Vendor T's of U's and T's of C's
BEFORE YOU USE THE HEYDOOR MARKETPLACE, OPERATED BY HEYDOOR TECHNOLOGIES AUSTRALIA PTY LTD (“HEYDOOR,” “WE” OR “OUR”) PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET OR STOREFRONT ORDER ADDENDUM WITH HEYDOOR OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS (“YOU” OR “MERCHANT”) AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET OR STOREFRONT ORDER ADDENDUM.
SECTION 18 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 19 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 18 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
Table of Contents
“Heydoor Endorser” means providing the unique heydoor customer service system.
“Heydoor customer service system™” means taking heydoor customer orders to the customers at your entrance door.
API means the heydoor application program interface (API) that allows the merchant to exchange information with heydoor
“Heydoor data” shall mean any data or information that heydoor generates or collects in connection with the provision or operation of the heydoor platform or the heydoor services provided under this agreement, including transaction data and customer data and any information or data it provides or make accessible to Vendors through the heydoor platform, including without limitation personal information.
“Customer” means the customer who places an order for merchant products through the heydoor marketplace.
“Heydoor Marketplace” means heydoor proprietary online communication platform where customers can view and search for the menus of the Vendors and/or place an order for merchant products via the heydoor mobile application for HOTD™ to the customer. This is also referred to herein as the heydoor platform.
“Heydoor Services” means heydoor marketplace, and heydoor ™ as applicable.
“Marketplace Orders” means orders for merchant products through the heydoor marketplace from heydoor customers.
“Vendor” means the restaurants or other entity that has agreed to endorse the heydoor services.
“Vendor Portal” is an online website accessible at https://vendor.heydoor.com.au, which merchant must regularly review and confirm their orders, transactions, menus, and account details on the platform.
“Vendor” products include all products offered for takeout at the vendor’s stores.
“Vendor Stores” means the vendor outlets, which endorse and participate in the heydoor HOTD ™ services.
“Marketplace Term” means the term or agreement between heydoor and the merchant for the heydoor marketplace.
“Order” means customer order.
“Order Equipment” means and includes any equipment reasonably required by heydoor for Vendors to receive and process orders, including a tablet or other automated, electronic means of receiving orders.
“HOTD ™ Term” means the term of the agreement between heydoor and vendor for the collection of orders.
“Personal Information” shall mean any information exchange under this agreement that identifies or can be used to identify an individual(including without limitation names, telephone numbers, address, signatures, email addresses or other unique identifiers) or that can be reasonably used to authenticate an individual(including without limitation name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered “personal data” or “Personal information” under applicable law)
“Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form, enabling the merchant to make payments and support requests.
The party’s relationship
heydoor provides an online marketplace platform using web base technology that connects vendors and customers as described in these terms for heydoor marketplace and heydoor’s goods out the door service.
heydoor is not a vendor or merchant, it is an online connection platform for all community members. Vendor and heydoor agree that they are independent businesses whose relationship governed by the endorser document and these terms. Nothing in the parties agreements, relationship or transaction shall create or be construed as creating an agency, partnership, fiduciary or join venture relationship between heydoor and vendor(or Vendor employees, representatives or locations) and customers. Each party shall be responsible for its own expenses, profits and losses.
Marketplace core responsibilities
For vendors that have agreed to participate in the heydoor marketplace and heydoor service systems shall have the following responsibilities during the marketplace terms
heydoor core responsibilities heydoor will promptly;
Display vendor’s name, logo, photographs, listing the vendors’ stores, and a menu of vendors products on the heydoor platform’s.
Receive marketplace orders from customers.
Forward each marketplace orders to the relevant vendor store; so that the heydoor customer can pick up their applicable vendor product(s) from the vendor’s store handed to them at the door.
Pay the vendor per the heydoor’s zero commission policy, deducting applicable subscription fees. (in each case, as may be adjusted by heydoor as required by any applicable statute, regulation, executive order, or other legal requirements that is either temporary or permanent in nature)
Is to notify its customers immediately of all order statuses from the vendor
Vendor core responsibilities. Vendor will promptly
Provide heydoor with the vendors in-store or takeout menu, including the current price of each item on such menu.
Monitor vendors menu and store information on the heydoor marketplace, promptly make updates via the vendor portal to reflect most up to date products, pricing and other information. If the data will create harm or negligence, please call or email heydoor immediately.
Accept all marketplace orders place by heydoor from vendors then-current menu.
Confirm all marketplace orders from heydoor, prepare the vendor products for each marketplace order for heydoor customers at the designated time,
Place marketplace orders in the order they are received, update the heydoor vendor portal of any changes to the pricing, availability, description or other characteristics of the vendor products.
Serve the heydoor customers by following the HOTD service procedure & greeting with a “heydoor”.
