure. Upon expiration or termination of this Agreement and as requested by Disclosure closer, each Recipient will deliver to the Disclosure (or destroy at the Disclosure election) all materials or documents containing the Disclosure Confidential Information, together with all copies thereof in whatever form. Neither party makes any representation or warranty that Confidential Information is complete or accurate; all Confidential Information is provided "as is".
b. Privacy. Vendor/Store agrees to use Personal Data provided to Vendor/Store by Thirsty John’s solely to provide Items to Customers under this Agreement. Vendor/Store agrees to use Personal Data provided to Vendor/Store by Thirsty John’s solely by using the Thirsty John’s Tools provided by Thirsty John’s and shall not copy, store, retain, remove from the Thirsty John’s Tools or otherwise process the Personal Data. Only in the Aggregator Method, Vendor/Store is permitted to copy Personal Data provided via the Thirsty John’s Tools and share it with its Aggregator Delivery Partners for the sole purpose of providing Items to Customers under this Agreement and will be responsible for compliance with applicable data protection regulations as a data controller, or the responsible party, for such Personal Data as specified in clause 5(a) of the Aggregator Method Specific Supplemental Terms. In respect of any Personal Data transferred by Thirsty John’s to Vendor/Store, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A, included as part of the Aggregator Method Specific Supplemental Terms.
c. Aggregate Data. Vendor/Store acknowledges that Thirsty John’s may use aggregated, anonymized data related to Vendor/Store’s transactions in connection with the Thirsty John’s Services ("Aggregate Data"). If Vendor/Store allows a third party to provide technology services to Vendor/Store in connection with Vendor/Store’s obligations under this Agreement, then Thirsty John’s may share Aggregate Data with such third party to enable the provision of Thirsty John’s Services to Vendor/Store.
d. Third Party Disclosure. Vendor/Store acknowledges that Thirsty John’s may share Vendor/Store contact information (including name, address, email, and phone number) with third parties necessary to Vendor/Store's on-boarding on the Thirsty John’s App, including logistics and/or delivery service providers (for the delivery of Devices or other equipment), as well as photography services (for any photography which may be provided by a third-party provider on behalf of Thirsty John’s).
e. Passwords. Vendor/Store is responsible for maintaining the integrity of information related to Vendor/Store’s access and use of the Thirsty John’s Tools and related Thirsty John’s Services, including any password, login or key information. Vendor/Store represents and warrants that Vendor/Store will not share such information with any third party.
f. Data Identification Restriction. Without limiting any other provision of this Agreement, including any provision in this clause, Vendor/Store will not merge any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, any Personal Data, for re-identification, targeted marketing, analytics or any other similar purpose.
g. Feedback. Vendor/Store may, but is not obligated to, provide or otherwise make available to Thirsty John’s certain feedback, suggestions, comments, ideas, or other concepts relating to Thirsty John’s products and services ("Feedback"). However, to the extent that Vendor/Store provides or otherwise makes available Feedback to Thirsty John’s, Vendor/Store hereby grants to Thirsty John’s a perpetual, irrevocable, worldwide, royalty-free, fully sub-licensable right to use, reproduce, adapt, represent and otherwise exploit such Feedback, during the Term, using all means and media, and without any restriction of any kind concerning exploitation methods, number of prints, dissemination or utilisation.
12. Indemnification.
a. Each party (the "Indemnifying Party") will indemnify, defend and hold harmless the other party, its Affiliates and their respective directors, officers, employees and agents (the "Indemnified Party") from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, "Losses") with respect to any third party claim arising out of or related to: (i) the negligence or wilful misconduct of the Indemnifying Party or its employees or agents (in Vendor/Store’s case, including Aggregator Delivery Partners but excluding Thirsty John’s and Store Direct Delivery Partners to the extent they are Vendor/Store’s agents) in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s (in Vendor/Store’s case, including via Aggregator Delivery Partners) representations, warranties or covenants in this Agreement; and (iii) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party.