Notify heydoor of its days and hours of operations and remain open for business on heydoor the same days and hours of operation as vendors in-store business; notify heydoor of any changes to vendors hours of operations, on holidays and if the vendor closes earlier than vendors standard hours of operation or plans to close earlier than vendors regular hours of operation.
During the terms of the agreement, the vendors portal must solely be manage by the owner/ authorized personal.
Provide the same utensils, napkins, bags and other materials that the vendor will typically provide in a standard takeout or delivery order. If you have environmentally friendly alternatives, we highly encourage these to be used instead.
Use its standard business practice to prepare vendors products that are the subject of each marketplace order; and
Ongoing basis review and confirm the transactions, fees on orders via the vendors portal and promptly communicate to heydoor any inaccuracies
It is the vendors’ responsibility to notify the heydoor marketplace of declined orders immediately.
The vendor agrees to notify all staff members in vendors stores of vendors relationship with heydoor before accepting any orders through heydoor.
For vendors that have agreed to endorse and participate in the heydoor customer service procedure, during HOTD™ term, heydoor will have the same responsibilities as set forth in Section 3(1)(a) – 3(1)(e) and vendors will have the same responsibilities as set forth in Section 3(2)(a) – (k). Furthermore, once heydoor enables the ability for vendor to set different prices for Vendor Products under the HOTD™ Program than the prices for such Vendor Products shall ensure that pricing of vendor Products under the HOTD™ Program is not greater than the pricing of the same vendor Products for pickup (a) in-store and (b) on any other third party food ordering platform. We prefer/want the pricing on heydoor is to be the same as in store or on the take away menu/product listings as we are charging vendors ZERO commission. So there is no need for mark ups on products to compensate the loss of commission/earnings from your products.
Refunds and reorders
Refunds and re-orders will be addressed as follows:
heydoor does not provide refunds or credit to accounts to users if there is an issue with the order items. Heydoor is a link to connect you to on foot customers, the same way click and collect is. Every customer you serve through heydoor, is treated the same way as if they have walked in, placed and paid at your counter.
Order Refunds: Vendor will prepare the food/products to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable.
heydoor fault: If there is a fault in out system, and you don’t not receive an order but a customer is waiting for it. Please write down the order number/ID the order, the cost of the order, the customer’s name and number and let us know asap.
In the event that this happens, please check the customers receipt to see if the order has been generated. If there is no receipt, please request the customer to put through the order again and pay. Get the customer to notify us and we will check the accounts to see if there has been a double payment made by that customer.
With respect to the heydoor Platform, vendor will install any equipment reasonably required by heydoor for vendor to receive and process Orders (including, without limitation, a tablet, or other automated, electronic means of receiving Orders) (“Order Equipment”). If any Order Equipment is provided by heydoor, ((vendor will pay heydoor a Holding Order Equipment Fee of $50 which is refundable once returned)), as set forth in the On boarding Sheet, in exchange for the right to use the Order Equipment to access the heydoor Platform in order to receive, process, and accept Marketplace and HOTD™ Orders. Any Order Equipment provided by heydoor will remain heydoor’s sole property and only used solely for purposes related to fulfilling vendor’s responsibilities under this Agreement. Vendor will inspect all hardware, and shall notify heydoor in writing and mark as Vendor closed in heydoor portal if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage.
heydoor may restrict or rescind Vendor’s right to use the heydoor Platform at any time by giving notice.
Vendor will be responsible for any damage to or loss of any Order Equipment provided by heydoor (excluding ordinary wear and tear), which will be promptly recovered by Vendor (at the replacement cost thereof).
heydoor will recover the replacement cost of damaged or lost Order Equipment by deducting such amount from vendors credit card.
Payment, Fees, Title and Taxes
Payment, fees, and taxes shall be addressed as follows:
heydoor Marketplace and HOTD™: heydoor will pay for Marketplace and HOTD™Orders fulfilled by vendor each day on a consistent day of the week, subject to change with no less than 10 days’ notice to Vendors by email or service notification. Heydoor will deduct a monthly payment of heydoor’s subscription fees after the trail period.
If Vendor has opted for heydoor to provide Order Equipment, heydoor will also deduct a one-off holding fee of $50 which is refundable on the return of the Equipment in good working order, as set forth on the On-Boarding Sheet, in exchange for the Vendor’s right to use the Order Equipment to access the Heydoor Platform in order to receive, process, and accept Orders. Vendor agrees heydoor will charge the Customer a Service Fee on all orders (Regardless the order amount).
Vendor shall be responsible for all taxes, duties, and other governmental charges on the sale of Vendor Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Vendor decides to raises the price for a menu item (reflects the same price as in-store menu), vendor shall do so after business hours by updating heydoor portal.
Vendor agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Vendor Portal, and to promptly communicate to heydoor in writing any claimed inaccuracies, so that heydoor has the prompt opportunity to address and resolve any issues and so such issues do not persist, which heydoor and Vendor agree is in the best interests of both parties and their commercial relationship. Vendor agrees to communicate to heydoor any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Vendor shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Vendor does not communicate a written claim or objection to Heydoor regarding such transaction, fee, charge or order within such 60-day period.
Vendor agrees that Vendor holds title to the goods or products that Vendor provides through the Platform until the goods are HOTD™ from Vendor, and that title passes from the Vendor to the Customer upon receiving order at/out the Vendor’s entrance/door. Vendor agrees that heydoor does not hold title to or acquires any ownership interest in any goods or products that Vendor prepares or provides through the Platform.
Payment processing services for Vendors on the heydoor Platform are provided by Square Up and are subject to the Square Services Agreement. By agreeing to these Terms, Vendor agrees to be bound by the Square Services Agreement, as the same may be modified by Square from time to time. As a condition of heydoor enabling payment processing services through Square, Vendor agrees to provide heydoor accurate and complete information about Vendor’s representative and its business, and Vendor authorizes heydoor to share it and transaction information related to Vendor’s use of the payment processing services provided by Square. Square has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.
Use of Marchant content,Trademark
During the Marketplace Term vendor grants to heydoor a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the vendor Content in the provision of services to vendor, including listing vendor as a merchant on the heydoor Platform, referencing vendor as a heydoor endorser, and to promote heydoor’s products and services. As used herein, “vendor Content” includes, without limitation, menus, photographs (either provided by vendor or on vendor’s website), trademarks, logos and other materials provided by vendor to heydoor.
If photographs of vendor’s logo, menu items are not available or if they do not meet heydoor’s requirements, as reasonably determined by heydoor, then vendor consents to heydoor (i) engaging a professional photographer to take photographs of vendor’s location and menu items (ii) enhancing the quality of vendor’s existing photographs or (iii) using stock photos of the menu item, and displaying such photographs on the heydoor Platform as representations of vendor’s menu items; provided that vendor may contact heydoor support to have such photographs removed from the vendor’s store listing and, in such event, heydoor will comply in a timely manner.
The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, heydoor Data is the Confidential Information of heydoor.
Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 10(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.
Data privacy and security
Vendor will not allow any third party to use the heydoor Platform and will be responsible for damages resulting from sharing Vendor’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Vendor’s account. Vendors may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the heydoor Platform; damage, destroy or impede the services provided through the heydoor Platform; transmit injurious code; or bypass or breach any security protection on the heydoor Platform. Where Vendor party becomes aware of any “Eligible Data Breach” (as that term is defined in the Privacy Act 1988 (Cth)) in respect of Personal Information in its possession or control received from heydoor, Vendor must promptly notify heydoor and cooperate with investigations regarding the same.
Vendor may terminate this Agreement for any reason at any time upon seven (7) days prior written notice. heydoor may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Vendor nor heydoor will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Vendor or heydoor.
heydoor reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. heydoor may, at its sole discretion, remove Vendor Products or Stores from the heydoor Platform if heydoor determines that such Vendor Product or Vendor Store could subject heydoor to undue regulatory risk, health and safety risk, or other liability. heydoor also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at http:heydoor . We will notify Vendors of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms. If you do not agree to the revised Terms, you may terminate this Agreement by notice to heydoor.
Representations & warranties, Disclaimer
Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.
Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.