b. Vendor/Store will indemnify, defend and hold harmless the Thirsty John’s Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Vendor/Store’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, (B) Vendor/Store’s failure to determine the applicable VAT and other fees charged; (C) Vendor/Store’s failure to apply correct VAT rates, including those rates adjusted by Thirsty John’s on Vendor/Store’s behalf; (D) VAT, other fees, penalties, interest and other costs related to Vendor/Store’s obligations; (E) Vendor/Store copying, storing, retaining, removing from the Thirsty John’s Tools or otherwise processing the Personal Data, except as permitted by clause 11(b) of these General Supplemental Terms; (F) any third party claim for actual or alleged infringement of a third party’s intellectual property or other proprietary rights arising out of or in connection with any Offer run by Vendor/Store and use of Offer Materials; and/or (G) any third party claim arising out of or in connection with the manufacture, production, distribution, handling, advertising, consumption or use of, or otherwise relating to, any Offer run by Vendor/Store, whether or not any claim arises during the Term of the Agreement, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or wilful misconduct of Thirsty John’s or its employees, or agents. Concerning the indemnities in (F) and (G) above, approval by a Thirsty John’s Party of any Offer or use of any Offer Materials shall not affect this right of indemnification.
c. Each Indemnified Party will provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defence of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without the written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defence of a claim, at Indemnifying Party’s expense.
13. Governing Law and Dispute Resolution.
a. Governing Law. This Agreement shall be governed by and construed under the laws of Australia without regard to its conflict of law’s provisions.
b. Dispute Resolution. In the event of any Dispute, the parties shall first endeavour an amicable settlement by good faith consultation and negotiation. If the parties fail to settle within two (2) months of receipt of a dispute notice, the Dispute shall be finally settled under the rules of Arbitration under the Arbitration Laws (as amended from time to time, and as then-current at the time of lodging of the dispute, the “Rules”) by a single arbitrator appointed per such Rules. The place and legal seat of arbitration shall be a legal court in Australia. The language of the arbitration shall be English. This clause 14.b shall be governed by the laws of Australia
14. General.
a. Waiver. The failure of either party to enforce, at any time or for any period, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
b. Modification. Any modification or amendment to the Order Form shall be effective only if in writing and signed by both parties, provided that Thirsty John’s reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Any modification or amendment to the Supplemental Terms shall be under clause II(B) of the Order Form.
c. Severability. If any provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforce-ability of the remainder of the Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of the Agreement.
d. Force Majeure Event. Any delay in or failure by either party in the performance of this Agreement shall be excused if and to the extent such delay or failure is caused by a Force Majeure Event. The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under the Agreement.
e. Assignment. Vendor/Store may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Thirsty John’s. Thirsty John’s may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement without consent or notification. Thirsty John’s shall be expressly discharged from all obligations and responsibilities arising after the assignment or transfer. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.
f. Relationship between the Parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment or worker relationship (including from a labour law, tax law or social security law perspective), between Thirsty John’s (and/or its Affiliates) and Vendor/Store or Thirsty John’s (and/or its Affiliates) and any Delivery Partners; and (b) except as specified in this Agreement, no joint venture, partnership, or agency relationship exists between Thirsty John’s (and/or Thirsty John’s Affiliates) and Vendor/Store or Thirsty John’s (and/or Thirsty John’s Affiliates) and any Delivery Partners. No party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of separate writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with this Agreement. Except as otherwise expressly provided herein concerning Thirsty John’s acting as the limited payment collection agent solely to collect payment from Customers on behalf of Vendor/Store and delivery Partner, the relationship between the parties under this Agreement is solely that of independent contractors.
g. Entire Agreement. This Agreement contains the complete understanding and agreement between the parties and supersedes all prior and contemporary understandings and agreements, whether oral or written. In this Agreement, the words "including" and "include" mean "including, but not limited to."
h. Third-Party Beneficiaries. Vendor/Store acknowledges that there are no third-party beneficiaries to this Agreement, except for Thirsty Johns Ventures. (in its capacity as an affiliate of Mailman Express LTD) and Thirsty John’s Affiliates. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims, except concerning Mailman Express LTD. (in its capacity as an affiliate) and Thirsty John’s Affiliates.
i. Liability. Nothing herein limits or excludes (nor is intended to limit or exclude) any statutory rights that Vendor/Store or Thirsty John’s may have under Applicable Laws that cannot be lawfully limited or excluded.
j. Payment Processing Errors. Thirsty John’s reserves the right, in its sole discretion, to seek reimbursement from Vendor/Store if Thirsty John’s discovers payment processing errors. Thirsty John’s may deduct from Vendor/Store's Item Revenue, debit Vendor/Store's payment method on file, or seek reimbursement from Vendor/Store by any other lawful means to correct any errors. Vendor/Store authorises Thirsty John’s to use any or all of the above methods to seek reimbursement.
k. Notice. Any notice will be sent to the address and electronic means of the relevant party listed in the Order Form and deemed duly given: (a) upon actual delivery if delivery is by hand; or (b) three (3) days after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient.