Vendor further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed heydoor of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Vendor Product(s) and it will inform heydoor of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Vendor’s menu items listed on the heydoor marketplace, (iv) it will only list menu items or products for sale, product descriptions, and prices on the heydoor Platform, (v) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Vendor’s menus or products on the heydoor marketplace, (vi) it will not disclose any information related to a Customer to a third party (except as required to comply with law or pursuant to a court order), (vii) it will comply with the guidelines heydoor publishes that govern any content Vendor posts on the heydoor Platform or Vendor Portal.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEYDOOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE HEYDOOR PLATFORM, EQUIPMENT OR HEYDOOR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NOTHING IN THIS AGREEMENT EXCLUDES, RESTRICTS OR MODIFIES ANY RIGHT OR REMEDY, OR ANY GUARANTEE, WARRANTY OR OTHER TERM OR CONDITION, IMPLIED OR IMPOSED BY ANY LEGISLATION WHICH CANNOT LAWFULLY BE EXCLUDED OR LIMITED. IF ANY GUARANTEE, WARRANTY, TERM OR CONDITION IS IMPLIED OR IMPOSED IN RELATION TO THIS AGREEMENT UNDER THE AUSTRALIAN CONSUMER LAW OR ANY OTHER APPLICABLE LEGISLATION AND CANNOT BE EXCLUDED (A NON-EXCLUDABLE PROVISION), AND A PARTY IS ABLE TO LIMIT ITS LIABILITY FOR A BREACH OF THE NON-EXCLUDABLE PROVISIONS, THEN THE LIABILITY OF THAT PARTY FOR BREACH OF THE NON-EXCLUDABLE PROVISIONS IS LIMITED TO ONE OR MORE OF THE FOLLOWING AT THAT PARTY’S OPTION: (1) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; OR (2) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN. Vendor acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and, subject to the Non-Excludable Provisions, heydoor shall not be responsible to Vendor or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the heydoor services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of heydoor (or, in the case of Vendor as the Indemnifying Party, caused by the Vendor Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 10 and Section 11, and Section 14 of this Agreement; or (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, products, documentation, or other intellectual property (collectively, “Materials”). In addition, Vendor will defend, indemnify and hold harmless heydoor from any and all Losses related to any violation or alleged violation of any applicable retail food, retailer or other health and safety code, rule, or regulation related to Vendor Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of heydoor. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. heydoor assumes no liability, and shall have no liability, for any infringement claim pursuant to section 14(4) above based on Vendor’s access to and/or use of the heydoor Platform following notice of such an infringement claim; any unauthorized modification of the heydoor Platform by Vendor; or Vendor’s combination of the heydoor Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.
Limitations of liability
SUBJECT TO THE NON-EXCLUDABLE PROVISIONS AND EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO HEYDOOR BY VENDOR IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 15 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY (INCLUDING NEGLIGENCE). THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH heydoor AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 18 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or heydoor may seek injunctive relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). heydoor and Vendor agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
CASES HAVE BEEN FILED AGAINST HEYDOOR—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH HEYDOOR, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST HEYDOOR IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
Arbitration Rules and Forum.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to heydoor’s registered agent. The arbitration will be conducted by the Australian Disputes Centre (“ADC”) under its then-current arbitration rules and pursuant to the terms of this Agreement. ADC’s arbitration rules are available at https://www.disputescentre.com.au/adc-rules-for-domestic-arbitration/. Payment of all filing, administration, and arbitration fees will be governed by ADCs rules. If the arbitrator finds that you cannot afford to pay ADC’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver of fees from ADC, heydoor will pay them for you. In addition, heydoor will reimburse all such ADC filing, administrative, hearing and/or other fees for claims with an amount in controversy totalling less than AUD $10,000. If ADC is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and heydoor. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and heydoor.
Waiver of Jury Trial. YOU AND HEYDOOR WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and heydoor are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 18(1) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
Waiver of Class or Consolidated Actions; Severability. YOU AND HEYDOOR AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE VENDOR CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor heydoor is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 19, and all other provisions of this Section 18 (Dispute Resolution) shall remain in force. If any provision of this Section 18 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 18. Nothing in this provision shall prevent you or heydoor from participating in a class-wide settlement of claims.
Opt Out. heydoor’s updates to these Terms of Service do not provide a new opportunity to opt out of the Arbitration Agreement if you had previously agreed to a version of heydoor’s Terms of Service and did not validly opt out of arbitration. heydoor will continue to honour the valid opt outs of merchants who validly opted out of the Arbitration Agreement in a prior version of the Terms of Service.
To opt out, you must notify heydoor in writing of your intention to opt out by sending a letter, by First Class Mail, to heydoor,2/27-33 Raglan Street, South Melbourne 3205. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked no later than 30 days after your first order on the Platform. Your notice must include your name and address, your heydoor username (if any), the email address you used to set up your heydoor account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one merchant, and letters that purport to opt out multiple merchants will not be effective as to any. No merchant (or his or her agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.
Survival. This Arbitration Agreement will survive any termination of your relationship with heydoor.
Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if heydoor makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.
As set forth on the Sign-Up Sheet between Vendor and heydoor, the Sign-Up Sheet and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the state of Victoria, Australia without regard to the conflicts of laws principles thereof. Vendor agrees that, except as set forth above in Section 18 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of the Vendor’s location. Vendor may not assign this Agreement in whole or in part without heydoor’s prior written consent. heydoor may freely assign this Agreement. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. All notices, requests, consents and other communications under the Parties’ agreements must be in writing, and delivered by overnight courier to the addresses set forth on the Onboarding Sheet (or any updated address properly noticed hereunder). heydoor’s address is 2/27-33 Raglan Street, South Melbourne 3205. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.
Code of Conduct
Vendor agrees to comply with the Partner Code of Conduct (https://www.heydoor.com/vendor/code-of-conduct) which may be updated by heydoor from time to time. If Vendor does not agree with those amendments, Vendor may immediately terminate this Agreement.