SPECIFIC SUPPLEMENTAL TERMS STORE DIRECT METHOD
The following Specific Supplemental Terms govern the use of the Store Direct Method and the general availability of Items via the Thirsty John’s App delivered to Customers on behalf of Vendor/Store by Store Direct Delivery Partners ("Store Direct Items"). All undefined, capitalized terms will have the meaning outlined in the Order Form, the Definitions or the General Supplemental Terms.
1. Store Direct Items/Order.
Upon Vendor/Store agreeing to the Order Form, Definitions, General Supplemental Terms and Specific Supplemental Terms governing the Store Direct Method, and contingent upon completion of any additional verification steps, the Thirsty John’s Tools will be made available to Vendor/Store to access and request on-demand delivery services provided by Store Direct Delivery Partners. Neither Thirsty John’s nor its Affiliates provide any delivery services. Rather, the Thirsty John’s Services in connection with the Store Direct Method include, without limitation: (a) providing on-demand lead generation, payment processing, marketing, onboarding, operational and other support services in connection with the sale and delivery of Store Direct Items by Vendor/Store via the Thirsty John’s platforms; and (b) enabling Vendor/Store to access and request on-demand delivery services provided by Store Direct Delivery Partners.
2. Payment.
a. Store Direct Service Fee. In consideration for the Thirsty John’s Services in connection with the Store Direct Method, Thirsty John’s will charge Vendor/Store a Store Direct Service Fee in the amount set out in the Order Form for each Store Direct Item sold by Vendor/Store via the Thirsty John’s App. Thirsty John’s will calculate the Store Direct Service Fee as follows: the Retail Price of the Item(s) sold by Vendor/Store via the Thirsty John’s App (including any VAT or other sales tax) (the "Store Direct Item Payment") multiplied by the Store Direct Service Fee percentage.
b. Store Direct Delivery Services. Vendor/Store will pay a "Store Direct Delivery Fee" to Store Direct Delivery Partners. The Store Direct Delivery Fee may be comprised of multiple components including, but not limited to: pick up fee, drop off fee, time spent, distance travelled, as well as other promotions and incentives. Where applicable, Store Direct Delivery Partners, via the Thirsty John’s App, will invoice Vendor/Store for the delivery services they provide to Vendor/Store, provided that both Vendor/Store and Store Direct Delivery Partner have completed the required Invoice Details. If Vendor/Store is paid for an Item, it is responsible for the Store Direct Service Fee and for the Store Direct Delivery Fee even if a Store Direct Delivery Partner is unable to complete the delivery services on behalf of Vendor/Store. Vendor/Store authorises Thirsty John’s to (i) collect a delivery fee from its Customers on its behalf (the "Store Direct Delivery Charge") and (ii) transfer the applicable Store Direct Delivery Fee earned by a Store Direct Delivery Partner to the Store Direct Delivery Partner on Vendor/Store's behalf. In the event the Store Direct Delivery Fee exceeds the Store Direct Delivery Charge, Thirsty John’s will provide Vendor/Store with a discount of the Store Direct Service Fee equal to the difference between the Store Direct Delivery Fee (excluding any VAT or other sales tax) less the Store Direct Delivery Charge (excluding any VAT or other sales tax) (such discount amount being the "Store Direct Discount").
c. Store Direct Cash Orders. Thirsty John’s may facilitate a delivery option to Customers in the Territory that allows them to pay for a given Store Direct Item provided by Vendor/Store and all associated fees and charges resulting from that transaction in cash (a "Store Direct Cash Order").
d. Store Direct Delivery Charge. Vendor/Store authorises Thirsty John’s to recommend and implement the Store Direct Delivery Charge (comprised of one or more components), and to subsequently suggest and implement modifications, taking into account factors including (but not limited to) customer demand, delivery time, delivery distance, and basket size.
e. Collections. Notwithstanding the appointment of Thirsty John’s by Vendor/Store as its limited payment collection agent under the Agreement, in the event of a Store Direct Cash Order request by a Customer, Vendor/Store authorises a Store Direct Delivery Partner to collect the Store Direct Item Payment sold by Vendor/Store via the Thirsty John’s App (including any VAT or other sales tax) together with the Store Direct Delivery Charge from the Customers on behalf of Vendor/Store. The Store Direct Delivery Partner shall be notified of the funds to be collected by the Store Direct Delivery Partner ("Store Direct Cash Collections"), exclusive of any gratuities, in the Thirsty John’s App. Thirsty John’s role as Vendor/Store’s agent concerning Store Direct Cash Collections shall be to collect the Store Direct Item Payment and Thirsty John’s Store Direct Service Fee from Store Direct Delivery Partners by either obtaining the funds electronically or offsetting such amounts from funds otherwise due to Store Direct Delivery Partners from their delivery services in aggregate generated on the Thirsty John’s App. Vendor/Store acknowledges and agrees that collection shall be the responsibility of the Store Direct Delivery Partner. If for whatever reason Store Direct Delivery Partner’s electronic payment to Thirsty John’s is delayed or unsuccessful, Thirsty John’s, in its capacity as Vendor/Store’s collection agent, will act as a fall-back and ensure receipt of payment by Vendor/Store. Vendor/Store acknowledges and agrees that in consideration of Thirsty John’s provision of lead generation, demand prediction, and other related services provided via the Thirsty John’s App under the Agreement, Vendor/Store owes Thirsty John’s the respective Store Direct Service Fee, regardless of collections related to the attempted or completed deliveries. Thirsty John’s shall not be deemed to have waived its right to any amounts owed by Vendor/Store if: (a) there are insufficient payment Stripe order to set off against; (b) Vendor/Store does not timely repay any amounts owed to Thirsty John’s; or (c) Thirsty John’s elects to require a minimum amount owed before initiating collection efforts or otherwise delays collecting amounts owed by Vendor/Store. Thirsty John’s reserves the right to suspend Vendor/Store’s account if Vendor/Store maintains a negative balance for more than one (1) week. With each payment statement, Thirsty John’s shall report any offsetting and deductions.
f. Revenue Transfer. Thirsty John’s will transfer to Vendor/Store the total Store Direct Item Payment (including any VAT or other sales tax collected on Vendor/Store’s behalf) earned by Vendor/Store, together with the Delivery Charge collected from Customers on behalf of Vendor/Store, less (1) the Store Direct Delivery Fee, (2) the Store Direct Service Fee (modified to reflect the Store Direct Discount, if any) and (3) any refunds given on behalf of Vendor/Store to Customers (such final transferred amount being the "Store Direct Item Revenue"). The Store Direct Item Revenue will be transferred weekly.
g. No Additional Amounts. Vendor/Store acknowledges that the Store Direct Item Payment and the Store Direct Delivery Charge is full payment for the Items and delivery services provided by Vendor/Store to Customers, although the Thirsty John’s Services may provide Customers with the ability to apply a gratuity through the Thirsty John’s Services. Concerning cash gratuities provided by a Customer directly to a Store Direct Delivery Partner, no portion of that gratuity is owed to or should be paid to Thirsty John’s.
3. Batched Trips.
Thirsty John’s may, at its sole discretion, arrange for one Store Direct Delivery Partner to deliver orders to multiple Customers as part of the same trip. Batched trips may include multiple orders from Vendor/Store, or one or more orders from Vendor/Store combined with one or more orders from the same Vendor/Stores using the Thirsty John’s App.
NON-DELIVERY
The following Specific Supplemental Terms govern the Pickup Method and Items provided to Customers via the Pickup Method ("Pickup Orders"). All undefined, capitalized terms will have the meaning outlined in the Order Form, the Definitions or the General Supplemental Terms.
1. Pickup Orders.
Upon Vendor/Store agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Pickup Method, and contingent upon completion of any additional verification steps, the Thirsty John’s Tools will be made available to Vendor/Store for it to allow Customers to collect Items requested via the Thirsty John’s App from a specified location without the involvement of a Delivery Partner. Vendor/Store agrees to make Items available via the Thirsty John’s App during its normal business hours, and as further outlined in this clause or mutually agreed between the parties in writing.
2. Payment.
a. Pickup Service Fee. In consideration for the Thirsty John’s Services in connection with the Pickup Method, Thirsty John’s will charge Vendor/Store a Pickup Service Fee
b. Delivery Services. Pickup Orders do not require the involvement of a Delivery Partner. As such, for Pickup Orders, no delivery services are provided, so there is no Delivery Fee or Delivery Charge.
Customer Service
Please feel free to reach out with any inquiry via phone or email at deliveries@thirstyjohns.delivery
Consent
By using our website and all Thirsty John’s Services and tools, you hereby consent to and agree to this Terms and Conditions.
These terms and conditions are effective as of 15 September 2020.